1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3515 OF 2009 Dr. Santosh s/o Aapsing Wasave and ors. ..PETITIONERS VERSUS The Chairman, The Chief Executive Officer, Zilla Parishad, Nandurbar and anr. ..RESPONDENTS Mr V.M. Lomte, Advocate for the petitioners; Mr S.T. Shelke, Advocate for respondent no.1; Mr N.N. Jadhav, A.G.P. for respondent no.2. CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 3rd August, 2009 PER COURT : This is a petition under Article 226 of the Constitution of India by which the petitioners pray for issuance of a writ for quashing the appointment orders issued by respondent no.1 to respondents no.3 to 19 as Honorary Medical Officer and also pray for directing respondent no.1 to consider the claim of the petitioners as per the guidelines issued by the Government. The petitioners by their petition as had been originally filed, had prayed for issuance of a 2 writ for quashing and setting aside the final selection list dated 2.6.2009 published by the selection committee headed by respondent no.1 – Chairman and Chief Executive Officer, Zilla Parishad, Nandurbar and directing the respondents to consider and select the petitioners as Honorary Medical Officers by preparing a selection list afresh. 2. According to the petitioners on 21.5.2009 the respondent no.1 had issued an advertisement inviting applications from candidates holding B.A.M.S. qualification for appointment to the post of Honorary Medical Officer. Accordingly the interviews were scheduled on 28.5.2009 at about 11.00 a.m. Pursuant to the selection process a select list of the candidates came to be published by respondent no.1 on 2.6.2009 and on the basis of the aforesaid select list, the selected candidates came to be issued with the appointment orders. The petitioners have made several representations to the respondents pointing out the breach of the guidelines issued by respondent no.1, but to no avail. The petition is accordingly filed. 3. Learned Counsel for the petitioners invited our attention to the guidelines which have been issued by the Government. As per the said guidelines, especially guideline no.4 preference ought to be given 3 to those who have previous experience of similar nature. Guideline no.4 further mandates that advertisement was to be issued in the newspaper and selection should be done only on the basis of merit while giving preference to those having previous experience. Guideline no.7 deals with the training programme after selection and the persons to be selected for imparting the aforesaid training. Guideline no.12 deals with the location of the office of the mobile unit. Shri Lomte, learned Counsel for the petitioners has urged before us that since the rule of preference operates, the respondents ought to have selected all the petitioners who hold the requisite previous experience and thereafter ought to have filled the other posts on the basis of merit. According to the learned Counsel for the petitioners, rule of preference would mean that first the petitioners ought to be selected and thereafter the other posts ought to be filled in on the basis of merit. 4. Mr S.T. Shelke, learned Counsel for respondent no.1 has tendered before us the select list and as per the select list, the petitioner no.1 stands at sr.no.60 with his percentage of marks being 52.54. Petitioner no.2 stands at sr.no.46 with his percentage of marks being 55.43. Petitioner no.3 stands at 4 sr.no.43 with his percentage of marks being 55.70. Petitioner no.4 stands at sr.no.61 with the percentage of marks being 52.37. Petitioner no.5 stands at sr.no.72 and has been held ineligible. Petitioner no. 6 stands at sr.no.64 with the percentage of marks being 51.67. Petitioner no.7 who stands at sr.no.31 with the percentage of marks being 56.71 has been selected. Petitioner no.8 stands at sr.no.48 in the select list with the percentage of marks being 54.39. According to Shri Shelke, learned Counsel appearing on behalf of respondent no.1, excepting petitioner no.7, the other petitioners have not been selected and consequently not appointed as the petitioners stand far below the selected candidates in order of merit in the select list. According to Shri Shelke, therefore, the rule of preference would not assist the petitioners in the present case. 5. Shri Lomte, learned Counsel for the petitioner has placed reliance on the judgment of Supreme Court in Surinder Singh vs. Union of India & ors., (2007) 11 SCC 599, particularly to the observations of the Supreme Court at paragraph 16 of the judgment. Paragraph 16 of the said judgment reads as under :- “In our view, in service jurisprudence the prescription of preferential qualification not 5 only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post. All the more, it is important for efficient and effective administration. The basic object of prescribing a minimum qualification is to put a cut-off level for a particular job in accordance with the minimum competency required for the performance of that job. The object of prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the others. Sub-clause (iv) of Clause 2 puts a limit with respect to preferential qualification by way of a clear stipulation that no preference should be given to the qualification above matriculation. Hence, the preferential qualification was considered to be more effective and efficient and also it was a clear assumption that a candidate possessing the same is best suited for the post in question.” 6. According to us, the aforesaid observations of the Supreme Court do not apply to the facts of the present case as the Supreme Court was dealing with the preferential qualification as against the minimum qualification which is prescribed. In the present case we are dealing with the question of rule of preference. Rule of preference would apply in the event the candidate who is sought to be preferred stands equally in the merit list with the other 6 candidates. In the present case, since the petitioners have obtained less marks and do not stand on the same footing as that of the selected candidates in the order of merit, the rule of preference would not come to the aid of the petitioners. The contention of the petitioners, therefore, that by virtue of rule of preference the petitioners ought to have been selected first and thereafter the other seats ought to have been filled in on merits, is unsustainable. The rule of preference would have come to the aid of the petitioners only if the petitioners had scored equal marks as that of the selected candidates. Since the petitioners stand far below the selected candidates in the order of merit, the rule of preference would not apply to the case of the petitioners. In that view of the matter, according to us, there is no merit in the petition and the petition, therefore, deserves to be summarily dismissed and is accordingly dismissed with no order as to costs. [ A.V. POTDAR, J. ] [ P.V.HARDAS, J.] amj/wp3515.09