- (1.)DILIP Gupta, J. The dispute in this Special Appeal is about the appointment of Shiksha Mitra. The petitioner-appellant had admittedly obtained higher quality point marks and had been selected as Shiksha Mitra but the representation filed by a candidate who had worked for longer period as Anudeshak was allowed by the District Magistrate by the order dated 16th October, 2006 solely on the ground that he was entitled to be given preference over the petitioner-appellant. The learned Judge dismissed the writ petition holding that the issue had been decided by a learned Judge of this Court in Writ Petition No. 53541 of 2006, Shravan Kumar Yadav v. State of U. P. & Ors. , decided on 26th September, 2006.
(2.)WE have heard Sri N. L. Pandey, learned Counsel appearing for the petitioner-appellant, learned Standing Counsel appearing for respondent Nos. 1, 2 and 3, Sri Anuj Kumar for respondent No. 4, Sri A. K. Singh for respondent No. 5 and Sri S. K. Anwar for respondent No. 6.
Learned Counsel for the appellant submitted that Shiksha Mitra have to be appointed on the basis of the quality point marks awarded to them in accordance with the criteria laid down in the Government Orders issued in this regard and mere giving of preference under the said Government Orders to those candidates who had worked as Anudeshak could not have been made a ground to refuse appointment to the petitioner-appellant as Shiksha Mitra. Elaborating his arguments, he submitted that giving of preference can arise only when two candidates obtain the same quality point marks but in the present case the petitioner-appellant had admittedly obtained higher quality point marks and that the learned Judge while deciding the writ petition filed by Sri Shravan Kumar Yadav, on which reliance has been placed in the judgment out of which the present Special Appeal arises, failed to appreciate this aspect.

Learned Counsel for the respondents submitted that though it is true that appointment of Shiksha Mitra is to be made on the basis of the quality point marks but at the same time preference is required to be given to Anudeshak and, therefore, the order passed by the District Magistrate which had been challenged in the writ petition, does not suffer from any infirmity as the petitioner-appellant had worked for a shorter period as Anudeshak than Sri Mahendra Prasad Sharma who had filed the representation. The issue, therefore, that arises for our consideration is whether the merit of the candidate determined on the basis of the quality point marks awarded to them is to be totally ignored while giving preference to those candidates who had worked as Anudeshak. The Supreme Court has time and again considered this issue and it would be worthwhile to refer to some of the decisions.

(3.)IN Secretary, A. P. Public Service Commission v. Y. V. V. R. Srinivasulu, (2003) 5 SCC 341, the Supreme Court observed : "the procedure for selection in the case involve, a qualifying test, a written examination and 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 merit- wise 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 anyone or more of them are found equally positioned by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection. "
In State of U. P. & Anr. v. Om Prakash & Ors. , 2006 (3) LBESR 503 (SC) : 2006 AIR SCW 4281, the Supreme Court observed : "in the instant case, the requisite academic qualification for the post of homeopathy as prescribed in the advertisement was a recognized degree in Homeopathy or a recognized diploma in Homeopathy. A proviso has been added that preference will be given to degree holders. This would mean that a recognized diploma in homeopathy prescribed in the advertisement is also a required minimum educational qualification with which they are entitled to compete with those candidates possessing the degree. The word `preference' would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-a-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability. "