SECRETARY, ANDHRA PRADESH PUBLIC SERVICE COMMISSIONversusY.V.V.R. SRINIVASULU AND ORS.

A      SECRETARY, ANDHRA PRADESH PUBLIC SERVICE COMMISSION
                                           v.
                         Y.V.V.R. SRINIVASULU AND ORS.

                                   APRIL I 7, 2003

B                [DORAISWAMY RAJU AND ASHOK BHAN, JJ.]


          Service law:

          Selection-Rule prescribing preference on ground of additional
C   qualification-Meaning and interpretation of-Held: Such rule does not
    mean separate classification of those candidates or an absolute en bloc
    preference akin to reservation or separate and distinct method of selection-
    Also cannot be enforced as a rule of reservation or complete precedence-
    Only when claim of all eligible candidates is taken and they are equally
D   positioned such rule is followed in the matter of selection.

          Appellant-Commission invited applications for direct recruitment to
    Group-HA (Bachelor's Degree Standard) Services. Recruitment was based
    on written examination followed by an oral interview. Respondents I to 3 applied
    for the post and underwent the process of selection. They did not disclose their
E   additional qualification in the application or at the time of scrutiny. List of
    selected candidates was published on merit basis which included the names of
    the respondents, and appointments were also made. However, for two years
    respondents I to 3 were not appointed. Respondents filed an application
    contending that by virtue of their additional qualification viz. law degree
F   possessed by them, they were entitled to preference over the other candidates.
    Tribunal directed the appellant-Commission and the State Government to
    consider the claim of respondents I to 3 in preference to the candidates who
    were not having additional qualification. High Court confirmed the order.
    Thereafter, Rule S of tlie Andhra Pradesh Commercial Tax Subordinate
    Services Rules was promulgated which removed the provision for 'preference'
G   from the Rules. Appellant-Commission filed an application for review which
    was dismissed. Hence the present appeals.

         Appellant-Commission contended that the Tribunal as well as the High
    Court erred in treating provisions relating to preference to be rule of absolute
    preference, dehors the merit performance of the candidates, to claim
H                                         742
       SEC, ANDHRA PRADESH PUBLIC SERVICE COMM. v. Y.V.V.R SRINIVASULU     743

precedence over others who were more meritorious on the ground of mere A
possession ofa degree; that at the relevant point of time this provision was not
in force; that the decision in Dilip Kumar's case is not applicable to the instant
case, since it does not lay down any universal principle of law that in any and
all circumstances the 'preference' envisaged has to be given so as to take
precedence even in consideration; and that such a construction would defeat B
the very purpose of selection on the basis of competitive examination and
interview, causing grave injustice in addition, to the claims of candidates with
greater merit performance.

      Respondents Nos. I to 3, contended that the amendment to the rule of
preference with reference to one service relating to ACTO will have no impact C
on the claims to other posts; and that the stipulation in the advertisement
provides sufficient basis for the claims of respondents.

      Allowing the appeals, the Court

       HELD: 'l.1. The rules prescribing preference on ground of additional D
qualification do not provide for separate classification of those candidates or
apply different norms of selection for them. The 'preference' envisaged in the
rules, 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 E
to the addition.al 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 Public Service Commission, on the
basis of merit performance but also would work hardship and injustice to those
who possess the required educational qualification with which they are entitled
to compete with those possessing additional qualification too, and demonstrate F
their superiority, merit wise and their suitability for the post. rt is not to be
viewed as a preferential right conferred even for taking up their claims for
consideration. (750-D-G(

      1.2. The preference envisaged has to be given only when the claims of G
all candidates who are eligible are taken for consideration and when anyone
or more of them are found equally positioned, by using the additional
qualification as a titling factor, in their favour vis-a-vis others in the matter of
actual selection. (750-G(

      1.3. Whenever, a selection is to be made on the basis of merit             H
    744                     SUPREME COURT REPORTS                     (2003) 3 S.C.R.

