The court established that higher qualification cannot be a disadvantage and that termination based on over-qualification must be in accordance with the relevant employment regulations.

Suneet Kumar, J.

1. Petitioners two in number have approached the court challenging the order dated 23.3.2011 passed by Assistant Manager, Punjab National Bank, Circle Officer, Bulandshahr whereby the services of the petitioners was terminated. The facts briefly is that the petitioners were appointed on 2.7.2009 by the Senior Manager (Home Resources Development) on the post of 'Peon'. The appointment letters provided for six months probation period. Pursuant thereof, the petitioners joined at Malakpur Branch and Jakhaita Branch, District Bulandshahr respectively. On 8.4.2010, the services of the petitioners was confirmed. The conduct and performance of the petitioners was satisfactory and by orders dated 28.4.2010 and 3.5.2010 respectively, petitioners were sanctioned daftari allowance.

2. At the time of appointment, petitioner No. 1 was Bachelor of Arts (B.A.) and petitioner No. 2 a Bachelor of Commerce (B.Com). During the course of service, the petitioners sought permission to take Post Graduation Examination as a private candidate and vide letters dated 5.2.2010 and 14.7.2010 permission was granted. All of sudden by the impugned order dated 23.3.2011, services of the petitioners was terminated by an ex-parte order without providing opportunity to the petitioners for the reason that on the date of appointment they were over-qualified and the minimum and maximum qualification for the post of 'Peon' was intermediate.

3. The submission of learned counsel for the petitioners is that the termination order is bad and arbitrary exercise of power, the petitioners cannot be terminated for having higher qualification than that prescribed and further no opportunity of hearing, as required under the contract of appointment, was provided to the petitioners. In support of his submission, the learned counsel for the petitioners has relied upon the following judgments : Munna Roy v. Union of India and others, (2000) 9 SCC 283 : 2000 (4) AWC 3010 (SC); Jaideep Shukla and others v. Union of India and others, Writ Petition (S/B) No. 626 of 2009; Mohd. Riazul Usman Gani and others v. District and Sessions Judge, Nagpur and others, (2000) 2 SCC 606 and Commissioner of Trade Tax, Uttar Pradesh v. Associated Distributors Ltd., (2008) 7 SCC 409 .

4. In rebutal Sri Sanjai Singh appearing for the Bank submits that the petition is not maintainable, as the petitioners have an efficacious alternative remedy by approaching the Labour Tribunal under the Industrial Disputes Act and secondly, it has been submitted that the maximum and minimum qualification was 12th (intermediate) pass and since on the date of application, the petitioners were graduate, hence they were not eligible for the post of peon.

5. Rival submissions call for consideration.

6. Supreme Court in Mohd. Riazul Usman Gani and others v. District and Sessions Judge, Nagpur and others, (2002) 2 SCC 606, was considering the criteria fixed by the Advisory Committee constituted under the rules for short listing of applicants. The criteria provided that applications of those candidates possessing minimum qualification of passing fourth and regular standards and/or educated up to passing of 7th standard only should be considered for the interview to the post of peons and those who have studied above 7th standard vernacular standard might not take proper interest in the work of peons and, therefore, should not be called for interview. Paras 20 and 21 are as follows :

"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.

A criterion which has the effect of denying a candidate his right to be considered for the po