SECY. (HEALTH) DEPTT. OF HEALTH AND F.W. AND ANR. versus DR. ANITA PURI AND ORS.

SECY. (HEALTH) DEPTT. OF HEALTH AND F.W. AND ANR. v. DR. ANITA PURI AND ORS.

AUGUST 30, 1996

(K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

A

B

Se1Vice Law :

Selection and appointment-Advertisement stipulated preference for higher qualification-Held : Person with higher qualification was not auto matically entitled as of right to be selected and appointed.

c

Selection and appointment-Awarding of marks for different f acets-Weightage to each facet-Fixation of-Held : in absence of statut01y mle or any guideline issued by Govemment awarding of marks to different face ts and fv::ation of weight age not arbitra1y.

D

Respondent No. 1 was a candidatf for t1'.e post of Dental Officer in response to an advertisement which prescribed B.D.S. as the minimum qualification but stipulated preference for higher dental qualification. The Public Service Commission awarded marks for different aspects in can didates while evolving the selection procedure. Respondent No. 1 who had E the qualification of M.D.S. was not selected for the post of Dental Officer, and she filed a writ petition before the High Court claiming that she was entitled to be selected for the post of Dental Officer on the basis of her higher qualification, which was allowed. Being aggrieved the appellants preferred the present appeal.

p

On behalf of the appellants it was contended that in the absence of any statutory rule it was but natural for the Public Service Commission to evolve a selection procedure of its own; that awarding marks for different aspects of candidates was not arbitrary and irrational; and that a person with higher qualification was not entitled to be selected as of right.

G

Allowing the appeal, this Court

HELD : 1. When an advertisement stipulates a particular qualifica· tion as the minimum qualification for the post and further stipulates that preference should be giv.,. for higher qualification, the only meaning it H

361

362

SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

B

A conveys is that some additional weightage has 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 a 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 C ascertained in course of interview, extra-curriculum activities like sports and other allied subjects, personality of the candidates 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 selec tion is going to be held. Hence, the High Court was wholly in error in D holding that a M.D.S. qualified person like Respondent No. 1 was entitled

to be selected and appointed. [365-G-H; 366-A:-D]

E

2.1. There is no statutory rule or any guideline issued by the Govern ment for Service Commission for the purpose of evaluation of merit of the candidates. When the Public Service Commission is required to select some candidates out of a number of applicants for certain post, the sole authority and discretion is vested with the Commission. The Commission is required to evolve the relative fitness and merit of the candidate and then select candidates in accordance which such evaluation. If, for that purpose the Commission prescribes marks for different facets and then F evaluates the medt, the process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weightage to be given to different facets of a candidate as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. [367-B-D]

G

Ajay Hasia Etc. v. Khalid Mujib Sehravardi and Other Etc., [1981] 1

sec 722, relied on.

2.2. It is too well settled that when a selection is made by an expert body like Public Service Commission which is also advised by experts H having technical experience and high academic qualification in the field

[

SECY. (HEALTH) DEP1T. OF HEALTH AND F.W. v. ANITA PURI [PATTANA!K,J.J

363

for which the selection is to be made, the courts should be slow to interfere A with the opinion expressed by experts unless allegations of ma/a fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability ofa candidate for a specified post after giving due consideration B to all the relevant factors, then the court should not ordinarily interfere with such selection and ~valuation. [367-G-H; 368-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11453 of

1996.

From the Judgment and Order dated 27.9.93 of the Punjab &

Haryana High Court in C.W.P. No. 688 of 1993.

c

H.S. Munjral and Manoj Swarup for the appellants.

Krishna Dev Puri' for Dr. Anita Puri for the In-person for the D

Respondents No. 1.

The Judgment of the Court was delivered by

PATIANAIK, J. Leave granted.

This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dated 27th September, 1993 passed in Civil Writ Petition No. 688 of 1993.

E

Respondent No. 1 filed the writ petition challenging the selection made by the Punjab Public Service Commission for the post of Dental F Officers inter alia on the ground that the selection has been made arbitrari- ly and is contrary to the positive terms of the advertisement indicating preference to be given for higher dental qualification. It was pleaded before the High Court that an advertisement had been issued in the newspaper on September 9, 1991 for 21 posts of Dental Officers out of which 12 posts were meant for general category, 5 for Scheduled Castes, 2 G for Backward Class and 2 for Ex-Serviceman. It was stipulated in the advertisement that preferences would be given for higher dental qualifica- tion and the minimum qualifica.tion for the posts was B.D.S. Respondent No. 1 who had the qualification of M.D.S. claim entitled to be selected on the basis of higher qualification. It was also pleaded that the Public Service H

364

SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

B

c

A Commission acted arbitrarily in awarding 20 marks out of 100 marks for viva-voce, 20 marks for general knowledge and only 2 marks for higher qualification. The private respondents who contested the proceedings filed their counter-affidavit stating therein that in the absence of any statutory rule governing the mode of selection for the post of Dental Officer, an expert body like Public Service Commission had awarded different marks and evaluated the respective merit of all the applicants and finally selected the meritorious one and, therefore, it cannot be said to be arbitrary. It was also urged that the selection thus made by the Public Service Commission is not amenable to the writ jurisdiction of the High Court. The Division Bench of the Punjab and Haryana High Court came to hold that under the advertisement in question, persons having higher qualification of M.D.S. form a class by themselves and, therefore, they are entitled to be selected for the post on the basis of their qualification and the Public Service Commission acted against the sprit and intention of the appointing authority who had laid down the minimum qualification for the job and indicated preference for higher qualification. By referring to the meaning of the expression 'prefer' indifferent dictionaries, the High Court also held that such persons having preferential qualification are entitled to be selected and appointed unless they are otherwise held to be not suitable. The High Court also further came to the conclusion that the awarding of different marks by the Public Service Commission is arbitrary and irration al. With these conclusions the writ petition having been allowed and Public Service Commission having been directed to forward the names of the respondents, the State has come up in appeal.