A performance involving competition, and possession of any additional
    qualification or factor is also envisaged to accord preference, it cannot be for
    the purpose of putting them as a whole lot ahead of others, dehors their intrinsic
    worth or proven inter se merit and suitability, duly assessed by the competent
    authority. Preference, in the context of all such competitive scheme of selection
B   would only mean that other things being qualitatively and quantitatively equal,
    those with the additional qualification have to be preferred. There is no question
    of eliminating all others preventing thereby even an effective and comparative
    consideration on merits, by according en bloc precedence in favour of those in
    possession of additional qualification irrespective of the respective merits and
    demerits of all candidates to be considered. [750-H; 751-A-q
c
           1.4. If oblivious to the new rules the Commission in the advertisement
    stated anything, apparently keeping in mind the old rules, the same can neither
    bind the appellant-Commission nor can provide a legal basis for a right in
    favour of anyone to the detriment of the rights of others. Even dehors this
    aspect, as to what should be the purport of the 'preference' envisaged in the
D   superseded rules, the issue will be considered separately along with the claims
    relating to posts in other services. Further fact that the respondents have not
    disclosed either in the main application or at the time of scrutiny of the records
    prior to the interview, itself would disentitle them from staking a claim
    subsequently on the basis of qualification which they kept for themselves
E   without due disclosure, to the Commission. [749-E, G(

         Government of Andhra Pradesh etc. v. P. Dilip Kumar and Anr. etc.,
    [1993) 2 sec 310, distinguished.

          Seery. (Health) Dept/. of Health and F. W. and Anr. v. Dr. Amit Puri and
F   Ors., [1996) 6 sec 282, relied on.

            Bibhudatta Mohanty v. VO! and Ors., [2002( 4 SCC 16, referred to.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8271-8272 of
    2001.
G
         From the Judgment and Order dated 16.11.2000 of the Andhra Pradesh
    High Court in W.P.M.P. No. 4514 of2000.

            P.P. Rao, G. Balaji and R.K. Jha for Guntur Prabhakar for the Appellant.
                                                                                         -
H           V. Sridhar Reddy for Ms. Halida Khatun for the Respondents.
                                                                                         -
SEC., ANDHRA PRADESH PUBLIC SERVICE COMM. v. Y.V.V.R. SRINIVASULU [RAJU, l.] 745

     The Judgment of the Court was delivered by                                    A
     D. RAJU, J. The above appeals have been filed by the Andhra Pradesh
Public Service Commission challenging the order dated 16.12.1999 of the High
Court dismissing the Writ Petition No.17997 of 1999 filed by the appellant,
thereby repelling its challenge to the order dated 29.12.1998 of the Andhra
Pradesh Administrative Tribunal in O.A. No.4465of1997 and the further order B
passed by the High Court on 16.11.2000 in Writ Petition Miscellaneous Petition
No.4514 of2000 rejecting the application filed by the appellant for review of
the earlier order.

      For a proper understanding of the grievance of the parties as well as        C
the interpretation to be placed on the relevant provision in question, a
reference to some of the vitally essential facts becomes necessary.

       The appellant-Commission issued a Notification in advertisement No.8/
90 on 23.7.1990 inviting applications for Direct Recruitment (General/Limited)
to certain posts enumerated in Group-I (Honours Degree Standard) and Group- D
IIA (Bachelor's Degree Standard) Services, indicating that the Commission on
the basis of the results of the Competitive Examination will draw up a list of
successful candidates for filling up the vacancies in Group-I and Group-BA
Services referred to and indicated therein. We are concerned in these
proceedings only with the selections made in respect of Group-HA Services. E
Respondents I to 3 were three of the thousands of the applicants, who
responded and underwent the process of selection. It appears that the
Notification disclosed that the final list of successful candidates will be drawn
up on the basis of the result of tlie Competitive Examination and the criteria
for selection is the marks obtained in the said examination. Under the Scheme
of recruitment to Group-IIA posts, the written examination would be followed F
by an oral interview. Based on the performance in the preliminary examination,
it appears that the candidates would be called up for the_ main examination
and based on the performance in the main examination, the candidates would
be called for an oral interview and that marks obtained in the main written
examination and in the interview formed the basis for selection to the post G
in the services in question. It is reflected from the facts averred that the
respondents I to 3 have mentioned in the main application form submitted by
them that they possessed B.Com., B.Sc. and B.A. respectively and at the time
of verification prior to the actual interview by the Commission during which
a check-list also was prepared for each candidate, the qualification d\sclosed
was found to be B.Com., B.Sc. M.A and B.A. respectively and, thus, at the H
    746                     SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A relevant points of time the possession of the additional qualification itself
    does not seem to have been disclosed and brought to notice for consideration.
    By means of an additional affidavit filed on the directions of this Court on
    9.7.200 I, the details relating to the examination the manner in which the
    selection is made and the ranks obtained by the respondents I to 3 came to
    be disclosed and it is found from the same that a total of 3883 candidates were
B   interviewed by the Commission and the ranks obtained by respondents I to
    3 were 1303, 2637 and 2327 respectively. Merit-wise, it appears that there were
    above them 310, 279 and IOI candidates, respectively with higher ranking.

