Calcutta High Court (Appellete Side)
Md. Sahid @ Mohammad Shaid vs Sahadeb Mal & Ors on 24 February, 2020
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24-02-2020 IN THE HIGH COURT AT CALCUTTA
Subrata Civil Appellate Jurisdiction
. Appellate Side
F.M.A.No.2071 of 2016
Md. Sahid @ Mohammad Shaid
-vs-
Sahadeb Mal & Ors.
with
FMA No.2072 of 2016
Saheb Dutta & Ors.
-vs-
Sahadeb Mal & Ors.
Mr. Soumya Majumder
Mr. Piush Chaturvedi
Mr. Madhusudan Roy ...for the appellants
Mr. Soumitra Chatterjee
Mr. Lutfal Haque ...for respondent no.1
Mr. S. Pal Chowdhury ...for the bank As the facts are identical, both these appeals are taken up together and disposed of by this judgement and order.
These intra-court appeals are from a judgement and order passed by a learned single judge of this court on February 16, 2016 in WP No.1360(W) of 2016 (Sahadeb Mal v. UCO Bank & Ors.).
By the said order the learned single judge was pleased to hold that the appointment of the appellants in the respective appeals - the sixth to ninth respondents in the said writ petition - was not justified, since they had qualifications higher than those advertised. Instead of having passed class VI, the appellant in FMA No.2071 of 2 2016 was a graduate. All, except one among the appellants in FMA No.2072 of 2016, were graduates. One passed the higher secondary examination. They were ineligible by having qualifications higher than that which was prescribed in the advertisement. According to his lordship, the advertised qualification was in the nature of ceiling limit of educational norms stipulated in the advertisement.
The facts of these appeals show that the advertisement prescribed that the educational
qualification in case of peons, with which we are concerned, must be class VIII passed but not having passed Madhyamik (the Board examination of Standard X). In parenthesis it was specified that candidates with any higher qualification would not be accepted. However, admittedly there was no condition, stipulating that graduates or those having passed higher secondary would be ineligible. Nor was there any rule of the bank disqualifying those having higher than the prescribed educational qualifications. The appellants in both the appeals have qualifications, which are admittedly higher than that of passing class VIII but which require them to have passed class VIII.
The writ petition was at the instance of the first respondent. He had admittedly passed class VIII and was unsuccessful in his Madhamik Pariksha. So his eligibility was never in doubt. Unfortunately, he participated in the selection process but was unsuccessful. The writ petition was, therefore, at the instance of the unsuccessful 3 candidate who thereafter had challenged the appointment of the present appellants. The appellants were admittedly not only selected but also appointed as a peon and it was only because of the order of the learned single judge that each of their appointments was cancelled.
On the face of it, the finding that "on a reading of the relevant advertisement, it is clear that if a candidate possessed education qualifications beyond the ceiling limit set forth in such regard in the advertisement, such candidate would be ineligible for consideration" is contrary to the law laid down by a Special Bench of this court in the case of Rina Dutta & Ors. v. Anjali Mahato & Ors. reported in 2010(2) CLJ (Cal) 321. Their Lordships in the Special Bench have been pleased to hold "when a particular qualification is laid down in an advertisement relating to a distinct class of candidates, the candidates possessing a qualification higher than that advertised can ordinarily not be debarred or disqualified, but it is open to the employer to make a rule providing for disqualification of candidates possessing qualification higher than the prescribed qualification, but the burden would be on the employer to justify such a rule."
The above dictum of the Special Bench was sought to be explained by a coordinate bench of this court in a decision in the case of State of West Bengal & Ors. v. Chaitali Das reported in 2015(5) CHN (Cal) 138. There what fell for decision was the eligibility criteria for Anganwadi workers who were supposed to have the educational qualification of Madhaymik (Standard X) passed or its equivalent pass certificate and in case of candidates from the Scheduled Castes and Tribes if they had passed class VIII. There was a specific bar against "Graduates and above" from applying for the post. There, 4 their lordships of the coordinate bench, after setting out parts of the judgment in Rina Dutta (supra) were pleased to hold that the advertisement for Anganwadi workers which the Special Bench was considering, did not at that time, have a specific bar against graduates and above from applying, and thus the general bar unlike the case before the coordinate bench was construed by the Special Bench. In the case before us, too, there is no specific bar against graduates or those having passed higher secondary from applying. Therefore, the judgement of the coordinate bench can be distinguished on facts and is so distinguished.
We have ascertained from Mr. Pal Chowdhury appearing for the bank that there is no such rule disqualifying as ineligible any person having an educational qualification higher than the prescribed qualification of having passed class VIII.
Mr. Chatterjee appearing for the first respondent- writ petitioner has cited a decision of the Hon'ble Supreme Court in the case of Bedanga Talukdar v. Saifudaullah Khan & Ors. reported in AIR 2012 SC 1803 for the following proposition: -
"28. ..............In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if 5 exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India."
This was a case concerning conduct of a selection process according to a lawful condition prescribed by the advertisement. It was not a case where a qualification was prescribed which was contrary to the law laid down. Therefore, it was not an authority for the proposition that where a qualification prescribed in the advertisement is made to operate contrary to the law laid down by a Special Bench, the same is to be followed. Besides, that was a case of unlawful relaxation by the authorities of an essential qualification and not a case where the construction of an essential qualification fell for consideration. It does not appear that in that case there was any specific exclusionary clause as in the case before us. This decision can be distinguished on facts and circumstances of the present case.
None of these decisions was cited before the learned single judge, and, in fact, the judgment of the Special Bench in Rina Dutta (supra) in the facts of this case still operates in the field and has not been reversed.
It is only because the judgment of the Special Bench was not cited either by the petitioner or by the respondent-bank, and that this incongruity between the judgements of the learned single judge and the Special Bench has arisen.
The judgement of the learned single judge dated 6 February 16, 2016, therefore, for the reasons aforesaid, cannot be sustained. The said judgement is hereby set aside. The writ application is dismissed.
The appointments of the appellants are restored. The appellants shall be treated to have been in service from the date of their appointment till date. All arrears of salary and allowances shall be made available to them within two months from the date of communication of this order. Their case for promotion in the usual course shall also be considered by the respondent-bank within the aforesaid period.
The appeals are allowed to this extent. No order as to costs.
[I.P. Mukerji, J] [Protik Prakash Banerjee, J] 7