B.S. Chauhan, J.@mdashBy means of this petition the Petitioner has prayed for quashing of the impugned order dated 8.10.1996, Annexure 4 to the writ petition, by which the Respondent-Commission had not called the Petitioner for interview as he was not found fit after short-listing.
2. The Petitioner had applied for the post of Assistant Director Industries (Hathkarga) in response to the advertisement No. 4/94-95 published in ''Rozgar Samachar'' dated 25th February to 3rd March, 1995, Annexure 3 to the writ petition. There were only two posts of the Assistant Director Industries (Hathkarga) in general quota for which minimum qualification was prescribed as Master Degree by any University or recognized institution in any one of the subjects namely, Art. Science, Commerce or any Technology. However, the preferential qualification has been prescribed as ''b'' certificate of National Cadet Corps (hereinafter called N.C.C.) or two years service in Pradeshik Sena. The other terms and conditions of the advertisement are not relevant for deciding the controversy involved in the instant case.
3. Petitioner''s qualification are as under:
1. High School 48.8% 2nd Division 2. Intermediate 63.3% Ist Division 3. B.Sc (Agriculture) 65.8% Ist Division 4. M.Sc. (Agriculture and Botany) 49.8% 2nd Division 5. Ph.D. (Agriculture and Botany) in the year 1993 6 ''b'' certificate in N.C.C.
4. The grievance of the Petitioner is that as he possessed the preferential qualification, i.e., ''b'' certificate in N.C.C., his case could not have been rejected by the Commission while short-listing only on the basis of minimum qualification. On the other hand, the Respondent-commission in its counter-affidavit placed reliance upon Rule 9 of the U.P. Industries (Directorate of Handloom and Textiles) Service Rules, 1993 (hereinafter called as the 1993 Rules) which provides for preferential qualifications as under:
(1) ....
(2) A candidate who has obtained ''b'' certificate of National Cadet Corps, shall, other things being equal, be given preference in the matter of direct recruitment.
5. Further Rule 54 of the U.P. Public Service Commission (Procedure and Conduct of Business) Rules, 1976 (hereinafter called the 1976 Rules) provides for adopting procedure to call the candidates for interview even by process of shortlisting. Respondent-Commission has further taken a specific plea that as per policy framed by the Commission under the said Rule 54, ten candidates were called for interview against one post. In the instant case, twenty candidates were called for interview as there were only two vacancies in general quota and the last candidate called for interview had secured 78.4% marks in his post Graduate Degree. Since the Petitioner had secured only 49.8% marks in his post Graduate Degree, he was not found fit for being called for interview and hence the impugned letter dated 8.10.96 was issued. It has further been mentioned in paragraph 4 of the counter-affidavit that altogether there were 29 other candidates who possessed Ph. D. Degree and had secured 51.2% to 69.5% marks in their respective post Graduate Degree but none of them was called for interview as the last candidate called for interview secured much higher marks in his post Graduate Degree as stated above. Thus, the first question to be considered by this Court is as what is the meaning of the "preferential qualification" mentioned in Rule 9 of the said 1993 Rules.
6. Shri M. D. Singh Shekhar, learned Counsel for the Petitioner has vehemently urged that in view of his preferential qualification, the Petitioner could not have been short-listed and in support of his submission he placed reliance upon the judgment of Division Bench of this Court in Km. Poonam Chaudhary v. U.P. Public Service Commission, Allahabad 1993 ERC 340, wnereln this Court has held that if an advertisement provides for preferential qualification and a candidate possess the preferential qualification, he cannot be eliminated by process of short-listing only on the basis of minimum qualification. As such, the process had been found by this Court arbitrary and illegal. Shri V.M. Sahai has opposed this contention on the ground that the Commission has to assess a candidate on his over-all performance and only on the basis of preferential qualification. There is some force in this averment as if for a particular post minimum qualification is Master Degree and preferential qualification is Ph. D Degree, a candidate who passed and his examinations in 3rd Division and holds a Ph. D. Degree may not be preferred by a Selection Committee in preference to another candidate who passed all his examinations in first Division and did not possess Ph. D. Degree. The Petitioner cannot rely upon the judgment in Km. Poonam Chaudhary (supra) as in the instant case there is a distinguished feature. Rule 9 of the said 1993 Rules provides for preferential treatment only if other qualifications are equal. A proviso to Clause (1) of Section 47 of Motor Vehicle Act, 1939 provided for preferential treatment while granting permanent stage carriage permit in favour of the Co-operative society if other things were found equal with an individual applicant. While interpreting the said provision in Motor Workers Industrial Co-operative Society v. State Transport Appellate Tribunal 1961 KLT 553, a Division Bench of Kerala High Court held that if other individual candidates were more qualified, "the question of preference on the ground of being Co-operative Society did not arise." Similarly, another Division Bench of Kerala High Court in Malabar Motor Transport Co-operative Society Ltd. v. State Transport Appellate Tribunal and Ors. 1963 KLT 78. held that the applicant being the Co-operative Society can only Tilt the scales in its favour when they are equally balanced." The issue was further considered in
7. Therefore, in view of the ratio of the aforesaid judgments, interpretation of Rule 9 of 1993 Rules in the instant case would be that question of preferential treatment would arise only if other things are equal. If the rival claimants/competitors have better academic record, the question of preference will not arise. In the instant case, as the Petitioner was not found having equal position on the basis of minimum qualification, his preferential qualification cannot give him any right of preference.
8. In fact, this case is squarely covered by the recent judgment of Hon''ble Supreme Court in
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.
(Emphasis added).
9. In view of the above, Petitioner is entitled for some weightage in case he is called for interview after being found equal to other candidates on the basis of minimum qualification. Thus, there is no force in the submission of the learned Counsel for the Petitioner that he was entitled to be called for interview on the basis of his preferential qualification of ''b'' certificate of N.C.6.
10. The next averment urged by Shri M. D. Singh Shekhar is that Respondent-Commission had no right to short-list and deprive the Petitioner from being called for interview.
11. This submission is devoid of any merit. In
Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidate amongst the other applicants. The Commission or Selection Board can adopt any rational procedure for fixing the number of candidates who would be called for interview then such interview/viva-voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. The Commission or selection board has no option but to short-list such applicants on some rational and reasonable basis.
12. In the instant case, as is evident from the counter-affidavit of the Respondent Commission, the Commission had fixed a ratio, i.e., 10 candidates were called for interview against one vacancy and as there had been two vacancies in the general quota and thus, 20 candidates were called for interview and the criteria adopted by the Commission for short-listing had been on the basis of marks obtained by the candidates in their respective post-Graduate examinations.
13. We are of the considered opinion that the Respondent Commission was entitled to adopt the procedure of short-listing and the criteria for preferring short-listing or eliminating the candidates was rational/reasonable and valid and does not suffer from any arbitrariness. This view is further fortified by the judgment of Division Bench of this Court in Dr. Mahesh Prasad Sharma v. Public Service Commission, U.P. 1995 (1) ESC 359. Thus, the Petitioner can have no grievance if he stood short-listed on account of his poor performance in the Post Graduate examination.
14. In view of above, the petition is devoid of merit and hence dismissed. However, there shall be no order as to costs.
