Government
of Andhra Pradesh Vs. P. Dilip Kumar & Anr [1993] INSC 53 (3 February 1993)
Ahmadi,
A.M. (J) 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.
HEAD NOTE:
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
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 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.
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) 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 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 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 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 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 there under. 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 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 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 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? 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' 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 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 the matters.
B.V.B.D
CA Nos. 720 & 721/88, 1260 & 1710/90 and 1011- 1024/92 allowed.
WP No.
96/92 dismissed.
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