U. P. Singh, J. - (1.) THE controversy centres round the selection made by the Public Service Commission for the Medical Officers of Homoeopathy. THE mode and manner of selection adopted by the Public Service Commission as also the select list impugned in all these cases, dated 24th February, 1994 has been questioned by all the petitioners in these three writ petitions. Since a common question has been raised, all these petitions have been heard together and are being disposed of by this common judgment.
(2.) IN pursuance of the advertisement dated 22nd March, 1984 and issuance of further corrigendum dated 14th November, 1987, 390 posts were advertised to be filled up by the Homoeopathic Medical Officers in the State of Uttar Pradesh. They were required to be filled up by recruitment made by the Uttar Pradesh Public Service Commission. Along with others, the petitioners were also the applicants and the interview was held on 23rd October, 1990. The appointments were to be made on the basis of oral interview as also the marks to be awarded on the qualifications of each candidate. These are undisputed facts in all these cases. The petitioners possessed the Bachelor Degree of Homoeopathic Medicine and Surgery (B.H.M.S.) after completion of five-years course including one year compulsory routine internship in Government Hospitals and Public Health Centres from Homoeopathic Medical Colleges affiliated with the Agra University, in the year 1985. In order to appreciate the real controversy, it would be necessary at this stage to notice the required qualifications mentioned in the advertisement as per the requirement of Rule 8 of the Uttar Pradesh Homoeopathic Medical Service Rules, 1990, which reads as under: "8. Academic qualification. -A candidate for direct recruitment to the service must possess- I. a recognised Degree in Homoeopathy, the duration of study of which is not less than five years according to its syllabus or course. or a recognised Diploma in Homoeopathy the duration of study of which is not less than four years according to its syllabus or course: Provided that preference will be given to degree holders. II. The applicant should be duly registered with the Homoeopathic Medicine Board, Uttar Pradesh." In accordance with Rule 8 those candidates who were to be directly recruited to the service, must possess the recognised Degree in Homoeopathy, the duration of study of which should not be less than five years according to its syllabus or course and in respect of those who obtained recognised Diploma in Homoeopathy, the duration of study should not be less than four years according to its syllabus or course. In addition to these, the proviso stated that "preference will be given to degree holders."
(3.) THE Uttar Pradesh Homoeopathic Medical Service Rules, 1990 was made in exercise of the power under Article 309 of the Constitution by the Governor of Uttar Pradesh, prior to the issuance of the advertisement dated 21.12.1991. At the time when the advertisement in question was made in 1986, these Rules had not been enacted although, it now appears that the clarification which is now appearing in the Rules of 1990 is in terms the same as the one inserted in the advertisement. THE advertisement of 1986 specifically mentioned that "the degree holders shall be preferred to Diploma holders, i.e., Diploma holders will be considered only when the Degree holders are not available in requisite number." In the second advertisement of 1989, it was mentioned : "Preference shall be given to those possessing Degree." In the advertisement of 1991 along with the same qualification as mentioned in the other advertisements, it was provided that preference will be given to the Degree holders. THE corrigendum issued on 14.11.87 did not change the preference clause rather it emphasized that the other terms and conditions shall continue to be the same. There is no dispute that the petitioners of all these writ petitions are Degree holders with full qualifications as prescribed in the advertisement. The bone of the contention centres round this proviso. In support of their contention that such preference has not been given to the Degree holders and the Degree holders and Diploma holders were clubbed together by the Public Service Commission, the entire selection has been challenged as ultra vires the qualifications prescribed in the advertisement. The select list has been challenged as arbitrary since no reasonable criteria was adopted by the Commission while awarding marks to the candidates at the interview. The preference clause was totally ignored and it has not been established by the Commission by providing any cogent and reliable evidence as to how the marks were awarded separately in accordance with the provisions of the Rules and the criteria prescribed in the advertisement.;