Allahabad High Court
Pankaj Kumar Dubey vs Punjab National Bank And Others on 11 July, 2014
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- WRIT - A No. - 69034 of 2009 Petitioner :- Pankaj Kumar Dubey Respondent :- Punjab National Bank And Others Counsel for Petitioner :- Umakant,Narendra Pratap Singh,Rishu Mishra Counsel for Respondent :- S. S. Yadav,S.C. Hon'ble Manoj Kumar Gupta,J.
1. Higher education is considered to be a golden wand to ameliorate poverty; eradicate social backwardness by opening new horizons for employment with enhanced skill, social acceptability and intellectual well being. But it is not always so, like in the instant case, where higher education has become a curse, a malediction, a stumbling block, in snatching from the petitioner the source of livelihood.
2. Shorn of details, the petitioner, after completing VIII standard in the year 1996, got himself registered with the local employment exchange. However, as luck would have it, the petitioner could not get any employment and therefore, pursued further studies and succeeded in passing standard X and XII. He remained unemployed till the year 2008, when the magic wand conjured upon him a public employment as peon in Punjab National Bank vide appointment letter dated 29/3/2008. However, the happiness was short lived. By letter dated 17/4/2008, he was informed that on perusal of testimonials produced by him, it transpired that he did not possess the prescribed qualifications and thus, his offer of employment has been cancelled.
3. This followed the fight for survival. Representations made by petitioner to the higher authorities fell on deaf ears. Recourse to law was the only way out; this is how the petitioner has landed before this Court.
4. The respondent bank in its response put forth a shocking defence. The petitioner is over-qualified for the post of peon and hence, the dispensation of his service. His intermediate pass certificate is responsible for his doom. It is a disqualification for the coveted post of peon, as according to the HRD circular dated 14/10/2004, the minimum qualification for the post is pass in English standard with the rider that the candidate should not have passed 10 + 2 exam or its equivalent. It is contended that the petitioner had concealed his actual qualification but when the correct facts came to the knowledge of the authorities, the impugned order dated 17/4/2008 was passed, cancelling his appointment.
5. Per contra, the petitioner claimed that he has not concealed any fact. His candidature was sponsored by the local Employment Exchange. He passed standard VIII in the year 1996 and the same year, he got himself registered with the Employment Exchange. The petitioner could not get employment and therefore, pursued further studies. Since his candidature was sponsored by the Employment Exchange on basis of registration done in the year 1996, as such, it forwarded the details available with in at the time of registration. The vacancy was not advertised in any newspaper nor minimum qualification was notified to the petitioner. He fairly and truthfully produced all his testimonials before the authorities both at the time of interview and again when he reported for joining. He had thus, not concealed any fact. The stipulation in HRD circular dated 14/10/2004 making higher educational a disqualification for the job is irrational, arbitrary, violative of Article 14 and is liable to be struck down.
6. Now, the principal consideration is whether higher education can be a disqualification for the post of peon. What is the rationale behind it? Does it withstand the test of rationality imbibed in Article 14 of the Constitution.
7. Courts have repeatedly said that Article 14 is edifice of our constitution, which eschew arbitrariness, irrationality and discrimination. It prohibits class legislation but permits classification based on intelligible differentia, having nexus to the object sought to be achieved. The classification cannot be based on ipse dixit of the authorities. Not every mark of distinction, however, irrational to the object of the provision, would justify the classification.
8. This principle of law has time and again been reiterated by the Apex Court, and does not require any further exposition. The question posed is to be tested on the anvil of article 14 and 16 of the Constitution of India. The respondent by providing higher education of Intermediate a disqualification for the post of peon, have carved out a class of individuals who are more qualified in comparison to those with lesser qualification, having passed VIII standard but have not passed intermediate. The question immediately arises is whether such a classification is permissible in law and what is the rationale behind it.
