Holding

The preference clause must be construed as granting additional weightage to degree‑holders only when candidates are otherwise equally placed, not as an absolute preference, and the High Court's direction to appoint them was erroneous.

Summary

The Uttar Pradesh Public Service Commission advertised 390 posts of Homeopathic Medical Officer, requiring either a recognized degree or a recognized diploma in Homeopathy, with a proviso that "preference will be given to degree holders." After the selection process, many degree‑holders who were eligible were not appointed, leading to writ petitions. The Allahabad High Court interpreted the preference clause as an absolute priority for degree‑holders and directed the Commission to appoint them, quashing the Commission’s selection. The Supreme Court held that the preference clause merely gives additional weightage to degree‑holders when candidates are otherwise equally placed, and does not create an en‑bloc right to appointment; inclusion in a merit list does not guarantee selection. Consequently, the Court set aside the High Court’s subsequent orders and allowed the State’s and the Commission’s appeals, while dismissing other appeals. The decision reaffirmed the principle that public service selections must be based on overall merit, with preference for higher qualifications applied only as a tie‑breaker.

Issues considered

The proper construction of the phrase 'preference will be given to degree holders' in recruitment advertisements.
Whether the preference clause confers an absolute right of appointment to degree‑holders over diploma‑holders.
Whether the High Court erred in directing the appointment of degree‑holders who were not selected by the Commission.

Subjects

service lawrecruitmentpreference clausepublic service commissionhomeopathydegree versus diplomainterpretation of statutesmerit selection

Judgment

STATE OF U.P. AND ANR. A
v.
OM PRAKASH AND ORS.

JULY 21, 2006

[H.K. SEMA AND A.K. MATHUR, JJ.] B

Service Law:
'
Professional qualifications-Preferential clause-Interpretation of-
Homeopathic Medical Officers-Relruitment of-Eligibility-Degree in C
Homeopathy or Diploma in Homeopathy-With proviso that preference would
be given to degree-holders-Held, when selection is made on the basis of
merit assessed through competitive examination and interview, preference to
additional qualification would mean other things being qualitative(v and
quantitatively equal, those having additional qualification would be D
preferred-It does not mean en bloc preference irrespective of inter se merit
and suitability-Interpretation of statutes.

In the State of Uttar Pradesh, in order to recruit Homeopathic Medical
Officers, an advertisement was issued whereunder qualification for the post
was mentioned as "a recognized degree in Homeopathy" or "a recognized E
Diploma in Homeopathy "with a proviso stipulating that preference will be
given to degree-holders''. The Public Service Commission recommended the
degree-holders as well as Diploma-holders. The degree-holders, whose names
did not find place in the select list filed a number of writ petitions in the High
Court. Main judgment was delivered on 19.7.1996 in Civil Misc. Writ petition
No. 10175of1994. That judgment having not been assailed attained finality. F
Thereafter following the said judgment, the High Court decided the batch of
writ petitions holding that in view of the preferential clause, the degree-holders
were to be preferred to Diploma-holders, in that, the Diploma-holders were to
be considered only where degree-holders were not available in requisite
number. G
These subsequent orders have been challenged in the present appeals
by the State Government

Disposing of the appeals, the Court
.' 793 H
794 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.
...- _:,...
A HELD: I. I. The interpretation of the preference clause given by the
High Court runs into the teeth of the decision rendered by this Court in a
catena of cases to the effect that when selection is made on the basis of merit
assessed through the competitive examination and interview, preference to
additional qualification would mean other things being qualitatively and
quantitatively equal, those having additional qualification would be preferred.
B It does not mean en bloc preference irrespective of inter se merit and
suitability. That apart, this Court has consistently held that inclusion of
candidate's name in merit list does not confer any indefensible right to be
appointed. The High Court has, therefore, misdirected itself by issuing the
f'
directions despite the fact that the respondents were not selected by the .;

c Commission. (789-F-G; 801-C-D[

Secy. (Health) Deptt. Of Health & F. W. v. Dr. Anita Puri, [1996[ 6 SCC
282; Secretary, A.P. Public Service Commission v. Y. V. V.R. Srinivasulu, (2003)
5 SCC 341; Shankarsan Sash v. Union of India, AIR (1991) SC 1612 and
Union Territory of Chandigarh v. Dilbagh Singh, (1993) l SCC 154, relied
D on.

