Full Judgment Text
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PETITIONER:
GOVERNMENT OF ANDHRA PRADESH ETC. ETC.
Vs.
RESPONDENT:
P. DILIP KUMAR AND ANR. ETC. ETC.
DATE OF JUDGMENT03/02/1993
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
PUNCHHI, M.M.
CITATION:
1993 SCR (1) 435 1993 SCC (2) 310
JT 1993 (2) 138 1993 SCALE (1)245
ACT:
Andhra Pradesh Engineering Service Rules 1966
--Rule-4-Recruitment to various posts in the cadre of Deputy
Executive Engineers in different services-Preference to Post
Graduates-Validity of recruitment.
HEADNOTE:
The Andhra Pradesh Public Service Commission (in short PSC)
Invited applications for vacancies in the cadre of Deputy
Executive Engineers in different services, to be filled by
direct recruitment. Pursuant to the said advertisement both
graduates and post graduates applied, for, the posts and
were subjected to a written test and those who qualifying
marks, were called for oral test/interview.
The PSC on an Interpretation of Rule 4 of the A.P. Engineers
Service Rules and following the decision of the High Court
of A.P. in Writ petition No. 2568 of 1982 decided by
Wagner, J. on March 14, 1986 treated the Post Graduates as a
class and gave them preferential treatment by selecting the
post-graduates first who secured more than the qualifying
marks in the open category and since sufficient number of
post-graduates were available, no graduate was selected. In
the case of reserved categories also post-graduates to the
extent they were available were selected and in the case of
non-availability of post-graduates, graduates were selected
for appointment to the posts in question.
The validity of the recruitment and the procedure followed
by the A.P.P.S.C. were challenged before the Andhra Pradesh
Administrative Tribunal. The Tribunal upon hearing the
application, took a view contrary to the one taken by the
learned single Judge of the High Court in W.P. No. 2568 of
1982 and quashed the select list.
In appeal to this court,
HELD: 1.01. Rule 4 prescribes the qualification for
appointment to certain posts including the post of Deputy
Executive Engineer by direct recruitment, promotion or
transfer. Note forms part of the said rule.
436
Before the insertion of the second part to Note I by GOMs
No.1 180 of 1983, the instructions contained in the Memo of
13th October, 1978 provided guidance in the matter of grant
of preference to post-graduates for entry by promotion to
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the post of Deputy Executive Engineer. The subject clause
of the memo undoubtedly refers to preference to be granted
to post-graduates in the matter of promotion and the use of
the expression ’seniority’ in paragraph 2 thereof is
undoubtedly indicative of the fact that its application was
limited to laying down guidelines for application of the
preference clause found in Note 1 to the rule in the matter
of promotion. [446F-H]
1.02. ’There can be no question of arranging post-
graduates according to seniority where they are seeking
appointment by direct recruitment In that case the list
would have to be prepared on the basis of merit and not
seniority. Therefore, the use of the expression ’promotion’
in the subject clause and the expression ’seniority’ in
paragraph 2 of the memo is indicative of the fact that the
instructions concerned appointment by promotion. In
paragraph 2 it is said that candidates with post-graduate
qualification will be arranged in the order of their
seniority and they shall be considered first and only after
such a list is considered, the case of ordinary graduates
shall be considered and selection made on merit and ability.
Paragraph 3 then says that the expression ’preference shall
be given’ used in Note 1 means that other things being
equal, holders of post-graduate qualifications will be given
preference and after that the claims of less qualified
candidates would be considered for appointment. The use of
the word after in both the paragraphs is significant and is
indicative of the manner in which the preference clause is
to be worked out. [447C-E]
1.03.It is indeed true that under paragraph 2 of the memo it
was directed that ’the list of eligible candidates with
post-graduation qualification shall be first considered.....
and only after such a list is considered’; others will be
considered, albeit on the basis of merit and ability. The
language of this paragraph leaves no manner of doubt that
the turn of ordinary graduates for consideration came only
after the list of eligible post-graduates was settled. The
order in which the cases of post-graduates and ordinary
graduates will be considered is made clear in this
paragraph. But paragraph 3 of the Memo says that the
expression ’preference shall be given’ occurring in Note 1
would mean that, other things e.g. passing of prescribed
tests, maintaining merit, suitability, fitness, etc., being
equal,
437
preference shall be given to holders of post-graduate
qualifications. The latter part of this paragraph adds
’after giving the said preference’, the claims of less
qualified candidates would be considered. This would that
after a comparative study is undertaken those post-graduates
who are found entitled to preference would be first promoted
and thereafter cases of less qualified candidates would be
considered. [447H, 448A-C]
1.04. In the present case also the zone of consideration was
narrowed by eliminating candidates who did not succeed In
the qualifying test and out of those who succeeded in the
qualifying test and secured the minimum marks after
interview were considered and thereafter In the process of
selection the preference rule was applied by first choosing
the postgraduates and thereafter the graduates. We have
already pointed out above that classification on the basis
of higher educational qualification with a view to achieving
improvement in administrative performance is not abhorrent
to Articles 14/16 of the Constitution. We are, therefore,
of the opinion that the view taken by the learned Single
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Judge of the High Court on a true interpretation of the
relevant rule in the context of the historical background
was a plausible view and should commend acceptance as it
would advance the cause of efficiency in a highly technical
service. [453D-E]
Md. Usman & Ors. v. State of Andhra Pradesh, [1971] Supp.
