( 1 ) THE petitioner was an applicant for the posts of Lecturers in Medicine in Government Medical Colleges. He was not selected for any of those posts. Respondents 3 to 9 were selected and appointed to those posts. In this petition under Art. 226 of the Constitution, he has prayed for quashing the Government notification so appointing them. He has also prayed for a mandamus directing the Mysore Public Service Commission (hereinafter referred to as the Commission) to interview him for selection for those posts. ( 2 ) CERTAIN material facts which are not in dispute may be stated. By its notification dated 3-9-1971, the Commission called for applications for 48 posts of Lecturers, Lecturers-cum-Registrars and Registrars in several subjects in Government Medical Colleges. In the subject of Medicine the number of posts of Lecturers was 7. In para 19 of that notification it was stated that a separate application with separate fee, should be sent for each vacancy. In that notification, the qualifications required for those posts were stated as follows : should be holder of degree in medicine of any University established by law in India; note: Preference will be given to a candidate who possesses one or more of the following qualifications : (i) A post-graduate qualification in the concerned subject as specified in Annexures A and B of the Mysore Health Services (Collegiate Branch) recruitment Rules, 1967 (ii) Post Registration Housemanship for one year; (iii) Two years of Service in Health Centres and/or dispensaries in rural areas. ( 3 ) IN response to that notification the Commission received 616 applications for all those posts. In the first instance the Commission arranged those applications in the order of marks secured by the applicants in the mbbs degree examination and prepared a list of 192 applicants in the order of such marks, to be called for interview, the number 192 being four times the number of posts for which selection had to be made by the Commission. ( 4 ) IN that list the number of applicants who had applied for the posts of Lecturers in Medicine, was less than four times the number of posts of Lecturers in Medicine for which selection had to be made. However, the Commission called for interview 49 applicants for selection for the posts of Lecturers in Medicine and some of them were outside that list of 192 applicants. However, the Commission called for interview 49 applicants for selection for the posts of Lecturers in Medicine and some of them were outside that list of 192 applicants. Among those 49 applicants so called for interview, except applicants belonging to Backward Classes Scheduled Castes and scheduled Tribes and other reserved categories, the rest were chosen for interview solely on the basis of the marks secured by them in the MBBS degree examination. The petitioner was not one among those 49 applicants called for interview. The Commission selected 7 applicants, respondents 3 to 9, for the posts of Lecturers in Medicine and they were appointed by the impugned Government notification. Of them, respondent 5 was selected as belonging to Backward Classes. Respondents 7 and 8 were selected as belonging to Scheduled Castes. Respondent 9 was selected as belonging to the category of Ex-Military Personnel. Respondents 3 to 5 did not belong to any reserved category and they were selected on the basis of merit as determined by the aggregate of marks secured in the MBBS degree examination and the marks allotted by the Commission at the interview. Respondent 3 also possessed the post-graduate qulification of MD degree in medicine. But, none of respondents 4 to 9 possessed any post-graduate qualification. One other applicant for the posts of Lecturers in Medicine, namely, H. K, Shyamasundar, also possessed the post-graduate qualification of MD degree in Medicine. He was also not called for interview by the Commission on the ground that his marks in the MBBS degree examination were not sufficiently high. ( 5 ) THE petitioner passed the MBBS degree examination in second class. He secured 52-90 per cent marks therein. He completed Housemanship for one year and had undergone Senior Housemanship for a period of about 10 months. He possessed the post-graduate qualification of MD degree in general Medicine. He was temporarily appointed in July 1971 as Lecturer in Medicine in Karnataka Medical College, Hubli. He is continuing in) that post by virtue of an interim order made in this petition. The petitioner was not called for interview solely on the ground that the marks secured by him in the MBBS degree examination, were not sufficiently high. He had secured less marks than the last applicant for the post of Lecturers in Medicine in the unreserved category, who was called for inteview. ( 6 ) MR. The petitioner was not called for interview solely on the ground that the marks secured by him in the MBBS degree examination, were not sufficiently high. He had secured less marks than the last applicant for the post of Lecturers in Medicine in the unreserved category, who was called for inteview. ( 6 ) MR. K. A. Swamy, learned Counsel for the