         While matters stood thus, a list of selected candidates was said to have
c been published in March 1995 according to their ranks on the basis of merit
   perfonnance and appointments were also made pursuant thereto. It appears
  that in the meantime O.A. No.2750 of 1993 was filed by a candidate, who
  applied for the post in Group-I Services under the same Notification seeking
  for consideration of his claims by giving absolute preference to the educational
  qualification possessed by him in Law in the matter of selection. The Tribunal
D by its order dated 13.7.1993 seems to have dismissed the same with an
  observation, after noticing the facts, that preference was given at the last
  stage in the process of selection, namely, only in cases where more than one
                                                                                      ..
  candidate for a particular post has obtained equal marks by preferring those
  candidates who possessed preferential qualification and no justification,
  therefore, was made out to interfere at that stage. An appeal, filed in S.L.P.
E
  (C) No.13777 of 1993 before this Court, was said to have been rejected on
  22.4.1998 observing that having regard to the facts and circumstances of this
  case, this Court was not inclined to interfere with the order of the Tribunal,
  leaving at the same time the question raised therein open. Yet another
  application, O.A. No.560 of 1993, appears to have been filed by an applicant
F for Group-HA Services and the Tribunal by an order dated 26.4.1993, after
  noticing the fact that the selections were half way through and that it would
  be inappropriate to reopen the matter, disposed of the matter finally observing
  that at the time of finalizing the selection, the appellant-Commission will have
  to keep in view the provision of preference in any Special Rules and the
  manner of preference provided and the decision of the Supreme Court as
G noticed therein. Aggrieved against the non-selection of the respondents I to
  3, almost after two years, on 21.7.1997 the present O.A. No.4465of1997 came
  to be filed by those respondents staking their claims for preference in the light
  of the decision of this Court in Government ofAndhra Pradesh, etc. v. P.Dilip
  Kumar and Anr., etc. [1993] 2 SCC 310 contending that by virtue of the
H additional qualification by way of degree of law possessed by them, they are        •
 SEC., ANDHRA PRADESH PUBLIC SERVICE COMM. ''· YV.VR SRINIVASULU [RAJU, J.]747

entitled to preference over the other candidates. The Tribunal below by its A
order dated 29.12.1998 expressed the view that so long as the preference
clause is on the statute book in the relevant rules of the service, preference
has to be given to the persons who possess the additional qualification
before picking up persons, who have come out successful in the screening
test and consequently, directed the respondents before the Tribunal, the B
appellant-Commission and the State Government, to consider the claim of the
respondents I to 3 herein in preference to the candidates who are not having
additional qualification.

       Finding that such a construction and enforcement of the rule relating
to the preference clause will not only upset the. whole process of selection, C
but will totally undermine the very scheme and system of selection in vogue
and also notified in conformity with the governing rules in force, pursued the
matter before the High Court by filing a Writ Petition. The High Court also
agreed with the Tribunal that the principles laid down in P. Di/ip Kumar's case
(supra) would govern the case and in addition thereto, proceeded to say that
the Service Commission itself had categorized as to how the preference D
should be given in the advertisement in question and, therefore, it has to go
by the method indicated therein and it will not be open for the appellant to
say that they are not prepared to abide by what they have said. Immediately
thereafter realizing that Rule 5 of the Andhra Pradesh Commercial Tax
Subordinate Services Rules envisaging preference itself came to be superseded E
w.e.f. 3.2.1990 by the promulgation of new set of rules removing the provision
 for 'preference' from the Rules and that this fact was not brought to the
notice of the Tribunal or the High Court, the appellant filed an application for
review, which also came to be rejected on the ground that the omission/lapse
of the nature by the appellant is no ground for review and dismissed the same
resulting in filing of these appeals.                                            F
        The subsequent developments which seem to have taken place also
require to be noticed. The Special Leave Petitions appear to have been filed
 in this Court on 15.1.2001 and since this Court declined to grant stay of the
judgment of the High Court and ultimately only leave was granted, respondents
No. I to 3 filed C.C. No.1562 of2001 for not implementing the order of the High G
Court. The matter therefore, seems to have been taken up for consideration
of the claims of respondents No. I to 3, subject to the ultimate result of the
appeals in this Court. Even, on such consideration it appears to have been
found that they could. not be selected, as there were many number of candidates
with higher merit ranking above them possessing law degrees. Accordingly, H
                                                                                         \.




