Madhya Pradesh High Court
Anamika Shakla vs The State Of Madhya Pradesh on 14 December, 2016
WA-917-2016
(ANAMIKA SHAKLA Vs THE STATE OF MADHYA PRADESH)
14-12-2016
Shri Anoop Nair, learned counsel for the appellant.
Shri Pradeep Singh, learned Government Advocate for the
respondent-State.
The appellant has filed this writ appeal against the order dated 15/11/2016 passed in W.P. No. 3595/2013.
Looking to the facts of the case, with the consent of the parties, the appeal is heard finally at the motion hearing stage itself.
M.P. Professional Examination Board, issued an advertisement on behalf of respondent no. 2 for various posts. One of the post was Training Officer (Computer Operator & Programming Assistant). The appellant applied for the aforesaid post, she was permitted to appear in the examination and she secured 82 marks and placed at serial number 4 in Instructor of Math's/ Drawings and serial no. 40 in Instructor Computer Operator & Programming Assistant of select list.
The appellant was called for verification of the documents, she appeared before the authorities, however, she was not received an order of appointment. As per the appellant another candidate Ms. Vinita Gupta who was at serial No. 142 in the merit list, was given appointment on the post of computer operator.
Being aggrieved by the aforesaid action, the appellant filed a writ petition before this court. She pleaded that she had a requisite qualification for appointment to the post of Training Officer (Computer Operator & Programming Assistant), she was placed in the merit list, however, she was not given appointment and a person who was below to the appellant in the merit list was appointed.
The respondents in the return pleaded that the requisite qualification to the post of Training Officer (Computer Operator & Programming Assistant), the post for which the appellant submitted her application was (1) High School Certificate or in old pattern 11th pass from any recognized Board or equivalent.(2) Degree/ Diploma in computer science and Engineering or 'O' Level certificate from D.O.E. or BCA from recognized University/ Board and two years experience of degree or diploma. The appellant did not have degree/diploma in computer science she was having degree of MCA which was not equivalent to qualification as prescribed for the post, hence, the appellant was not eligible for appointment to the post of Training Officer (Computer Operator & Programming Assistant).
The appellant contended before the writ court that she had qualification of MCA, Master of computer application which is higher qualification then BCA. The appellant further contended by way of rejoinder before the writ court that in subsequent advertisement which was published by the respondent no. 3 for appointment to the post of Training Officer (Computer Operator & Programming Assistant). Respondent no. 3 itself recognized the qualification of BCA/ MCA as a requisite qualification for the post, hence, rejection of the candidature of appellant was illegal.
The writ court rejected the contention of the appellant after holding that the requisite qualification as fixed in the advertisement was BCA, the appellant did not have had the aforesaid qualification, hence, her candidature was rightly rejected by the concerned department.
Learned counsel appearing on behalf of the appellant contended that the order passed by the writ court is contrary to law. The appellant was having qualification of MCA which is better qualification in comparison to BCA. Apart from this in subsequent advertisement, respondent no. 3 treated MCA degree equivalent to B.C.A. or valid degree for appointment to the post of Training Officer (Computer Operator & Programming Assistant) and this fact has not been considered by the writ Court, hence, the order passed by the writ court is contrary to law. In support of his contentions learned counsel relied on the following judgments:-
(1) Mohd. Riazul Usman Gani and others Vs. District & Sessions Judge, Nagpur and others (2000) 2 SCC 606.
(2) Life Insurance Corporation of India and others Vs. Triveni Sharan Mishra (2014) 10 SCC 346.
(3) Mahesh Prasad Shukla Vs. State Bank of India and another 2006(3) M.P.L.J. 115.
(4) Triveni Sharan Mishra Vs. Life Insurance Corporation of India 2006(2) M.P.L.J. 339.
The appellant applied for the post of Training Officer (Computer Operator & Programming Assistant) she was selected and having secured requisite numbers she was placed in the merit list. There is no dispute about the aforesaid facts. As per the Recruitment Rules named as M.P. Industrial Training (Non-Gazetted) Class-III Service Recruitment Rule 2009. The minimum qualification to the post of Training Officer (Computer Operator & Programming Assistant) is as under:-
"(1) High School Certificate or in old pattern 11th pass from any recognized Board or equivalent.
(2) The candidate should have passed Degree/ Diploma in computer science and Engineering or 'O' Level certificate from D.O.E. or BCA from recognized University/ Board (3) The candidate should have at least two years experience of degree/ diploma holders. Other candidates should have at least 3 years Experience in trade Relevant Field."
