JUDGMENT K.K. SASIDHARAN, J. INTRODUCTORY : 1. The failure on the part of the Tamil Nadu Public Service Commission to give weightage to preferential qualification in accordance with the Selection Notification, on account of securing equal marks by four candidates and the ultimate selection of respondents 4 and 5, two among four such candidates, solely on the ground of their seniority in age, made the petitioner to challenge the selection, and the dismissal of the writ petition by the learned single Judge on the basis of an incorrect statement made by the Commission that extra marks were given for preferential qualification compelled him to file this intra-court appeal. BACKGROUND FACTS : 2. The Tamil Nadu Public Service Commission [hereinafter referred to as 'the Public Service Commission'] issued a notification dated 18 April 2007 calling for applications from eligible candidates for appointment to the post of Motor Vehicle Inspector, Grade II. As per the notification, selection would be made in two successive stages viz., written examination and oral test. Final selection would be made on the basis of total marks obtained by the candidates in the written examination and the oral test, subject to the rule of reservation. The notification contains a further provision that other things being equal, preference shall be given to those who possess Post Diploma in Automobile engineering awarded by the state board of technical education and training, Tamil Nadu. 3. The appellant being the holder of Post Diploma in Automobile Engineering was fully qualified for appointment. He is also entitled to preferential treatment in accordance with the notification. Therefore, the appellant submitted his application. The appellant was called for written test. He secured 207 marks in the written test. He appeared before the interview Board and he was awarded 30 marks. In all, the appellant secured 237 marks. Respondents 4 and 5 also secured the very same marks. The Public Service Commission without considering the preferential qualification possessed by the appellant selected respondents 4 and 5 considering their date of birth. This made the appellant to challenge the selection principally on the ground that in view of three candidates securing equal marks, preference should have been given to him on account of his Post diploma qualification. 4. The Public Service Commission through its Deputy Secretary, filed a counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. 4. The Public Service Commission through its Deputy Secretary, filed a counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. According to the Public Service Commission, appellant, and respondents 4 and 5 secured 237 marks. When it was found that all the three candidates secured equal marks, the Commission followed the subsidiary rule whereby and whereunder, ranking was done on the basis of age. With respect to the contention regarding preferential qualification, as indicated in clause 5(b) of the notification, Public Service Commission contended that marks for higher qualification has already been given to the appellant during the time of interview and the total marks obtained by him included the marks for such higher qualification. Therefore, there was no necessity to consider the preferential qualification once again. Accordingly, the Public Service Commission justified the selection of respondents 4 and 5. SUMMARY OF DECISION : 5. The learned single Judge accepted the statement given by the Public Service Commission to the effect that the appellant has obtained 30 marks in the oral test which includes the marks for preferential qualification under clause 5(b) of the notification. According to the learned Judge, but for the additional marks given to the appellant for preferential qualification, he would not have obtained such higher marks in the interview. Accordingly, the learned single Judge dismissed the writ petition. Feeling aggrieved by the said order, this intra-court appeal has been filed. RIVAL SUBMISSIONS : 6. The learned senior counsel for the appellant contended that the Public Service Commission has indicated the method of selection in the notification issued on 18 April 2007. The notification clearly shows that other things being equal, preference would be given to those who possess Post Diploma in Automobile Engineering. According to the learned senior counsel, appellant and respondents 4 and 5 secured equal marks. In such circumstances, the next step should be to give marks for preferential qualification and to finalize the selection. The appellant is a Post Diploma holder in Automobile Engineering and as such, he should have been given preference. The learned senior counsel disputed the contention with regard to awarding marks at the time of interview for preferential qualification. According to the learned senior counsel, the question of considering clause 5(b) of the notification would arise only in case other things are found equal. The learned senior counsel disputed the contention with regard to awarding marks at the time of interview for preferential qualification. According to the learned senior counsel, the question of considering clause 5(b) of the notification would arise only in case other things are found equal. Therefore, the submission that marks for preferential qualification has already been given during interview deserves to be rejected. The learned senior counsel further contended that the Public Service Commission twisted the facts before the writ court and without producing the selection file made the Court to believe as if separate marks were given to the appellant for higher qualification during the time of interview. 7. The learned Standing Counsel for the Public Service Commission contended that the Selection Committee awarded separate marks to the appellant for his preferential qualification and accordingly, he secured the maximum marks of 30. The subsidiary rules framed by the Public Service Commission provides that in case of two or more candidates securing equal marks, candidate senior in age would be placed above in the merit list. The Commission followed the subsidiary rule and having found that the appellant and respondents 4 and 5 secured equal number of marks, respondents 4 and 5 were placed above the appellant, considering their date of birth, and accordingly, they were selected. 8. The learned senior counsel appearing for respondents 4 and 5 contended that preferential qualification has already been considered by the Selection Committee as indicated in the counter affidavit and therefore, the Public Service Commission was correct in preparing the selection list by placing the appellant below respondents 4 and 5, as he was junior in age. Therefore, no interference is called for in the impugned order of selection. ANALYSIS:- 9. The Public Service Commission issued a notification bearing no.107 dated 18 April 2007 calling for applications for filling up the post of Motor Vehicle Inspector Grade II in the Tamil Nadu Transport Subordinate Service. As per the Selection Notification, candidates should possess Diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of Technical Education, Tamil Nadu. 10. The proviso to Clause 5(b) deals with preferential qualification, which reads thus:- Provided that other things being equal preference shall be given to those who possess post diploma in automobile engineering awarded by the state board of technical education and training, Tamil Nadu. 10. The proviso to Clause 5(b) deals with preferential qualification, which reads thus:- Provided that other things being equal preference shall be given to those who possess post diploma in automobile engineering awarded by the state board of technical education and training, Tamil Nadu. (Some more details regarding the qualification have been given in paragraph 9 of the commissions instructions etc. to the candidate). 