SCR 549; Roshan Lal Tandon v. Union of India [1969] 1 SCR
185; State of J & K v. Trilok Nath Koosa, [1974] 1 SCC 19;
Md. Sujat Ali v. Union of India, [1975] 3 SCC 76; Roop
Chand v. DDA, [1989] Supp. 1 SCC 116; V Markandeya v. State
of A.P., [1989] 3 SCC 191; Sanatan Gauda v. Berhampur
University, [1990] 3 SCC 231 ; G.K Ajjappa v. State of
Mysore & Ors., (1969) (1) Labour & Industrial Cases 364 and
Gujarat State Sales Tax Non-Gazetted Employees Association
v. The State of Gujarat and another, (1977) 1 SLR 452,
relied on.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1710 of 1990
etc. etc.
From the Judgment and Order dated 31.12.1987 of the
Hyderabad High Court in R.P. No. 1551/1986.
K. Madhaya Reddy and Guntur Prabhakar for the appellants
in C.A. No. 1710/90.
438
H.N. Salve, S.K Gambhir and Vivek Gambhir for the appellants
in C.A. Nos. 1011-1024/92.
M.K Ramamurthi, MA. Krishnamoorthy, Ms. C. Ramamurthy,
T.V.S.N. Chari and J.M. Khanna for the respondents in C.A.
Nos. 10111024/92.
M.K Ramamurthy Ms. C. Ramamurthy, M.A. Krishnamoorthy and
M.A. Chinnaswamy for the petitioner in W.P. No. 96/92.
H.N. Salve, S.K. Gambhir, Vivek Gambhir and T.V.S.N. Chari
for the respondents in W.P. No. 96/92.
H.S. Gururaja Rao and Y.P. Rao for the appellant in C.A. No.
720/88.
A. Subba Rao, A.D.N. Rao, TVSN Chari and K. Ram Kumar for
the respondents in C.A. No. 720/88.
T.V.S.N. Chari for the appellant in C.A. No. 72V88.
H.S. Gururaja Rao, A. Subba Rao and Y.P. Rao for the
respondents in C.A.No. 721/88.
S. Padmanabhan Ms. Anjani N. Shridhar and K Ram Kumar for
the appellants in C.A. No. 1260/90.
T.V.S.N. Chari for the respondents.
The Judgment of the Court was delivered by
AHMADI, J. By an Advertisement No. 6/88 dated 1st December,
1988 the Andhra Pradesh Public Service, Commission (for
short ’PSC’) invited applications for 60 vacancies in the
cadre of Deputy Executive Engineers in different services:
(a) R&B Engineering Service, (b) P.H. & M. Engineering
Service, (c) Engineering Service and (d) Panchayat Raj
Engineering Service in the common scale of Rs. 1980-3500 to
be filled by direct recruitment. These vacancies were shown
in the advertisement at Code G-1 under the head Central
Recruitment. The educational and other qualifications for
the posts in question were set out to be Bachelor of
Engineering degree (Highways, Civil or Mechanical) of a
recopied University for (a) and (d) services, a degree in
Civil or Mechanical En-
439
gineering of a recognised University for (b) service and a
degree in Bachelor of Engineering. Civil or Mechanical of a
recognised University for (c) service. Insofar as (b)
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category is concerned, it was mentioned that preference
shall be given to persons possessing five years experience
in Irrigation or Execution of Water Supply and Drainage
Scheme. In respect of posts in (a) & (c) categories, it was
further mentioned that post-graduate qualification of an
Indian or Foreign University shall be treated as ’an
additional qualification and preference shall be given to
such candidates. Para 7 of the advertisement stated that
the selection will be made on the basis of written
examination to be followed by oral test/interview for the
post in Code G-I. The scheme of examination was detailed in
Annexure 6 of the advertisement. Pursuant to the said
advertisement both graduates and post-graduates applied for
the posts in question and were subjected to a written test
and those who secured the qualifying marks were called for
oral test/interviews. Some candidates who did not secure
the qualifying marks and were not called for oral
test/interviews filed O.A. Nos. 1736 to 1739 of 1990
contending that they ought to have been called and the total
number of marks secured both at the written examination and
oral test should have been taken into consideration for the
purpose of determining the successful candidates to be
empanelled for appointment to the posts in question.
The PSC on an interpretation of the relevant rule as placed
by the High Court of Andhra Pradesh in Writ Petition No.
