Per REBELLO F.I., J.: - The Union Public Service Commission has approached this Court against the order dated 5th March, 2003 passed in Original Application No. 890 of 2002 by the Mumbai Bench of the Central Administrative Tribunal. Respondent pursuant to a public advertisement has invited applications for filling in six posts of Additional Legal Advisers in the Department of Legal Affairs, Ministry of Law, Justice and Company Affairs. In the advertisement issued, the qualifications both educational and experience were set out. The respondents had also issued instructions in the matter of short listing. The criteria disclosed was as under:

"(a) On the basis of their qualifications and experience higher than the minimum prescribed in the advertisement;

(b) On the basis of experience in the relevant field, or (c) By counting experience before or after the acquisition of essential qualifications, or (d) By holding screening test."

It appears that there were large number of candidates and pursuant to which the Commission short listed the candidates by adopting the following criteria:

"The following short listing criteria was adopted for short listing the candidates belonging to general category :

Category-I Candidates possessing EQ(A) + EQ(B) with at least 2 years experience as an Asstt. Legal Adviser/Deputy Legal Adviser of Indian Legal Service in the Department of Legal Affairs, Minister of Law, Justice & Company Affairs.

Category-II

Candidates possessing EQ(A) and 27 years or more experience under EQ(B) i.e. as Member of a State Judicial Service or a superior post in the Legal Department of a State or Central Govt. Servant who has had experience in Legal Affairs or a qualified legal practitioner.

Category-III Candidates possessing EQ(A) and 25 years experience as an Advocate/Attorney of the High Court of Calcutta or Bombay.

2. Respondent No. 2 was one of the applicants who was not invited for the interview. Pursuant to which he filed Original Application. By allowing the application the Tribunal in Para-9 held as under:

"9. We are entirely in agreement with the learned Counsel for the respondents that the respondents have right to shortlist the candidates, at the same time, we state that in short listing discrimination is not permissible. While short listing some rational and reasonable posts as held in 1994(6) S.C.C. 293 (M.P. Public Service Commission v; Navneet Kumar Potdarjl, must exist. We are unable to, get any data for rational and reasonable basis for short listing the category in respect of category No. 1." In other words the application was allowed as the learned Members of the Tribunal were of the opinion that nothing had been disclosed as to why those in Category No. 1 were made eligible and called for the interview.

3. The learned Counsel for the petitioner has drawn our attention to the provisions of Indian Legal Service Rules, 1957. Rule 1(A) thereof reads as under :

"1 (A) In making appointment by direct recruitment to a duty post in Grade I, Grade II, Grade III or Grade IV, preference shall be given

i) to a person (not being a member of a State Judicial Service or a legal practitioner) with experience in legal advice work if such post is in the Department of Legal Affairs; and

ii) to a person with experience in legislative drafting, if such post is in the Legislative Department." The petitioner herein had also filed an affidavit and in answer to the contentions as urged on behalf of the petitioner in Para 4(x) had set out as under:

"Para 4(x); As regards averments made in this Para, it is submitted that the power of the Commission to shortlist the candidates to be called for interview have been upheld by the Honble Supreme Court of India in their judgment in A.I.R. 1997 S.C. 2418, Civil Appeal No. 44 of 1990 filed by the (Union of India v.

T. Sundaram & Others)2, (Annexure R.I.). It is further submitted that the candidates possessing 27 years experience as legal practitioner were called for interview. The applicant was not

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