A mere rule of preference meant to give weightage to the other qualification cannot be enforced as a rule of reservation or rule of complete precedence: The High Court of Gauhati

Page No.# 1 7 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 929 2017 RATUL DEKA S O. LT. BISHNU RAM DEKA R O. HABERIKURA P.O. PUTHIMARI P.S. KAMALPUR DIST. KAMRUPM ASSAM THE STATE OF ASSAM and 3 ORS. REP. BY THE SECRETARY LEGISLATIVE DEPTT. GOVT. OF ASSAM DISPUR GUWAHATI 06 2:THE MEMBER SECRETARY ASSAM STATE LEGAL SERVICES AUTHORITY HIGH COURT OLD BUILDING CAMPUS GUWAHATI 01 DIST. KAMRUPM 3:THE DISTRICT AND SESSION JUDGE CUM CHAIRMAN DIST. LEGAL SERVICE AUTHORITY 4:SRI MRINAL KUMAR NATH S O. SHRI AJAN NATH R O. VILL. and P.O. CHANGSARI P.S. CHANGSARI 781101 DIST. KAMRUPRURAL ASSAM Page No.# 2 7 B E F O R E HON’BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the petitioner : Mr. K.N. Choudhury Senior Advocate : Mr. N. Alam Mr. S.U. Ahmed Mr. K. Jain Advocates for respondent no.1 : Mr. D. Nath Addl. Senior Govt. Advocate Advocates for respondent no.2 : Mr. U.K. Nair Senior Advocate : Standing Counsel Gauhati High Court Advocates for respondent no.3 : Mr. M. Mahanta. Advocates for respondent no.4 : Mr. M.K. Choudhury Senior Advocate : Mr. T.N. Srinivasan Mr. A. Barkataki : Mr. N. Baruah Mr. P. Bharadwaj : Ms. A. Choudhury Date of hearing : 22.03.2021 and 24.03.2021 Date of judgment : 18.06.2021 JUDGMENT AND ORDER Heard Mr. K.N. Choudhury learned senior counsel assisted by Ms. R. Kakoti learned counsel for the petitioner Mr. D. Nath Addl. Senior Government Advocate for the respondent nos.1 and 2 Mr. M. Mahanta learned counsel for respondent no.3 and Mr. M.K. Choudhury learned senior counsel assisted by M. Sarma learned counsel for respondent no.4 2. The petitioner claims to have passed the Higher Secondary School examination. It is projected that in the year 2013 a vacancy arose in the establishment of the respondent no.3 for the post of contractual peon to be appointed for a period of one year under 13th finance Commission award w.e.f. 01.04.2013 and on that he was selected and appointed vide order dated 21.03.2013 on contractual basis for one year in the consolidated pay of Rs.4 500 per month under the notified terms and conditions. The period of service was extended for a further period of one year by order dated 08.04.2014. Thereafter the petitioner had participated in the selection process for appointment to the temporary vacant post of peon in the establishment of the District Legal Services Authority Kamrupfor short) pursuant to advertisement published in the newspaper on 08.06.2016 by the District & Sessions Judge Cum Chairman DLSA Kamrupof the advertisement it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual fixed pay wages basis in subordinate Judicial Court Offices. Accordingly it is submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court Offices. Therefore it is submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over looked Clause 2(b of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored his status as temporary contractual worker in the DLSA Kamrup as peon was ignored. It is submitted that the appointment of respondent no.4 was whimsical arbitrary and that the non adherence to the herein before referred terms and conditions amounted to changing the rules of the game after the game had been played. It was further submitted that on the ground of experience the petitioner ought to have been awarded 8 marks on the basis of 2 marks each by 4 member selection body. It was also submitted that the stand taken by the respondent no.3 in paragraphs 7 and 9 of the affidavit in opposition were contradictory to each other. 4. The learned Addl. Senior Government Advocate and the learned Standing Counsel of this Court appearing for respondent no.2 have submitted that this is a dispute between the petitioner and the respondent no.4 and their presence is only to protect the interest of the respondent nos. 1 and 2 5. The learned counsel for respondent no.3 has produced the record of selection and he had submitted that there was no irregularity or illegality in the selection process which was transparent and in accordance with the well established procedure for selection and appointment and that the Selection was done by a Board consisting of 4 persons. The learned counsel has relied on the following cases viz. Secy.Deptt of Health & F.W. & Anr. Vs. Dr. Anita Puri & Ors. 5 SCC 341 andSecretary A.P Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors. 6 SCC 282 Page No.# 4 7 6. The learned senior counsel for the respondent no.4 has submitted that this Court is not sitting in appeal over the decision of the selection Committee. It is also submitted that the purpose of interview is just for elimination in the absence of any written test. It is submitted that Clause 2(b) of the advertisement cannot be given any restrictive meaning as “office’ could be any office and not necessarily “subordinate Judicial Court Offices”. Moreover it was submitted that ‘preference’ was applicable only if everything is equal. The learned senior counsel has also referred to the statements made in para 6 of I.A.