2568 of 1982 decided by Waghray, J. on March 14, 1986 first
selected post-graduate engineers for the available
vacancies under open competition and since sufficient number
of post-graduates were available, no graduate was selected
for the posts in question. In the category of reserved
seats for backward classes, scheduled castes and scheduled
tribes, post-graduates to the extent they were available
were selected and in the case of non-availability of post-
graduates, graduates were selected for appointment to the
posts in question. It would at this stage be relevant to
reproduce the rule in question
"Rule 4 : Qualifications No person shall be
eligible for appointment to the category and
by the method mentioned in columns (1) and (2)
of the following table unless he possesses the
qualifications prescribed in the corresponding
entry in column (3) thereof
440
Category Method of Qualifications
Dy. Executive Direct(i)
Engineer Recruitment
(i)Must not have completed 28 years of age on first date of
the July of the year in which the recruitment is made
provided that those possessing post graduate qualifications
shall be allowed age concession to the extent of 2 years :
(ii) Must possess the B.E. Degree(Civil or Mechl.) of a
University in India, established or incorporated by/or under
a Central Act, Provincial Act, or a State Act, or an
institution recopied by the Central University Grants
commission or an equivalent qualification.
Note 1 Post-Graduate qualification of an
Indian or of Foreign University shall be
treated as an additional qualification and
preference shall be given to such candidates
in the matter of direct recruitment, promotion
and recruitment by transfer to the post of
Deputy Executive Engineers.
The extent to which a post-graduate has to be
given preference in the matter of promotion to
the post of Deputy Executive Engineer is
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indicated below:
9th vacancy in 9 vacancies intended for
appointment of Assistant Executive Engineers
and Compressed Diploma Holders (DCES) as
Deputy Executive Engineers shall however, be
earmarked for post-graduate Assistant
Executive Engineers.
(A similar rule Rule 5 is to be found for the post of
Deputy Executive Engineers in Roads & Buildings Engineering
Service Rules, 1987).
Subsequently, the State Government by a Memo dated 13th
October, 1978 issued instructions to the Chief Engineer in
the matter of promotion
441
to the category of Assistant Engineers (Deputy Executive
Engineers) from the category of Junior Engineers (Assistant
Executive Engineers). The said memo reads as under :
"The, attention of the Chief Engineer
(General) is invited to the reference cited
and he is informed that under note (1) of Rule
4 of A.P.E.S. Rules, it is laid down that
post-graduate qualification of an Indian or
Foreign University shall be treated as an
additional qualification and preference shall
be given to each candidate in the matter of
direct recruitment, promotion and recruitment
by transfer to the post of Asstt. Engineer.
2. The above rule is not conditional or
limited. Hence, for any particular year, the
list of eligible candidates with post-graduate
qualification shall be first considered in the
order of their seniority and only after such a
list is considered the cases of ordinary
graduates shall be considered and selection
has to be made on the basis of merit and
ability.
3. The expression ’preference. shall be
given’ occurring in the said rule would mean
that, other things such as passing of
prescribed tests, maintaining merit,
suitability, fitness etc., being equal
preference shall be given, at every selection
or preparation of panel for appointment as
Asstt. Engineers to the holders of post-
graduate qualifications, and after giving the
said preference the claims of less qualified
candidates who are also eligible for
appointment would be considered. Such
preference is not conditional or limited."
On an interpretation of the relevant rule read with the
above memorandum, the PSC following the decision of the High
Court in Writ Petition No’ 2568 of 1982 (supra) treated the
post-graduates as a class and gave them preferential
treatment by selecting those post-graduates who secured more
than the qualifying marks in the open category and since
they were available in sufficient number, graduates were
kept out of selection. In the case of reserved categories
also post-graduates to the extent they were available and
had secured the qualifying marks for empnelment were
442
selected and only where sufficient number of such post-
graduates were not available graduates were selected in
accordance with merit and placed below them in the list.
This procedure was followed by the PSC in view of the
guidelines laid down in the judgment of the High Court in
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the aforesaid writ petition. In that case, the learned
Single Judge in the High Court held as under :
"So far as the interpretation of Rule 4 and
its implementation contained in the note to
Rule 4. 1 am clearly of the opinion that the
post-graduate will have to be preferred as a
class. This is also supported by the memo of
the Government and the decision of the Supreme
Court and the High Court. So long as the rule
of preference stands. I do not see any
justification for watering down of the said
Rule in the way in which the Commission has
done by reducing it only to the cases where
there is equivalence of marks between a post-
graduate and graduate. The very object of the
preferential treatment is defeated by this
procedure."
Writ Appeal No. 475 of 1987 was dismissed on August 25, 1987
on the ground that the Single Judge’s order was implemented.
The State Government’s S.L.P. No. 13035 of 1987 was also
dismissed on November 26, 1990.