petitioner, assailed the evclusion of the petitioner from the list of applicants called for interview and also the selection made by the Commission for the posts of Lecturers in Medicine, on the following grounds: (i) The procedure adopted by the Commission in treating all the 48 posts for which applications were called for. as constituting one unit, was illegal. The Commission should have considered separately applications for each category of posts; and (ii) In selecting the applicants for interview and in making selection for the post of Lecturers in Medicine, the Commission altogether disregarded the preferential qualifications prescribed by the rules for recruitment for the posts of Lecturers in Medicine. ( 7 ) I shall now take up the first ground urged by Mr. Swamy. Initially the Commission no doubt, treated all the 48 posts of Lecturers and Lecturers-cum registrars and Registrars in different subjects as constituting one unit and prepared a list of 192 applicants (i. e. 4 times the number of posts for which applications were called for) to be called for interview. But when the Commission took up the selection for posts of Lecturers in the subject of Medicine, the Commission called for interview 49 applicants who had applied for the posts of Lecturers in Medicine and made the selection for those posts from among them only and not from among the applicants for the posts of Lecturers in other subjects. As stated earlier those 49 applicants (except those belonging to Backward Classes, scheduled Castes and Ex-Military Personnel) were chosen in the order of marks secured by them in the MBBS degree examination. ( 8 ) THE initial mistake by the Commission in preparing the list of 192 applicants from among applications for all the 48 posts for the purpose, of determining who should be called for interview, was corrected by the commission at the time of actually calling for interview applicants for the posts of Lecturers in Medicine. ( 8 ) THE initial mistake by the Commission in preparing the list of 192 applicants from among applications for all the 48 posts for the purpose, of determining who should be called for interview, was corrected by the commission at the time of actually calling for interview applicants for the posts of Lecturers in Medicine. Thus the posts of Lecturers, Lecturers cum-Registrars and Registrars in different subjects were not treated as constituting one unit for the purpose of making selection. On the other hand only the applicants for posts of Lecturers in Medicine were considered for selection of Lecturers in Medicine. I have no hesitation in rejecting the first ground urged by Mr. Swamy. In order to appreciate the second ground urged by Mr. Swamy, it is necessary to set out certain statutory provisions, notifications and rules made under the proviso to Art. 309 of the Constitution. ( 9 ) THE Indian Medical Council Act 1956 (Central Act CII of 1956) was enacted by Parliament. S. 33 of that Act empowers the Medical Council of india to make, with the previous sanction of the Central Government, regulations to carry out the purposes of that Act. Without prejudice to the generality of such power, that Section sets out certain specific matters in respect of which such regulations may be made. Clause (k) of that Section reads : (k) The standards of staff equipment, accommodation training and other facilities for medical education. Mr. Swamy produced before me the booklet published in May 1970 by the Medical Council of India containing the recommendations of that council regarding qualifications for posts of teachers, visiting Physicians surgeons, etc. in Medical Colleges and attached Hospitals for undergraduate and post-graduate courses. Recommendation No. 3 in the booklet reads : all the teachers in medieal colleges except the tutors, Registrars and demonstrators must possess the requisite post-graduate qualification in their respective subjects. ( 10 ) IN exercise of the powers under the proviso to Art. 309 of the Constitution, the Governor of Mysore made rules called the Mysore Health Services (Collegiate Branch) Recruitment Rules, 1967, (hereinafter referred to as the Collegiate Recruitment Rules ). ( 10 ) IN exercise of the powers under the proviso to Art. 309 of the Constitution, the Governor of Mysore made rules called the Mysore Health Services (Collegiate Branch) Recruitment Rules, 1967, (hereinafter referred to as the Collegiate Recruitment Rules ). Rule 2 of those Rules provides that in respect of each category of posts specified in Column 1 of the Schedule to the Rules the method of recruitment and the minimum qualification shall be as prescribed in the corresponding entries in Columns 2 and 3 of that Schedule. In those Rules, the minimum qualification prescribed for the posts of lecturers, Lecturers-cum-Registrars and Registrars in the subject of medicine is a degree in medicine of any University established by law in india and it is also stated therein that preference should be given to a candidate who possesses one or more of the following qualifications: (i) Post-graduate qualification in Medicine; (ii) Post Registration