JUDGMENT S.P. Srivastava, J.
Heard the learned counsel for the petitioner.
1. The Sri Narendra Prasad Shukla, learned counsel representing the respondent Nos. 1 to 3, who has put in appearance at this stage on advance notice, as well as Sri Anand Kumar, learned counsel representing the respondent No. 4, who has appeared at this stage have also been heard.
2. The petitioner feels aggrieved by the order passed by the Central Administrative Tribunal, whereby the order appointing the petitioner on the post of Extra Departmental Male Peon had been quashed with the direction to the respondent authority to appoint Mahabir Kashyap, the respondent No. 4 herein on the said post within a period of four weeks from the date of communication of the order. It was further provided that the name of the petitioner be included in the waiting list of the Extra Departmental Agents discharged from service and in case no alternative appointment is available, the petitioner may be considered for fresh appointment as and when suitable vacancy arises.
3. It is not disputed that the minimum educational qualification for being considered for appointment as against the vacancy in question which stood prescribed was that the candidate must have passed VIIIth standard. However, it was also provided that the preference may be given to the candidates with matriculation qualification. No weightage was to be given to the qualifications higher than matriculation. It was further provided that the candidate should have sufficient working knowledge of the regional language and simple arithmetic so as to be able to discharge the duties satisfactorily.
4. The relevant part of the Rule providing educational qualifications is reproduced below:-
5. In the present case, the petitioner as well as the respondent No. 4 who was also an applicant for the post in question had passed VIIIth standard which was the basic qualification. The respondent No. 4 had secured 62.15% marks while the petitioner had secured only 46.8%. Both the candidates had also passed the Matriculation Examination. Thus, it was a case where so far as the basic qualification was concerned the respondent No. 4 was meritorious as compared to the petitioner having secured higher marks in that examination. However, since both the candidates had matriculation qualification, the question which had to be considered by the tribunal was as to whether the percentage of marks in the basic qualification could be taken into account for granting appointment. The Tribunal was of the view that question of preference could only arise where the merit in the basic qualification of both the candidates stood at par. In the present case, even though the respondent No. 4 was found to be less in merit as compared to the petitioner, the appointment had been granted to him taking into consideration the preferential qualification. The question whether preferential question could be made the basis in the absence of the applicants being not at par taking into consideration the merit in the basic qualification was decided against the petitioner by the Department.
6. The Tribunal, it may be noticed, had placed reliance in support of its view upon its earlier decision disposing of O.A. No. 1049 of 1989 decided on 18.9.1996.
7. Learned counsel for the petitioner has urged that in the present case, the essential qualification had to be considered as indicated in the clarificatory letter dated 15.1.2002 issued by the Assistant Director General which had been relied upon by the tribunal in support of its conclusion had taken into account the earlier letter dated 10.5.1991 which was not at all attracted in the facts and circumstances of the present case.
8. We have perused the letter dated 15.1.2002 issued by the Assistant Director General (GDS), a copy of which has been filed as Annexure-4 to the writ petition. The aforesaid letter purports to be on the subject described as legal validity of preferential educational clause in respect of GDS other than GDS BPM/GDS SPM. Referring to the earlier letter issued covering the subject dated 12.3.1993 which stipulated that the minimum educational qualification for EDDA/EDSV and other categories and ED Agents should be 8th standard and preference may be given to the candidates with matriculation qualification but no weightage should be given for any qualification higher than matriculation. It was clarified that when ever any case is being defended in the CAT/Court on the question of validity of preferential educational qualification clause prescribed for GDS other than GDS BPM/SPM, the contents of the judgment of the Punjab and Haryana High Court dated 16.7.2001 disposing of the writ petition No. 1262 of 2001 filed by Shri Ram Kumar, be incorporated in detail in the draft Affidavit and brought to the notice of CAT/Court during the hearing effectively. The aforesaid letter purports to be emphasized that the validity of the preferential clause in question had been upheld.
9. The aforesaid letter does not indicate that the minimum prescribed eligibility criteria as enforced prior to the issuance of the aforesaid letter was in any manner dispensed with. In fact the said eligibility criteria was kept in tact and the aforesaid letter did not and could not have the effect of altering the minimum eligibility criteria which had been taken into account by the Tribunal in the present case.
10. Learned counsel for the petitioner has urged that the matter had been considered by a Division Bench of the Punjab & Haryana High Court in its decision in the case of Ram Kumar v. Union of India and Ors., Civil Misc. Writ Petition No. 1262 of 2001, decided on 16.7.2001. A copy of the aforesaid judgment was produced by the learned counsel for the petitioner during the course of hearing. In the aforesaid decision, the Division Bench of the Punjab & Haryana High Court had observed that if large number of candidates possessing qualification of matriculation were available, then selection can be made from amongst them by assessing their comparative merit with reference to marks secured in the Matriculation Examination. It was further indicated that in case such a course is adopted consequent selection and appointment could not be taken to be suffering from any legal infirmity which may justify interference by the Tribunal. It was also indicated that in the absence of any statutory embargo, the employer had the inherent power to select a candidate possessing qualifications higher than the prescribed minimum qualification and no fault can be found with the selection of the petitioner.
11. In the aforesaid connection, it may be noticed that the Apex Court had also considered a similar controversy in its decision in the case of Bibhudatta Mohanty v. Union of India and Ors. , reported in 2002 (2) UPLBEC 1288. In that decision in paragraph No. 12 thereof it was clearly observed as follows: -
".........Where any rule or guideline provide preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment.........."
12. In the case of Secretary (Health), Department of Health v. Dr. Anita Puri and Ors. , J.T. 1966 (8) SC 130. Speaking for the Apex Court, Hon. Pattanaik, J held:
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."
13. In its later decision in the case of Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors. , (2003) 5 SCC, 341, the Apex Court had observed as follows:-
".............. 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 "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.
.................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 tilting factor, in their favour vis-a-vis others in the matter of actual selection.
............Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification has to be preferred".
In the aforesaid view of the matter, it is apparent that the question of granting preference could arise only if the candidates were found to stand at par so far as the basic qualification was concerned.
14. Taking into consideration the facts and circumstances as brought on record in their totality, we are not satisfied that sufficient ground can be said to have been made out for any interference in the impugned judgment and order while exercising the extra ordinary jurisdiction envisaged under Article 226 of the htution of India, specially when the merit of the petitioner so far as the basic qualification was concerned, was lower as compared to the respondent No. 4 and they could not be taken to stand at par.
15. The writ petition, accordingly, fails and is dismissed.