The Supreme Court’s decision relied on by the learned Single
Judge is the case of Md. Usman & Ors. v. State of Andhra
Pradesh, [1971] Supp. SCR 549. Following the above dictum
of the learned Single Judge of the High Court when the
selections were made pursuant to the Advertisement No. 6/88,
the PSC followed the procedure indicated by the High Court
and prepared the Select List. This was once again put into
issue by the graduates who were left out of selection in
several applications filed in the Andhra Pradesh
Administrative Tribunal at Hyderabad. A two-member Bench of
the Tribunal heard this group of applications and by its
judgment and order dated September 19, 1991 quashed the
Select List prepared by the PSC on the following line of
reasoning :
According to us that rule only meant that
other things being equal and the performance
of a candidate possessing higher qualification
and the candidate possessing min-
443
imum qualification is equal, a candidate
possessing higher qualification may claim
preference but not in case where the
performance of a candidate possessing minimum
qualification is better than the candidate who
possessed the higher qualification. If the
interpretation given by the learned Single
Judge of the High Court is to be followed by
the Public Service Commission, the very
purpose of conducting written and oral test to
assess the relative merit and suitability of
the candidates for the purpose of preparing
the Select List would be defeated. In this
view of the matter, we differ with the
conclusions reached by the learned Single
Judge of the High Court in W.P. No. 1568/82.
Therefore, the Select List prepared by the
first respondent treating the post-graduates
as separate class, irrespective of the marks
secured by the post-graduates and graduates in
written and oral tests, is contrary to the
rules and ultra vires Articles 14 and 16 of
the Constitution of India."
It will appear from the above facts that the PSC had earlier
interpreted and applied the relevant rule as opined by the
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Tribunal but the same was struck down by the High Court in
Writ Petition No. 2568 of 1982 holding that such a procedure
would defeat the very object of preferential treatment. The
learned Single Judge directed that the post-graduates should
be treated as a preferred class and so long as post-
graduates who had secured the minimum qualifying marks were
available, they were to given preference to graduates
notwithstanding the fact that the latter may have secured
higher percentage of marks in the written as well as oral
test/interview. Only when qualified post-graduates are not
available could the names of the graduates be entered in the
Select List on the basis of their inter-se merit. Since
this decision of the learned Single Judge of the High Court
was holding the field at the relevant point of time when
selections were made pursuant to the Advertisement No. 6/88,
the PSC followed the procedure outlined by the learned
Single Judge and notwithstanding the fact that certain
graduates had secured higher percentage of marks than post-
graduates, the latter were selected in preference to the
former and only in the reserved category where sufficient
number of post-graduates were not available graduates were
empanelled on the basis of their inter-se merit and placed
below the post-graduates. Once again the
444
PSC got entangled in litigation and, as pointed out above,
the tribunal by the impugned judgment took a view contrary
to the one taken by the learned Single Judge of the High
Court and upset the Select List. So far as the applicants
of O.A. Nos. 1736 to 1739 of 1990 were concerned the
tribunal upheld the decision of the PSC not to call them for
oral test/interview since they had not secured the
qualifying marks in the written test. Their contention that
notwithstanding their having failed to secure the qualifying
marks in the written test, they should have been called for
oral test/interviews and thereafter the total marks secured
both in the written test and the oral test should have been
compared with the total marks secured by others, did not
find favour with the tribunal. The tribunal, therefore,
dismissed their applications with no order as to costs.
They too have approached this Court in appeal.
It is clear from the above that two views are canvassed on
the true interpretation of the relevant rule. The view
urged by the post-graduates is that in implementing the rule
of preference in the matter of direct recruitment the PSC
should first exhaust candidates having post-graduate
qualifications if they have secured the minimum qualifying
marks and if they are not available in sufficient number,
then and then only, graduates should be selected on merits
from among those who have secure the minimum qualifying
marks and above. Learned counsel for the postgraduates
submitted that if the rule is not so implemented the very
purpose of granting preference to post-graduates will be
lost as it will virtually boil down to a ridiculously low
figure and the object of cadre-strengthening will not be
achieved. This view found favour with the learned Single
Judge of the High Court in Writ Petition No. 2568 of 1982 as
mentioned earlier. The rival view canvassed by the learned
counsel for the non-preference candidates is that the
preference rule can come into play only where two candidates
have secured equal marks in which case the candidate
possessing post-gaduate qualification will be preferred if
the other candidate does not possess that qualification but
not otherwise, that is, not if a graduate has secured higher
number of marks than the post-graduate. In other words
everything being equal between two candidates, the scale
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will tilt in favour of a post-graduate if the other
candidate is merely a graduate. This view has found favour
with the tribunal which is impugned before us. For us the
question is which of the two views is correct. We may at
this stage notice one further contention urged on behalf of
the appellants and that is that it was not legally correct
for the Tribunal to have upset the law already
445
settled by the High Court which the PSC had applied in
finalising the selection since it was a decision rendered
much before (i) the Central Administrative Tribunals Act,
1985, came into force and (ii) the Tribunal was constituted
thereunder. Alternatively it was urged that even if two
views were reasonably possible on the construction of the
relevant rule, the Tribunal should not have upset the
selection made on the construction earlier placed by the
High Court.