9. It is noticeable that the stipulation in this regard has been challenged as arbitrary and unreasonable restriction on the right of the petitioner to such employment by filing a supplementary affidavit dated 26/4/2010 and again by seeking quashing of the said clause by means of amendment application dated 9/1/2014. In reply to it, the bank has also filed supplementary counter affidavit, but therein, no rationale or logic has been disclosed for making such classification. However, Sri D. Vaish, learned counsel for the Bank at the time of argument submitted that such classification for entry into service is necessary as it had been the experience that more qualified persons are not serious in performance of their duties as a class IV employee. They feel distressed and let down doing such menial jobs and there is a lot of discontent amongst such persons. It is contended that because of this reason, such stipulation has been incorporated.
10. A very similar situation arose before the Apex Court in the case of Mohd. Riazul Usman Gani and others vs. District & Sessions Judge, Nagpur & others AIR 2000 SC 919, while it was called upon to adjudicate upon the validity of the recruitment rules for the post of peon in the judgeship of Nagpur. The provision was to the following effect :-
5.(d) Applications of those candidates possessing minimum educational qualification of passing IVth Vernacular standard and/or educated upto passing of VIIth Standard only should be considered for the interview to the posts of peons and those who have studied above Vllth vernacular standard may not take proper interest in the work of peons and, therefore, should not be called for interview.
It was observed as under : -
20. If an employee does not perform the duties attached to the post disciplinary proceedings can certainly be taken against him. An employer cannot throw up his hands in despair and devise a method denying appointment to a person who otherwise meets the requisite qualifications on the ground that if appointed, he would not perform his duties. Qualification prescribed is minimum. Higher qualification cannot become a disadvantage to the candidate.
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.
22. We do not think, therefore, that the criterion four as laid by the Advisory Committee constituted under the Rules and upheld by the High Court is in any way reasonable or rational. By adopting such a course High Court has put its stamp of approval to another type of reservation for recruitment to the service which is not permissible, A poor person can certainly acquire qualification equivalent to SSC Examination and not that he cannot go beyond Standard VII. Perhaps by restricting appointment to candidate having studied only up to Standard VII High Court may not be encouraging dropouts.
11. Similar question came up for consideration before the Punjab and Haryana High Court in case of Manjit Singh vs. State of Punjab & others reported in 2011 (1) 115 (P&H) (FB) where the qualification prescribed for the post of Physical Training Instructor was Certificate in Physical Education. The aspirants were Bachelors in Physical Education, which was a higher qualification as compared to Certificate in Physical Education, and were thus, denied the appointment. The Full Bench of Punjab and Haryana High Court held that higher education cannot be treated to be a disqualification, as otherwise, it would be violative of Article 14 and 16. It was observed as under :-
26. 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."
27. 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.
12. The logic put forth by the respondent bank that the more qualified person will not be doing the job properly is not based on any objective statistical data or research, but merely on certain notions which are relics of the imperial past. The Apex Court had in the case of Mohd. Riazul Usman Gani (Supra) turned down such logic as irrational and illogical. If a person does not work, it can be a ground for taking disciplinary action against such person, but it cannot be made basis for denying appointment to him. Thus, classification made on such ground is based on whims and imagination, with no empirical data in support thereof. Further, such classification encourages educational backwardness, which is against our constitutional ethos. Efforts should be made to create a climate conducive to an individual, even with limited resources, to aspire for higher goals in the field of education, instead of encouraging an increase in school drop-outs under the lure of getting public employment.
13. The Apex Court noted that such stipulation is a kind of reservation in favour of a class not recognised by the Constitution. Our constitution provides reservation to educationally backward classes of citizens and not to citizens who lag behind in education. Thus, stipulation in this regard is against the constitutional philosophy.
14. In view of above discussion, I am of the considered opinion that the impugned restriction for selection to the post of peon, is illegal, arbitrary and violative of Article 14 and 16 of the Constitution.
15. Sri D. Vaish, learned counsel for the respondent bank has placed reliance on the judgement of the Apex Court in the case of Bibhudatta Mohanty vs. Union of India AIR 2002 SC 1503. That was a case where a person with higher qualification than what was prescribed, claimed preference over others. It was held that the clause pertaining to the eligibility providing for giving preference to a more qualified person, only means that all the qualifications being equal, a person possessing higher qualification, will be given preference. It however, cannot be the sole criteria in selection and appointment.