One of the qualification was that candidate should have passed degree/ diploma in Computer Science and Engineering or 'O' Level certificate from D.O.E. or BCA from recognized University/ Board. The qualification of the appellant was B. Sc. and Master Degree in Computer Application. Subsequently, the Directorate, Skill Development, issued an advertisement for appointment to the post of Training Officer (Computer Operator & Programming Assistant) and it is mentioned in the advertisement that M.C.A. examination was requisite qualification for the post at par with the BCA. The Recruitment Rules which was applicable at the time of appointment prescribes requisite qualification of Degree/ Diploma in Computer Science and Engineering or 'O' Level Certificate from DOE or BCA from recognized University. The appellant had the qualification of Master of Computer Application (M.C.A.), its qualification higher then BCA. The subsequent advertisement issued by the Directorate, Skill Development reads as under:-
^^gkbZ Ldwy vFkok led{k vFkok iqjkus ikB;dze ls 11 oha ijh{kk mRrh.kZ ds lkFk lacaf/kr VsªM ls ,ulhOghVh@,llhOghVh ls ,vkbZVhVh üvkbZ-Vh- vkbZý@,u,lh üvizsfUVlf'kiý ijh{kk ;k MhvksbZ,lhlh ls ^^,s^^ yscy ijh{kk ;k ekU;rk izkIr fo'ofo|ky; @ cksMZ ls ihthMhlh, mRrh.kZA vFkok 10$2 ds vUrxZr gk;j lsds.Mjh vFkok led{k ijh{kk mRrh.kZ ds lkFk lsUVj vkWQ ,Dlhysal ;kstuk varxZr vkbZ-Vh- übUQkjes'ku VsDukWykthý lsDVj esa eYVh fLdfyax dkslsZl dk ,ulhOghVh@,llhOghVh ls nks o"khZ; ikB;dze mRrh.kZ vFkok ,vkbZlhVhbZ@;wthlh ls ekU;rk izkIr fo'ofo|ky;@cksMZ ls dEI;wVj fo"k; ds lkFk Lukrd mikf/kA vFkok ,vkbZlhVhbZ@;wthlh ls ekU;rk izkIr fo'ofo|ky;@cksMZ ls dEI;wVj lkbal@ dEI;wVj lkbal ,aM bathfu;fjax@baQesZ'ku VsDukykWth@bUQkjes'ku ,aM dE;wfuds'ku@bUQkjes'ku lkbal@dEI;wVj bathfu;fjax@ dEI;wVj lkbal ,aM fLkLVe bathfu;fjax@ VsDukykWth esa Lukrd mikf/k vFkok ikWyhVsfDud ls fMIyksek mRrh.kZ vFkok ,vkbZlhVhbZ@;wthlh ls ekU;rk izkIr fo'ofo|ky;@cksMZ ls ch-lh-,-@,e-lh-,- ijh{kk mRrh.kZA^^ The Apex Court in the case of Mohd. Riazul Usman Gani and others Vs. District & Sessions Judge, Nagpur and others (2000) 2 SCC 606 held as under in regard to non-appointment of a candidate on the ground of having higher qualification:-
"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 appoint- ment 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."
The aforesaid judgment has been followed by the Apex Court in Life Insurance Corporation of India and others Vs. Triveni Sharan Mishra (2014) 10 SCC 346 where the Apex court has held as under:-
12. In our opinion, in the present case the High Court has rightly relied on the law laid down by this Court in Mohd. Riazul Usman Gani and Ors. Vs. District & Sessions Judge, Nagpur and Ors. (2000) 2 SCC 606 wherein it has deprecated the criteria of maximum qualification for the post of peons. Relevant parts of para 16 and para 18 of the said judgment are quoted herein below:
âÂÂ16. In the present case we find that the candidates with higher education than Standard VII were completely shut out for being considered for the posts of Peons. The Recruitment Rules also provide for promotion. Rule 3(ii) we may quote:
âÂÂ3. (ii) The District Judge may promote-
(a) a Peon, a Watchman, a Gardener, or a Sweeper to the post of Bailiff:
(b) a Peon, a Watchman, a Gardener, a Sweeper or a Bailiff to the post of a Regional (Language) Section Writer, an English Section Writer or a Clerk; and
(c) a Peon, a Watchman, a Gardener, a Sweeper, a Bailiff, a Regional (Language) Section Writer, and English Section Writer or a Clerk to the post of StenographerâÂÂ.
Xx xx xx xx xx
18. If the appointment of a candidate to the post of Peon is restricted to his having qualified up to Standard VII he will have no chance of promotion to the post of Regional Language Section Writer or ClerkÂÂ.
The Principle of law laid down by the Apex Court is that a candidate having higher qualification then the prescribed qualification then his candidature cannot be turned down by the employer on the ground that the candidate does not have requisite qualification.
In the present case, the appellant was having the qualification of MCA. As per the Recruitment Rules quoted above the minimum qualification for the post of Training Officer (Computer Operator & Programming Assistant) is degree/ diploma or BCA and in the subsequent order the department itself recognized the qualification of MCA as requisite qualification for appointment to the post of Training Officer (Computer Operator & Programming Assistant). In such circumstances, the rejection of the candidature of the appellant who was meritorious and was placed at higher place in the merit list was arbitrary and illegal.
Consequently, the order passed by the writ court is hereby set- aside. The appeal and writ petition filed by the appellant is hereby allowed. Respondents are directed to appoint the appellant on the post of Training Officer (Computer Operator & Programming Assistant) and she be given the benefit from the date when her juniors are given the benefit, however, she would not be eligible to get the arrears of salary.
No order as to costs.
(S.K. GANGELE) (SUBODH ABHYANKAR)
JUDGE JUDGE
MISHRA