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2021 DIGILAW 144 (BOM)

Ankita Atmaram Dessai v. State Of Goa

2021-01-22

BHARATI H.DANGRE, M.S.SONAK

body2021
JUDGMENT Bharati H. Dangre, J. - By the present Writ Petition, the petitioner question the rejection of her candidature to the post of Tutor at the hands of Goa Public Service Commission (GPSC), the respondent No.2 to the petition. She seek a declaration that she is qualified to be selected to the post of Tutor in terms of the advertisement issued by the GPSC inviting applications for the said post. A Writ of certiorari is also sought to quash aside the recommendation of respondents no. 4 and 5 to the post of Tutor by bypassing the petitioner, as illegal and bad in law. A Writ of Mandamus is sought against the respondents to accept her candidature for the post of Tutor and issue an appointment order in her favour for the said post. 2. In pursuance to the notice issued, the respondents came to be served. By order dated 01.12.2020, on prima facie consideration of the matter, the respondents were restrained from issuing any appointment orders to respondents nos. 4 and 5 till the next date. On the respondents being served, on 11.01.2021, the matter was directed to be listed on 18.01.2021 for final disposal. Accordingly, we have heard the learned Counsel Mr. G. Agni for the petitioner, Mr. D. Pangam, the learned Advocate General with Ms. Ankita Kamat, learned Addl. Government Advocate for the respondent nos.1 and 3, Mr. D. Lawande with Mr. P. Dangui and Mr. J. Mathew, Advocates for the respondent no.2. Though the respondent nos. 4 and 5 were served, they did not put in any appearance, albeit the notice of final disposal. 3. On 08.05.2020, the GPSC issued advertisement no.4/2020 inviting applications for distinct post enumerated therein. This included the post within the purview of Director of Health Services and applications for the post of Tutor in the Institute of Nursing Education were also invited. 19 posts of Tutor came to be advertised which covered 2 posts reserved for schedule tribes, 5 posts reserved for other backward classes and remaining 12 posts to be filled in from open category. 19 posts of Tutor came to be advertised which covered 2 posts reserved for schedule tribes, 5 posts reserved for other backward classes and remaining 12 posts to be filled in from open category. The advertisement prescribed the educational and other qualification in the following manner:- Essential:- I. Master degree in Nursing from recognized University and if a candidate with masters Degree in Nursing is not available, Bachelor of Science in Nursing/Post Basic Bachelor of Science in Nursing from a recognized University with three years of experience, out of which, one year should be teaching experience in School/college of Nursing. II. Knowledge of Konkani Desirable :- knowledge of Marathi. 4. On the said advertisement being published, the candidate preferred applications for the said post which included the petitioner who was serving as Clinical Instructor on contract basis with the Institute of Nursing Education, Bambolim, Goa. She possess a Postgraduate degree in Master's of Nursing Education from Bharati Vidyapeth, Deemed University Pune. She was awarded a certificate of experience as a Clinical Instructor from 08.09.2014 till 30.05.2020. 5. The eligibility criteria prescribed in the advertisement was the one prescribed in the Recruitment Rules framed by the Government of Goa in exercise of powers conferred under Article 309 of the Constitution and is contained in the Rules known as "Government of Goa, Institute of Nursing Services, Directorate of Health Services General Services G.P. A-B Recruitment Rules 2020. "Tutor" is one of the post which form part of the said Rules. The qualifications for the said post are set out as under: 'Essential: (1) Master's Degree in Nursing from a recognized University and if a candidate with Master's Degree is not available, Bachelor of Science in Nursing/Post Basic Bachelor of Science in Nursing from a recognized University, with three years of experience, out of which, one yea should be teaching experience in School/College of Nursing.' 