    748                    SUPREME COURT REPORTS                      (2003] 3 S.C.R.

A respondents were said to have been informed on 2I.1..2002 that their claims
    were considered but were found not eligible for selection. Thereupon,
    respondents No. I to 3 appears to have filed O.A. No.2378 of2002 before the
    A.P. Administrative Tribunal challenging the same and seeking for a declaration
    in their favour. The Tribunal was said to have dismissed on 31. 1.2003, the
B   0.A. relying upon the decision of this Court in Bibhudatta Mohanty v. VO/
    and Ors., (2002] 4 SCC 16.

          Shri P.P. Rao, learned senior counsel appearing for the appellant-
    Commission contends that the provisions relating to preference were totally
    misconstrued, apart from the fact that it was not in force at the relevant point
C   of time in this case and that the Tribunal as well as the High Court committed
    a grave error in treating it to be a rule of absolute preference, dehors the merit
    performance of the candidates, to claim precedence over others who were
    more meritorious, on the ground of mere possession of a degree in law.
    Preference, envisaged by the rules according to the appellant was meant to
    operate in favour of those who possess law degree, wherever the candidates
D   for selection are otherwise equal in merits, as a tilting factor and not for
    constituting them as a distinct or separate class even for consideration. It was
    also urged for the appellants that the decision in Dilip Kumar's case (supra)
    has no application to the case on hand, apart from the case not laying down
    any universal principle of law that in any and all circumstances the 'preference'
E   envisaged has to be given so as to take precedence even in consideration
    and that such a construction as the one placed in this case would defeat the
    very purpose of selection on the basis of competitive examination and interview,
    causing grave in justice in addition, to the claims of candidates with greater
    merit performance. Finally, it was pointed out that the advertisement of the
    Commission in this case does not give any indication in the manner assumed
F   by the High Court and at any rate no interference was called for at the
    instance of respondents No. I to 3, who approached the Tribunal almost after
    two years after selection was over and posts were filled up.

           Per contra, Shri V. Sridhar Reddy, learned counsel for respondents No. I
    to 3, while adopting the reasoning of the Tribunal and the High Court,
G   reiterated the stand taken before the Tribunal and High Court, even before
    us by inviting our attention elaborately to portions of those orders and the
    decision of this Court relied upon therein. It was also submitted that the
    amendment to the rule of preference with reference to one service relating to
    ACTO will have no impact on the claims to other posts and that at any rate,
H   the stipulation in the advertisement in this case would itself provide sufficient
SEC,ANDHRAPRADESHPUBLICSERVICECOMM. v. YVVR SRINIVASULU[RAJU ,J.] 749

basis for the claims of respondents. Consequently, it is urged that no A
interference is called for with the order of the High Court and the Tribunal
below.

       We have carefully considered the submissions made on either side. The
Tribunal as well as the High Court appears to have undertaken a consideration,
in a superficial and general manner without specifically adverting to the B
scheme underlying the relevant provisions in the various services, the posts
falling under which constituted the cluster of posts falling under Group-HA
services. The rules, other than A.P. Labour Officers Subordinate Service
Rules, which came into force on 2.9.1985 and the A.P. Commercial Taxes
Subordinate Services as it existed prior to the new set A.P, Commercial Taxes C
Subordinate Services Rules, 1990, envisaged while providing the required
educational qualifications for the concerned posts, preference being given to
a candidate who in addition to the ordinary degree in a subject has obtained
a degree in law of a recognized university. The Public Service Commission has
issued the notification in question Adv.8/90 on 23.7.90 only and so for the
post of ACTO's is concerned it is the APCT Subordinate Service Rules which D
came into force on 3.2.1990 that alone matters and is relevant since while
promulgating these rules under Article 309 of the Constitution it is found
mentioned in the preamble itself that they are in super session of the special
rules issued in G.O.MS No.170.GA dt.30.1.62. Consequently, there is no scope
for relying upon those rules which only provided for giving preference ignoring E
the relevant rules governing the service at the crucial point. If obiivious to
the new rules the Commission in the advertisement stated anything, apparently
keeping in mind the old rules, the same can neither bind the appellant-
Commission nor can provide a legal basis for. a right in favour of anyone to
the detriment of the rights of others. Even dehors this aspect, as to what
should be the purport of the 'preference' envisaged in the superseded rules, F
the issue will be considered separately along with the claims relating to posts
in other services. So far as A.P. Labour Officers Subordinate Service Rules,
1985, are considered, the provision in the schedule itself stipulate that, "other
things being equal, preference shall be given to those who possess .". The
further fact that the respondents for reasons best known to them, have not G
disclosed either in the main application or at the time of scrutiny of the
records prior to the interview, itself would disentitle them from staking a claim
subsequently on the basis of qualification which they kept for themselves
 without due disclosure, to the Commission.