Housemanship for one year; (iii) Two years service in Health Centres and/or Dispensaries in rural areas. ( 11 ) THE prescription of Post-graduate degree in the respective subject as a preferential qualification for the posts of Lecturers, Lecturers-cum- registrars and Registrars was presumably in the light of the above recommendations of the Medical Council of India. Under the proviso to Art. 309 of the Constitution, the Governor made the rules called the Mysore State Civil Services (Direct Recruiment by selection) Rules, 1967 (hereinafter referred to as the Direct Recruitment selection Rules ). These rules apply to all cadres of posts in the State civil Services which are to be filled by direct recruitment and for which no special. or general rules have been issued prescribing the method of recruitment. Sub-rule (1) of Rule 2 of these Rules, defines the expression 'qualifying examination' as the examination or examinations required for appointment in the rules of recruitment to the cadre or posts concerned. Rule 4 of these Rules provides that recruitment under these Rules shall be made on the basis of the percentage of total marks secured in the qualifying examination as determined under Rule 5 and of the marks secured at the interview under Rule 6. Rule 4 of these Rules provides that recruitment under these Rules shall be made on the basis of the percentage of total marks secured in the qualifying examination as determined under Rule 5 and of the marks secured at the interview under Rule 6. Sub-rule (1) of Rule 5 of these Rules provides, inter alia that for the purpose of selection of candidates for the interview the Selecting Authority shall prepare a list of candidates on the basis of the percentage of total marks secured in the qualifying examination in the order of merit and that from the candidates included in such list, as far as may be such number of candidates as is equal to four times the number of vacancies notified selected in order of merit, shall be eligible for the interview. Sub-rule (2) of Rule 5 of these Rules provides that in addition to candidates selected under sub-rule (1), certain number of candidates belonging to Scheduled Castes Scheduled Tribes and Backward Class, shall also be called for interview. ( 12 ) RULE 6 of these Rules provides that the Selecting Authority shall interview the eligible candidates selected under Rule 5 and award marks on the basis of their performance in the interview subject to the condition that the maximum marks awardable for interview shall be 30, According to this Rule the object of such interview is to assess the suitability ol candidates for appointment to the cadre of post applied for by them and their calibre including intellectual and social traits of personality. Rule 7 of the Rules provides inter alia that the Selecting Authority shall, on the basis of the aggregate of the percentage of the total marks secured in the qualifying examination as determined under Rule 5 and the marks secured in the interview under Rule 6 and, taking into consideration the order in force relating to reservation of posts for Scheduled Castes, scheduled Tribes and Backward Classes, prepare in the order of merit a list of candidates eligible for appointment to the cadre or post. Mr. Swamy contended that when the Collegiate Recruitment Rules have expressly provided that preference should be given to a candidate who possesses a post-graduate qualification in Medicine, the Commission should have preferred the petitioner who possessed such post-graduate qualification, to candidates who possessed only the minimum qualification, namely, a degree in Medicine. It was also contended by Mr. Mr. Swamy contended that when the Collegiate Recruitment Rules have expressly provided that preference should be given to a candidate who possesses a post-graduate qualification in Medicine, the Commission should have preferred the petitioner who possessed such post-graduate qualification, to candidates who possessed only the minimum qualification, namely, a degree in Medicine. It was also contended by Mr. Swamy that selection of respondents 4 to 9 who did not possess any post-graduate qualification and ignoring the claim of the petitioner who possessed such postgraduate qualification amounted to contravention of the express provision in the Collegiate Recruitment Rules requiring preference being given to candidates who possess post-graduate qualification. ( 13 ) IN the counter-affidavit and additional statements of objections filed on behalf of the Commission, not calling the petitioner for interview and the selection of respondents 3 to 9 for the posts of Lecturers in Medicine, were sought to be justified on the ground that the Commission acted in conformity with the provisions of the Direct Recruitment Selection Rules. The following are the relevant extracts from the counter-affidavit filed on behalf of the Commission ;"while preparing the list of eligible candidates, the 2nd respondent is bound to take note of only marks in the qualifying examination viz. the MBBS Examination but not the preferential qualification viz. , the MD