6. The respondent no. 2 has formulated guidelines in the form of instructions to the candidates and has fixed a criteria for shortlisting of candidates in appropriate cases where the number of applications received in response to the advertisement are large in comparison to the number of post available and when it is not possible to interview all the candidates. The criteria issued in the guidelines by the GPSC for short listing of candidates is reproduced below:- 8. The criteria issued in the guidelines by the GPSC for short listing of candidates is reproduced below:- 8. SHORTLISTING OF CANDIDATES 8.1 The Commission in appropriate cases and particularly when the number of applications received in response to the advertisements are large as compared to the number of posts and it will not be possible for the Commission to interview all the candidates, may restrict the number of candidates who are found eligible in terms of the requirements of the Recruitment Rules, for interview in the ratio of 1:5 based on any of the following criteria (i.e. for every 1 post shortlisted candidates shall be called for interview):- a) A written test (screening)/Computer Based Recruitment Test. b) Percentage of marks scored in the qualifying examinations. c) Higher educational qualifications over the minimum qualifications prescribed in the Rule. d) Preferential experience as prescribed under essential qualification. e) Any other suitable criteria that the Commission finds appropriate.' The candidates who are shortlisted in terms of the said criteria is then required to submit self attested copies of the documents to the Commission. 7. In Clause 8.3 of the guidelines, the GPSC provide as under:- 8.3 Qualifying marks at Computer Based Recruitment Test (CBRT)/Interview and the candidates who appear for the interview after passing the screening test (CBRT) The minimum qualifying marks for the Interview /Computer Based Recruitment Test (CBRT) category-wise is as under: General category - 60% OBC/PH/CFF category - 55% SC/ST category - 50% However, the minimum marks to be obtained at the interview for those candidates who passed the Screening Test (CBRT) conducted by the Commission would be as follows:- General category - 50% OBC/PH/CFF category - 45% SC/ST category - 40% Clause 11 is also relevant and we could reproduce the same:- '11. SELECTION PROCESS Depending upon the requirements of the post, the number of applications received and under other relevant circumstances, the Commission may decide to hold a written test and/or skill test and/or physical test and/or scrutiny test and/or group discussions and an interview or only an interview. The Commission will communicate the nature of test which the Commission has decided to conduct for the purpose of selection sufficiently in advance. Only those candidates, who qualify in such test, will be called for interview by the Commission. The selection in appropriate cases may be done only by way of interview.' 8. The Commission will communicate the nature of test which the Commission has decided to conduct for the purpose of selection sufficiently in advance. Only those candidates, who qualify in such test, will be called for interview by the Commission. The selection in appropriate cases may be done only by way of interview.' 8. The facts placed on record in the form of affidavit by the GPSC reveal that total 149 online applications were received till the last date of filing. Upon scrutiny, 77 applicants were called for Computer Based Recruitment Test (CBRT) exams to be held for the purpose of shortlisting of the candidates. On 09.10.2020 the CBRT exam of 75 marks was conducted which was answered by 51 candidates. Pursuant thereto, a select list was displayed on 02.11.2020 and 14 candidates from general category were shortlisted for interview for filling up 12 posts of Tutor. The affidavit filed before this Court by Yetindra M. Maralkar, Secretary of GPSC sworn on 11.12.2020 contain a statement that out of 51 candidates who participated in the CBRT exam, 40 candidates were possessing M.Sc Degree and 11 candidates were possessing B.Sc degree. 14 candidates were subjected to interview, which included the petitioner and the merit list came to be prepared after applying the criteria incorporated in Clause no.8.3 of the instructions and the list of the selected candidates was listed/displayed on the website on 20.08.2020. On finalisation of the merit list, the names of eleven candidates selected for the post of Tutor were recommended to the Government on 27.11.2020. 9. The affidavit of GPSC deal with the case of the petitioner and it is stated therein that the petitioner was one of the candidates who applied for the said post and was shortlisted on the basis of the marks obtained in CBRT exam. The petitioner was interviewed by the panel but did not reach the benchmark of 50% of marks as was the mandate of direction no.8.3. The score of the petitioner in the interview was reflecting 47 marks and this being below the benchmark of 50, inspite of her possessing M.Sc Degree, her name was not recommended and in contrast, the respondent no.4 Ms. Walencia Pereira who secured 56.33 marks and respondent no.5 Ms. The score of the petitioner in the interview was reflecting 47 marks and this being below the benchmark of 50, inspite of her possessing M.Sc Degree, her name was not recommended and in contrast, the respondent no.4 Ms. Walencia Pereira who secured 56.33 marks and respondent no.5 Ms. Stephie Fernandes, who scored 55 marks in interview, in absence of a Postgraduate i.e. M.Sc Degree as per Recruitment Rules, came to be selected and their names were recommended to the State Government for appointment by the respondent no.2. This action of the respondent no. 2 is assailed by the petitioner as arbitrary and unfair and violative of the fundamental rights of the petitioner. 