Gauhati High Court
The Governing Body Asom Jyoti Junior ... vs Indira Devi & 4 Ors on 10 May, 2016
Author: Suman Shyam
Bench: Suman Shyam
WA No.284 of 2014
WA No.286 of 2014
BEFORE
HON'BLE MR. JUSTICE AJIT SINGH, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUMAN SHYAM
10.05.2016
(Ajit Singh,C.J.)
WA No.284 of 2014
Mr. U.K.Nair, learned counsel for the appellant
Mr. TN Srinivasan, learned counsel for Respondent No.1
Mr. S Chakraborty, learned standing counsel for Education Department Mr. M Khataniar, learned standing counsel for BTC Mr. KN Choudhury, learned senior counsel for Respondent No.5 WA No.286 of 2014 Mr. KN Choudhury, learned senior counsel for the appellant Mr. TN Srinivasan, learned counsel for Respondent No.1 Mr. S Chakraborty, learned standing counsel for Education Department Mr. M Khataniar, learned standing counsel for BTC Mr. U.K.Nair, learned counsel for Respondent No.5 This intra court appeal is directed against the judgment and order dated 30.7.2014 passed by the learned Single Judge of this High Court whereby he has allowed WP(C) No.2590/2011 of Respondent No.1 - Indira Devi. Respondent No.5 - Mrinal Saikia has also filed separate WA No.286/2014 against the same judgment and order and we intend to decide both these appeals by this common order.
2. During the relevant period, the appellant - Assam Jyoti Junior College was government aided. It was also being run and managed by the Governing Body. The appellant imparts education at the level of Class XI and XII i.e. Higher Secondary. The syllabus in Arts stream of the college has been approved by the Board of Secondary Education, Assam. The syllabus contains Economics as one of the core subjects. The Page 1 of 7 college was in need of one Lecturer in Economics. The college, therefore, published an advertisement in newspaper on 16.7.2010 inviting applications from eligible candidates for the post of Lecturer in Economics. It was stipulated in the advertisement that candidates were required to possess at least second class Master Degree in the subject of Economics. It was also observed that preference would be given to the candidates having subjects Statistics and Mathematics at degree level. Then a selection committee of five members comprising of experts in the subject and also Principal and Vice Principal of the appellant college was constituted to ensure fair selection having regard to the need of appellant college. And the selection committee after considering all the materials in terms of advertisement, the need of appellant, the suitability of candidate for the post, recommended the names of following three candidates in order of merit -
Sl No. Name Marks
1. Dulen Kumar Gogoi Opted out
2. Indira Devi 129.1 Respondent No.1
3. Mrinal Saikia 122.5 Respondent No.5
3. The candidate mentioned above at serial No.1 opted out from the competition. And although, name of Respondent No.1 was at serial No.2 in the merit list, the Governing Body of the college vide its resolution adopted in the meeting held on 10.12.2010 decided to appoint respondent No.5 on the ground that he had subjects of Statistics and Mathematics at degree level which was preferential qualification in the advertisement. The Director of Education, Bodoland Territorial Council also approved the resolution and vide order dated 21.2.2011 appointed Respondent No.5.
4. Aggrieved, respondent No.1 filed WP(C) No.2590/2011 and averred that appellant committed an illegality in appointing respondent No.5 despite she having secured as many as 7 more marks than him. Respondent No.1 also pleaded that Page 2 of 7 principle of "preference" was wrongly applied by the appellant for appointing respondent No.5. The appellant in reply defended its action of appointing Respondent No.5 on the ground of need for teaching Statistics and Mathematics subjects in the School.
5. The learned Single Judge relying upon the decisions of the Supreme Court in Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu (2003) 5 SCC 341 and State of U.P vs. Om Prakash (2006) 6 SCC 474 agreed with Respondent No.1 and allowed her petition by the impugned order. The learned single Judge has also quashed the decision of the Governing Body dated 10.12.2010 and consequential appointment order dated 21.2.2011 of Respondent No.5. The learned Single Judge has finally remanded the matter to the Director of Education, Bodoland Territorial Council for passing an appropriate order as expeditiously as possible preferably within one month. It is in this background, the appellant has filed the present appeal.
6. The learned counsel for the appellant has read out the above referred decisions of the Supreme Court relied upon by the learned Single Judge and submitted that the expression "preference" as mentioned in the advertisement has wrongly been construed in the matter. The learned counsel, in support of his submission, also cited the decision of Supreme Court in Surinder Singh vs. Union of India, (2007) 11 SCC
599. The learned Senior Counsel appearing for Respondent No.5 supported the decision of Governing Body and adopted the arguments advanced on behalf of the appellant. The learned Senior Counsel, in addition, relied upon the decision of Supreme Court in Govt. of A.P. vs. P Dilip Kumar, (1993) 2 SCC 310.
