HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No. 1492 (S/S) of 2003 Yogendra Kumar S/O Sri R.P. Rai R/o 525 Preet Vihar Colony Ganeshpur Roorkee, District Haridwar …Petitioner Versus State of Uttarakhand and others …Respondents Mr. Alok Mehra, Advocate for the petitioner. Mr. N.P. Shah, Standing Counsel for the State. Mr. Vinjay Kumar, Advocate for respondent No.4. Per Hon’ble J.C.S. Rawat, J. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for seeking the following reliefs:- “A. To issue a writ, order or direction in the nature of mandamus commanding the Respondents to forthwith appoint the Petitioner as Junior Engineer (Mechanical) against available vacancies in accordance with the law laid down by the Apex Court in (1995) Volume II S.C.C. Page 1. B. To issue a writ, order or direction in the nature of mandamus commanding the Respondents to hold selection for appointment to the post of Junior Engineer strictly in accordance with the law laid down by the Apex Court by giving preferential treatment to the trained Apprentices over other candidates. C. To issue any other suitable writ, order or direction as this Hon’ble court may deem fit and proper in the facts and circumstances of the case. D. To award the cost of the writ petition in favour of the Petitioner.” 2. The case in nutshell is that the petitioner is a Diploma Holder in Mechanical Engineering. After completing Diploma Course, the petitioner was engaged as an Apprentice in the Electricity Distribution Division, U.P. State Electricity Board Roorkee from 12/06/1991 to 11/06/1992. The Uttaranchal Power Corporation Ltd. advertised 10 posts of Junior Engineer (Mechanical). Pursuant to the said advertisement, the 2 petitioner also applied for the post of the Junior Engineer (Mechanical). The petitioner was also declared successful in the written examination and he was called for the interview. The petitioner was not selected in the select list. The petitioner approached to the respondent No.3 and he was informed that his name is in the waiting list and as and when vacancy will fell, his name would be recommended. It is also pertinent to mention here that the posts were advertised through Uttaranchal Power Corporation Ltd. and it was requisitioned by Uttaranchal Jal Vidyut Nigam Ltd.- respondent No.4. When the petitioner was not appointed as a Junior Engineer (Mechanical), he preferred this writ petition before this Court. 3. The petitioner in substance based his claim that after completing the diploma course, he was engaged as an Apprentice from 12/06/1991 to 11/06/1992 in the Electricity Distribution Division, U.P. State Electricity Board Roorkee. In the advertisement, it was not mentioned that preference would be given to the candidates who had completed the apprenticeship with the department. The petitioner is claiming the preference over the direct recruit in view of the judgment of the Hon’ble Apex Court rendered in U.P.S.R.T.C. and another Vs. Parivahan Nigam Shishukhs Berojgaar Sangh and others reported in (1995) 2 SSC p/1. When the preference was not given to the petitioner, the petitioner has filed this petition. 4. The respondents have filed the counter affidavit alleging therein that the said guidelines laid down by the Hon’ble Apex court did not confer any right to the petitioner to claim appointment from the respondent No.4. It was obligatory on the part of the petitioner to get into the merit list in the 3 examination conducted by the Uttarakhand Power Corporation. The petitioner cannot claim any exemption in the said merit list. The petitioner without being selected cannot be appointed in the establishment of respondent No.4. It is also alleged that the judgment which has been cited by the learned counsel for the petitioner has been interpreted in the subsequent judgment of the Supreme Court on the basis of the Full Bench of Allahabad High Court rendered in the case of Arvind Gautam Vs. State of U.P. and others [(1999) 2 UPLBEC 1397] in which it has been held that para 13 of the said UPSRTC (Supra) applied strictly to the persons whose cases came up for consideration. When the persons have got the equal marks, then they will get the preference. The Full Bench Judgment of the Allahabad High Court has been upheld by the Hon’ble Apex Court in the case of U.P. Rajay Vidyut Parishad Apprentice Welfare Association Vs. State of U.P. reported in 2000 Vol.5, SCC p/438. The respondents further prayed that this petition be dismissed. 5. The only question which is to be decided is whether the petitioner can claim the benefit of guidelines laid down in paras 1 to 4 of UPSRTC case (Supra) or not. The Court also summoned the entire record of the examination. The learned counsel for respondent No.4 produced the marks obtained in the written examination as well as in the interview and final select list. According to the learned counsel for the parties only 14 persons of the general category were appointed and the total list of 43 candidates was drawn and shown to this Court. The name of the petitioner figured at S.No.36 at the merit list. He has obtained only 127.50 marks whereas in the list of selected candidate, Anurag Aggarwal, the last selected candidate, scored 135.6 marks. Learned counsel for the 4 respondent No.4 contended that Jagannath figured at S.No.4. He did not join the services so Anurag Aggarwal was given appointment who figured at S.No.16. It is apparent from the perusal of the record that the name of the petitioner figured at S.No.36 which is very low in the merit list. Now, the question arises whether the petitioner can be appointed on the basis of preference as laid down in the judgment. It is settled position of law that preference emphasized in the judgment, in my 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. There is a Constitutional scheme in which it is provided that selection should be made on the basis of the merit of the candidates as emphasized under Article 14 and 16 of the Constitution. If any exception has to be given that has been provided under the Constitution for providing a special preference to the reserved categories candidates. Now, the question arises as to whether the preference which has been laid down in the judgment of the Apex Court mean to give weightage to the additional qualification as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged under the scheme of the Constitution as laid down under Article 14 and 16 of the Constitution where the scheme of merit and performance has been laid down. If this interpretation is given effect, thereto it would create 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. Thus, it is not to be viewed as a preferential right conferred even for taking up their claims for 5 consideration departing the merit. The preference can only be given where an apprentice had an equal marks with non- apprentices, the apprentice candidate can get preference over the non-apprentice in the selection process. 