10. The learned Counsel Mr. G. Agni, appearing for the petitioner would urge that in terms of the Recruitment Rules, the essential qualification prescribed for the post of Tutor is a Master's Degree in Nursing and only if the candidate is not available with a Master's Degree then a candidate with a Bachelor's Degree with the prescribed experience can be considered for recommendation to the post of Tutor. Shri Agni, the learned Counsel submit that the respondent no.2 has misconstrued the direction contained in Clause no.8.1 at the time of shortlisting and applied the criteria of CBRT and while judging her suitability she was made to stand in a row with the undergraduate candidates like the respondents no.4 and 5. The submission of the learned Counsel is to the effect that in terms of Rule 8.1, if the candidates eligible were found to be more in number than the number of post to be filled in, the shortlisting is permissible for restricting the number of candidates but this is only amongst the candidates who are found to be eligible in terms of the Recruitment Rules. Since it is at this stage according to Mr. Agni, the GPSC has erred and misconstrued, they subjected the petitioner to interview and the marks scored by her in the interview being less than 50% as per Clause no.8.3, she was ousted from the selection process, by accepting the candidature of respondents no.4 and 5 who do not meet the eligibility criteria at all. 11. Per contra, the learned counsel Mr. Lawande, representing the respondent no.2, GPSC fall back on the affidavit filed by its Secretary and would submit that GPSC has followed the norms prescribed by it while selecting the candidates. 11. Per contra, the learned counsel Mr. Lawande, representing the respondent no.2, GPSC fall back on the affidavit filed by its Secretary and would submit that GPSC has followed the norms prescribed by it while selecting the candidates. He would heavily fall back on the eligibility criteria prescribed in the advertisement and state that it is not that candidates with B.Sc Degree are to be completely eliminated out of the process but if suitable candidate possessing M.Sc Degree are not found, a candidate with B.Sc Degree can also be selected, provided he is suitable for the post of Tutor. Heavily relying upon Clause 8.3 of the General Instructions of GPSC, Shri Lawande would assert that the petitioner as well as the respondents no.4 and 5 came to be shortlisted on the basis of marks obtained in Computer Based Recruitment Test examination and since all the 3 candidates attained the benchmark prescribed for CBRT, they were pushed ahead in the process and held eligible for being interviewed. As the petitioner did not secure the required number of marks, i.e. 50, she came to be eliminated as not being found 'Suitable' whereas the respondent no.4 secured 56.33 marks in the interview as against the respondent no.5 who secured 55 marks. Since the petitioner was not found to be suitable, though she was eligible on being armed with M.Sc Degree, her candidature came to be rejected as not qualified to be appointed to the post of Tutor. The learned counsel Shri Lawande would also assert that after her non-selection by the interviewing panel, the petitioner cannot turn back and question the entire process. The learned counsel would assert that though, the petitioner was eligible, it is not the eligibility which would make her entitled to the post advertised but it was always permissible for the GPSC to assess her suitability for the post by relying upon Clause 8.3 of the Instructions. In general category, the GPSC was able to select 11 candidates since they were found to be suitable in terms of their merit to be appointed for the post of Tutor. One seat from general category however has remained vacant as no person was found to be suitable for being recommended as against the said post. In general category, the GPSC was able to select 11 candidates since they were found to be suitable in terms of their merit to be appointed for the post of Tutor. One seat from general category however has remained vacant as no person was found to be suitable for being recommended as against the said post. As against the selection of respondents no.4 and 5, Shri Lawande, the learned counsel, would asseverate that it is not that the said two candidates were not eligible since in terms of the advertisement since if a candidate with M.Sc Degree is not available, then a candidate with B.Sc Degree who meet the requirements specified in the Recruitment Rules can also be selected, if found suitable. He submit that since the petitioner failed to meet the criteria of suitability after being subjected to the process stipulated by the GPSC, he was kept out of the purview of recommendation and respondents no.4 and 5, since they were found to be both, eligible and suitable, their names were recommended. 