      Both on account of the scheme of selection and the various stages H
                                                                                       )

    750                    SUPREME COURT REPORTS                     [2003) 3 S.C.R.

A disclosed as necessary to be undergone by every candidate and the manner
  of actual selection for the appointment in question, the candidates were
  required to be selected finally for appointment on the basis of the ranks
  obtained by them in terms of the inter se ranking based on the merit of their
  respective perfonnance. There is no escape for anyone from this ordeal and
B claim for any en bloc favoured treatment merely because, anyone of them
  happened to possess an additional qualification than the relevant basic/
  general qualification essential for even applying to the post. 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
C 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, ifhad to be adjudged in that manner only what
  justification could there be for overriding all these merely because, a particular
D 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 nonns of selection
  for them. The 'preference' envisaged in the rules, in our view, under the
  scheme of things and contextually also cannot mean, an absolute en bloc
E 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 Public Service Commission, on the basis of merit
  perfonnance but also would work great hardship and injustice to those who
F possess the required minimum educational qualification with which they are
  entitled to compete with those possessing additional qualification too, and
  demonstrate their 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
G be given only when the claims of all candidates who are eligible are taken for
  consideration and when anyone or more of them are found equally positioned,
   by using the additional qualification as a tilting factor, in their favour vis-a-
   vis others in the matter of actual selection.

          Whenever, a selection is to be made on the basis of merit performance
H   involving competition, and possession of any additional qualification or factor
SEC., ANDHRA PRADESH PUBLIC SERVICE COMM. v. YVV.R. SRINIVASULU [RAJU ,J] 75 J

is also envisaged to accord preference, it cannot be for the purpose of putting A
them as a whole lot ahead of others, dehors their intrinsic worth or proven
inter se merit and suitability, duly assessed by the competent authority.
Preference, in the context of all such competitive scheme of selection would
only mean that other things being qualitatively and quantitatively equal,
those with the additional qualification have to be preferred. There is no
question of eliminating all others preventing thereby even an effective and B
comparative consideration on merits, by according en bloc precedence in
favour of those in possession of additional qualification irrespective of the
respective merits and demerits of all candidates to be considered. If it is to
be viewed the way the High Court and Tribunal have chosen to, it would
amount to first exhausting in the matter of selection all those, dehors their C
inter se merit performance, only those in possession of additional qualification
and take only thereafter separately those with ordinary degree and who does
not possess the additional qualification. Assuming for consideration without
even accepting the same to be right or correct view to be taken, at least
among the class or category of those possessing the additional qualification,
inter se merit performance should be the decisive factor for actual selection D
for appointment and relief could not have been granted to respondents for
the mere asking only on the basis of the interpretation of the provision to
some one who came to court, ignoring the fact that those before the court
at any rate in spite of the view taken do not come up to the level of selection
considered in the context of numerous others with higher ranks of merit E
performance, in addition to they being also in possession of the additional
qualification, as those before the court. That apart, the old rule relating to the
post of ACTO, which has become obsolete having been superseded, or even
the advertisement if it has stated on the basis of the obslete rule, that
preference will be given first to candidates who possess a degree in Commerce
and degree in Law, secondly to those who possess a degree in Commerce and F
thirdly to those who possess a degree in Law, cannot either support the claim
of the respondents No. I to 3 nor in any manner lend credence to the
interpretation placed by the High Court and the Tribunal. The word 'first' has
to be construed in the context of even giving preference only in the order and
manner indicated therein, inter se among more than one holding such different G
class of degrees in addition and not to be interpreted vis-a-vis others who
do not possess such additional qualification, to completely exclude them, en
bloc.

      We are fortified in our conclusions, supra by the decision of this Court
in Bibhudatta Mohanty's case (supra) and Secy. (Health) Deptt. of Health H
                                                                                     )

     752                  SUPREME COURT REPORTS                    [2003] 3 S.C.R.

.A   and F Wand Anr. v. Dr. Arnita Puri and Ors., [1996] 6 SCC 282. The decision
     in Dilip Kumar's case (supra) not only turned on the peculiar scheme and
     context of the service rules, under consideration but also, in our view does
     not proclaim to lay down any general rule of universal application, for all
     cases. As a matter of fact the same admits the possibility more than one
B    interpretation too, and therefore, wholly inapplicable in the context and
     requirement of the provisions as well as the case before us.

           For all the reasons stated above, we set aside the judgments under
     challenge, allow the appeals and consequently order the dismissal of the O.A.
     No.4465 of 1997 filed by the respondent No. I to 3 before the Tribunal.

c           No costs.

     N.J.                                                       Appeals allowed.