(C) 90 2017. In support of his submissions reliance has been placed on the following cases viz. M.V Thimmaiah Vs. Union Public Service Commission 2 SCC 119 Dr. Anita Puri & Ors supra) Bibhudatta Mohanty Vs. Union of India & Ors. 4 SCC 16 Y.V.V.R Srinivasulu & Ors.LDA cum Typist andPeon. As per Clause 2(b) in respect of the post of peon the required education qualification was as follows “Class VIII standard pass. Preference will be given to those candidates who have already worked or working temporarily as contractual fixed pay wages basis in subordinate Judicial 8. On the point as to whether the petitioner and the respondent no.4 had the requisite qualification of having worked in “Judicial Court office” the learned senior counsel for the petitioner and respondent no.4 had made their respective erudite submissions which led the Court to search the internet on use of symbolwhich is termed as the slash the stroke the virgule the oblique the solidus. It appears from the materials available in the internet that one of the uses of the said symbol is to depict relationship like one appearing in Page No.# 5 7 the following sentence “They were in love hate relationship”. The symbol of slashes are also commonly used to signify alternatives as in “and or” and “his her they”. The said symbol is also has usage to replace and per or or. Slashes can also appear in place of the word and as in “She’s a writer producer actor ” or the word or as in “You can post on your favorite social media platform: Twitter Instagram Facebook.” In the State of Assam the police and the judiciary use the said symbol in lieu of a comma for example “The accused has committed offence punishable under Sections 302 323 325 326 149 34 IPC.” In job advertisements it is found to be used as suggesting alternatives for example “Each candidate shall carry his her proof of identity”. The said symbol is also used to show a period time for example “The 1989 90 football season was marred by frequent scandals.” “This office is open Tuesday Saturday each week.” Thus it is seen that the symbolappears to have a varied variety of usage. Accordingly the Court is of the considered opinion that in the present case in hand the words “Judicial Court office” cannot be given a limited use to mean that the word “office” must be one attached to “judicial Court” as sought to be projected by the learned senior counsel for the petitioner. 9. On a perusal of selection record produced it is seen that the Selection Board consisted of four members. It is seen that while the petitioner got the score of 33 by adding the marks awarded by all four members the respondent had got the score of 37 marks by adding the marks awarded by all four members. In this order for the sake of convenience the respondent no.1 is referred to as Chairman and the three members are referred to as 2 nd Member 3rd Member and 4th Member. The Board had awarded the following marks to the petitioner and respondent no.4: Petitionerthe Supreme Court had held inter alia to the effect that 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 and that by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed and it was further observed that 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 and Page No.# 7 7 that 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 extracurricular 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. Moreover in the case of Y.V.V.R. Srinivasulu & Ors.it was held to the effect that a mere rule of preference meant to give weightage to the other qualification cannot be enforced as a rule of reservation or rule of complete precedence 12. Therefore in view of the discussion above this writ petition fails on all counts. Resultantly this writ petition stands dismissed. However with no order as to cost 13. The learned counsel for respondent no.3 is at liberty to collect the selection records from the Court Master JUDGE

Summary: 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 and that by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. The aforesaid has been laid down in the Secy. (Health) Deptt. Of Health &amp; F.W. &amp; Anr. v. Dr. Anita Puri &amp; Ors. (2003) 5 SCC 341 and has laid the premise for the Gauhati High Court to be followed in the case of Ratul Deka v. The State of Assam and 3 Ors [WP(C)/929/2017] which was decided by a single judge bench comprising Justice Kalyan Rai Surana on 18th June 2021. The fact of the case are as follows. The petitioner is a 12th pass who has was appointed as a contractual peon under the 13th Finance Commission. Subsequently a vacancy arose for the post of temporary peon in the establishment of the District Legal Services Authority, Kamrup. However, vide select list dated 24.01.2017, the respondent no.4 was selected for appointment to the post of peon. The appointment of respondent no.4 has been assailed by filing this writ petition under Article 226 of the Constitution of India. The counsel for the petitioner has submitted that as per clause 2(b) of the advertisement, it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual/ fixed pay/ wages basis in subordinate Judicial Court/ Offices. Accordingly, it was submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court/ Offices. Therefore, it was submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over-looked Clause 2(b) of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored, his status as temporary contractual worker in the DLSA, Kamrup as peon was ignored. The learned senior counsel for the respondent no.4 had submitted that this Court is not sitting in appeal over the decision of the selection Committee. It was also submitted that the purpose of interview is just for elimination in the absence of any written test. It was submitted that Clause 2(b) of the advertisement cannot be given any restrictive meaning as “office’ could be any office and not necessarily “subordinate Judicial Court/ Offices”. Moreover, it was submitted that ‘preference’ was applicable only if everything is equal.