JUDGMENT : N. Paul Vasanthakumar; CJ:- 1. This LPA appeal is filed against the order made in SWP No. 676/2005 dated 13.06.2014, wherein the learned Single Judge dismissed the writ petition filed by the appellant seeking to quash the selection/appointment of respondents 4 and 5 as Lecturer Grade-II in the discipline of Secretariat Practice and Office Management and for direction to declare the appellant having been selected to the said post on the basis of preference prescribed and to recommend the name of the appellant for her appointment with all service benefits. 2. Brief facts necessary for disposal of the appeal are as follows: The Public Service Commission received requisition for two posts of Lecturers Grade-II in the discipline of Secretariat Practice and Office Management of the department of Technical Education on 11.10.2001. Before the advertisement could have been issued six (06) more posts in the same discipline were also referred, hence all the posts were to be filled up on the basis of Draft Recruitment Rules. Accordingly, notification bearing No. 34-PSC of 2001 was issued on 11.12.2001. After the issuance of the notification, the Jammu and Kashmir Technical Education (Gazetted) Service Recruitment Rules, 2002, (for the short the Recruitment Rules of 2002) were notified by the Government vide SRO 328 of 2002 dated 29.08.2002. The notification issued by the Public Service Commission was in terms of draft rules which was not consistent with the qualification prescribed in the Recruitment Rules of 2002 notified in the year 2002. Hence, Public Service Commission decided to re-advertise the posts incorporating the qualification consistent with the Recruitment Rules of 2002. Re-advertisement notification was issued on 16.03.2004 with the condition that the candidates who had applied pursuant to the earlier notification possessing the requisite qualification need not to apply afresh. The Commission received 166 applications, out of which 42 candidates including the appellant were found eligible. Interview was conducted on 23rd and 25th of April, 2005 at Srinagar and Jammu respectively. Respondent Nos. 4 and 5 belong to RBA category and they were found suitable and recommended for the posts reserved under the RBA category and were also appointed. The said selection/appointment was challenged by the appellant as stated supra. 3. Interview was conducted on 23rd and 25th of April, 2005 at Srinagar and Jammu respectively. Respondent Nos. 4 and 5 belong to RBA category and they were found suitable and recommended for the posts reserved under the RBA category and were also appointed. The said selection/appointment was challenged by the appellant as stated supra. 3. The learned Single Judge dismissed the writ petition holding that the Rule which the appellant very much relies on, namely, giving preference will arise only if other things are equal and there cannot be any exclusion of one class of qualified candidates to other class of qualified candidates. As against the same, this appeal is filed contending that as per the preference shown in the advertisement which is in tune with the Recruitment Rules of 2002, the appellant and respondent No. 5 is coming within the second category of qualification and the respondent No. 4 is possessing the qualification mentioned in the 3rd category and as per the preference mentioned in the advertisement if no candidate possess qualification mentioned in the second category then only candidates possessing the qualification stated in the third category can be selected. In short, the submission of the appellant is that the persons possessing qualification mentioned in first class will exclude the second and third category candidates and the second category candidates will exclude the third category candidates and the procedure adopted by the Public Service Commission and the consequential selection given to respondents 4 and 5 are contrary to the recruitment notification as well as the Rule. 4. The learned counsel for the appellant submitted that the action of the Public Service Commission in following their own procedures, namely, Rule 51 of the Jammu & Kashmir Public Service Commission (Business and Procedure) Rules, 1980, in making selection in contravention of the Recruitment Rules of 2002 particularly Entry 5B of Schedule-II-A of the Recruitment Rules of 2002 is illegal and the Public Service Commission wrongly selected the respondents 4 and 5 and said selection is bound to be set-aside with a direction to the Public Service Commission to select the appellant by applying the proviso attached to the Recruitment Rules of 2002. He has also relied on the judgments of Hon’ble the Supreme Court reported in AIR 1991 SC 1514 , (2004) 6 SCC 786 and the judgment of this court reported in 2012 (4) JKJ 660 . 5. He has also relied on the judgments of Hon’ble the Supreme Court reported in AIR 1991 SC 1514 , (2004) 6 SCC 786 and the judgment of this court reported in 2012 (4) JKJ 660 . 