Before we come to grips with the question regarding the true
meaning and import of the rule, it may be advantageous to
analyse the rule on its plain language. The opening fine of
the rule says that no person shall be eligible for
appointment to the post in question unless he possesses the
qualification prescribed therefor. For the post of Deputy
Executive Engineers for direct recruitment the first
requirement is that he must not have completed 28 years of
age as on 1st July of the concerned year of recruitment but
in the case of post-graduates a concession to the extent of
two years is allowed. Insofar as the educational
qualification is concerned he must possess a B.E. degree
(Civil or Mechanical) of an Indian University or an
institution recognised by the Central UGC or an equivalent
qualification. So the minimum educational qualification
prescribed for the post of Deputy Executive Engineer for
direct recruitment is graduation. Thus far there is no
difficulty. We now move on to Note 1. As is evident this
note is in two parts. The first part says that post-
graduate qualification shall be treated as an additional
qualification and preference shall be given to such
candidates. This part applies to all the three modes of
recruitment. The second part indicates the extent to which
a post-graduate is to be given preference in the matter of
promotion to the post of Deputy Executive Engineer. It
earmarks the 9th vacancy in 9 vacancies for a post-graduate
Assistant Executive Engineer (redesignated Junior Engineer).
It may be borne in mind that this second part was added by
GOMs No. 180 dated 29th April, 1983 in exercise of powers
conferred by the proviso to Article 309 of the Constitution.
It will be seen from the above that while the first part of
the note requires post-graduate qualification to be treated
as an additional qualification and candidates possessing
such qualification have to be given a preference
irrespective of the mode of entry, the second part qualifies
or explains the same insofar as it considers promotion. The
second part therefore, applies to entry by promotion and
does not apply to entry by direct recruitment or transfer.
This seems to be the purport of Note 1 on its plain reading.
446
We may now turn to the instructions issued through Memo
dated 13th October, 1978 which is in three paragraphs. The
first paragraph merely states the purport of Note 1. The
second paragraph states that the list of eligible candidates
with post-graduate qualification shall be first considered
in the order of their seniority and only after it is
considered, the cases of ordinary graduates shall be
considered. The selection has of course, to be made on the
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basis of merit and ability. Then comes the third paragraph
which seeks to explain the phrase ’preference shall be
given’ to mean that other things (such as passing of
prescribed test, maintaining merit, suitability, fitness,
etc.) being equal preference shall be given to holders of
post-graduate qualifications, and after giving such
preference the claim of less qualified candidates would be
considered. it may at this be mentioned that the subject
clause of the Memo dated 13th October, 1978 has some
relevance and may be reproduced :
"Sub:- Public Services A.P. Engineering
Service Promotion to the category of Asstt.
Engineers from Jr. Engineers category-
preference to Post Graduates-Reg."
From the use of the expression ’promotion’ in the subject
clause and ,seniority’ in paragraph 2 of the memo it was
argued that the said instructions applied to cases of
promotion only and had no application when it came to
filling up of the posts by direct recruitment. We will
immediately deal with the said submission.
The Andhra Pradesh Engineering Service Rules, 1966 (’the
Rules’ hereafter) came to be enacted in exercise of powers
conferred by the proviso to Article 309 of the Constitution.
Rule 4 thereof prescribes the qualification for appointment
to certain posts including the post of Deputy Executive
Engineer by direct recruitment, promotion or transfer. Note
I forms part of the said rule. Before the insertion of the
second part to note 1 by GOMs No. 180 of 1983, the
instructions contained in the Memo of 13th October, 1978
provided guidance in the matter of grant of preference to
post-graduate for entry by promotion to the post of Deputy
Executive Engineer. The subject clause of the Memo
undoubtedly refers to preference to be granted to post-
graduates in the matter of promotion and the use of the
expression ’seniority’ in paragraph 2 thereof is undoubtedly
indicative of the fact that its application was limited to
laying down guidelines for application of the preference
clause found in Note 1 to the
447
rule in the matter of promotion. Paragraph 2 thereof while
stating that rule 4 is not conditional or limited proceeds
to add that for any particular year, the list of eligible
candidates with post-graduate qualification shall be
considered in the order of their ’seniority’ and only after
such list is considered the cases of ordinary graduates
shall be considered and selection will be made on the basis
of merit and ability. The question of seniority among post-
graduates can arise only in regard to candidates who are in
service and who are to be considered for promotion to the
next higher post. There can be no question, of arranging
post-graduates according to seniority where they are seeking
appointment by direct recruitment. In that case the list
would have to be prepared on the basis of merit and not
seniority. Therefore, the use of the expression ’promotion’
in the subject clause and the expression ’seniority’ in
paragraph 2 of the memo is indicative of the fact that the
instructions concerned appointment by promotion. In
paragraph 2 it is said that candidates with post-graduate
qualification will be arranged in the order of their
seniority and they shall be considered first and only after
such a list is considered, the case of ordinary graduates
shall be considered and selection made on merit and ability.
