SUPREME COURT OF INDIA
State of Uttar Pradesh and Another
Vs
Om Prakash and Others
Appeal (Civil) 5757-5759 of 2002 (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)
(H. K. Sema and A. K. Mathur, JJ)
21.07.2006
H. K. SEMA, J.
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.
This bunches 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:-
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 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 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 4, 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. 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 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 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-a -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, and Union Territory of Chandigarh v
Dilbagh Singh, ]
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 of 2006 @ SLP ( c ) No.24710/02, C.A.No of 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.