12. We have considered the rival contentions advanced on both sides. The pivotal issue which falls for consideration before us is whether the process adopted by GPSC was just and fair and whether it adheres to the Recruitment Rules passed under Article 309 of the Constitution. The Recruitment Rules which are placed before us framed in exercise of the powers conferred under Section 309 of the Constitution regulate the requirements to the Goa General Service and which include the post of Tutor. The essential qualifications for the post of Tutor in terms of the Recruitment Rules contemplate a Master's Degree in Nursing from a recognized University. If candidate with Master's Degree in Nursing is not available, Bachelor of Science in Nursing/ Post Basic Bachelor of Science in Nursing from a recognized University with 3 years of experience can be considered for appointment to the post of Tutor. 13. In furtherance of the advertisement, the GPSC received applications from 149 candidates. Mr. Lawande, learned counsel for GPSC has put before us the break-up of these candidates and 92 candidates were the one who acquired M.Sc Degree whereas 57 candidates possessed B.Sc Degree. 13. In furtherance of the advertisement, the GPSC received applications from 149 candidates. Mr. Lawande, learned counsel for GPSC has put before us the break-up of these candidates and 92 candidates were the one who acquired M.Sc Degree whereas 57 candidates possessed B.Sc Degree. Since the number of posts advertised were 19 and the applications received were 149, the GPSC was perfectly justified in adopting the criteria for shortlisting of candidates as set out in Clause 8.1 of the General Instructions. But, Clause 8.1 qualify as to who will be those candidates. Clause 8.1 permit the GPSC to restrict the number of candidates for interview but specifically provide that such candidates are the one who are found to be eligible in terms of the requirements of the Recruitment Rules. The candidates can be restricted for the purpose of interview in the ratio of 1:5, i.e. for every one post, 5. Shortlisting of the candidates can be on any of the following criteria as set out in subclause (a) to (e) of Clause 8.1. '8.1 ..... a) A written test (screening)/Computer Based Recruitment Test. b) Percentage of marks scored in the qualifying examinations. c) Higher educational qualifications over the minimum qualifications prescribed in the Rule. d) Preferential experience as prescribed under essential qualification. e) Any other suitable criteria that the Commission finds appropriate.' 14. The written test (screening)/Computer Based Recruitment Test is one of the criteria prescribed for shortlisting. After shortlisting of the candidates based on the CBRT, the process marches ahead and the candidates shortlisted will be considered for interview. The record reveal that out of 149 candidates who had applied, on the scrutiny of their applications 77 candidates were found to be eligible for appearing in the CBRT. The figures placed before us reveal that out of these 77 candidates, 57 candidates were armed with Master's Degree and 20 of them were B.Sc candidates. By accepting the criteria of Computer Based Recruitment Test, 51 candidates appeared for the said test and out of these 51 candidates, 40 were Postgraduates and 11 candidates were mere Graduates. After sieving them through CBRT, 14 candidates were shortlisted for consideration for 12 posts of Tutor from general category; out of those, 12 candidates are Postgraduates and 2 candidates are Graduate with B.Sc Degree. After sieving them through CBRT, 14 candidates were shortlisted for consideration for 12 posts of Tutor from general category; out of those, 12 candidates are Postgraduates and 2 candidates are Graduate with B.Sc Degree. At the end of the process, name of 11 candidates were recommended for being appointed to the post of Tutor which included respondents no.4 and 5. The respondents no.4 and 5 came to be selected and recommended for appointment on the basis of their performance in the interview though they did not possess Postgraduate degree. The challenge of the petitioner emanates from this action of GPSC. 15. On perusal of the Recruitment Rules for the post of Tutor and also the advertisement inviting applications for the said post which contemplate the essential qualifications to be a Master's Degree in Nursing but if such a candidate with Master's Degree is not available, a candidate with a Bachelor's Degree is held to be eligible. However, on perusal of the process adopted by the GPSC and which has been outlined before us, it culminated into a situation where the 2 candidates who possess the alternative qualification of B.Sc are selected and recommended