5. The learned counsel, Mr. Azhar-ul-Amin, appearing for the Public Service Commission argued that the rules particularly Entry 5B of Schedule-II-A to the Recruitment Rules of 2002 having fixed three qualifications and the candidates possessing the three qualifications mentioned are eligible to participate in the selection. During selection based on suitability, if the marks secured by the candidates are equal or if there is a tie then only preference clause mentioned in the rule will come into play and if such interpretation is not given it will result in eliminating the second and third category if candidates from first category are available and elimination of third category candidates if candidates in second category are available. The learned counsel further submitted that all the categories being eligible to apply, only one category alone or two categories, as the case may be, in exclusion of other category(s) will cause injustice to the candidates who have applied pursuant to the notification which was issued in terms of the Recruitment Rules of 2002. Learned counsel also relied on the judgment of Hon’ble the Supreme Court reported in (1996) 6 SCC 282 , (2006) 6 SCC 474 and AIR 2003 SC 3961 in support of his contention. 6. Learned counsel, Mr. M. A. Qayoom, appearing for the private respondents 4 and 5 argued that the writ petition was filed by the appellant before the appointment was made and during the pendency of the writ petition, appointment order was issued in favour of the respondents 4 and 5 and the said fact was clearly stated in the reply affidavit filed by the respondents 4 and 5 and in spite of the same, the appellant has not chosen to amend the prayer made in the writ petition challenging the appointment order of respondents 4 and 5. Learned counsel, therefore, submitted that prayer sought for in the writ petition to quash the selection list has rendered in fructuous on the date when the appointment order was given to the respondents 4 and 5. Learned counsel, therefore, submitted that prayer sought for in the writ petition to quash the selection list has rendered in fructuous on the date when the appointment order was given to the respondents 4 and 5. The learned counsel also submitted that the respondents 4 and 5 having been appointed in the year 2005 have completed ten years of service and they have also got promotion and at this stage of time, if selection/appointments are set-aside, prejudice would be caused to the respondents 4 and 5. Learned counsel also submitted that the appellant is also now in the Government Service and is working as Teacher and, therefore, his prayer seeking appointment as Lecturer cannot be ordered at this stage. In support of his contentions, learned counsel relied on the judgments of Hon’ble the Supreme Court reported in AIR 1981 SC 597 , 1993 (Suppl.2) SCC 611, AIR 1999 SC 517 , AIR 2003 SC 3961 and the judgment of this Court reported in 2010(2) JKJ 557 . 7. Learned counsel for the private respondents ultimately argued that interpretation given by the Public Service Commission merit consideration as preference given in the proviso to Rule 5 will come into play only if other things are equal and not exclusion of candidates of one or two categories and prayed for dismissing the appeal. 8. Considered the rival submissions. 9. The notification issued calling for applications prescribe the eligibility as follows: “(I) Bachelor’s degree with 55% marks in appropriate branch/discipline or equivalent from a recognized Institution/University. (II) Bachelor’s degree in Arts/Science/Commerce with first class diploma in the relevant discipline from a recognized Institution/University. (III) Diploma holders first class in appropriate branch/discipline from recognized Institution.” It is also stated that in the notification that preference shall be given to the candidate from category (I) and in case no candidate is available from this category then preference shall be given to the candidate from category (II) and in case no candidate is available from this category then preference shall be given to the candidate from category (III). 10. The Entry 5B of Schedule-II-A to the Recruitment Rules of 2002 also prescribe the said qualification with the proviso. Thus, the notification issued by the Public Service Commission is in tune with the Recruitment Rules of 2002. 10. The Entry 5B of Schedule-II-A to the Recruitment Rules of 2002 also prescribe the said qualification with the proviso. Thus, the notification issued by the Public Service Commission is in tune with the Recruitment Rules of 2002. On the cut of date of receipt of applications i.e. 15.04.2004, the appellant was possessing the qualification of B.A in Arts with three years 1st Class Diploma in the discipline of Secretariat Practice and Office Management in which she has secured 67.57% of marks. The respondent No. 4 had obtained the Graduate Degree after the last date for submitting the application and on the relevant date she was having qualification of Higher Secondary Examination and secured third Division and was having 3 year 1st Class Diploma in which she had obtained 72.87% of marks. Respondent No. 5 on the relevant date was possessing Graduation with 2 year 1st Class Diploma in Secretariat Practice and Office Management by obtaining 65.89% of marks. 