16. The other judgement relied upon by learned counsel for the respondent is in the case of Security Health Department of Health and others vs Anita Puri 1996 LawSuit (SC) 1321, wherein, it is held that when suitability of candidate for a specified post is considered by an expert body, after due consideration of relevant factors, courts should not ordinarily interfere with such selection and evaluation.
17. However, these judgements are of no help to the petitioner as they are not attracted to the controversy at hand.
18. Sri D. Vaish, learned counsel for the respondents submitted that the petitioner has concealed correct facts regarding his qualification and thus, there is no illegality in cancelling his appointment. On the other hand, counsel for the petitioner contended that there is no concealment of any relevant fact by the petitioner. The petitioner had got himself registered with the local Employment Exchange in the year 1996 and at the relevant time he was VIII passed. The petitioner had not submitted any application for appointment pursuant to any advertisement. His name was forwarded by the Employment Exchange and on the date of interview, he produced all the original testimonials. The respondents after verifying the same, offered employment to him vide letter dated 29/3/2008. The petitioner reported for joining and again produced the original testimonials, whereupon, the impugned order was passed, even without any show cause notice or opportunity of hearing to him.
19. Order sheet dated 21/2/2012 is to the following effect :-
"Sri Uma Kant learned counsel appearing for the petitioner submitted that the vacancy was not advertised in the newspaper and the names were called only through employment exchange and it was never brought in the notice of the petitioner that what should be the qualification for appointment on the post of peon. Taking note of that learned counsel appearing for the Bank is directed to file supplementary counter affidavit brining on record the relevant rules governing the selection of peon in Punjab National Bank and the copy of the advertisement in which the vacancies were advertised if any.
Learned counsel for the petitioner is also at liberty to file supplementary rejoinder affidavit to the supplementary counter affidavit filed by the respondent.
List this case on 26th March, 2012."
20. In pursuance of the said direction, no affidavit was filed by the respondent bank. A perusal of the record reveals that a supplementary counter affidavit was filed on 19/1/2014, in which also the required information has not been given. As such, there appears to be considerable force in the submission of the petitioner that his name was considered for selection to the post, as it was sponsored by the Employment Exchange, without his having made any separate application in this regard. The application filed by the petitioner at the time of interview only discloses his name, date of birth, his address and that he has duly passed standard VIII, which is the minimum qualification prescribed for the post. The declaration filed alongwith the application is to the effect that the petitioner is not involved in any criminal case. Indisputably, the petitioner had himself produced all his testimonials at the time of joining and wherefrom, the respondents concluded that his appointment for the post is illegal and cancelled the same. Had there been any intention on part of the petitioner to procure appointment by misleading the authorities, nothing prevented him from withholding his intermediate certificate at the time of reporting. Thus, I am not inclined to accept the argument of learned counsel for the bank that the petitioner had concealed material facts. Further, this Court having already held that condition regarding disqualification for possessing higher education, is violative of constitutional rights of the petitioner under Article 14 and 16 cannot be denied relief on any such technical ground.
21. Before parting, it is noteworthy to mention that now the respondents themselves have prescribed standard XII as the minimum qualification for the post of peon, as is evident from letter by the Bank dated 6/7/2011 (Annexure 1 to the amendment application). The respondents have filed their counter affidavit in reply to the amendment application but have not denied the said fact. Sri D. Vaish admits that now the minimum qualification for the post of peon is intermediate. This is clear recognition by the Bank that higher education of intermediate is infact a necessity for due performance of duties attached to the post of peon, in a bank.
22. Thus, higher education if not a magic wand, but surely a jewel on one's crown; if not a hero but can never be a villain. A fortiori, the denial of appointment to the petitioner cannot be sustained. Impugned order dated 17/4/2008 is quashed. Respondents are directed to forthwith permit the petitioner to join his duties in pursuance to the offer of appointment dated 29/3/2008 and he shall be paid his regular salary, in accordance with law.
23. Writ petition is allowed with costs.
(Manoj Kumar Gupta, J.) Order Date :- 11th July, 2014 skv