to the exclusion of the petitioner who meet the criteria of the essential qualification prescribed by the Recruitment Rules being a Master's Degree in Nursing. The outcome of the non-selection of the petitioner is sought to be justified by relying upon the General Instructions framed by the GPSC which, needless to say are without any statutory force and are in the form of Instructions to be adopted by the GPSC while conducting the process of selection. Clause no. 8.1 of the said instructions contemplate shortlisting of the candidates who are found to be eligible in terms of the requirements of Recruitment Rules and though it is vehemently argued by the learned counsel Mr. Lawande that GPSC has not erred in calling the candidates with B.Sc qualification since it was uncertain whether all the M.Sc candidates would make up for their selection and qualify in the CBRT initially and then in the interview process since the benchmark has been set out by prescribing minimum qualifying marks at both the stages. We find the said submission to be bereft of any merit and based on wrongful construction of Clause 8.1. We find the said submission to be bereft of any merit and based on wrongful construction of Clause 8.1. Shortlisting criteria can be applied only when the number of applications received are large in number as compared to the number of posts available and when it becomes impossible for the Commission to engage all of them in the interview process. The various criteria evolved for shortlisting the candidates stipulated in Clause 8.1, include a CBRT test. Making a candidate undergo the said test is to arrive at a manageable figure of candidates who can then be adjudged for their suitability by subjecting them to interview by the panel of experts. At this very juncture, according to us, the GPSC was not entitled to invite the candidates with graduation since the data placed before us would reveal that at the very beginning of the process there were 92 candidates with Master's Degree and at the stage of shortlisting of CBRT, 57 candidates possessed M.Sc Degree. Even after this when 51 candidates appeared for CBRT, 40 of them were armed with Master's Degree. In the interview process also 12 candidates out of the 14 shortlisted and who had achieved the benchmark in CBRT were Postgraduate candidates. The petitioner, according to us, is perfectly justified in arguing before us that he has a right to be tested alongwith the candidate of her equivalence, i.e. those possessing a Postgraduate degree. The suitability of the candidates in terms of Rule 8.1 was to be judged amongst the candidates who are eligible. It is not the case that the candidates with B.Sc Degree are not at all eligible but their candidature can be considered only when the candidates with Postgraduate degree are not at all available. Once the requisite number of candidates with Postgraduate degree are available for selection of 12 posts of Tutor, the suitability of the candidates would be adjudged amongst these eligible candidates. At the stage of CBRT, out of 51 candidates, 40 candidates possessed the Master's Degree and merely because when the petitioner was subjected to interview and who was interviewed by the panel and on the ground that he could not secure the qualifying marks would be no ground to expel her from the process, particularly when 2 B.Sc candidates also participated in the said process. The eligibility of the petitioner can only be assessed qua the candidates who are eligible at the first instance, being acquired Master's Degree, and the eligibility criteria as per the Recruitment Rules give primacy to those candidates over the graduate candidates. 16. The constitutional code of equality and equal opportunity which is a charter for equals under Article 14 of the Constitution ensure equality before law and equal protection of law. Coupled with Article 16 it ensure to all citizens, equality of opportunity in matters relating to employment, which is an instance of the guarantee of equality enshrined under Article 14 of the Constitution. Since the clause of equality and equal opportunity in employment is a charter for equals, necessarily then it would mean equal opportunity for persons who fall, substantially within the same class. The Recruitment Rules itself permitted the classification while prescribing the essential qualifications and by giving primacy to the Postgraduate candidates in Nursing over the candidates with mere Graduate degree. Being cognizant of the object underlying the Recruitment Rules in view and the advertisement, the petitioner, in our considered opinion has been denied equality of opportunity when the classification of Graduate and Postgraduate candidates prescribed by the advertisement bear a nexus with the object of obtaining higher qualified person to fill up the post of Tutor, and only in absentia, a mere Graduate can be considered. Educational