2.1. The contention that the judgment of the High Court dated 19.7.1996
passed in Civil Misc. Writ Petition No. 10175of1994 which judgment was
followed in a subsequent order having been assailed in the instant batch of
appeals and, therefore, the same being clearly illegal, should also be set aside,
E cannot be accepted. Firstly, the judgment dated 19.7.1996 has not been appealed
against and it has now been implemented and has attained finality. Secondly,
the writ petitioners in Civil Misc. Writ Petition No. 10175 of 1994 and
batches thereof which were allowed by the High Court in its judgment dated
19.7.1996 are not before-this Court. However, the subsequent orders following
F the judgment by the High Court dated 19.7.1996, which have been assailed in
these bunch of civil appeals, are set aside. (801-G-H; 802-A-B)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5757-5759 of
2002.

G From the Judgment and order dated 11. 9.1998 and 3.11.1998 of the High
Court of Allahabad, Lucknow Bench, Lucknow in Review Petition No. 73 (W)
of 1998 and High Court of Allahabad, at Allahabad, in C.M. W.P. No. 4923 of
1997 and C.M.W.P. No. 1231/1996.
WJTH
....
H C.A. No. 5761-5763/02, C.A. No. 5765-5766/02,C.A. No. 5760/02, C.A. '.
STATEOFU.P. v. OM PRAKASH [SEMA,J.] 795
No. 5764/02, C.A. No. 3078 of 2006 @ SLP (C) No. 24 710 of 2002, C.A. No. A
3097 of2006@SLP(C)No. 24189/02, C.A. No. 7013/04, C.A. No.174/05, C.A.
No. 275/05, C.A. No. 276/05, C.A. No. 278/05, C.A. No.1190/05, C.A. No.1191/
05, C.A. No. 1192/05, C.A. No.1193/05, C.A. No. 2734/05 and C.A. No. 7533
of2005

Dr. P.G. Padia, Pradeep Misra, T. Mahipal, Vibhakar Mishra, Pankanj B
Singh, Mukesh Verma, K.L. Janjani, Shail Kumar Dwivedi, G.V. Rao, Vijay
Kumar, Bharti Tyagi, Vishwajit Singh, Dr. Su:nant Bharadwaj, S. Dattar, Mridula
Ray Bharadwaj, K.L. Taneja, T.N. Singh, Rakesh K. Khanna, Dr. Rashmi Khanna,
Sunita R. Sharma, Rahul Bansal, Shikha Sapra, Sunita Singh, Abha R. Sharma,
Anurag Dubey, Amit Dubey, Vikas Kalkar and Atishi Dipankar for the appearing C
parties.

The Judgment of the Court was delivered by

H.K SEMA, J. Delay condoned in SLP (c) Nos.24710 and 24189 of2002
and leave granted.
D
I.A.Nos.3-4 of 2001 for impleadment and I.A.Nos.7-8 of 2004 for
intervention in C.A.No.5765-5766 of2002 are rejected.

These bunch of appeals raise a common question of fact and law and
as such they are being disposed of by this common judgment. For the sake E
of brevity we are taking the facts from Civil Appeal No.5757-5759 of2002.

The facts are cumbersome. Avoiding prolixity few facts are recited. The
whole controversy revolves around the selection made by the Uttar Pradesh
Public Service Commission (hereinafter referred to as the UPPSC) for the
Medical Officers of Homeopathy. F
Pursuant to the advertisement dated 22.3.1986 and a corrigendum dated
14.11.1987, 390 posts were advertised to be filled up by the Homeopathic
Medical Officers through UPPSC. Alongwith others respondents also applied
for the posts for which the interview was· held on 23. 10.1990. The appointments
were to be made on the basis of oral interview and also the marks to be G
/-
awarded on the qualifications of each candidate.

It is stated that the respondents possess the Bachelor Degree of
Homeopathic Medicine and Surgery (B.H.M:S ). It is also stated that they
have completed five years course inc.luding one-year compulsory routine
H'
796 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A internship in Government Hospitals and Public Health Centres from " ~
Homeopathic Medical College affiliated with the Agra University in the year
1985.

To appreciate the real controversy in perspective, 1t 1s necessary to
notice the requisite qualification mentioned in the advertisement as per the
B requirement of Rule 8 of the Uttar Pradesh Homeopathic Medical Service Rule,
1990 ( in short Rules).

"8. Academic qualification:-

A candidate for direct recruitment to the service must possess:- I'
c I. a recognized degree in Homeopathic, the duration of study of which
is not less than five years according to its syllabus of course.

OR

a recognized Diploma in Homeopathy the duration of study of which
D is not less than four years according to its syllabus of course.

Provided that preference will be given to degree holders.

(emphasis supplied)

E II. The applicant should be duly registered with the Homeopathic
Medical Board, Uttar Pradesh.

It will be noticed from the above quoted rules that in addition to the
requisite qualification a proviso has been added "preference will be given to
degree holders".
F
The real controversy starts from the proviso that "preference will be
given to degree holders".

