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2006(5) Supreme 851
SUPREME COURT OF INDIA
(From Allahabad High Court)
H.K. Sema and A.K. Mathur, JJ.
State of U.P. & Anr. — Appellants
versus
Om Prakash & Ors. — Respondents
Civil Appeal Nos. 5757-5759 of 2002
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
Decided on 21-7-2006
Counsel for the Parties :
For the Appearing Parties : Dr. P.G. Padia, Sr. Advocate, Pradeep Misra, T. Mahipal, Vibhakar Mishra, Pankanj Singh, Mukesh Verma, K.L. Janjani, Shail Kumar Dwivedi, G.V. Rao, Vijay Kumar, Bharti Tyagi, Vishwajit Singh, Dr. Sumant Bharadwaj, S. Dattar, Ms. Mridula Ray Bharadwaj, K.L. Taneja, T.N. Singh, Rakesh K. Khanna, Dr. Rashmi Khanna, Ms. Sunita R. Sharma, Rahul Bansal, Ms. Shikha Sapra, Ms. Sunita Singh, Ms. Abha R. Sharma, Anurag Dubey, Amit Dubey, Vikas Kalkar and Atishi Dipankar, Advocates.
Held : 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. (Para 16)
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. (Para 19)
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.(Paras 23 and 24)
JUDGMENT
H.K. Sema, J. — Delay condoned in SLP (C) Nos.24710 and 24189 of 2002 and leave granted.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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".
9. The real controversy starts from the proviso that "preference will be given to degree holders".
10. 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.
11. 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 challeng
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