Principle Of Preferential Candidates Applies When There Is A Tie With A General Candidate : Supreme Court

The Supreme Court observed that the principle of preferential candidates would apply when there is a tie between the preferential candidate and a general candidate and the person who is to be treated as a preferential can be given a mark over a general candidate.

Rule 55 of Tamil Nadu State and Subordinate Service Rules read thus: Notwithstanding anything contained in these rules or in the Special Rules for the various State and Subordinate Service, other things being equal, preference shall be given to the Outstanding scouts for appointment to any post by direct recruitment.

In this case, the Madras High Court had directed TANGEDCO to consider the claim of a candidate for appointment to the post of Assistant Engineer in the priority category in the post earmarked for Scheduled Caste. The court had relied on Rule 55 of the Service Rules. In appeal filed against this judgment, the Apex Court noted that the said Rules provided for "preference only " and not priority.

"The principle of preferential candidates would apply when there is a tie between the preferential candidate and a general candidate and the person who is to be treated as a preferential can be given a mark over a general candidate. This is the most material distinction. In view thereof, the respondent could not have been treated as a "preferential candidate" much less a "priority candidate".", the bench comprising Justices Sanjay Kishan Kaul and MM Sundresh said.

The court observed that the question of preference, even if it had to work in favour of the candidate, would arise if she was identically situated as the other candidates in terms of the marks and would then get the preference. In this regard, the bench referred to observations made in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341:

"10. … 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, 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 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 consideration 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-à-vis others in the matter of actual selection.

11.Whenever, a selection is to be made on the basis of merit 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 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."

The court observed that the High Court direction actually amounts to bringing the candidate in a "priority category" which could not have been done. The bench, taking note of the fact that the candidate is an outstanding scout who is recipient of a Presidential Award for her contribution as a scout, invoked its powers under Article 142 and observed thus: In view of the passage of time and the hopes and aspirations arising from the impugned orders, albeit on a wrong legal principle, in view of what has been volunteered by the learned senior counsel for the appellant the respondent would be accommodated in the post of Assistant Engineer (Electrical) but will be at the bottom of the seniority list and will get benefits only from the date of her appointment order which may be issued to her in a period of one month from today.

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