Full Judgment Text
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CASE NO.:
Appeal (civil) 5757-5759 of 2002
PETITIONER:
State of U.P. & Anr.
RESPONDENT:
Om Prakash & Ors.
DATE OF JUDGMENT: 21/07/2006
BENCH:
H.K. SEMA & A.K. MATHUR
JUDGMENT:
J U D G M E N T
H.K.SEMA,J
WITH
C.A.No.5761-5763/02,C.A.No.5765-5766/02,C.A.No.5760/02,
C.A.No.5764/02, C.A.No 3078 of 2006 @ SLP (c)No.24710
of 2002, C.A.No 3097 of 2006 @ SLP(C)No.24189/02,
C.A.No.7013/04, C.A.No.174/05, C.A.No.275/05,
C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05,
C.A.No.1191/05, C.A.No.1192/05, C.A.No.1193/05,
C.A.No.2734/05 and C.A.No.7533 of 2005.
Delay condoned in SLP (c) Nos.24710 and 24189 of
2002 and leave granted.
I.A.Nos.3-4 of 2001 for impleadment and I.A.Nos.7-
8 of 2004 for intervention in C.A.No.5765-5766 of 2002 are
rejected.
These bunch of appeals raise a common question of
fact and law and as such they are being disposed of by this
common judgment. For the sake of brevity we are taking the
facts from Civil Appeal No.5757-5759 of 2002.
The facts are cumbersome. Avoiding prolixity few
facts are recited. The whole controversy revolves around the
selection made by the Uttar Pradesh Public Service
Commission (hereinafter referred to as the UPPSC) for the
Medical Officers of Homeopathy.
Pursuant to the advertisement dated 22.3.1986 and
a corrigendum dated 14.11.1987, 390 posts were advertised to
be filled up by the Homeopathic Medical Officers through
UPPSC. Alongwith others respondents also applied for the
posts for which the interview was held on 23.10.1990. The
appointments were to be made on the basis of oral interview
and also the marks to be awarded on the qualifications of each
candidate.
It is stated that the respondents possess the
Bachelor Degree of Homeopathic Medicine and Surgery
(B.H.M.S ). It is also stated that they have completed five years
course including one-year compulsory routine internship in
Government Hospitals and Public Health Centres from
Homeopathic Medical College affiliated with the Agra
University in the year 1985.
To appreciate the real controversy in perspective, it
is necessary to notice the requisite qualification mentioned in
the advertisement as per the requirement of Rule 8 of the
Uttar Pradesh Homeopathic Medical Service Rule, 1990 ( in
short Rules).
"8. Academic qualification:-
A candidate for direct recruitment to the
service must possess:-
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I. a recognized degree in Homeopathic, the
duration of study of which is not less than
five years according to its syllabus of course.
OR
a recognized Diploma in Homeopathy the
duration of study of which is not less than four
years according to its syllabus of course.
Provided that preference will be given to
degree holders.
(emphasis supplied)
II. The applicant should be duly registered
with the Homeopathic Medical Board, Uttar
Pradesh.
It will be noticed from the above quoted rules that in
addition to the requisite qualification a proviso has been added
"preference will be given to degree holders".
The real controversy starts from the proviso that
"preference will be given to degree holders".
For total seats of 390, 716 degree holders applied,
out of which 565 were found eligible for interview and out of
them 109 have been recommended and appointed. The total
number of diploma holders who had applied for the posts were
4239, out of which 1989 were called for interview and 302
were recommended. The diploma holders in general category
who had secured 49% marks were called for interview whereas
in the case of backward class candidates those who had
secured 48.7% marks were called for interview.
In the batch of writ petitions the main judgment
was delivered by the Division Bench of the High Court in Civil
Misc.Writ Petition No.10175 of 1994 disposed of on 19.7.1996.
The judgment of the Division Bench dated 19.7.1996 passed
in Civil Misc. Writ Petition has not been assailed by the
appellants and therefore it has attained finality. What has
been appealed against in this bunch of appeals is the
subsequent order of the High Court following the decision
dated 19.7.1996 rendered in Civil Misc.Writ Petition No.10175
and batches of 1994.
Undisputedly, the respondents were degree holders
with requisite qualification as prescribed in the advertisement.
The apple of discord centers around the proviso. The
respondents/writ petitioners contended before the High Court
that such preference has not been given to the degree holders
and they were clubbed together with the diploma holders and
considered as such by the Commission. The respondents
challenged the entire selection in the writ petition as ultra vires
the qualifications prescribed in the advertisement. The select
list has also been challenged on the ground of arbitrariness as
according to the respondents/writ petitioners the preference
clause was totally ignored. It was contended before the High
Court by the appellants that the ratio for filling up 390 total
seats was in the ratio of 1 to 8. In other words, for filling up
the 390 total seats, 2554 candidates were called for interview,
out of which 1989 were diploma holders and 565 degree
holders were found eligible.
