State
Of U.P. & Anr Vs. Om Prakash & Ors
[2006] Insc 439 (21
July 2006)
H.K.
Sema & A.K. Mathur H.K.Sema,J
WITH C.A.No.5761-5763/02,C.A.No.5765-5766/02,C.A.No.5760/02,
C.A.No.5764/02, C.A.No 3078 of 2006 @ SLP (c)No.24710 of 2002, C.A.No 3097 of
2006 @ SLP(C)No.24189/02, C.A.No.7013/04, C.A.No.174/05, C.A.No.275/05,
C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05, C.A.No.1191/05, C.A.No.1192/05,
C.A.No.1193/05, C.A.No.2734/05 and C.A.No.7533 of 2005.
Delay
condoned in SLP (c) Nos.24710 and 24189 of 2002 and leave granted.
I.A.Nos.3-4
of 2001 for impleadment and I.A.Nos.7- 8 of 2004 for intervention in
C.A.No.5765-5766 of 2002 are rejected.
These bunch
of appeals raise a common question of fact and law and as such they are being
disposed of by this common judgment. For the sake of brevity we are taking the
facts from Civil Appeal No.5757-5759 of 2002.
The
facts are cumbersome. Avoiding prolixity few facts are recited. The whole
controversy revolves around the selection made by the Uttar Pradesh Public
Service Commission (hereinafter referred to as the UPPSC) for the Medical
Officers of Homeopathy.
Pursuant
to the advertisement dated 22.3.1986 and a corrigendum dated 14.11.1987, 390
posts were advertised to be filled up by the Homeopathic Medical Officers through
UPPSC. Alongwith others respondents also applied for the posts for which the
interview was held on 23.10.1990. The appointments were to be made on the basis
of oral interview and also the marks to be awarded on the qualifications of
each candidate.
It is
stated that the respondents possess the Bachelor Degree of Homeopathic Medicine
and Surgery (B.H.M.S ). It is also stated that they have completed five years
course including one-year compulsory routine internship in Government Hospitals
and Public Health Centres from Homeopathic Medical College affiliated with the Agra
University in the year 1985.
To
appreciate the real controversy in perspective, it is necessary to notice the
requisite qualification mentioned in the advertisement as per the requirement
of Rule 8 of the Uttar Pradesh Homeopathic Medical Service Rule, 1990 ( in
short Rules).
-
"Academic
qualification:-
A
candidate for direct recruitment to the service must possess:-
-
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)
-
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 (1996) 6 SCC 282,
this Court held that preferential qualification do not as of right entitle to
selection.
In
that case the advertisement inviting applications for the post of Dental
Officers prescribed B.D.S. as the minimum qualification but stipulated
preference for higher dental qualification. This Court held at scc p.285 as
under:- "Admittedly, in the advertisement which was published calling for
applications from the candidates for the posts of Dental Officer it was clearly
stipulated that the minimum qualification for the post is B.D.S. It was also
stipulated that preference should he given for higher dental qualification.
There is also no dispute that M.D.S. is higher qualification than the minimum
qualification required for the post and the Respondent No. 1 was having that degree.
The question then arises is whether a person holding a M.D.S. qualification is
entitled to be selected and appointed as of right by virtue of the aforesaid
advertisement conferring preference for higher qualification? The answer to the
aforesaid question must be in the negative. When an advertisement stipulates a
particular qualification as the minimum qualification for the post and further
stipulates that preference should be given for higher qualification, the only
meaning it conveys is that some additional weightage has to be given to the
higher qualified candidates. But by no stretch of imagination it can be
construed to mean that a higher qualified person automatically is entitled to
be selected and appointed. In adjudging the suitability of a person for the
post, the expert body like Public Service Commission in the absence of any
statutory criteria has the discretion of evolving its mode of evaluation of
merit and selection of the candidate. The competence and merit of a candidate
is adjudged not on the basis of the qualification he possesses but also taking
into account the other necessary factors like career of the candidate
throughout his educational curriculum, experience in any field in which the
selection is going to be held; his general aptitude for the job to be
ascertained in course of interview, extra-curriculum activities like sports and
other allied subjects personality of the candidate as assessed in the interview
and all other germane factors which the expert body evolves for assessing the
suitability of the candidate for the post for which the selection is going to
be held. In this view of the matter, the High Court in our considered opinion
was wholly in error in holding that a M.D.S. qualified person like Respondent
No. 1 was entitled to be selected and appointed when the Government indicated
in the advertisement that higher qualification person would get some
preference. The said conclusion of the High Court, therefore, is wholly
unsustainable and must be reversed".