criteria has always been recognized as a safe criteria for determining the validity of classification and as has been held by the Hon'ble Apex Court in the case of The State of Jammu And Kashmir versus Shri Triloki Nath Kosa And Others, (1974) 1 SCC 19 at paragraph 34 thus: '34. On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their copious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which comes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to these possessing higher educational qualifications. And we are concerned with the reasonableness of the classification, not with the precise accuracy of the decision to classify nor with the question whether the classification is scientific. Such tests have long since been discarded.' 17. The respondent no.2 in ignorance of the said right of the petitioner to compete with those among his own class, has denied her equal opportunity which is conferred by the Constitution. This denial of opportunity in our considered view is clearly violative of Article 14 and 16 of the Constitution. On the pretext that the petitioner was not found to be 'Suitable' though 'Eligible' she is ousted from the procedure. The fallacy in the action of GPSC is egregious and stare us in the wake of the principle of equality enshrined in the Constitution. 18. The distinction between eligibility and suitability is no more res integra and the two have been held to be distinct. The process of judging the fitness of a person has been held to fall within the realm of suitability whereas eligibility is considered to be a necessary qualification to be possessed by a person for judging his suitability. The evaluation of the worth and merit of a person is a matter of distinction from eligibility of a candidate and with reference to the appointment of High Court Judges, the Hon'ble Apex Court in the case of Mahesh Chandra Gupta versus Union Of India & Ors, (2009) 8 SCC 273 succintly brought out the distinction in the following paragraphs: '41. The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of "consultation". Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu's Commentary on the Constitution of India, 6th Edn., p. 234). The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of "consultation". Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu's Commentary on the Constitution of India, 6th Edn., p. 234). Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like. 42. Hence, Article 217(1) and Article 217(2) operate in different spheres. Article 217(1) answers the question as to who "should be elevated" whereas Article 217(2) deals with the question as to who "could be elevated". Enrolment of an advocate under the 1961 Act comes in the category of who "could be elevated" whereas the number of years of actual practise put in by a person, which is a significant factor, comes in the category as to who "should be elevated"'. 43. One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of "suitability", stands excluded from the purview of judicial review.' 19. In the State of U. P. And Another versus Om Prakash And Others, (2006) 6 SCC 474 where in the recruitment process the eligibility prescribed for the post of Medical Officer of Homeopathy was a recognized degree in Homeopathy or a recognized Diploma in Homeopathy, the advertisement mentioning by way of a proviso that preference will be given to degree holders. Dealing with the preference clause the Apex Court held as under:- '18. Dealing with the preference clause the Apex Court held as under:- '18. This Court considered the same question in Secy., A.P. Public Service Commission v. Y. V.V.R. Srinivasulu and held at SCC pp.348-49, para 10 as under: "The word 'preference' in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an 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 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 meritwise 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 any one 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." 20. 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-a-vis others in the matter of actual selection." 20. Mr. Lawande has placed reliance in the judgment of Secy. (Health) Deptt. Of Health & F.W. And Another versus Dr. Anita Puri And Others, (1996) 6 SCC 282 . In the said judgment Their Lordships were dealing with the qualifications in a similar nature, all being preferential qualification where applicants were invited for the post of Dental Officers and BDS was prescribed as minimum qualification but preference was stipulated for higher qualification. While dealing with the said facts, Their Lordships held that when an advertisement stipulates a particular qualification as the minimum qualification for a post and further stipulate that preference can be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to candidates with higher qualification. It cannot however be considered to mean that person with