WP(C) 3821/2009 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. K K Mahanta, learned senior counsel appearing for the petitioner. Also heard Mr. M R Pathak, learned standing counsel for the Education Department rep resenting respondent Nos.1 to 5. Mr. T Deuri, learned counsel represents the res pondent No.6. 2. The petitioner who offered her candidature for the post of Post Graduate Teacher in Assamese Subject in Chapanalla Higher Secondary School in pursuance to an advertisement dated 3.6.2007 issued by the Director of Secondary Education (DSE) has approached this Court to challenge the appointment order issued in fa vour of respondent No.6 Rakesh Medhi. The petitioner contends that the Selection Committee had recommended her name in the first position in order of merit and the respondent No.6 in the second position and accordingly she ought to have bee n given the appointment. 3. Representing the petitioner, Mr. K K Mahanta, learned senior counsel ref ers to the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 (hereinafter referred to as the Rule ) and submits that when the Sc hool Selection Committee has recommended the petitioner as the first nominee on merit, at the time of considering approval under the provisions of Rule 7(2)(c) & (d) of the Rules, the DSE or the State Level Approval Committee could not have refused to accord approval to the recommendation. Mr. Mahanta contends that the approval in the context of the Rules was an administrative approval which ought to have been granted by respecting the recommendation of the Selection Committe e. 3.1. It is further argued that if the academic credential of petitioner and r espondent No.6 are to be compared, the petitioner would secure 130.14 marks with additional marks for her B. Ed. qualification and the respondent No.6 would sec ure 137.34 marks and since it is not a significant difference of marks, the pref erential recommendation made in favour of the petitioner by the School Selection Committee is justified in view of her past teaching experience in the same Scho ol as per the provisions of Rule 7(2)(b)(ii) of the Rules. 4. On behalf of the Education Department, it is contended by Mr. M R Pathak that selection for the post of Post Graduate Teacher in higher secondary school are required to be made on the basis of marks secured by the candidates as prov ided under Rule 7(20(b)(i) of the Rules. Producing the selection records for per usal of the Court, the learned counsel submits that even the School Selection Co mmittee, had evaluated the respondent No.6 to be superior in merit to the writ p etitioner. In fact it is pointed out that 5 other candidates secured higher tota l marks than the writ petitioner in the selection process. 5. Accordingly it is submitted that when during the process of approval it was found that the School Selection Committee had wrongfully placed the petition er in the first position by not considering the higher marks secured by the resp ondent No.6 and other candidates, the necessary corrective measures were taken w ith the approval of the State Level Approval Committee and after such approval, the DSE issued the appointment order in favour of the respondent No.6, who had t he highest score on marks. 6. Mr. T Deuri, learned counsel representing the respondent No.6 submits th at the said respondent is the best candidate having secured higher marks than an y of the other candidates including the writ petitioner and under such circumsta nces; he has been rightly offered appointment to the post of Post Graduate Teach er where appointments are to be made on the basis of marks. 7. Before proceeding any further in the mater, it may be appropriate to tak e note of the marks secured by the writ petitioner and the respondent No.6 in di fferent examination through their academic life: Examination Passed Marks Obtained Petitioner Respondent No. 6 H.S.L.C. 66.23% 45.44% H.S. 39.3% 60% B.A. 42.2% 57.22% M.A. 49.37% 60.38% B.Ed. 53.33% N.A. 8. Selection for appointment to the post of Post Graduate Teacher are to be made as per the Rules on the basis of marks secured by the candidates in the ma nner provided in Schedule-I of the Rules. The petitioner admittedly has not scor ed higher marks than the respondent No.6 as this is conceded by the learned coun sel appearing for the writ petitioner. However Mr. Mahanta claims preference in selection as provided under Rule 7(2)(b)(ii) on the basis of the petitioner’s te aching experience in the same school. 9. It is not in dispute that the petitioner and the respondent No.6 are not at par in so far as marks secured by them in the selection process, where the S election Committee has awarded 137.34 marks to the respondents whereas the petit ioner has scored 126.69 although it is submitted that petitioner deserves to ge t higher total marks than what is awarded. But even the highest marks of 130.14 claimed for the petitioner is lower than 137.34 marks awarded to the respondent No.6. A right of preference can be claimed only when two candidates are on equal footings and in this case the petitioner having secured lower marks than the re spondent No.6, is not entitled in my view to claim the benefit of preference, pr ovided under the provisions of Rule 7(2)(b)(ii) of the Rules. 10. In so far as the consideration of approval by the State Level Approval C ommittee and the DSE to the select list prepared by the School Selection Committ ee, it is seen that the respondent No.6 ought to have been placed in the first p osition owing to the fact that he obtained the highest marks in the evaluation m ade by the School Selection Committee. Accordingly necessary correction has been carried out with approval of the State Level Approval Committee and the Governm ent to place the respondent No.6 in the deserved merit position and the responde nt No.6 being more meritorious was issued the letter of appointment by the DSE. 11. Mr. Mahanta has made a submission that approval in this case is a mere f ormality and in support of his contention he has referred to the Supreme Court d ecision in the case of Vijayadevi Navalkishore Bhartia vs. Land Acquisition Offi cer reported in (2003) 5 SCC 83. This is a case where approval is to be granted by the Government under the Land Acquisition Act and in the context of the Land Acquisition Act, the Supreme Court held that Approval would not mean anything more than confirming, rectifying, assenting, assenting, sanctioning or consentin g. But in this case firstly we are not concerned with administrative approv al under the Land Acquisition Act but are concerned with the statutory approval to be granted under the provision of sub-clause (c) and (d) of Rule 7(2) of the Rules. As it is prescribed by the Rules that selections are to be made on the ba sis of marks of the candidates which is to be awarded as provided under Schedule -I of the Rules, the scrutiny made by the approving Authorities as to whether th e candidates have been evaluated as per Rules on the basis of marks, cannot be s aid to be unjustified when during the scrutiny by the Approval Committee, it is found that recommendations have been made by disregarding marks scored by the ca ndidates. At the stage of approval the Approving Authority can definitely make n ecessary correction to ensure that the selection conform to the requirement of t he Rules. If the Approving Authority in the context of Rule 7 merely acts as the rubber stamp of the School Selection Committee, they would fail in my view to d ischarge their function as envisaged under the Rules. Accordingly the submission s made by Mr. Mahanta by placing reliance on Vijayadevi Navalkishore Bhartia (Su pra) is rejected. 12. Even if additional marks are added to the total score of the petitioner for her B. Ed. qualification, she would score lesser marks than the respondent N o.6 and this is the admitted position by the petitioner during the Court proceed ing. Under such circumstances, there cannot be any justification to recommend th e writ petitioner as the first nominee because of the claimed preferential right of selection, as the respondent No.6 is obviously the better candidate with hig her marks and not being equal, the petitioner cannot claim a preferential right over the private respondent. 13. In view of the above discussion, I find no merit in this writ petition a nd the same is accordingly rejected. Interim order, if any, shall stand vacated.