Calcutta High Court (Appellete Side)
Mukul Samanta (Maity) vs State Of West Bengal & Others on 8 May, 2014
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
1
10 08.05.2014. A.S.T. 205 of 2014
BD +
A.S.T.A. 150 of 2014
Mukul Samanta (Maity)
Vs
State of West Bengal & Others
Mr. Robiul Islam,
Mr. K. M. Hossain.
... For Appellant
Mr. Jaharlal De,
Mr. T. M. Siddique.
... For State
Re: Application for Appropriate Order A.S.T.A. 150/2014.
The appellant/petitioner herein filed a writ petition
before this Court being aggrieved by the notice dated 3rd
January, 2014 issued by the respondent no. 4 whereby
the said respondent no. 4 asked the appellant/petitioner herein to show cause why she should not be dismissed from service for non- submission of the affidavit declaring her academic qualification. The learned Single Judge by the impugned order under appeal granted liberty to the appellant to give appropriate reply to the said show cause notice and the authority concerned was permitted to take a suitable decision in the matter.
Mr. Robiul Islam, learned advocate representing the appellant submits that the said appellant/petitioner was appointed to the post of Anganwadi worker in the year 2009 by the competent authority and after serving almost five years the respondent authorities now cannot take any step for dismissal of the appellant/petitioner for non-submission of the affidavit relating to her academic qualification.
Mr. Islam also submits that the members of the selection committee was satisfied about the 2 qualification and the eligibility of the appellant/petitioner for the said post and the appellant/petitioner being a successful candidate was duly appointed to the post of Anganwadi worker by the competent authority.
Mr. Jaharlal De, learned advocate representing the State respondents submits that the appellant/petitioner herein has suppressed her academic qualification in order to participate in the selection process for filling up the post of Anganwadi worker.
Mr. De further submits that in the notice inviting application it was specifically mentioned that the application of graduate candidates will be cancelled. Referring to the aforesaid notification issued by the Government of West Bengal on 22nd February, 2006, Mr. De specifically urged before this Court that the selection and appointment of the appellant/petitioner should be cancelled since the said appellant/petitioner is a graduate.
Mr. De also submits that several other graduate candidates upon considering the aforesaid restriction with regard to the higher qualification, did not participate in the selection process and the appellant/petitioner herein cannot take any advantage by suppressing her higher academic qualification.
Learned advocate representing the appellant/petitioner further submits that the higher qualification of the appellant/petitioner in the present case cannot be a ground for taking any penal action against her.
3Mr. Robiul Islam, learned advocate representing the appellant/petitioner relies on a Special Bench judgment of this Court in the case of Rina Dutta & Others vs. Anjali Mahato & Others reported in 2010 (3) Calcutta Law Times, 232 wherein the Hon'ble Special Bench held :-
"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."
Mr. Islam further submits that in the present case there was no valid reason to impose any restriction on the candidates for acquiring the higher qualification. It is also submitted on behalf of the appellant/petitioner that no reason has been prescribed in the guidelines and/or notification as to why the higher qualification will not be accepted.
Mr. De, learned advocate of the State respondents further submits that the aforesaid decision of the Special Bench is clearly distinguishable as the restriction imposed by the authorities relating to the higher qualification was specifically mentioned in the notification dated 22nd February, 2006.
In the present case, undisputedly the appellant/petitioner was not given any extra credit for her higher qualification.
The State Government being the employer can make a rule providing disqualification of candidates possessing higher qualification than the prescribed 4 qualification. In the present case, said provision as specifically mentioned in the guidelines, has been challenged by the appellants on the ground of reasonableness. Therefore, the State Government being the employer should justify why the aforesaid restriction mentioned in the advertisement and the appointment letter should be regarded as a valid restriction.
As a matter of fact, the State Government subsequently modified its earlier guidelines relating to the qualification of Anganwadi worker. In the modified guidelines it has been made clear that all graduate and higher qualified candidates would be eligible for the post of Anganwadi worker. It has also been specifically mentioned that there will be no bar on educational qualification for a candidate applied for the post of Anganwadi worker.
The aforesaid modified guidelines came into effect on and from 1st April, 2012. The State Government has modified the aforesaid earlier guidelines regarding imposition of restriction on the qualification of the Anganwadi workers upon realising that the aforesaid restrictions were not proper. The restriction on academic qualification of a candidate applying for the post of Anganwadi worker was withdrawn by the State Government by modifying the earlier guidelines as a result whereof all graduate and higher qualified candidates became eligible for the said post.
In view of the aforesaid Special Bench Judgment of this Court in the case of Rina Dutta & Others (supra) and specially due to the subsequent modification of the guidelines by the State Government withdrawing the restrictions on the academic qualification of the 5 Anganwadi workers, it has now become really difficult for the State Government to justify that the restrictions imposed earlier on the higher qualifications as mentioned in the earlier guidelines, were valid and proper.
For the reasons discussed hereinabove, we are of the opinion that the higher qualification of the appellant/petitioner cannot be a ground for taking any penal action against her and/or cancel the appointment of the said appellant to the post of Anganwadi worker since the State Government subsequently realised that the aforesaid restriction should not continue any longer.
In the aforesaid circumstances and specially in view of clear prononcement of the Special Bench Judgment of this Court in the case of Rina Dutta & Others (supra), we are of the opinion that no penal action should be taken against the appellant/petitioner herein for possessing higher qualifications and also for non-disclosure of the same in the application forms which were submitted by the said appellant for the post in question.
For the aforementioned reasons, we quash the impugned show cause notice dated 3rd January, 2014 issued by the respondent no. 4.
For the reasons discussed hereinabove, the impugned order under appeal passed by the learned Single Judge cannot be sustained and the same is accordingly set aside.
We, therefore, allow both the application as well as the appeal upon treating the said appeal as on day's list 6 without awarding any costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the appearing parties on priority basis.
(Pranab Kumar Chattopadhyay, J.) (Samapti Chatterjee, J,)