higher qualification is automatically to be selected and appointed. It has been held that adjudging the suitability of a person, an expert body like GPSC in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection. The ratio flowing from the facts of the said case, in no manner advance the submission of Mr. Lawande. The case was of a clause for preference to Postgraduate candidates in contrast to the present case in hand where the clause referred to the eligibility criteria being a Postgraduate and only in absence of eligibility of Postgraduate candidate, a candidate with Bachelor's Degree in Nursing can be considered. Just because the GPSC would have been put to inconvenience for repeating the process for B.Sc candidates in case all the vacancies not being filled up by Postgraduate candidates, it preferred to have a mix batch of M.Sc and B.Sc and judge their suitability on a common platform. The Recruitment Rules however do not contemplate such a mode which would result into exclusion of a Postgraduate candidate as against a mere Graduate on the ground of suitability. 21. The Recruitment Rules however do not contemplate such a mode which would result into exclusion of a Postgraduate candidate as against a mere Graduate on the ground of suitability. 21. The submission of the GPSC as well as the State Government to the effect that the petitioner is not entitled for any relief since she has already participated in the process is just mentioned to be rejected. It is not the case that the advertisement issued did not conform to the rules for recruitment. It is the process which is adopted which has resulted in the ouster of the petitioner from the select list though at the inception of the process she was fully qualified and rather, in comparison to the 2 selected candidates being respondents no.4 and 5, the only qualified candidate. Since she advanced from one stage of process to the other and as a candidate she being unaware of the details of other competitor, she had no opportunity to call in question the selection process at that stage. It is only when she realised that select list being published she has approached this Court. We see no reason why the petitioner should be dejected by this Court on this technical plea advanced by the respondents. 22. In light of the observation, the question that arises before us is whether the petitioner is entitled for all the reliefs which she has sought in this petition particularly, when she is seeking a mandamus for appointment to the post of Tutor. It is a settled position of law that the candidate has no right to be appointed to a particular post but his right is limited for consideration of his candidature in terms of the Recruitment Rules by adopting just and fair procedure. We are with the petitioner in her submission that the selection of respondents no.4 and 5 cannot be sustained and therefore, according to us she is entitled for prayer clause (C) in the petition. We are also inclined to grant her prayer clause (B) and declare that she qualify to be selected to the post of Tutor however, since the petitioner has failed to secure the minimum marks as prescribed by the GPSC being 50% marks in the interview, we cannot ignore this very important aspect while adjudging her suitability for appointment. We are also inclined to grant her prayer clause (B) and declare that she qualify to be selected to the post of Tutor however, since the petitioner has failed to secure the minimum marks as prescribed by the GPSC being 50% marks in the interview, we cannot ignore this very important aspect while adjudging her suitability for appointment. We are, therefore, not inclined to grant as prayed for in prayer clause (D) and refuse to issue mandamus in favour of the petitioner directing the GPSC to recommend the name of the petitioner to the post of Tutor. With this relief being declined, the only option left to us is issuing directions to the respondent no.2 to issue a fresh advertisement inviting applications for the post of Tutor, now 3 in number, since we have set aside the selection of respondents no.4 and 5 who were recommended against 2 posts of Tutor and for one post of Tutor no candidate was recommended, since no candidate was found to be suitable amongst the 14 candidates who were interviewed. The GPSC is at liberty to issue an advertisement for the 3 posts of Tutor and strictly adhere to Clause 8.3 of the Instructions while shortlisting the candidates, based on the eligibility prescribed by the Recruitment Rules. It is pertinent to note that no appointment order has been issued in favour of respondents no.4 and 5 since by our order dated 01.12.2020, we had restrained the Government from issuing the appointment in their favour by accepting the recommendation of the respondent no.2. 23. In the result, the writ petition is partly allowed in terms of prayer clause (A), (B) and (C). 24. No order as to costs.