The High Court after repelling the contention of the
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appellants has interpreted the preference clause as under:-
"If we read the preferential clause, giving the
ordinary literal meaning, the Degree holders
were to be preferred to Diploma holders, as
has been explained in the advertisement itself,
i.e. the Diploma holders will be considered only
when the Degree holders are not available in
requisite number. These are the words used in
the clarification clause given in the
advertisement. It is plain and clear from those
words that in case where Degree holders are
not available in requisite number, only then,
Diploma holders are to be considered.
Therefore, there was no rationality in clubbing
them together while considering the preference
to be given to the Degree holders."
The High Court rejected the consistent contention of
the appellants that the writ petitioners/respondents herein
were also called for interview and they were not selected for
the posts.
However, the High Court on the aforesaid reasoning
of interpretation of preference clause as prescribed in the
advertisement has came to the following conclusion:
"Considering the facts and circumstances of
the case, we have no hesitation in holding that
the Commission acted in most arbitrary and
unreasonable manner in making selection for
the post of Homeopathic Medical Officer. It is
not expected from such a constitutional body,
like the public Service Commission to act in
such a casual manner while considering the
public employment. We would have had no
hesitation in quashing the entire selection
made by the Commission but considering the
public interest and also bearing in mind that
the persons already selected have been
appointed and are working on their posts as
Homeopathic Medical Officers for more than
two years and they could not be made party in
these writ petitions, although a few of them
have intervened by filing applications and have
been heard, and further that fresh selection
will unreasonably delay causing inconvenience
to the public in general, we refrain from doing
so in the larger interest. Therefore, on
conclusion of the hearing, we sought
information from the learned Standing Counsel
as to how many posts of Homeopathic Medical
Officers are still vacant. The learned Standing
Counsel filed an affidavit on behalf of the State
annexing therewith a letter dated 20.5.1996,
disclosing that 50 posts of Homeopathic
Medical Officers are still lying vacant, out of
which 15 posts are earmarked for the female
candidates. Therefore, considering all these
circumstances, we are of the view that it would
be equitable in the facts of the case to issue
direction to the Commission to forward the
names of all the petitioners to the State
Government for appointment on the vacant
post of Homeopathic Medical Officers."
The interpretation of the preference clause given by
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the High Court runs into the teeth of the decisions rendered
by this Court in a catena of cases.
This Court has consistently held that when
selection is made on the basis of merit assessed through the
competitive examination and interview, preference to
additional qualification would mean other things being
qualitatively and quantitatively equal, those having additional
qualification would be preferred. It does not mean en bloc
preference irrespective of inter se merit and suitability.
In Secy.(Health) Deptt. Of Health & F.W. vs.
Dr.Anita Puri (1996) 6 SCC 282, this Court held that
preferential qualification do not as of right entitle to selection.
In that case the advertisement inviting applications for the
post of Dental Officers prescribed B.D.S. as the minimum
qualification but stipulated preference for higher dental
qualification. This Court held at scc p.285 as under:-
"Admittedly, in the advertisement which was
published calling for applications from the
candidates for the posts of Dental Officer it
was clearly stipulated that the minimum
qualification for the post is B.D.S. It was also
stipulated that preference should he given for
higher dental qualification. There is also no
dispute that M.D.S. is higher qualification
than the minimum qualification required for
the post and the Respondent No. 1 was having
that degree. The question then arises is
whether a person holding a M.D.S.
qualification is entitled to be selected and
appointed as of right by virtue of the aforesaid
advertisement conferring preference for higher
qualification? The answer to the aforesaid
question must be in the negative. When an
advertisement stipulates a particular
qualification as the minimum qualification for
the post and further stipulates that preference
should be given for higher qualification, the
only meaning it conveys is that some
additional weightage has to be given to the
higher qualified candidates. But by no stretch
of imagination it can be construed to mean
that a higher qualified person automatically is
entitled to be selected and appointed. In
adjudging the suitability of a person for the
post, the expert body like Public Service
Commission in the absence of any statutory
criteria has the discretion of evolving its mode
of evaluation of merit and selection of the
candidate. The competence and merit of a
candidate is adjudged not on the basis of the
qualification he possesses but also taking into
account the other necessary factors like career
of the candidate throughout his educational
curriculum, experience in any field in which
the selection is going to be held; his general
aptitude for the job to be ascertained in course
of interview, extra-curriculum activities like
sports and other allied subjects personality of
the candidate as assessed in the interview and
all other germane factors which the expert
body evolves for assessing the suitability of the
candidate for the post for which the selection
is going to be held. In this view of the matter,
the High Court in our considered opinion was
wholly in error in holding that a M.D.S.
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qualified person like Respondent No. 1 was
entitled to be selected and appointed when the
Government indicated in the advertisement
that higher qualification person would get
some preference. The said conclusion of the
High Court, therefore, is wholly unsustainable
and must be reversed".
This Court again considered the same question in
Secretary, A.P.Public Service Commission vs.