D

E

p

Mr. Manoj Swamp, the learned counsel for the appellant contended that in the absence of any statutory rule when the Public Service Commis sion is required to select candidates on evaluation of their respective merit, it is but natural for the Commission to evolve a procedure of its own. In evolving such procedure marks are awarded in different aspects and judge from that stand point the allocation of 100 marks in different aspects of the candidates and thereafter evaluation of the respective merit of the G candidates after awarding marks on different aspects, cannot be held to be arbitrary and irrational. The learned counsel further contended that when the appointing authority indicated in the advertisement that higher qualification persons will get preference, it, does not tantamount to mean that all persons with higher qualification than the minimum eligible H qualification should be selected and appointed ipso facto. The only mean-

,t:::

'

SECY. (HEALIB) DEP1T. OF HEALTH AND F.W. v. ANITAPURl[PATIANAIK,J.[

365

ing it would convey is that some preference should be given to those A persons having higher qualification. That being the position the High Court was totally in error in holding that the Public Service Commission acted against the spirit and intention of the appointing authority. The learned counsel further urged that in the absence of any allegation of mala fide in the process of selection, when discretion has been conferred on the expert B body like Public Service Commission the selection after evaluation of the merit of the candidates, the procedure that has been followed in the case cannot be faulted with. The High Court, therefore, was in error in annuling the selection made.

The learned counsel ap~earing for the Respondent No. 1 on the C

other hand argued with force that the High Court was wholly justified in holding that the person with higher qualification has to be selected and appointed unless he is otherwise found unsuitable and that was the true intention and spirit of the advertisement and, therefore, there is no jus tification for this Court to interfere with the conclusion of the High Court. D

Having heard the learned counsel for the parties at length and on examining the terms and conditions of the advertisement referred to by the High Court in its judgment, we find sufficient force in the contentions of learned counsel appearing for the appellant.

E

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 B.D.S. It was aiso stipulated that preference should he given for higher dental qualification. There is also no dispute that M.D.S. is higher qualification than the minimum qualification required for the post and the Respondent No. 1 was having that degree. The question then arises is whether a person holding R M.D.S. 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 G 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 can didates. But by no stretch of impagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and H

F

366

SUPREME COURT REPORTS [ 1996] SUPP. 5 S.C.R.

A appointed. In adjudging the suitability of a 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 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-curriculum activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other

B

c 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 M.D.S. qualified person like Respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get D some preference. The said conclusion of the High Court, therefore, is

wholly unsustainable and must be reversed.

Coming to the second limb of the reasonings advanced by the High Court it is to be seen that the Public Service Commission had fixed 100

E marks for the purpose of selection which were bifurcated as under :

1. Academic achievement

As per essential qualification

2. Higher qualification

F

3. Gold Medal

4. Sports

20 marks

2V2 marks

2V2 marks

10 marks

5. Experience : 1 mark for each year

5 marks.

subject to maximum 5.

6.

(i) Professional knowledge and aptitude for the job

(ii) viva voce

(iii) General Knowledge

20 marks

20 marks

20 marks

Total

100 marks

G

H

SECY.(HEAL1H) DEP1T OFHEALTHANDF.W. v. ANITA PURI [PATTANA!K.J.]

'367

The question for consideration is whether such sub-division of marks A

c

by the Commission on different facets and awarding only 2 1/2 Marks for higher qualification can be said to be arbitrary? Admittedly, there is no statutory rule or any guideline issued by the Government for the Commis- sion for the purpose of evaluation of merit of the respective candidates. When the Public Service Commission is required to select some candidates B out of number of applicants for certain posts, the sole authority and discretion is vested with the Commission. The Commission is required to envolve the relative fitness and merit of the candidate and then select candidates in accordance with such evaluation. If, for that purpose the Commission prescribes marks for different facets and then evaluates the merit, the process to evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weightage to be given to different facets of a candidates as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. In course of the arguments before us the learned counsel for the Respondent No. 1 had submitted that the awarding of 20 marks for D viva voce and 20 marks for General Knowledge out of 100 marks must be held to be on the face of it arbitrary giving a handle lo the Public Service Commission to manipulate the selection and, therefore, the High Court had rightly come to the conclusion that it was arbitrary. We are unable to accept this contention. This Court in the case of Ajay Hasia Etc. v. Khalid Mujib Sehravardi and Others Etc., (1981) 1 S.C.C. 722, while considering the case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any consitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the appellants and the same necessarily has to be made only by allotting marks on different facets and them awarding marks in respect of each facet of a candidate and finally evaluating his merit. It is too well settled that when a selection is made by an expert body like public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts G should be slow to interfere with the opinion expressed by experts unless allegations of ma/a fide are made established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving H

E

F

368

SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation. Thus, considered we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated.

B

In the aforesaid premises, we set aside the judgment of the Division Bench of the Punjab and Haryana High Court and allow this appeal. The writ petition filed by the respondents ~~and dismissed, there will be no order as to costs.

v.s.s.

Appeal allowed.