Punjab-Haryana High Court
Manjit Singh vs State Of Punjab & Others on 5 February, 2010
Author: Mukul Mudgal
Bench: Mukul Mudgal
CWP Nos.451, 3077 of 2008 and 1804 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
DATE OF DECISION: .02.2010
1.CWP No.451/2008
Manjit Singh ...Petitioner
VERSUS
State of Punjab & Others ...Respondents
2.CWP No.3077/2008
Ranjit Singh & Others ...Petitioners
VERSUS
State of Punjab & Others ...Respondents
3.CWP No.1804/2009
Iqbal Singh ...Petitioner
VERSUS
State of Punjab & Others ...Respondents
CORAM
HON'BLE MR.JUSTICE MUKUL MUDGAL, CHIEF JUSTICE
HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE PERMOD KOHLI
PRESENT: Mr.M.L.Sachdeva, Advocate for the petitioner
Mr.Rupinder Khosla, Additional Advocate General, Punjab and
Ms.Madhu Dayal, Additional Advocate General, Punjab
Mr.Amit Chopra, Advocate for the interveners
CWP Nos.451, 3077 of 2008 and 1804 of 2009 2
Permod Kohli, J.
This reference has been placed before us pursuant to an order passed by one of us (Permod Kohli,J.) referring the matter for consideration by a larger Bench in view of difference of opinion between two Division Bench Judgments. In short, the reference arises out of a question "whether a candidate possessing higher qualification than the one prescribed and advertised for appointment to the posts is eligible for such selection/appointment".
Briefly stated the facts leading to the filing of the writ petitions are that the State of Punjab issued advertisement published in newspapers on 21.10.2006 inviting applications for a number of posts, including Physical Training Instructor (PTI). Total 170 posts were notified for selection for General and other Reserved Categories. The following qualifications were prescribed for this post in the Notification:-
"(E) Basic Qualification and Professional Qualifications:
(1)Senior Secondary School Certificate or Intermediate or its equivalent;
and (2)Certificate in Physical Education (C.P.Ed.) of a duration of not less than two years or its equivalent."
The aforesaid advertisement was followed by a Corrigendum dated 24.10.2006 with the following endorsement:-
"Certificate in Physical Education Courses of one year duration after Senior Secondary School Certificate or Intermediate or its equivalent. However, this exception shall not be available in any recruitment after the year 2007 because the Education Institutions are duty bound as per NCTE Regulation to commence the two year course from 2005." CWP Nos.451, 3077 of 2008 and 1804 of 2009 3
The petitioners in various writ petitions with qualifications like B.P.Ed, M.P.Ed., C.P.Ed applied for the posts in question under various categories. Their candidature was not considered by the respondents. Some of these candidates filed writ petitions in this court. One of such petition being CWP No.2868 of 2007 came to be disposed of vide order dated 18.7.2007 with a direction to the respondents to treat the writ petition as representation on behalf of the petitioners and to consider their claim on the basis of their merit coupled with eligibility and pass a well-reasoned speaking order. As a consequence of the aforesaid directions, Director Public Instructions (Secondary Education), Punjab, Chandigarh vide its order dated 13.9.2007 rejected the representation of the petitioners with the following observations:-
"...... In fact the petitioners possesses the professional qualification of B.P.E. (Bachelor of Physical Education) instead of C.P.Ed. as such the petitioners are not eligible for the selection as PTI, not having the essential basic professional qualifications in accordance with the terms and conditions of the advertisement dated 21.10.2006."
In CWP No.451 of 2008 (Manjit Singh vs. State of Punjab and others), this order has been challenged. Similar writ petitions are filed challenging the action of respondents of their non-consideration for the selection/appointment to the post of PTI.
The grievance in all the writ petitions is that all of them possessed qualifications higher than the basic and minimum qualification prescribed in the advertisement and they all being eligible have been arbitrarily and illegally denied the right of consideration for appointment to the posts. CWP Nos.451, 3077 of 2008 and 1804 of 2009 4 When these matters were being heard by learned Single Judge, two Division Bench judgments of this court were cited on behalf of the contesting parties. A Division Bench comprising Hon'ble Mr.Justice V.S.Aggarwal and Hon'ble Justice G.S.Singhvi, as their Lordships were at the relevant time vide its judgment rendered in CWP No.5386 of 1997 titled as Samandeep Singh and others vs. State of Punjab and others decided on 14.1.1998 allowed the writ petition filed on behalf of the candidates whose candidature was rejected, despite having higher qualifications with the following observations:-
"The authorities had prescribed the minimum educational qualification and there was no valid ground to debar a person who possesses higher qualification.....
