Dr. B.S.Chauhan, J. - (1.) BY means of this petition the petitioner has prayed for quashing of the impugned order dated 8.10.1996. Annexure 4 to the writ petition, by which the respondent-Commission had not called the petitioner for interview as he was not found fit after short-listing.
(2.) THE petitioner had applied for the post of Assistant Director Industries (Hathkarga) in response to the advertisement No. 4/94-95 published in 'Rozgar Samachar' dated 25th February to 3rd March, 1995, Annexure 3 to the writ petition. THEre were only two posts of the Assistant Director Industries (Hathkarga) in general quota for which minimum qualification was prescribed as Master Degree by any University or recognized Institution in any one of the subjects namely. Art, Science. Commerce or any Technology. However, the preferential qualification has been prescribed as 'b' certificate of National Cadet Corps (hereinafter called N.C.C.) or two years service in Pradeshik Sena. THE other terms and conditions of the advertisement are not relevant for deciding the controversy Involved in the instant case. Petitioner's qualification are as under : 1.High School 48.8% 2nd Division 2.Intermediate 63.3% 1st Division 3.B.Sc (Agriculture) 65.8% 1st Division 4.M.Sc. (Agriculture and Botany) 49.8% 2nd Division 5.Ph.D. (Agriculture and Botany) In the year 1993 6.'b' certificate in N.C.C. The grievance of the petitioner is that as he possessed the preferential qualification, i.e. 'b' certificate In N.C.C, his case could not have been rejected by the Commission while short-listing only on the basis of minimum qualification. On the other hand, the respondent-commission in its counter-affidavit placed reliance upon Rule 9 of the U. P. Industries (Directorate of Handloom and Textiles) Service Rules, 1993 (hereinafter called as the 1993 Rules) which provides for preferential qualifications as under : "(1) ................ (2) A candidate who has obtained 'b' certificate of National Cadet Corps, shall, other things being equal, be given preference in the matter of direct recruitment."
(3.) FURTHER Rule 54 of the U. P. Public Service Commission (Procedure and Conduct of Business) Rules, 1976 (hereinafter called the 1976 Rules) provides for adopting procedure to call the candidates for interview even by process of shortlisting. Respondent-Commission has further taken a specific plea that as per policy framed by the Commission under the said Rule 54, ten candidates were called for interview against one post. In the instant case, twenty candidates were called for interview as there were only two vacancies in general quota and the last candidate called for interview had secured 78.4% marks in his post Graduate Degree. Since the petitioner had secured only 49.8% marks in his post Graduate Degree, he was not found fit for being called for interview and hence the Impugned letter dated 8.10.96 was issued. It has further been mentioned in paragraph 4 of the counter-affidavit that altogether there were 29 other candidates who possessed Ph. D. Degree and had secured 51.2% to 69.5% marks in their respective post Graduate Degree but none of them was called for interview as the last candidate called for interview secured much higher marks in his post Graduate Degree as stated above. Thus, the first question to be considered by this Court is as what is the meaning of the "preferential qualification" mentioned in Rule 9 of the said 1993 Rules. Shri M. D. Singh Shekhar, learned counsel for the petitioner has vehemently urged that in view of his preferential qualification, the petitioner could not have been short-listed and in support of his submission he placed reliance upon the Judgment of Division Bench of this Court in Km. Poonam Chaudhary v. U. P. Public Service Commission, Allahabad, 1993 ERC 340, wherein this Court has held that if an advertisement provides for preferential qualification and a candidate possess the preferential qualification, he cannot be eliminated by process of short-listing only on the basis of minimum qualification. As such, the process had been found by this Court arbitrary and illegal. Shri V. M. Sahai has opposed this contention on the ground that the Commission has to assess a candidate on his over-all performance and only on the basis of preferential qualification. There is some force in this averment as if for a particular post minimum qualification is Master Degree and preferential qualification is Ph. D Degree, a candidate who passed and his examinations in 3rd Division and holds a Ph. D. Degree may not be preferred by a Selection Committee in preference to another candidate who passed all his examinations in first Division and did not possess Ph. D. Degree. The petitioner cannot rely upon the judgment in Km. Poonam Chaudhary (supra) as in the instant case there is a distinguished feature. Rule 9 of the said 1993 Rules provides for preferential treatment only if other qualifications are equal. A proviso to clause (1) of Section 47 of Motor Vehicle Act, 1939 provided for preferential treatment while granting permanent stage carriage permit in favour of the Co-operative society if other things were found equal with an individual applicant. While interpreting the said provision in Motor Workers Industrial Co-operative Society v. State Transport Appellate Tribunal, 1961 KLT 553. a Division Bench of Kerala High Court held that if other individual candidates were more qualified, "the question of preference on the ground of being Co-operative Society did not arise." Similarly, another Division Bench of Kerala High Court in Malabar Motor Transport Co-operative Society Ltd. v. State Transport Appellate Tribunal and others, 1963 KLT 78, held that the applicant being the Co-operative Society can only "Tilt the scales in its favour when they are equally balanced." The issue was further considered in Narayana and another v. Regional Transport Authorities, Cannanore and others, AIR 1976 Ker 9, and the Court observed that merely an applicant being a Co-operative Society "cannot have a simple walk over other applicants who are not Co-operative Societies.";