Paragraph 3 then says that the expression ’preference shall
be given’ used in Note I means that other things being
equal, holders of post-graduate qualifications will be given
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preference and after that the claims of less qualified can-
didates would be considered for appointment. The use of the
word after in both the paragraphs is significant and is
indicative of the manner in which the preference clause is
to be worked out. After the amendment of Note 1 by the
introduction of the second part earmarking the slot of 9th
vacancy for post-graduates, the mode of implementing the
preference in the matter of appointment by promotion
underwent a change rendering the memo of 13th October, 1978
otiose. But it can still be availed of as an aid to
construction of Note 1 insofar as it concerns grant of
preference in the matter of direct recruitment. Except for
this limited use to which the Memo can be put, we are agreed
that it related to grant of preference at the promotion
stage only and has since become otiose.
It was emphasised on behalf of the post-graduates that the
use of the expression after in paragraphs 2 and 3 makes it
clear beyond any manner of doubt that the intention of the
authorities was to treat post-graduates as a class and to
consider them first and only thereafter could ordinary
graduates aspire to seek entry into the higher post. It is
indeed true that under paragraph 2 of the memo it was
directed that the fist of eligible
448
candidates with post-graduation qualification. shall be
first considered......... and only after such a list is
considered the cases of ordinary candidates shall be
considered; albeit on the basis of merit and ability. The
language of this paragraph leaves no manner of doubt that
the turn of ordinary graduates for consideration came only
after the ha of oh post-graduates was settled. The order in
which the cases of post-graduates and ordinary graduates
will be considered is made clear in this paragraph. But
paragraph 3 of the Memo says that the expression ’preference
shall be given’ occurring in Note 1 would mean that other
things e.g. passing of prescribed tests, maintaining merit,
suitability, fitness, etc., being equal, preference shall be
given to holders of post-graduates qualifications. The
latter part of this paragraph adds ’after giving the said
preference’, the claims of less qualified candidates would
be considered. This would mean that after a comparative
study is undertaken those postgraduates who are found
entitled to preference would be first promoted and
thereafter cases of less qualified candidates would be
considered. The combined reading of paragraphs 2 and 3
gives the impression that cases of post-graduates found
entitled to promotion had to be first considered and only
after their absorption would it be permissible to consider
the claims of ordinary graduates i.e. less qualified
candidates. This method of grant of preference in the
matter of promotion was changed by GOMs No. 180 of 1983
probably because it was causing avoidable hardships.
Similar changes were introduced in the rules concerning
other engineering services also. By this amendment instead
of granting preference to post-graduates in the matter of
promotion under the aforesaid Memo, the 9th vacancy in 9
vacancies was earmarked for a post-graduate. We fail to see
how such a provision granting preference to post-graduates
on the basis of their higher educational qualification be
said to conflict. with the equality clause when the post-
graduates constitute a separate class. More of it later.
The interpretation on Note 1 has to be placed in background
of the said historical fact. It is at the same time
necessary to remember that so far as the PSC is concerned it
placed the interpretation now placed by the Tribunal under
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the impugned order till it was disapproved by the learned
Single Judge of the High Court in Writ Petition No. 2568/82.
In doing so the High Court placed reliance on the decision
of this Court in Md. Usman’s case (supra). That was a case
in which both UDCs and LDCs were placed in one class for the
purpose of recruitment as Grade II Sub- Regiwam The rule
was, therefore challenged as violative of Article
449
14 on the ground that unequals were treated as equals. The
second question was whether the recruitments were made in
accordance with the relevant rule. The High Court answered
the latter contention in the affirmative but struck down the
rule on the first ground. In appeal this Court reversed the
High Court’s decision holding that there was no violation of
Article 14 in clubbing UDCs and LDCs for the purpose of
recruitment to Grade IT Sub-Registrars. Now the rule that
prescribed the qualification for the said post also provided
that preference shall be given to persons who, in addition
to the prescribed qualification, possess a degree in law of
University in the state or an equivalent qualification. In
that case these persons who were entitled to preference were
considered separately and recruited first and only
thereafter others were recruited, as in the present case.
This Court found this method for recruitment by transfer to
’the most reasonable one’. Those observations support the
contention put-forward by the post-graduates and were relied
upon by the learned Single Judge in the High Court in
support of the view taken by him. The Tribunal has referred
to this decision but has not expressed itself on the
applicability or otherwise of the said view.
The matter may be looked at from another view-point. The
word preference’ as understood in ordinary parlance means
to preferring or choosing as more desirable, favouring or
conferring a prior right. What then is the purpose and
object sought to be achieved by the insertion of the
preference clause in the rule? There is no doubt that
preference was sought to be granted under Note 1 to post-
graduates in the larger, interest of the administration.
