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A mere rule of preference meant to give weightage to the other qualification cannot be enforced as a rule of reservation or rule of complete precedence: The High Court of Gauhati

When an advertisement stipulates a particular qualification as the 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 candidates and that by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. The aforesaid has been laid down in the Secy. (Health) Deptt. Of Health & F.W. & Anr. v. Dr. Anita Puri & Ors. (2003) 5 SCC 341 and has laid the premise for the Gauhati High Court to be followed in the case of Ratul Deka v. The State of Assam and 3 Ors [WP(C)/929/2017] which was decided by a single judge bench comprising Justice Kalyan Rai Surana on 18th June 2021.

The fact of the case are as follows. The petitioner is a 12th pass who has was appointed as a contractual peon under the 13th Finance Commission. Subsequently a vacancy arose for the post of temporary peon in the establishment of the District Legal Services Authority, Kamrup. However, vide select list dated 24.01.2017, the respondent no.4 was selected for appointment to the post of peon. The appointment of respondent no.4 has been assailed by filing this writ petition under Article 226 of the Constitution of India.

The counsel for the petitioner has submitted that as per clause 2(b) of the advertisement, it was provided that the candidate was to be Class VII standard pass and it was further provided that preference will be given to those candidates who have already worked or working temporarily as contractual/ fixed pay/ wages basis in subordinate Judicial Court/ Offices. Accordingly, it was submitted that the respondent no.4 had never served in any manner as peon or in any capacity in the subordinate Judicial Court/ Offices. Therefore, it was submitted that the appointment of the respondent no.4 was vitiated by gross illegality and irregularity and that the respondent no.3 had over-looked Clause 2(b) of the terms and conditions of the employment advertisement. It was also submitted that the experience of the petitioner was ignored, his status as temporary contractual worker in the DLSA, Kamrup as peon was ignored. The learned senior counsel for the respondent no.4 had submitted that this Court is not sitting in appeal over the decision of the selection Committee. It was also submitted that the purpose of interview is just for elimination in the absence of any written test. It was submitted that Clause 2(b) of the advertisement cannot be given any restrictive meaning as “office’ could be any office and not necessarily “subordinate Judicial Court/ Offices”. Moreover, it was submitted that ‘preference’ was applicable only if everything is equal.

The court conduct an extensive research about the meaning of the symbol “/” and was of the opinion that “in the present case in hand the words “Judicial Court/office” cannot be given a limited use to mean that the word “office” must be one attached to “judicial Court”, as sought to be projected by the learned senior counsel for the petitioner.” On the basis of the comparison of the marks scored by the petitioner and the respondent no.4 the court declared that “it is unable to accept the contention of the learned senior counsel for the petitioner that the appointment of respondent no.4 was whimsical, arbitrary or that there was non-adherence to the terms and conditions contained in the employment advertisement.” Hence, the petition was dismissed.

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