7. In Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu (supra), the Supreme Court interpreted the word "preference" in the context of scheme of selection and held as under:-
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"10.........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 procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. 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. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority meritwise and their suitability for the post. 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 any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-à-vis others in the matter of actual selection."
8. In State of U.P. vs. Om Prakash, (supra), the Supreme Court has held that 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-à-vis others in the merit list prepared by the Service Commission for selection. But preference does not mean en bloc preference irrespective of inter se merit and suitability.
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9. The legal principle in reference to word "preference" in the scheme of selection has therefore been well settled by the Supreme Court. And the principle is that preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any 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-à-vis others in the merit list prepared by the selection committee. It is also well settled that preference does not mean en bloc preference irrespective of inter se merit and suitability.
10. In the case at hand, as seen above, the selection committee was constituted comprising of experts in the subject of Economics and Principal and Vice Principal of the appellant college. The members of the committee thus very well knew about the actual need of appellant college for Lecturer i.e, Economics subject. They were also aware as to which candidate would be most suitable to teach Economics as per syllabus. The selection committee, therefore, after considering all the relevant criteria as well as the need of appellant college, suitability for the post, educational qualification and performance of the candidates, awarded 129.1 marks to respondent No.1 and 122.5 marks to respondent No.5. Respondent No.1 thus secured 7 marks more than respondent No.5. In this fact situation, it is not possible to hold that respondent No.5 was more suitable than respondent No.1. It is also not the case of appellant that only those candidates who had subjects Statistics and Mathematics at degree level were eligible for the post of Lecturer in Economics. It was not even mentioned in the advertisement that candidates though having minimum second class Master Degree in the subject of Economics and not having subjects Statistics and Mathematics at degree level should not apply. And had that been the case, the appellant would not have considered the candidature of respondent No.1 at all for not Page 5 of 7 having subjects Statistics and Mathematics at degree level. Yes, if the selection committee had awarded equal marks to respondent No.1 and Respondent No.5, the appellant could have given preference to Respondent No.5 and appointed him for having Statistics and Mathematics subjects at degree level. But the situation is not as such here. We therefore find ourselves in complete agreement with the finding of learned Single Judge that the appellant committed an illegality in appointing respondent No.5 on the post of Lecturer instead of respondent No.1.
11. In Surinder Singh vs. Union of India (supra), for the selection on the post of Extra Departmental Delivery Agent (for short "EDDA"), the Department of Posts vide its Circular dated 12.3.1993 had declared that the minimum qualification should be 8th standard pass and preference shall be given to the candidates with matriculation qualification. In yet another letter dated 21.11.1997, the Department further declared that merit of candidates for selection of EDDA should be prepared on the basis of marks obtained in preferential qualification (matriculation) if such candidates are available otherwise on the basis of essential qualification which 8th standard. The appellant in that case had secured more percentage of marks in matriculation examination than the respondent, who was not selected. The selection committee therefore selected and appointed the appellant on the post of EDDA on the basis of merit as he had secured more percentage of marks in matriculation examination. Aggrieved, the respondent challenged the selection of appellant and even succeeded before the Central Administrative Tribunal. But in appeal, the Supreme Court upheld the validity of selection and appointment of the appellant. The case is clearly distinguishable as in the present case the appellant did not give any direction to the selection committee to first prepare the merit list on the basis of marks obtained in preferential qualification (i.e. Statistics and Mathematics at degree level) if such Page 6 of 7 candidates were available and otherwise on the basis of minimum qualification i.e. Master Degree in Economics. The decision of Surinder Singh, therefore, does not help the appellant.
12. In Govt. of A.P. vs. P. Dilip Kumar (supra) also for recruitment to the post of Deputy Executive Engineer, Rule 4 of the A.P. Engineering Service Rule provided that minimum educational qualification shall be graduation. And Note 1 to Rule 4 stated that post-graduate qualification shall be treated as additional qualification and preference shall be given to such candidates. The State Public Service Commission interpreting Rule 4 first selected post-graduate engineers for the available vacancy under open competition and since sufficient numbers of post-graduates were available, no graduate was selected. This recommendation was put to challenge before the Supreme Court but it was turned down on the ground that there is nothing unreasonable in preferring a candidate with "higher qualification" to achieve administrative efficiency. In the present case, there was no rule or decision to give preference to "higher qualification". The minimum higher qualification required was post-graduate which both respondent No.1 and Respondent No.5 have. Also, as already seen above, the selection committee after considering the qualification, need, performance and suitability of the candidates for the post advertised awarded much more marks to Respondent No.1 than Respondent No.5. Therefore, even this decision does not help the appellant in any manner.
13. For these reasons, we find no merit in both the appeals. They are accordingly dismissed.
JUDGE CHIEF JUSTICE
santanu
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