For total seats of 390, 716 degree holders applied, out of which 565 were
found eligible for interview and out of them I09 have been recommended and
G appointed. The total number of diploma holders who had applied for the posts
were 4239, out of which 1989 were called for interview and 302 were
recommended. The diploma holders in general category who had secured 49%
marks were called for interview whereas in the case of backward class
candidates those who had secured 48. 7% marks were called for interview.

H In the batch of writ petition; the main judgment was delivered by the
STATE OF U.P. v. OM PRAKASH [SEMA,J.] 797
Division Bench of the High Court in Civil Misc.Writ Petition No. 10175of1994 A
disposed of on 19.7.1996. The judgment of the Division Bench dated 19.7.1996
passed in Civil Misc. Writ Petition has not been assailed by the appellants
and therefore it has attained finality. What has been appealed against in this
bunch of appeals is the subsequent order of the High Court following the
decision dated 19.7 .1996 rendered in Civil Misc. Writ Petition No. I0175 and
batches of 1994. B
Undisputedly, the respondents were degree holders with requ1s1te
qualification as prescribed in the advertisement. The apple of discord centers
around the proviso. The respondents/writ petitioners contended before the
High Court that such preference has not been given to the degree holders C
and they were clubbed together with the diploma holders and considered as
such by the Commission. The respondents challenged the entire selection in
the writ petition as ultra vires the qualifications prescribed in the
advertisement. The select list has also been challenged on the ground of
arbitrariness as according to the respondents/writ petitioners the preference
clause was totally ignored. It was contended before the High Court by the D
appellants that the ratio for filling up 390 total seats was in the ratio of I to
8. In other words, for filling up the 390 total seats, 2554 candidates were called
for interview, out of which 1989 were diploma holders and 565 degree holders
were found eligible.

The High Court after repelling the contention of the appellants has E
interpreted the preference clause as under:-

"If we read the preferential clause, giving the ordinary literal meaning,
the Degree holders were to be preferred to Diploma holders, as has
been explained in the advertisement itself, i.e. the Diploma holders will F
be considered only when the Degree holders are not available in
requisite number. These are the words used in the clarification clause
given in the advertisement. It is plain and clear from those words that
in case where Degree holders are not a«ailable in requisite number,
only then, Diploma holders are to be considered. Therefore, there was
no rationality in clubbing them together while considering the G
preference to be given to the Degree holders."

The High Court rejected the consistent contention of the appellants
that the writ petitioners/respondents herein were also called for interview and

•
... they were not selected for the posts .
H
798 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A However, the High Court on the aforesaid reasoning of interpretation of
preference clause as prescribed in the advertisement has came to the following
conclusion:

"Considering the facts and circumstances of the case, we have no
hesitation in holding that the Commission acted in most arbitrary and
B unreasonable manner in making selection for tlie post of Homeopathic
Medical Officer. It is not expected from such a constitutional body,
like the public Service Commission to act in such a casual manner
while considering the public employment. We would have had no
I ,
hesitation in quashing the entire selection made by the Commission
but considering the public intetest and also bearing in mind that the
c persons already selected have been appointed and are working on
their posts as Homeopathic Medical Officers for more than two years
and they could not be made party in these writ petitions, although a
few of them have intervened by filing applications and have. been
heard, and further that fresh selection will unreasonably delay causing
D inconvenience to the public in general, we refrain from doing so in the
larger interest. Therefore, on conclusion of the hearing, we sought
information from the learned Standing Counsel as to how many posts
of Homeopathic Medical Officers are still vacant. The learned Standing
Counsel filed an affidavit on behalf of tlie State annexing therewith a
letter dated 20.5.1996, disclosing that 50 posts of Homeopathic Medical
E Officers are still lying vacant, out of which 15 posts are earmarked for
the female candidates. Therefore, considering all these circumstances,
we are of the view that it would be equitable in the facts of the case
to issue direction to the Commission to forward the names of all the
petitioners to the State Government for appointment on the vacant
F post of Homeopathic Medical Officers."

The interpretation of the preference clause given by the High Court
runs into the teeth of the decisions rendered by this Court in a catena of
cases.