We need to add further except to express our anguish in the higher handed manner in which respondent no.3 dealt with the whole situation. Better qualified and selected candidates were deprived of the posts on flimsy ground particularly when they possess higher educational qualifications than the prescribed. It had not been explained to us as to how such strange situation was created. The action of the respondents is, therefore, totally illegal and contrary to the advertisement with respect to the minimum qualification prescribed."
Another Division Bench of this Court comprising of Hon'ble Mr.Justice M.M.Kumar and Hon'ble Mrs.Justice Sabina while deciding CWP No.19603 of 2006 (Harjinder Singh and others vs. State of Punjab and others decided on 16.12.2008) formulated following questions:-
"Whether the petitioners who have obtained the qualification of B.P.Ed. could be equated for the purpose of appointment as Physical Training CWP Nos.451, 3077 of 2008 and 1804 of 2009 5 Instructors for which qualification prescribed is C.P.Ed.?"
On the conclusion of the judgment, the Hon'ble Division Bench answered the question as under:-
"20. As a sequel to the above discussion, the question posed above is answered in the negative and against the petitioners. Accordingly, these petitions fail and the same are dismissed."
In view of the divergence of opinion of two Division Benches of this Court, reference under consideration came to be made.
It has been contended on behalf of the petitioners that the rejection of candidature of the petitioners who admittedly possess higher qualifications is arbitrary and violative of Articles 14 and 16 of the Constitution of India. Mr. Khosla, learned Additional Advocate General appearing on behalf of the State has attempted to justify the action of the respondents rejecting the candidature of the petitioners having qualifications of M.P.Ed, B.P.Ed and D.P.Ed on the ground that the PTI Teachers are recruited to impart physical education at the primary level. The targeted class of students being small children, specialized kind of training is required for them. The Curriculum for primary students is different than the curriculum for students of secondary classes who are mature enough and are to be trained in a different manner. He has placed before us a compilation to urge that for primary students, the curriculum includes recreation and yoga, health education and sports psychology which are part of the C.P.Ed curriculum whereas these components and curriculum are not taught at the higher level of Physical Education like B.P.Ed, D.P.Ed., B.P.E., M.P.Ed. etc. To support his contention, Mr.Khosla primarily relied upon CWP Nos.451, 3077 of 2008 and 1804 of 2009 6 following observations of the Division Bench judgment of this Court in the case of Harjinder Singh (supra):-
"14......
(a) The curriculum of C.P.Ed. is designed to impart physical training to the elementary level of students and the PTIs are teachers with the aforementioned qualification who are engaged to teach elementary level of students. They are taught the subjects of Recreation and Child Psychology by adopting play way methods. On the other hand the qualification of B.P.Ed. is aimed at teaching the secondary students of 9th and 10th classes..."
His further argument is that the post in question is governed and regulated by Punjab Educational Service, Class III, School Cadre Rules, 1955 (hereinafter referred to as "1955 Rules") wherein the qualification prescribed is C.P.Ed.
To the contrary, Mr.Sachdeva has submitted that the post in question is regulated by the Punjab State Education Class III (School Cadre) Service Rules, 1978 (hereinafter referred to as "the 1978 Rules") wherein the qualification prescribed for the post in question is Graduate in the discipline of Physical Education. According to him, by virtue of Rule 20 of the 1978 Rules, 1955 Rules stand repealed.
We have examined both the Rules. Post of PTI is shown in Appendix B to the 1955 Rules with the following qualification:-
Physical Training Instructor S.T.C. With training in Physical education or with a certificate in Physical Education from the Y.M.C.A. Madras, if considered suitable by DPI preference in the former case being given to candidates with 2 years training in S.T.C. Course.CWP Nos.451, 3077 of 2008 and 1804 of 2009 7
Under 1978 Rules, there is no post either in Appendix A or Appendix B with the designation of "Physical Training Instructors". However, there is a post of Physical Training Master or Mistress (DPI). There is also a post of Assistant Education Officer of Physical Training. For both these posts, the qualification prescribed is Graduate with Training in Advance Physical Training Course, Degree or Diploma in Physical Education. From the reading of both the Rules, it appears that nomenclature for both the Rules is the same. Relevant extract of Rule 20 of 1978 rules relied upon by Mr.Sachdeva reads as under:-
"20.(1)Repeal and saving- the Punjab Educational Service Class III School Cadre Rules, 1955, in so far as they relate to the posts mentioned in Appendix "A" to these rules are hereby repealed:.."