qualification. . . The preferential qualification will'come into play only when the candidates so (is) selected by the Public Service Commission for interview and not otherwise. Before a candidate can have his preferential qualification considered, he must first of all see that he is included in the list of eligible candidates for interview. If the candidate fails to secure the necessary percentage of marks in the qualifying examination in the order of merit, he cannot be heard to say that though he has got the essential (preferential) qualification he should have been considered even though he has secured lesser percentage of marks in the qualifying examination. . . . . . . But the 2nd respondent cannot select a candidate for interview unless he is within the list of eligible candidates for interview as required under the Rule 5 of the Mysore Civil Services (Direct Recruitment by Selection) Rules, 1967. . . . . . . But the 2nd respondent cannot select a candidate for interview unless he is within the list of eligible candidates for interview as required under the Rule 5 of the Mysore Civil Services (Direct Recruitment by Selection) Rules, 1967. " ( 14 ) THE learned Government Pleader who appeared for the State and the commission, urged that as the percentage of marks secured by the petitioner in the qualifying examination i. e. , the MBBS degree examination, was less than that secured by the last applicant (other than the applicants belonging to Backward Classes Scheduled Castes Scheduled Tribes and ex-military personnel) called for interview, not calling the petitioner for interview was justified by Rule 5 of the Direct Recruitment Selection rules. There can be no doubt chat what the Commission did was in accordance with Rule 5 of the Direct Recruitment Selection Rules. But, in so aoing the Commission has not given effect to the provision of the Collegiate recruitment Rules that preference should be given to a candidate who possesses a post-graduate qualification. ( 15 ) MR. Swamy contended that the Direct Recruitment Selection Rules ate only procedural rules providing for the procedure to be followed for making selection for direct recruitment for any cadre or post and that the Collegiate Recruitment Rules are the substantive rules prescribing the qualifications for appointment to the various posts that both these sets of Rules should be construed harmoniously and that if there should be any conflict between them which cannot be reconciled, then the provisions of the Collegiate Recruitment Rules which are substantive rules should prevail over the provisions of the Direct Recruitment Selection Rules which are only procedural rules in support of his contention Mr. Swamy relied on the following observations of Divatia, J. (as he then was) in collector of Broach and Panch Mahals v. Ochhavlal Bhikalal AIR 1941 Bom. 188 at 159 it is a general rule relating to the construction of statutes that in absence of an express provision an adjectival law cannot control the provisions of substantive law. Mr. Swamy also relied on the following observations of the Supreme court In Veluswami v. Raja Nainar AIR. 1959 SC. 423 at 420 it is a sound rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. Mr. Swamy also relied on the following observations of the Supreme court In Veluswami v. Raja Nainar AIR. 1959 SC. 423 at 420 it is a sound rule of construction that procedural enactments should be construed liberally and in such manner as to render the enforcement of substantive rights effective. ( 16 ) THE above pronouncements support the contention of Mr. Swamy that the procedural rules cannot override the substantive rules but must be subordinate to the substantive rules. In preparing the list of eligilble applicants for interview and in making selection for the posts, the Commission should have harmonised the requirements of the Direct Recruitment Selection Rules as well as those of the collegiate Recruitment Rules. To give effect to both sets of rules, the commission should have called for interview not only applicants who came in the eligibility list prepared in accordance with Rule 5 of the Direct recruitment Selection Rules, but also the applicants who possessed the preferential qualification or qualifications stated in the Collegiate Recruitment rules. If such a course was adopted, the total number of applicants called for interview, would have, no doubt, exceeded four times the number of posts for which selection was made. But, calling for interview more number of applicants than four times the number of posts to be filled up cannot be regarded as illegal having regard to the need to comply with the provisions of the Collegiate Recruitment Rules also. Sub-rule (2) of rule 5 of the Direct Recruitment Selection Rules requires a certain number of applicants belonging to Backward Classes, Scheduled Castes and scheduled Tribes being called for interview in addition to applicants selected in accordance with sub-rule (1) of that Rule. Why should it be illegal to call for interview applicants possessing all or any of the preferential qualications in addition to the