MAHESH PRASAD SHUKLA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) PETITIONER by way of filing the present petition has prayed for a writ mandamus directing the respondents to issue the posting order of the petitioner pursuant to letter dated 6.7.1994 which is Annexure P -5 to the petition. The petitioner has also prayed for the monetary benefits.

(2.) ANNEXURE P -5 is the communication which has been issued to the petitioner dated 6.7.1994. By this order the respondents have directed that in pursuance to the application submitted by the petitioner on 24.8.1999 he has been given permanent appointment in the cadre of Subordinate Staff. It is also directed to complete the other formalities. The other formalities have also been mentioned in paragraph 2 of the order i.e. character certificate, educational certificate along with marksheet certificate, status certificate and also the certificate in relation to temporary engagement of the petitioner. There is no dispute between the parties that in terms to Annexure P -5 the petitioner has submitted the relevant documents to the respondent Bank.

(3.) THE return filed by the respondents also raised an objection that the petitioner being in sub -staff cadre was a "workman" and, therefore, may raise an Industrial Dispute. It is also admitted by the respondents that the petitioner initially was engaged on daily basis and had been working since 1983. 2000 (2) SCC 606] and paragraph 21 of the said judgment is relevant which is reproduced as under: "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 SCC 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." 6. On the basis of the same it is submitted that debarring a person having over -qualification is irrational, therefore, under no stretch of imagination the petitioner can be deprived of the benefit of posting in pursuance to the order of appointment, Annexure P -5 to the petition. The counsel for the petitioner also submitted that the had been in the service of the respondents on daily rate basis since 1983 and prior to his appointment he was already having the said qualification of having passed the Higher Secondary Examination. It is submitted by him that when the petitioner had already been working since 1983, therefore, at the time of his regular appointment his over -qualification should not be treated as a bar. 7. Counsel for the respondents submitted that in the present case there is a statutory bar in appointing a person having over -qualification and, therefore, the rule as such will prevail. While submitting so, the counsel for the respondents relied upon the following judgments: Kerala Solvent Extractions Chemicals v. A. Unnikrishnan [1994 AIR SCW 2534 and J. Rangaswamy v. Government of Andhra Pradesh and others [AIR 1990 SC 535]. 8. The submissions made by the counsel for the parties were considered. 9. In the present case, it is an admitted position that prior to issuance of letter to the petitioner which is Annexure P -5 to the petition dated 6.7.1994, the petitioner was already in the employment of the respondents on daily rate basis and was working since 1983 with the respondents. The petitioner before entering into the services of the respondents has already passed Higher Secondary Examination. The counsel for the respondents had not filed any document along with their return to show that at the time when petitioner entered into the services in the year 1983 with the respondents on daily rated basis, the petitioner had suppressed the fact regarding his higher qualification, therefore, this Court cannot presume that at the time when the petitioner was engaged on daily rate basis with over -qualification, obtained the said employment by practicing fraud or otherwise. On this basis a conclusion has to be arrived at by this Court that at the time when petitioner was entered into the service with the respondents in the year 1983 he had already informed the respondents about his over -qualification. 10. It is also submitted by the learned counsel for the petitioner that the apex Court in (1990) 1 SCC 361 [Bhagwati Prasad v. Delhi State Mineral Development Corporation] has held that when a person is initially appointed without requisite qualification and if he has served the institution for a long period then the employer cannot say that he has no requisite qualification at the time of regularisation while working with the employer has attained sufficient experience. 11. Thus on the date when the petitioner's case was considered for permanent appointment and after consideration his case the order dated 6.7.1994 has been issued. Petitioner cannot be denied the regular status. The apex Court in the case of Mohd. Riazul Usman Gani (supra) has already laid down that the candidates having over -qualification cannot be denied an opportunity of employment and if this is done then the action as such would be irrational. In the present case also the petitioner has already been working with the respondents since 1983 on daily rate basis than the same set of qualification then at the time of granting him the regular status such as over -qualification should not have come in the way of the petitioner to seek the employment particularly when the appointment has already been given. 12. Counsel for the respondents have also not been able to file any order before this Court that the order dated 6.7.1994 Annexure P -5 has been cancelled because the petitioner was over -qualified. Since the respondents themselves have not cancelled the said order, the said order continues to be in force. 13. It is also stated by learned counsel for the respondents that the order dated 6.7.1994 Annexure P -5 was the order which merely directs the petitioner to submit the necessary certificates so that on verification of the said certificates the petitioner could have been issued the orders of appointment. The order as such does not state anything about this. On the contrary, the order itself indicates that the decision has already been taken to appoint the petitioner in a permanent post in the staff cadre and the said decision has to be enforced. Once a decision has already been taken by the respondents to appoint the petitioner then it is not open for the respondents to go back from their own decision and particularly without canceling the said order. 14. The next submission of learned counsel for the petitioner had been that in the judgment in Kerala Solvent Extraction (supra), it has been laid down that a person having over -qualification can be denied the appointment. The facts in the said case had been that when an advertisement was issued calling applications from the candidates, then the candidate suppressed his higher qualification and submitted that he has the requisite minimum qualification as notified in the advertisement. The facts of the present case are not similar to the case which was dealt with by the apex Court. 15. In the present case the petitioner had already been working with the respondents since 1983 and respondents permitted the petitioner to serve despite the fact that petitioner has already passed the Matriculation examination, i.e. over -qualified. Thus, this is not a case where the petitioner has suppressed his higher qualification. The another judgment cited by the learned counsel for the respondents i.e. J. Rangaswami (supra). The said case is not relevant to the present case. In the said case the question was as to what should be the qualification prescribed for which post and, therefore, the apex Court considered and held that it is not for the Court to consider and assess the relevancy and suitability of the qualification. The ratio of the said judgment is also entirely different and, therefore, this judgment also has no application in the present case. 16. It may also be noted that respondents have not filed any relevant rules which have the statutory force so that the rules having the statutory force should prevail. Nothing has been demonstrated by the respondents that the statutory rules provide for denial of appointment to a person who has over -qualification. In the absence of any statutory rules as such, the person having over -qualification cannot be denied an opportunity of employment particularly when he has already served on daily rate basis with the respondents since 1983 i.e. for a period of nearly five years with the same set of qualification. It is not a case, where the petitioner during the employment with the respondents on daily rate basis has acquired higher qualification on which basis the petitioner being over -qualified could be denied the regular employment. 17. Apart from the aforesaid Annexure R -2 which has been filed by the respondents relates to the recruitment and does not relate to the regularization of the persons already working with the respondents. It may be that when a person who is initially appointed or to be recruited afresh under the circular Annexure R -2 dated 6.1.1988 may be disqualified due to over -qualification. The facts of the present case are entirely different. The Bank was considering regularization of the persons working with them and, therefore, the case of regularization of a daily rate employee would be on a different footing than a person seeking a recruitment for the first time. 18. In view of the aforesaid the present petition is allowed and the respondents are directed to issue the posting order to the petitioner. The petitioner shall not be entitled for any back wages but would be entitled to count his service. The respondents without there being any valid reason has deprived the petitioner from service, therefore, respondents shall count his seniority and also shall fix the pay notionally, treating the petitioner into the employment with the respondents from 6.7.1994 and also give all other benefits notionally. 19. Petition is thus allowed to the extent as indicated hereinabove.