G This Court has consistently held that when selection is made on the
basis of merit assessed through the competitive examination and interview,
preference to additional qualification would mean other things being
qualitatively and quantitatively equal, those having additional qualification
would be preferred. It does not mean en bloc preference irrespective of inter
se merit and suitability.
H
STATEOFU.P. v. OM PRAKASH [SEMA,J.) 799
In Secy. (Health) Deptt. ofHealth & F. W. v. Dr. Anita Puri. (1996] 6 SCC A
282, this Court held that preferential qualification do not as of right entitle to
selection. In that case the advertisement inviting applications for the post of
Dental Officers prescribed B.D.S. as the minimum qualification but stipulated
preference for higher dental qualification. This Court held at sec p.285 as
under:-
B
"Admittedly, in the advertisement which was published calling for
applications from the candidates for the posts of Dental Officer it was
clearly stipulated that the minimum qualification for the post is B.D.S.
It was also stipulated that preference should he given for higher
dental qualification. There is also no dispute that M.D.S. is higher C
qualification than the minimum qualification required for the post and
the Respondent No. I was having that degree. 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 D
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 E
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 F
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 G
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. In this view of the matter, the High Court
in our considered opinion was wholly in error in holding that a M.D.S.
qualified person like Respondent No. l was entitled to be selected and H
800 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A appointed when the Government indicated in the advertisement that
higher qualification person would get some preference. The said
conclusion of the High Court, therefore, is wholly unsustainable and
must be reversed".

This Court again considered the same question in Secretary, A.P.Public
B Service Commission v. Y. V. VR. Srinivasulu, [2003] 5 SCC 341 and held at sec
p.348 as under:-

"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
c 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 involve, a qualifying test, a written
examination and 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
D
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
E 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
F
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
G superiority merit wise 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 considera\ion and when anyone or more of them are found
equally positioned by using the additional qualification as a tilting
H
STATE OF U.P. v. OM PRAKASH [SEMA, J.) 801
factor, in their favour vis-a-vis others in the matter of actual selection". A
In the instant case, the requisite academic qualification for the post of
homeopathy as prescribed in the advertisement was a recognized degree in
Homeopathy or a recognized diploma in Homeopathy. A proviso has been
added that preference will be given to degree holders. This would mean that
a recognized diploma in homeopathy prescribed in the advertisement is also B
a required minimum educational qualification with which they are entitled to
compete with those candidates possessing the degree. The 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 C
positioned, then only the additional qualification may be taken as a tilting
factor, in favour of candidates vis-a-vis others in the merit list prepared by
the Commission. But preference does not mean en bloc preference irrespective
of inter se merit and suitability.

That apart this Court has consistently held that inclusion of candidate's D
name in merit list does not confer any indefeasible right to be appointed. [See
Shankarsan Dash v. Union of India, AIR (1991) SC 16 I 2 and Union Territory
of Chandigarh v. Dilbagh Singh, (1993] I SCC 154]

In the facts aforesaid we are clearly of the view that the High Court has
misdirected itself by issuing such directions despite the fact that the E
respondents were not selected by the Commission.

Counsel for the respondents herein would contend that since the order
of the High Court dated 19.7.1996 passed in Civil Misc. Writ Petition No.10175
of 1994 and batches has now attained finality, the subsequent order of the
High Court following the same decision assailed in the present appeals must F
also be dismissed. We are unable to accept this contention. Adhering to such
contention would amount allowing the perpetuation of illegality.

We may also dispose of one of the arguments of the counsel for the
appellants. Counsel contended that the judgment of the High Court dated
19.7.1996 passed in Civil Misc. Writ Petition No.10175of1994 which judgment G
was followed in a subsequent order has been assailed in this batch of appeals
and, therefore, the judgment dated 19. 7.1996 is clearly illegal and the same
should also be set aside. We are unable to agree with this submission for
more than one reason. Firstly, the judgment dated 19.7.1996 has not been
appealed against and it has now been implemented and has attained finality. H
802 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A Secondly, the writ petitioners in Civil Misc. Writ Petition No.10175of1994 and
batches thereof which were allowed by the High Court in its judgment dated
19. 7.1996 are not before us.

However, the subsequent orders following the judgment by the High
Court dated 19.7.1996, which has been assailed in these bunch of Civil Appeals,
B are quashed and set aside. Accordingly, Civil Appeal Nos.5757-5759/02, 5761-
5763/02, 5765-5766/02, 5764/02, C.A.No. 3098 of2006@ SLP (C} No.24710/02,
C.A.No. 3097of2006@ SLP (c) No.24189/02, C.A.No.174/05, C.A.No.275/05,
C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05, C.A.No.1191/05, C.A.No.1192/
05, C.A.No.1193/05, C.A.No.2734/05 and C.A.No.7533 of 2005 filed by the
C State of U.P. and Uttar Pradesh Public Service Commission are allowed.
Civil Appeal Nos.7013 of2004 and 5760 of2002 are dismissed. Parties
are asked to bear their own costs.

RP. Appeals disposed of.

r