applicants selected in accordance with sub-rule (1) of that Rule? The view I have taken receives support from the decision of this Court in Writ Petition 2650 of 1971 and connected petitions W. P. 2650/1971. There, the Selection Committee for recruitment of Village Accountants, called for interview 1566 candidates while making selection for 288 posts of Village, accountants. The view I have taken receives support from the decision of this Court in Writ Petition 2650 of 1971 and connected petitions W. P. 2650/1971. There, the Selection Committee for recruitment of Village Accountants, called for interview 1566 candidates while making selection for 288 posts of Village, accountants. While assailing the selection made by that Committee, it was contended there that the Selection Committee did not prepare an eligibility list restricting the number of candidates called for interview to four times the number of posts to be filled. Repelling that contention, this is what narayana Pai, CJ. who spoke for the Bench said: the rules of direct recruitment by selection should in these cases be read harmoniously with the principal provisions of the Village accountants Recruitment Rules also. The provisions of Rule 4 of the village Accountants Rules which we have already copied contemplate selection from different categories of persons in a certain order of preference. Hence, the preparation of a single eligibility list normally regarded as sufficient in the case of ordinary recruitment under Rule 5 of the Direct Recruitment by Selection Rules may not have met the purpose of the Village Accountants Recruitment Rules. ( 17 ) BOTH on the language of the rules in question and the. necessity for harmonious construction as well as the factual situation viz. that all the petitioners have in iact been interviewed it has to be held that the petitioners could make no grievance of any alleged disobedience at all of rules of recruitment concerned in this case. " for the purpose of this petition, it is not necessary to, consider what the Commission should have done if there were a very large number of applicants possessing all or any of the preferential qualifications. From the statement of objections filed on behalf of the Commission, it is seen that there were only three applicants possessing the preferential qualification of post-graduate degree in medicine. One of them namely, respondent 3 was called for interview and was selected. Only the other two i. e the petitioner and H. K. Shyamasundar, were not called for interview. In order to consider the cases of applicants possessing the preferential qualification of post-graduate degree in Medicine, the Commission, in my opinion, should have called the petitioner and Shyamasundar also for interview. Only the other two i. e the petitioner and H. K. Shyamasundar, were not called for interview. In order to consider the cases of applicants possessing the preferential qualification of post-graduate degree in Medicine, the Commission, in my opinion, should have called the petitioner and Shyamasundar also for interview. Now the question is to what extent the selection made by the Commission and the appointments made on the basis of such selection, should be interfered with on account of the failure of the Commission to call the petitioner and Shyamasundar for interview. As stated earlier, respondents 6 to 9 were selected for the posts reserved for Backward Classes, scheduled Castes and Ex-Military personnel. As the petitioner does not claim to belong to any of those categories, he is not aggrieved by the selection of respondents 6 to 9 and their being appointed as Lecturers in medicine. Hence, it is unnecessary to disturb their selection by the Commission and their appointments, by the Government. ( 18 ) IT is clear from the objection statement filed on behalf of the Commission that respondent 3 possessed the post-graduate qualification of MD degree in Medicine. He secured 60. 20 per cent marks in the MBBS degree examination as against 52. 90 per cent secured by the petitioner. From the fact that he has been placed first in the order of merit among the applicants selected by the Commission, it can be inferred that he secured the highest percentage of aggregate of marks in the MBBS degree examination and in the interview held by the Commission. His selection is justified both on the basis of the percentage of such aggregate of marks and his possessing the post-graduate qualification. Hence, it is not necessary to disturb his selection by the Commission and his appointment by the government. ( 19 ) RESPONDENTS 4 and 5 did not possess any post-graduate qualification. No doubt, they have secured in the MBBS degree examination higher percentage of marks than what the petitioner has secured in that examination. But, their claims have to be considered along with the claims of the petitioner and H. K. Shyamasundar who possessed the preferential qualification of MD degree in Medicine. No doubt, they have secured in the MBBS degree examination higher percentage of marks than what the petitioner has secured in that examination. But, their claims