11. The appellant who is a Post Diploma Holder in Automobile Engineering submitted his application pursuant to the notification. Respondents 4 and 5 satisfied the eligibility criteria and as such, they also submitted their applications before the Commission. The Public Service Commission conducted written examination and it was followed by oral interview. The appellant secured 207 marks in written examination. The fourth respondent secured 219 marks. The appellant secured 30 marks in the oral test. The appellant secured 237 marks in total. The respondents 4 and 5 and another candidate also secured the very same 237 marks. Therefore, four candidates secured equal marks. 12. The Commission having found that four candidates secured equal marks, followed the subsidiary rules and respondents 4 and 5 being candidates senior in age were placed above the appellant in the merit list. 13. The only issue that arises for consideration is as to whether the Commission was correct in their contention that the Selection Committee has awarded separate marks to the appellant during the time of oral interview on account of his possession of higher qualification as provided under the proviso to Clause 5(b) of the notification. 14. The Public Service Commission in their counter affidavit filed before the writ court specifically contended that possession of Post Diploma in Automobile Engineering by the appellant was taken note of by the Selection Committee and he was given marks for the said preferential qualification. 15. The minutes of the Selection Committee produced by the Public Service Commission indicates that the candidate's personality, bearing, attitude, general knowledge and technical knowledge were assessed and marks were given accordingly. There was no column for awarding marks for higher qualification as provided under the proviso to Clause 5(b) of the selection notification. There are no documents in the selection file to show that a note was given to the Selection Committee and the Committee was requested to give marks for higher qualification as provided under the proviso to Clause 5(b) of the notification. There are no documents in the selection file to show that a note was given to the Selection Committee and the Committee was requested to give marks for higher qualification as provided under the proviso to Clause 5(b) of the notification. The contention taken by the Public Service Commission in the counter affidavit is not supported by the selection records. Therefore, we are not in a position to agree with the submission made on behalf of the Public Service Commission that marks were awarded to the appellant on account of his possession of P.G. Qualification during the time of interview. 16. The consideration of preferential qualification would arise only in case other things are found equal, meaning thereby, if two candidates secured equal marks, preference should be given to the candidate who is in possession of Post Diploma in Automobile Engineering. 17. There is no point in contending that preferential qualification was considered during the time of oral test. That was not the time to consider preferential qualification. In case there are more than two candidates having preferential qualification as against two vacancy, then it is open to the Public Service Commission to invoke other methods like placing the candidate senior in age above others. 18. The Public Service Commission was not expected to give marks for preferential qualification during the time of interview. The notified procedure in the subject case involves a written test and oral interview. In case, additional marks are given for preferential qualification at the time of oral interview, it would result in en bloc selection of those who possess such additional qualification, to the detriment of others, who possess only the required minimum qualification. THE AUTHORITIES : 19. In Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341 ,the Supreme Court considered the meaning of the word "preference" in the context of selection and observed that in case selection is made on the basis of merit assessed through competitive examination and interview, "preference to additional qualification" would mean when other things being quantitatively and qualitatively equal, those having additional qualification would be preferred. However, it cannot work as a reservation or complete precedence. The Supreme Court said : 10. However, it cannot work as a reservation or complete precedence. The Supreme Court said : 10. 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 any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-à-vis others in the matter of actual selection. 11. Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. 20. The Supreme Court in State of U.P. v. Om Prakash, (2006) 6 SCC 474 , followed the judgment in Y.V.V.R.Srinivasulu, [ 2003(5) SCC 341 ], and once again explained the meaning of the term "preference" :- "16.This Court has consistently held that when selection is made on the basis of merit assessed through the competitive examination and interview, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred. It does not mean en bloc preference irrespective of inter se merit and suitability. 19. 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-à-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." 21.The learned single Judge proceeded on the basis of the statement made by the Commission on oath and observed that the appellant has obtained 30 marks in oral test including the marks given for preferential qualification by taking into consideration the proviso contained under Clause 5(b) of the notification. In the absence of any proof to show that the Selection Committee has awarded marks to the appellant for his preferential qualification, we are not in a position to sustain the selection of respondents 4 and 5. Their selection is accordingly quashed. CONCLUSION : 22. In the result, the impugned selection list dated 8 September 2009 in respect of respondents 4 and 5 is set aside. The Tamil Nadu Public Service Commission is directed to re-do the exercise by giving preferential treatment to the appellant in view of his possession of Post Diploma in Automobile Engineering. Such exercise shall be completed within a period of eight weeks from the date of receipt or production of a copy of this Judgment. 23. In the upshot, we allow the writ appeal. No costs.