The Court established that 'preference' in competitive selections is not a rule of reservation or absolute precedence, but a tie-breaker applied only when candidates are equally positioned in merit.

We have heard learned counsel for parties.

Learned senior counsel for the appellants has drawn our attention to the regulations and the G.Os. in question more specifically in the sequence as set out in the rejoinder.

In this behalf it is stated that as per regulation 89(a) of Tamil Nadu Electricity Board (TNEB) Service Regulations reservation of appointments both by direct recruitment and by promotion are being followed.

In order to facilitate recruitment of personnel from the open market, G.O.(Ms.) No.44 dated 11.3.2015 was issued inviting applications for the post of Assistant Engineer/ Electrical/ Mechanical & Civil to be filled up by a selection process comprising of a written examination and an interview. The written examination was completed on 31.1.2016 for the post of 375 Assistant Engineers and the competitive written examination marks were published on 30.7.2016. The appellant(s) published the cut-off marks of appearing for viva voce interview for the post of 375 Assistant Engineers by direct recruitment on the website on 27.1.2017.

As far as the respondent is concerned, she had applied through an online process and while making such an application had not mentioned that she was eligible for concession to come under any priority quota except for the benefit of reservation as she belonged to the SC community. Thus, as per the disclosure of information by the respondent she is eligible for General Quota, SC(General) and SC(Women) quota only. She appeared in the written examination on 31.1.2016 and secured 28.333 marks. The respondent, having scored more than the cut off marks, was called for the interview and the final score post interview was 29.283.

The claim of the respondent was predicated on G.O.Ms. No.188 dated 28.12.1976 providing for an order of priority list. However, stand of the respondent is that despite the respondent being an outstanding scout, that is not a priority for appointment to the post of direct recruitment through employment exchange. It appears that candidates at different serial numbers had applied under priority quota of inter-caste marriage and dependents of ex-servicemen and the candidates who have scored higher marks than the cut-off marks prescribed for priority quota and had reached the zone of selection under the priority quota based on merit of the marks and as per roster prescribed by Government of Tamil Nadu was given the benefit. We may note, notification does not prescribe an outstanding scout as a priority.

The dispute has arisen as according to the appellant, the G.O.Ms. No.549 of the TNEB Select Service Regulations do not provide priority for an outstanding scout which has however weighed with the courts below in granting benefit to the respondent.

In our view the most material aspect is that G.O.Ms. No.549 provided for “preference only ” and not priority. The relevant provision reads as under:-

“ Rule 55 of Tamil Nadu State and Subordinate Service Rules

55. Employment concession following for outstanding rule scouts;-

Notwithstanding anything contained in these rules or in the Special Rules for the various State and Subordinate Service, other things being equal, preference shall be given to the Outstanding scouts for appointment to any post by direct recruitment.

Explanation:- For the purpose of this rule, “outstanding scout” means a person who has received the award from the President of India.”

The principle of preferential candidates would apply when there is a tie between the preferential candidate and a general candidate and the person who is to be treated as a preferential can be given a mark over a general candidate. This is the most material distinction. In view thereof, the respondent could not have been treated as a “preferential candidate” much less a “priority candidate”.

The respondent apparently was also conscious of this fact as she has not claimed eligibility for concession under any priority quota and having scored 29.283 marks in total, the last selected person