have to be considered along with the claims of the petitioner and H. K. Shyamasundar who possessed the preferential qualification of MD degree in Medicine. If the Commission had preserved the records of the interview including the marks allotted therein to the applicants, i could have directed the Commission to call the petitioner and H. K. Shyamasundar for interview and to consider the relative claims of the petitioner, H. K. Shyamasundar and respondents 4 and 5 taking into account the marks secured by each of them in the MBBS degree examination, the marks secured by each of them in the interview and also the postgraduate degree possessed by the petitioner and H. K. Shyamasundar and then to decide which two of those four persons should be selected for the two posts. If after such consideration the petitioner and/or H. K. Shyamasundar were found to be more suitable than both or either of respondents 4 and 5 for the posts of Lecturer in Medicine, then the selection and appointiment of respondents 4 and 5 or either of them should have been set aside. But in the additional statement filed on behalf of the Commission, it is stated that the record of the marks secured by the applicants at the interview could not be traced in spite of best efforts. In such a situation the only course left to me is to set aside the selection and appointment of respondents 4 and 5 and to direct the Commission to call them as well as the petitioner and H. K. Shyamasundar for a fresh interview and to decide which two among those four persons Should be selected for the remaining two posts of Lecturers in Medicine. ( 20 ) AT this stage it is not necessary for me to decide what relative importance or weightage should be given to the preferential qualification or qualifications possessed by any of the applicants and the marks secured by them in the qualifying examination viz. MBBS degree examination and the marks secured by them in the interview by the Commission. Suffice it to advert to the following observations of a Bench of this Court in ajjappa v, State of Mysore ILR. 1967 Mys. MBBS degree examination and the marks secured by them in the interview by the Commission. Suffice it to advert to the following observations of a Bench of this Court in ajjappa v, State of Mysore ILR. 1967 Mys. 809 at 817 and 818, the complementary direction in the Special Rules for a preference for a higher qualification, does not therefore exclude a really suitable person with a lower qualification. Higher academic qualification is generally a dependable index of superior merit, which endows in its turn suitability in many spheres. But, the postulate that it is necessarily so, is an excessive assertion which cannot claim the virtue of infallibility. A higher qualification which is good and trustworthy source of superior suitability, does not eliminate other equally efficacious attainment which can bestow that attribute. ( 21 ) IN the result, I allow this petition and quash the notification dt. 17-1- 1972 (Ext. D) issued by the Commission only in so far as it relates to the selection of respondents 4 and 5 for the posts of Lecturers in Medicine and the notification of the Government 14-2-1972 (Ext. C) only in so far as it relates to the appointment of respondents 4 and 5 as Lecturers in Medicine. I direct the Commission to call the petitioner, H. K. Shyamasundar and respondents 4 and 5 for a fresh interview and select two amongst them for the remaining two posts of Lecturers in Medicine. However, I make it clear that the selection of respondents 3 and 6 to 9 for the posts of Lecturers in Medicine and their appointment by the government as Lecturers in Medicine under the impugned Government notification, will remain undisturbed. The relative ranks of respondents 3 and 6 to 9 will also remain undisturbed. The two persons so selected hereafter by the Commission will be placed below respondent 3 and above respondents 6 to 9 in rank. The Commission shall determine the relative ranks inter se between the two persons so selected hereafter. ( 22 ) ON behalf of the petitioner it was submitted that as he has been a lecturer in Medicine, though temporarily, since July 1971, I should direct the State to continue him in that post until the Commission makes a fresh selection for two posts of Lecturers in Medicine in accordance with the aforesaid directions. ( 22 ) ON behalf of the petitioner it was submitted that as he has been a lecturer in Medicine, though temporarily, since July 1971, I should direct the State to continue him in that post until the Commission makes a fresh selection for two posts of Lecturers in Medicine in accordance with the aforesaid directions. ( 23 ) AFTER disposing of the main petition, I do not consider it appropriate to direct that the petitioner should be continued as Lecturer in Medicine till the Commission makes a fresh selection as aforesaid. It will be open to the petitioner to make a representation in this behalf to the appropriate authorities and it will be for them to consider such representation. In the circumstances of this case, there is no order as to costs. --- *** --- .