Y.V.V.R.Srinivasulu (2003) 5 SCC 341 and held at scc p.348
as under:-
"The word "preference" in our view is capable
of different shades of meaning taking colour
from the context, purpose and object of its use
under the scheme of things envisaged. Hence,
it is to be construed not in an isolated or
detached manner, ascribing a meaning of
universal import, for all contingencies capable
of an invariable application. The procedure for
selection in the case involve, a qualifying test,
a written examination and oral test or
interview and the final list of selection has to
be on the basis of the marks obtained in them.
The suitability and all round merit, if had to be
adjudged in that manner only what
justification could there be for overriding all
these merely because, a particular candidate is
in possession of an additional qualification on
the basis of which, a preference has also been
envisaged. The rules do not provide for
separate classification of those candidates or
apply different norms of selection for them.
The ’preference’ envisaged in the rules, in our
view, under the scheme of things and
contextually also cannot mean, an absolute en
bloc preference akin to reservation or separate
and distinct method of selection for them
alone. A mere rule of preference meant to give
weightage to the additional qualification
cannot be enforced as a rule of reservation or
rule of complete precedence. Such a
construction would not only undermine the
scheme of selection envisaged through the
Public Service Commission, on the basis of
merit performance but also would work great
hardship and injustice to those who possess
the required minimum educational
qualification with which they are entitled to
compete with those possessing additional
qualification too, and demonstrate their
superiority merit wise and their suitability for
the post. It is not to be viewed as a preferential
right conferred even for taking up their claims
for consideration. On the other hand, the
preference envisaged has to be given only
when the claims of all candidates who are
eligible are taken for consideration and when
anyone or more of them are found equally
positioned by using the additional qualification
as a tilting factor, in their favour vis-a-vis
others in the matter of actual selection".
In the instant case, the requisite academic
qualification for the post of homeopathy as prescribed in the
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advertisement was a recognized degree in Homeopathy or a
recognized diploma in Homeopathy. A proviso has been added
that preference will be given to degree holders. This would
mean that a recognized diploma in homeopathy prescribed in
the advertisement is also a required minimum educational
qualification with which they are entitled to compete with
those candidates possessing the degree. The word preference
would mean that when the claims of all candidates who are
eligible and who possess the requisite educational qualification
prescribed in the advertisement are taken for consideration
and when one or more of them are found equally positioned,
then only the additional qualification may be taken as a tilting
factor, in favour of candidates vis-‘-vis others in the merit list
prepared by the Commission. But preference does not mean
en bloc preference irrespective of inter se merit and suitability.
That apart this Court has consistently held that
inclusion of candidate’s name in merit list does not confer any
indefeasible right to be appointed. [ See Shankarsan Dash v
Union of India, AIR 1991 SC 1612 and Union Territory of
Chandigarh v Dilbagh Singh, (1993) 1 SCC 154 ]
In the facts aforesaid we are clearly of the view that
the High Court has misdirected itself by issuing such
directions despite the fact that the respondents were not
selected by the Commission.
Counsel for the respondents herein would contend
that since the order of the High Court dated 19.7.1996 passed
in Civil Misc. Writ Petition No.10175 of 1994 and batches has
now attained finality, the subsequent order of the High Court
following the same decision assailed in the present appeals
must also be dismissed. We are unable to accept this
contention. Adhering to such contention would amount
allowing the perpetuation of illegality.
We may also dispose of one of the arguments of the
counsel for the appellants. Counsel contended that the
judgment of the High Court dated 19.7.1996 passed in Civil
Misc. Writ Petition No.10175 of 1994 which judgment was
followed in a subsequent order has been assailed in this batch
of appeals and, therefore, the judgment dated 19.7.1996 is
clearly illegal and the same should also be set aside. We are
unable to agree with this submission for more than one
reason. Firstly, the judgment dated 19.7.1996 has not been
appealed against and it has now been implemented and has
attained finality. Secondly, the writ petitioners in Civil Misc.
Writ Petition No.10175 of 1994 and batches thereof which
were allowed by the High Court in its judgment dated
19.7.1996 are not before us.
However, the subsequent orders following the
judgment by the High Court dated 19.7.1996, which has been
assailed in these bunch of Civil Appeals, are quashed and set
aside. Accordingly, Civil Appeal Nos.5757-5759/02, 5761-
5763/02, 5765-5766/02, 5764/02, C.A.No\005\005\005\005
\005\005\005of 2006 @ SLP ( c ) No.24710/02, C.A.No\005\005\005of 2006
@ SLP (c) No.24189/02, C.A.No.174/05, C.A.No.275/05,
C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05,
C.A.No.1191/05, C.A.No.1192/05, C.A.No.1193/05,
C.A.No.2734/05 and C.A.No.7533 of 2005 filed by the State of
U.P. and Uttar Pradesh Public Service Commission are
allowed.
Civil Appeal Nos.7013 of 2004 and 5760 of 2002 are
dismissed. Parties are asked to bear their own costs.