From the aforesaid Rule, it appears that 1955 Rules stands repealed in respect of the posts mentioned in Appendix A of 1978 Rules. Thus the posts mentioned in 1955 Rules, except those enumerated in Appendix A to 1978 Rules remain intact. However, from the reading of both the Rules, it has been revealed that most of the posts specified in Appendix B to the 1955 Rules are also enlisted in Appendix B of 1978 Rules, except the post of PTI. It can thus be safely concluded that PTI post is not regulated by 1978 Rules.
Mr.Amit Chopra, learned counsel appearing on behalf of the interveners in the present reference has extensively taken us to Curriculum prescribed for C.P.Ed, B.P.Ed and D.P.Ed by various Universities in the States of Punjab and Haryana which read as under:-
CWP Nos.451, 3077 of 2008 and 1804 of 2009 8
Punjab University C.P.Ed-2 year B.P.Ed/D.P.Ed- 1 year B.P.E or B.P.Ed- 4 year course (Certificate in Phy. course (Degree/Diploma in (Bachelors in Phy.Edu.) Edu.) Phy. Edu.) Subjects 1.History of Phy.Edu. 1.History of Phy. Edu. 1.History of Phy.Edu. offered 2.Anatomy & 2.Anatomy, Physiology & 2.Anatomy & Physiology Physiology Health Exercise. 3.Education Pshycology
3.Education and Sports 3.Kinesiology 4.Teaching Methodology in Phy.
Psychology 4.Education Physiology Edu.
4.Methods of Phy.Edu. 5.Philosophy & Admn. Of 5.Officiating & Coaching.
and Sports. recreation 6.Edu. Methodology
5.Officiating & 6.Methods of Phy.Edu. 7.Kinesiology & Bio-mechanics
Coaching 7.Science of Sports 8.Health Education
6.Principles of Phy.Edu. Training 9.Recreation, Play, Camping &
7.Kinesiology, Exercise 8.Foundation of Phy.Edu. leadership training
Physiology & Fitness 9.Health Edu. & Athletic 10.Yoga
8.Health Edu. & Safety care 11.Communication skills
Edu. 10.Biomechanics 12.History & Culture of Punjab
9.Recreation & Yoga 11.Sports Psychology 13.Foundation of Phy. Edu.
12.Applied Computer 14.Sports Psychology
Education 15.Physiology of Exercise
13.Management of 16.Sports Management
Phy.Edu. 17.Measurement and Evaluation
14. Officiating in Games 18.Applied Computer Edu. &
and Track & Field. Statics in Phy. Edu.
19.Sociology of Sports
20.Organisational Behaviour
21.Sports Journalism
22.Scientific Approach to Sports
Training
23.Health, Phy. Fitness & Aerobics
24.Applied Physiotherapy and
rehabilitation
Kurukshetra University
C.P.Ed C.P.Ed. (Certificate in Phy. B.P.Ed
(Certificate in Phy. Edu.) (Bachelors in Phy.Edu.)
Edu.) 2 year course-POST 2005 1 year (post Graduation Course)
1 year course-PRE 2005
Subjects 1.Principles & History 1.Principles & History of 1.History & Principles of Phy.
offered of Hy. Edu. Phy. Edu. Edu.
2.Psychology & 2.Pshychology of Phy. Edu. 2.Psychology & Sociology of Phy.
Sociology of Phy. Edu. 3.Methods of Phy.Edu. Edu. & sports.
& sports 4.Anatomy Physiology & 3.Anatomy & Physiology &
3.Organization Admn. Physiology of Exercise Kinesiology
& methods of Physical 5.Organization Admn. & 4.Sports Management
Edu. supervision of physical 5.Techniques of Officiating &
4.Elementary Anatomy, Edu. Coaching.
Physilogy, Physical 6.Health Edu., common 6.Health Edu., Yoga and
Edu. & Yoga sports injuries & their Recreation.
5.Officiating & first aid
Coaching in games and 7.Officiating & Coaching
sports 8.Yoga and Health.