How would the interest. of the administration be served by
granting preference to post-graduates? It is obvious that
it was thought that on account of their higher mental
equipment the quality of performance that the State will
receive from highly qualified engineers would be better and
of a high order. In other words the State considered it
necessary to strengthen the engineering service by
recruiting postgraduates to the extent available so that the
State may benefit from their higher educational
qualifications and better performance. If this was the
objective surely it would not be realised unless post-
graduates are treated as a class and given preference on
block over the graduates. Since sufficient number of post-
graduates may not be available from the feeder channels and
even if available cannot be promoted out of turn without
causing heart burns, it was thought desirable to resort to
such large scale recruitment directly from the open market.
The underlying idea of the Memo dated
450
13th October, 1978 was the same but certain difficulties
were felt in resorting to enforcement of the preference
clause at the promotion stage and that is why the second
part came to be inserted in Note I but no such difficulty
would be experienced in strengthening the cadre through
direct recruitment. But then it was said what was the need
for the PSC to hold the written test by inviting
applications from graduates and subjecting them to test?
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That was for the reason that there was no guarantee that
sufficient number of post-graduates would qualify for
selection and appointment. But if the preference rule were
to be implemented as held by the Tribunal it would apply
only where the post-graduate and graduate candidates have
secured the same number of marks. If the rule so
implemented is carried to its logical end it would
ultimately resolve a tie only at the last rung of the ladder
because ties at higher levels would be resolved by a post-
graduate being followed by a graduate in the select list.
The question of elimination would really arise at the last
placement in the list and hence the real purpose of the
preference rule would not be served. That is why this Court
in Md. Usman’s case (supra) approved of this method of
recruitment as most reasonable. There is nothing arbitrary
or unreasonable in the employer preferring a candidate with
higher qualification for service. It is well settled by a
catenation of decisions that classification on the basis of
higher educational qualification to achieve higher
administrative efficiency is permissible under our
constitutional scheme. See Roshan Lal Tandon v. Union of
India, [1968] 1 SCR 185; State of J & K v. Trilok Nath
Koosa, [1974] 1 SCC 19; Md. Sujat Ali v. Union of India,
[1975] 3 SCC 76; Roop Chand v. DDA, [1989] Supp. 1 SCC 116;
V. Markandaya v. State of A.P., [1989] 3 SCC 191 and Sanatan
Gauda v. Berhampur University, [1990] 3 SCC 23. We,
therefore, do not agree that treating post-graduates as a
class and giving them preference in this manner is violative
of Articles 14/16 of the Constitution. We also do not see
any vice in the relevant rule and in Note 1 as amended in
1983.
Before we part we may refer to two decisions to which our
attention was invited. The first is a Division Bench
decision of the Mysore High Court in the case G.K Ajjappa v.
State of Mysore & Ors., [1969] 1 Labour & Industrial cases
364. That was a case in which the PSC had issued a
notification for selecting four persons for the post of
Superintendent of Fisheries and the petitioner had applied
for the post in response thereto. After the interviews were
taken, respondents Nos. 3 to 6 were selected for
appointment. Respondents Nos. 3, 4 and 5 belonged to the
backward
451
classes whereas respondent No. 6 belonged to the Scheduled
Castes. Respondent No. 5 though belonging to the backward
classes was selected on the basis of merit. The petitioner
contended that he possessed higher qualification and was,
therefore, entitled to preference under the relevant rule
providing for ’preference being given to persons possessing
higher qualification’. The contention was that so far as he
was concerned, there was no question of interviewing him and
in any case since he possessed higher qualifications he
ought to have been preferred in the matter of selection and
appointment to the post in question. Now the method of
recruitment set out in Sub-rule (3) of Rule 4 of the Mysore
Public Service Commission (Functions) Rules, 1957 was as
under :
"Consider all applications received and when
necessary interview such candidates as fulfill
the prescribed conditions and whom it
considers most suitable for appointment."
The High Court, therefore, came to the conclusion that the
preference rule could not exclude an interview expressly
authorised by Rule 4(3) extracted above. If the appointment
had to be made by selection, and the ’most suitable’
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candidate had to be chooses for appointment, someone had to
make the selection and the PSC was designated for the same
and was charged with the duty to make the selection of the
most suitable candidate or candidates and, therefore, a
person with higher qualifications could not elbow out a more
suitable person with lower qualifications for appointment.
While conceding that higher academic qualification is
generally a dependable index of superior merit, which endows
in its turn suitability in many spheres, the High Court held
that the selection had to be made strictly in terms of Rule
4(3) and, therefore, the quest had to be for the most
suitable candidate and the superior qualification could turn
the scale only if suitability was found in equal measure.