11. The appellant claimed appointment under the Reserved Category being the resident of Backward Area and accordingly, the appellant and respondent No. 5 satisfied qualification in Category (II) and the respondent No. 4 satisfied qualification in category (III), the appellant alone should have been preferred as per the preference clause mentioned in the advertisement and the Rule. As per the interview marks, the appellant secured 45.27, respondent No. 4 secured 51.86 and respondent No. 5 secured 47.76. Thus, the respondents 4 and 5 have secured higher marks than the appellant in the selection process. In terms of Rule 51 of the J&K Public Service Commission (Business and Procedure) Rule, 1980, as amended in the year 2004, marks have been allocated in the following manner: Minimum qualification = 30 marks Higher qualification = 05 marks Experience = 05 marks Sports = 03 marks NCC = 02 marks Special attributes = 05 marks Viva = 50 marks Total = 100 marks. 12. On assessment of the candidates, namely, the appellant as well as the respondents 4 and 5, the marks secured by the candidates, as stated supra, were awarded and based on the higher merit, respondents 4 and 5 were selected by the Public Service Commission and they were appointed in the year 2005 and they have also completed the period of probation. 13. 13. In so far as the contention of learned counsel appearing for the appellant that when category (II) candidates are available, candidate from category (III) should not have been selected. Whether such candidates can be selected or not, based on the more merit secured in the selection process, was considered by Hon’ble the Supreme Court in (1996) 6 SCC 282 and while considering the issue regarding preferential qualification, the decision of the Punjab and Haryana High Court rendered in the case by giving exclusion of higher qualified candidates on the basis of preference clause was set-aside by Hon’ble the Supreme Court. In paragraph-7, it is held thus: “7. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. 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 weight age has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extracurricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed.” 14. In the decision reported in AIR 2003 SC 3961 also the said issue was considered and it is held thus: “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 additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. If it is to be viewed the way the High Court and Tribunal have chosen to, it would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those with ordinary degree and who does not possess the additional qualification……....” 15. Similar issue in the judgment reported in (2006) 6 SCC 474 , came up for consideration before Hon’ble the Supreme Court and it was held that question of preference will come only if other things are equal. In paragraph 16, it is held thus: “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.” 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.” 16. The contention of respondents 4 and 5 that the appellant has not challenged their appointment cannot be accepted as the prayer which was sought for in the writ petition was to quash the selection/appointment of respondents 4 and 5 though the appointment orders were issued after filing of the writ petition. The appellant having prayed to quash the selection/appointment, the said prayer is sufficient enough to question the appointment also. Thus, the said argument of learned counsel for the respondents 4 and 5 is rejected. 17. In so far as the contention of learned counsel for respondents 4 and 5 that the respondents 4 and 5 were appointed ten years ago and have completed the probation period, also merit consideration. The said issue was considered in the decision reported in AIR 1981 SC 597 , 1993 (Suppl.2) SCC 611 and AIR 1999 SC 517 . The appellant has also been appointed as teacher and is working on Government service as on date. Hence, equity can be pleaded by respondents 4 and 5 even if the appellant has made out a case. 18. In this case, as already held that the preference can be given only if other things are equal as the appellant and respondents 4 and 5 participated in the selection. The appellant’s mark being lesser than the respondents 4 and 5 in the selection which was conducted by the Public Service Commission, we are of the view that the appellant has not made out a case to upset the order of the learned Single Judge. Hence the appeal filed by the appellant is dismissed. No costs.