CWP Nos.451, 3077 of 2008 and 1804 of 2009 9
From the above, it appears that Punjab University has prescribed C.P.Ed two years course, B.P.Ed/D.P.Ed one year course and B.P.E or B.P.Ed- 4 years course. From the comparative study of these Courses, it is evident that disciplines like "Recreation", "Yoga", "Health Education" and "Sports Psychology" form part of curriculum of C.P.Ed 2 years course.
Most of these subjects are also part of B.P.Ed/D.P.Ed one year course or B.P.E. or B.P.Ed four years course, though under different nomenclature distinctively or conjunctively. For example, under B.P.Ed/D.P.Ed one year course,instead of "Recreation" it is "Philosophy & Administration of Recreation" as also "Officiating in Games and Track & Field". Similarly, Health Education and Sports Psychology is part of curriculum of all the courses. Yoga is not specifically mentioned in B.P.Ed/D.P.Ed one year course, though it is also part of the B.P.E/B.P.Ed four years course. It is noticed that "Recreation and Yoga" are common in Nagpur University, Kurukshetra University in B.P.Ed course. It is relevant to notice that C.P.Ed one year course and two years course prescribed by Kurukshetra University do not provide "Recreation" as one of the components of curriculum, though it is prescribed in B.P.Ed one year course which is a post Graduation course in the same University. In Guru Nanak Dev University, B.P.Ed includes "Recreation and Yoga" so and so on. Mr.Khosla has laid much stress on "Recreation" as part of C.P.Ed course. However, it is found that it is not uniformly adopted in the curriculum of C.P.Ed by all the Universities in the States of Punjab and Haryana. At the same time, it appears that these courses are not only part of C.P.Ed curriculum but of CWP Nos.451, 3077 of 2008 and 1804 of 2009 10 higher courses as well may be under different nomenclature or in a different form in some universities. One thing is apparent, there is no commonality of curriculum of same course in various Universities. Since the qualification prescribed under the advertisements/rules can be acquired from any of the recognized Universities/Institutions, curriculum of Universities cannot and should not be the sole basis for determining the eligibility of the candidates. It has to be on the broader spectrum of the curriculum, may be with few additions/omissions not impeding with the over all profile of the course.
There is another important aspect. The State of Punjab in its earlier selection has selected C.P.Ed candidates who acquired the qualification from Kurukshetra University. Admittedly, recreation is not part of the curriculum in Kurukshetra University. A learned Single Judge of this Court in CWP No.8390 of 2001 decided on 8.2.2006 (Samerjit Singh & Others vs. State of Punjab and others, 2006 (3) S.C.T. 260) issued directions to appoint candidates to the post of PTI teachers who had acquired C.P.Ed qualification from Kurukshetra University. This judgment has been implemented by the State of Punjab vide its order dated 29.9.2006. Mr. Chopra has also referred to an advertisement issued by the State of Punjab for appointment to the posts of JBT teachers for which the minimum educational qualification prescribed is matric, 10+2 and professional qualification i.e. Elementary Teacher Training Course of two years. In the same advertisement, it has been notified that in addition to the candidates possessing the minimum qualifications, candidates with B.A., B.Sc., B.Com, M.A., M.Sc. and M.Com can also apply. It is accordingly argued CWP Nos.451, 3077 of 2008 and 1804 of 2009 11 that even though minimum qualification is prescribed, but persons with higher qualification cannot be excluded from the reckoning.
Mr.Amit Chopra has brought to our notice another Division Bench judgment of this Court in the case of Multan and others vs. State of Haryana and another, 2004 (4) SCT 45. In this case also the question that fell for consideration before the Division Bench was eligibility of the candidates possessing higher qualification than C.P.Ed as is the issue in the present case. The Division Bench noticed the issue in paragraph 7 which reads as under:-
"7.Shri Rajbir Sehrawat, Senior Deputy Advocate General relied on order dated 23.10.2003 passed in Chandesh Pal's case (supra) and argued that the Commission did not commit any illegality by rejecting the applications of the petitioners because they do not possess one of the prescribed qualifications i.e. C.P.Ed. He emphasized that the curriculum of C.P.Ed is substantially different than the one prescribed for D.P.Ed/B.P.Ed./M.P.Ed and argued that the petitioners cannot claim consideration for appointment as P.T.Is. simply because they possess higher qualifications. Shri Sehrawat referred to the observations made by the Supreme Court in P.M. Latha's case (supra) and argued that the Court cannot compel the Commission to consider the candidature of the petitioners despite the fact that they do not possess the prescribed essential qualification of C.P.Ed."