6. A further question arose before the Allahabad High Court in a later case as to whether the direction contained in the judgment would mean that the apprentice would have to undergo the selection process as provided under the Rule or not. The judgment of the Apex Court was silent on that point. The Allahabad High Court while dealing with this controversy has held in the case of Arvind Gautam (Supra) in paras 6, 10, 11, and 13 as under:- “6. In our view the express “other things being equal” in paragraph 12 and absence of exemption from competitive test in the said paragraph, leads to the conclusion that all persons (including the apprentices) have to appear in the competitive test, as may be prescribed in respect of the particular selection, and if after the competitive test any apprentice trainee gets equal marks than a non-apprentice candidate, then only preference is to be given to the said apprentice trainee. 10. In view of the above answer to the main question referred the law laid down in the case of Vivek Guptrishi Vs. State of U.P. and others (Writ petition No.37922 of 1997, decided on 12/11/1997), does not require separate answer as the same actually meant considering the law followed therein and it is seen that the said matter was disposed of following the directions of the Apex Court in the aforesaid case. 11. The question regarding Article 16 of the Constitution as referred to in the referring judgment does not require separate consideration as it has already been held hereinabove that apprentice trainees are also required to participate in competitive examination or test as may be provided by the rules of the concerned employer in respect of recruitments and when any of them is found equal to a non-apprentice candidate after the selection test then only preference is to be given in such a case to the apprentice trainee. This protects the possibility of meritorious non- apprentice candidates from being discriminated vis-à-vis apprentice trainees. 6 13. In view of the answer to above question No.1 the circular dated 12-9-1996 having directed to follow directions contained in paragraph 12 of the said judgment of the Apex Court, is held to have not proceeded on any misconception, but it must be read in the light of the observations made above. ” 7. The said Full Bench judgment was challenged before the Hon’ble Apex Court in which the Hon’ble Apex Court has held that the view taken by the Full Bench is correct one and that apprentice had to go through the procedure of interview, however they are entitled to get the benefit of guidelines 1 to 4 laid down in the case of UPSRTC (Supra). Thus, the judgment of the Hon’ble Apex Court has given approval to para-6 of the Judgment of the Allahabad High Court. 8. A similar controversy has arisen before the Apex Court in the case of State of U.P. and another Vs. Om Prakash and others reported in (2006) 6 SCC p/474 wherein it was held that both the degree and diploma holder were equally eligible to compete, where some of them were assessed to be equally positioned, then only the degree holders would be preferred over the diploma holders while preparing the merit list. This would not mean that the degree holders would be preferred en bloc over the diploma holders irrespective of their inter se merit and suitability. Para 16, 17, 18 and 19 of the judgment are quoted hereunder:- “16. 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. 17. In Secy. (Health), Deptt. of Health & F.W. v. Dr. Anita Puri (1996) 6 SCC p/282 this Court held that preferential qualification does not as of right entitle to 7 selection. In that case the advertisement inviting applications for the posts of Dental Officer prescribed BDS as the minimum qualification but stipulated preference for higher dental qualification. This Court held at SCC pp. 285- 86, para 7 as under: “7. 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 BDS. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that MDS is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding a MDS 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 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-curricular 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. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a MDS qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High 8 Court, therefore, is wholly unsustainable and must be reversed.” 18. This Court again considered the same question in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu (2003) 5 SCC p/341 and held at para 10 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 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, un der 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 consider ation 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--vis others in the matter of actual selection.” 19. In the instant case, the requisite academic qualification for the post of Medical Officer of Homeopathy as 9 prescribed in the advertisement was a recognised degree in homeopathy or a recognised diploma in homeopathy. A proviso has been added that preference will be given to degree-holders. This would mean that a recognised diploma in homeopathy prescribed in the advertisement is also 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 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. ” 9. In view of the above, I do not find any ground for interference. The writ petition is liable to be dismissed and is hereby dismissed summarily. No order as to costs. (J.C.S.Rawat, J.) 11th September, 2009 Shiv 10