This
Court again considered the same question in Secretary, A.P.Public Service
Commission vs. Y.V.V.R.Srinivasulu (2003) 5 SCC 341 and held at scc p.348 as
under:- "The word "preference" in our view is capable of
different shades of meaning taking colour from the context, purpose and object
of its use under the scheme of things envisaged. Hence, it is to be construed
not in an isolated or detached manner, ascribing a meaning of universal import,
for all contingencies capable of an invariable application. The procedure for selection
in the case involve, a qualifying test, a written examination and oral test or
interview and the final list of selection has to be on the basis of the marks
obtained in them.
The
suitability and all round merit, if had to be adjudged in that manner only what
justification could there be for overriding all these merely because, a
particular candidate is in possession of an additional qualification on the
basis of which, a preference has also been envisaged. The rules do not provide
for separate classification of those candidates or apply different norms of
selection for them.
The
'preference' envisaged in the rules, in our view, under the scheme of things
and contextually also cannot mean, an absolute en bloc preference akin to
reservation or separate and distinct method of selection for them alone. A mere
rule of preference meant to give weightage to the additional qualification
cannot be enforced as a rule of reservation or rule of complete precedence.
Such a construction would not only undermine the scheme of selection envisaged
through the Public Service Commission, on the basis of merit performance but
also would work great hardship and injustice to those who possess the required
minimum educational qualification with which they are entitled to compete with
those possessing additional qualification too, and demonstrate their
superiority merit wise and their suitability for the post. It is not to be
viewed as a preferential right conferred even for taking up their claims for
consideration. On the other hand, the preference envisaged has to be given only
when the claims of all candidates who are eligible are taken for consideration
and when anyone or more of them are found equally positioned by using the
additional qualification as a tilting factor, in their favour vis-a-vis others
in the matter of actual selection".
In the
instant case, the requisite academic qualification for the post of homeopathy
as prescribed in the advertisement was a recognized degree in Homeopathy or a
recognized diploma in Homeopathy. A proviso has been added that preference will
be given to degree holders. This would mean that a recognized diploma in
homeopathy prescribed in the advertisement is also a required minimum
educational qualification with which they are entitled to compete with those
candidates possessing the degree. The word preference would mean that when the
claims of all candidates who are eligible and who possess the requisite
educational qualification prescribed in the advertisement are taken for
consideration and when one or more of them are found equally positioned, then
only the additional qualification may be taken as a tilting factor, in favour
of candidates vis-`-vis others in the merit list prepared by the Commission.
But preference does not mean en bloc preference irrespective of inter se merit
and suitability.
That
apart this Court has consistently held that inclusion of candidate's name in
merit list does not confer any indefeasible right to be appointed. [ See Shankarsan
Dash v Union of India, AIR 1991 SC 1612 and Union Territory of Chandigarh v Dilbagh
Singh, (1993) 1 SCC 154 ] In the facts aforesaid we are clearly of the view
that the High Court has misdirected itself by issuing such directions despite
the fact that the respondents were not selected by the Commission.
Counsel
for the respondents herein would contend that since the order of the High Court
dated 19.7.1996 passed in Civil Misc. Writ Petition No.10175 of 1994 and
batches has now attained finality, the subsequent order of the High Court
following the same decision assailed in the present appeals must also be
dismissed. We are unable to accept this contention. Adhering to such contention
would amount allowing the perpetuation of illegality.
We may
also dispose of one of the arguments of the counsel for the appellants. Counsel
contended that the judgment of the High Court dated 19.7.1996 passed in Civil
Misc. Writ Petition No.10175 of 1994 which judgment was followed in a
subsequent order has been assailed in this batch of appeals and, therefore, the
judgment dated 19.7.1996 is clearly illegal and the same should also be set
aside. We are unable to agree with this submission for more than one reason.
Firstly, the judgment dated 19.7.1996 has not been appealed against and it has
now been implemented and has attained finality. Secondly, the writ petitioners
in Civil Misc. Writ Petition No.10175 of 1994 and batches thereof which were
allowed by the High Court in its judgment dated 19.7.1996 are not before us.
However,
the subsequent orders following the judgment by the High Court dated 19.7.1996,
which has been assailed in these bunch of Civil Appeals, are quashed and set
aside. Accordingly, Civil Appeal Nos.5757-5759/02, 5761- 5763/02, 5765-5766/02,
5764/02, C.A.No of 2006 @ SLP ( c ) No.24710/02, C.A.Noof 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.
Back