After consideration of the curriculum of the various courses and the statutory provisions governing the appointment to the post of P.T.I, following observations have been made:-
"12.... A reading of the above reproduced scheme and courses shows that while C.P.Ed is awarded to the students who have studied the basics CWP Nos.451, 3077 of 2008 and 1804 of 2009 12 of Physical Education (Theory and Practical), D.P.Ed./B.P.Ed/M.P.Ed are awarded to the students who not only study the basics of Physical Education which form part of C.P.Ed course, but also undertake a more analytical and detailed study of the subjects (Theory as well as Practical) in the same line....
These are also part of theory papers of B.P.Ed and M.P.Ed courses in addition to other papers. Likewise, for D.P.Ed./B.P.Ed/M.P.Ed., the candidates are required to successfully pass the practicals and training in different games and sports. They are also subjected to external and internal evaluation. It is, thus, clear that all the subjects/papers and practicals/training, which form part of C.P.Ed. course are integral part of the courses of D.P.Ed./B.P.Ed/M.P.Ed. and no candidate can be awarded diploma/degree in Physical Education without clearing theory as well as practical examinations and training. To put it differently, D.P.Ed./B.P.Ed/M.P.Ed. are in the line of the qualification of C.P.Ed. Therefore, a candidate who has obtained the qualification of D.P.Ed./B.P.Ed/M.P.Ed. will be deemed to have studied the subjects which form part of the course of C.P.Ed. This is the precise reason why respondent no.2 had issued memos dated 10.8.1997 and 1.8.1998 for consideration of the candidate of those possessing higher qualifications of D.P.Ed and B.P.Ed. for appointment as P.T.Is. and candidates possessing higher qualifications were appointed as P.T.Is."
Thus, the final conclusion of the Court is:-
"14.In view of the above discussion, we hold that the decision of the Commission not to entertain the candidature of the petitioners despite the fact that they possess higher qualifications in the same line is arbitrary and legally unsustainable and the same has resulted in violation of the fundamental right to equality guaranteed to the petitioners under Articles 14 and 16 of the Constitution of India."
The sheet anchor of the State's case is the Division Bench judgment CWP Nos.451, 3077 of 2008 and 1804 of 2009 13 of this Court in the case of Jagjit Singh Versus State of Punjab and others, 2009 (1) S.C.T. 744 which has ruled against the eligibility of candidates possessing higher qualification only on the ground of variation in the curriculum. We have carefully gone through the aforesaid judgment. Only one component of the curriculum is noticed by Hon'ble Division Bench i.e. "Recreation" which is said to be studied by students of C.P.Ed. and is not included in the course of studies of B.P.Ed. The Hon'ble Division Bench in the aforesaid case, while referring to courses available at Kurukshetra University, decided not to examine the same in detail. It is also pertinent to note that the judgment in the case of Multan (supra) was not brought to the notice of the Hon'ble Division Bench in the case of Jagjit Singh (supra). It is also relevant to mention that the Hon'ble Division Bench in the case of Jagjit Singh (supra) was persuaded by the judgment of the Hon'ble Supreme Court in the case of Dilip Kumar Ghosh vs Chairman, 2005 (7) SCC 567. In the case of Dilip Kumar Ghosh (supra) before the Hon'ble Supreme Court, the issue was whether a person possessing higher qualification is entitled to extra weightage of marks for appointment to the post. In the aforesaid case, candidates possessing higher qualification of B.Ed than the minimum prescribed for the post claimed additional weightage for the higher qualification. Rejecting the contention, the Hon'ble Supreme Court observed as under:-
"13. (i) In the case of the Junior Basic Training and Primary Teachers Training Certificate the emphasis is on the development of child. The Primary Education is upto IV standard. Thereafter there is middle education and then the secondary and higher secondary education. But in CWP Nos.451, 3077 of 2008 and 1804 of 2009 14 the primary school one has to study the psychology and development of child at tender age. The person who is trained in B.Ed degree may not necessarily equipeed to teach a student of primary class because he is not equipped to understand psychology of a child at that early stage...."