It was for this reason that the High Court concluded that
the determining criteria is not the higher qualification but
suitability in the opinion of the PSC, the quest being for
the most suitable. Higher qualification by itself would not
earn a selection unless it stood reinforced and supplemented
by suitability in other respects. It is, therefore, obvious
that the decision turned on the language of Rule 4(3) of the
Function Rules.
The second decision to which our attention was invited is a
Judgment
452
of a learned Single Judge of the Gujarat High Court in
Gujarat State Sales Tax Non-Gazeued Employees’ Association
’v. The State ’of Gujarat and another, (1977) 1 SLR 452.
In that case 120 posts of Sales Tax Inspectors were required
to be filled in by direct selection. An advertisement was
issued in the Newspaper and as many as 15,000 candidates
applied in response thereto. This necessitated screening of
the candidates at the old. It was found that more than 1000
applicants were holding first class degrees in different
faculties of recognised Universities; 580 of them were first
class Commerce graduates. 101 first class Arts graduates and
about 500 first class Science graduates. Having regard to
the number of vacancies the field of choice was restricted
to first class graduates only and it was decided not to call
for interview a second class or third class graduate
including graduates having commerce degree with Accountancy
as a subject. It was this decision which was put in issue
before the learned Single Judge by candidates who were
eliminated at the threshold from consideration. The
relevant rule provided that the appointment to the Post of
Sales Tax Inspectors shall be made either (a) by direct
selection or (b) by promotion. Insofar as direct selection
was concerned, the educational qualification required was
stated to be a degree of a recognised University. The
proviso laid down as under
"Provided that preference shall be given to a
candidate who possesses the degree of B.Com
with Accountancy or Chartered Accountants,
or possesses a qualification recognised to be
equivalent to such examination by the Govt. of
Gujarat.’
In the context of this preference rule it was
observed in para 7 of the Judgment as under :
"To hold that the rule of preference was
enacted to give to Commerce graduates with
Accountancy or to candidates having other
prescribed qualifications an absolute
preference over the graduates of other
faculties would be to denude the substantive
provision of much of its force and effect and
to covert the rule of preference into a rule
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of reservation thereby obliterating altogether
the right of other candidates possessing
degree of recognised Universities in various
other faculties to be considered for the
post."
453
It is true that notwithstanding the preference rule it is
always open to the recruiting agency to prescribe a minimum
eligibility qualification with a view to demarcating and
narrowing down the field of choice with the ultimate
objective of permitting candidates with higher
qualifications to enter the zone of consideration. It was,
therefore, held that screening a candidate out of
consideration at the threshold of the process of selection
is neither illegal nor unconstitutional if a legitimate
field demarcating the choice by reference to some rationale
formula is carved out. Thus the challenge based on Articles
14/16 of the Constitution was repelled. We are in agreement
with the ratio of this decision and that is enough to
negative the claim of candidates who had preferred OA. Nos.
1736 to 1739 of 1990 who were not called for interview on
their failing to secure the minimum qualifying marks in the
written test.
In the present case also the zone of consideration was
narrowed by eliminating candidates who did not succeed in
the qualifying test and out of those who succeeded in the
qualifying test and secured the minimum marks after
interview were considered and thereafter in the process of
selection the preference rule was applied by first choosing
the postgraduates and thereafter the graduates. We have
already pointed out above that classification on the basis
of higher educational qualification with a view to achieving
improvement in administrative performance is not abhorrent
to Articles 14/16 of the Constitution. We are, therefore,
of the opinion that the view taken by the learned Single
Judge of the High Court on a true interpretation of the
relevant rule in the context of the historical background
was a plausible view and should commend acceptance as it
would advance the cause of efficiency in a highly technical
service. We, therefore, think that even if two views were
possible, the Tribunal ought not to have unsettled the legal
position settled earlier by the High Court with which even
this Court refused to interfere in SLP. For the foregoing
reasons we do not approve of the view subsequently taken by
the Tribunal.
Since we have on interpretation of the relevant rule in the
context of the background provided by the Memo of 13th
October, 1978 approved the learned Single Judge’s view, we
do not consider it necessary to examine the contention that
since the judgment of the learned Single Judge was prior to
the enactment of the Central Administrative Tribunals Act
and the constitution of the Tribunal, the latter should have
felt bound by the High Court’s view. We express no opinion
on the said point.
454
in the result Civil Appeals Nos. 720 and 721 of 1988, 1260
and 1710 of 1990 and 1011 to 1024 of 1992 are allowed and
the impugned orders of the Tribunal are set aside. Writ
Petition No. 96 of 1992 is dismissed. Any action taken in
pursuance of interim orders of this court during the
pendency of the aforesaid cases will be regularised in the
light of our judgment but if it entails refund of payments
already made, the same shall not be effected and shall be
waived. Heaving regard to the facts and circumstances of
the case. We make no order as to costs throughout in all
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the matters.
B.V.B.D CA Nos. 720 & 721/88, 1260 & 1710/90 and 1011-
1024/92 allowed.
WP No. 96/92 dismissed.
455