The above observations were made in the context of awarding extra weightage to the candidates possessing higher qualification. Another judgment relied upon by the Hon'ble Division Bench in the case of Jagjit Singh (supra) is Yogesh Kumar v. Government of NC.T., (2003) 3 SCC 548. In this case again the question whether B.Ed is a higher qualification than the T.T.C. came to be examined. The Hon'ble Supreme Court made following observations:-
"10.We find absolutely no force in the argument advanced by the respondents that B.Ed qualification is a higher qualification than TTC and therefore, the B.Ed candidates should be held to be eligible to compete for the post. On behalf of the applicants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed degree, the training imparted is to teach students of classes above primary. B.Ed degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or Bed qualification, is a matter of recruitment policy.We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not B.Ed. Whether Bed qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider Bed candidates, for the present vacancies advertised as eligible."CWP Nos.451, 3077 of 2008 and 1804 of 2009 15
Arguing on the same line Mr.Khosla has strenuously argued that the persons possessing any qualification other than C.P.Ed are not eligible. With a view to appreciate the applicability of the aforesaid judgment, it is deemed appropriate to examine the rule position as prescribed under 1955 rules for the post of P.T.I. From the rule noticed in earlier part of this judgment, it appears that educational qualification like matric or 10+2 is not prescribed therein. Though in the advertisement, Senior Secondary Certificate or Intermediate or its equivalent basic qualification is an essential component for the post. Similarly, for professional qualifications, certificate in Physical Education C.P.Ed of a duration of not less than two years or its equivalent is prescribed. However, by virtue of the corrigendum dated 24.10.2006, even a candidate with one year duration course of C.P.Ed is made eligible for recruitment in question. Similarly, in the rule, no equivalent qualification of C.P.Ed is referred to, though in the advertisement C.P.Ed or its equivalent qualification is also recognized as professional qualification. It cannot be ignored that the qualification prescribed under the rule and the advertisement is always the minimum qualification. It is not for us to identify any course which can be termed as equivalent to C.P.Ed course. At the same time, the curriculum of B.P.Ed and other higher courses, if include almost all the components of curriculum of C.P.Ed should not be construed to be a totally different and distinct qualification. In the case of Multan (supra), a Division Bench of this Court has clearly observed that D.P.Ed, B.P.Edc and M.P.Ed are higher qualifications in the same line. From the curriculum of courses like C.P.Ed, B.P.Ed, D.P.Ed, it is CWP Nos.451, 3077 of 2008 and 1804 of 2009 16 found that almost all components of C.P.Ed course of one year or two years are taught in D.P.Ed course in almost all the Universities in the States of Punjab and Haryana. In sum and substance, the controversy revolves around the curriculum of two types of courses, one prescribed in the advertisement i.e. C.P.Ed and higher courses acquired by the petitioners. On facts, we are of the considered opinion that the curriculum of B.P.Ed, B.P.E, D.P.Ed includes the curriculum prescribed for C.P.Ed in major universities in the States of Punjab and Haryana. Higher qualifications being in the same subject and line cannot be ignored and candidates possessing higher qualification cannot be denied consideration for selection.
The distinction sought to be created to deny eligibility is arbitrary and illusory. It goes without saying that the higher qualification provides better knowledge, better sense and in sight and equip the person with better understanding of the issues and problems. It cannot be a "bane" but has to be a "boon". The Hon'ble Supreme Court in the case of Mohd. Riazul Usman Gani and others vs. District & Sessions Judge, Nagpur, (2000) 2 Supreme Court Cases 606 had the occasion to consider whether the higher qualification than 8th standard prescribed for the post of Peon renders a candidate ineligible. Examining the issue, it is observed as under:-
"21.A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SSC Examination could also not be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application."CWP Nos.451, 3077 of 2008 and 1804 of 2009 17
From the facts on record and dictum of above noticed judgments, it emerges that the candidate possessing higher qualification in the same line cannot be excluded from consideration for selection. It is a different matter that he/she may not be entitled to any additional weightage for higher qualification, but cannot be denied consideration at par with a candidate possessing minimum prescribed qualification. Denying consideration to a candidate having better and higher qualification in the same line and discipline would definitely result in breach of Articles 14 and 16 of the Constitution of India.
The reference is answered accordingly.
Let the writ petition be placed before the learned Single Judge for decision on merits.
(MUKUL MUDGAL) CHIEF JUSTICE (JASBIR SINGH) JUDGE (PERMOD KOHLI) .02.2010 JUDGE MFK Note:Whether to be referred to reporter or not:YES CWP Nos.451, 3077 of 2008 and 1804 of 2009 18