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2006 Supreme(MP) 1
R.K. Gupta, J.
Mahesh Prasad Shukla v. State Bank of India and others
Writ Petition No. 4276 of 1994 (J); Decided in January, 2006. *
A.G. Dhande with Sourabh Tiwari for petitioner; V.S. Shroti with Ashish Shroti for respondents.
Headnote:(1) Civil Servant -- person appointed initially without requisite qualification - served for a long time -- employer cannot say that he has no requisite qualification at the time of regularisation -- employee attained sufficient experience. (1990) 1 SCC 361 followed. [Para 10
(2) Civil Servant -- petitioner appointed long before having same qualification -- when considered for permanent appointment, order already passed -- regular status thereafter cannot be denied on the ground of having over-qualification -- decision already taken cannot be withdrawn. (2000) 2 SCC 606 followed. 1994 AIR SCW 2534 and AIR 1990 SC 535 distinguished. [Paras 11, 13, 14 and 15
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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 counsel for the respondent submits that since the petitioner was Higher Secondary passed and was having over-qualification, therefore, the order of posting has not been issued to the petitioner. It is submitted by the counsel for the petitioner that Annexure R-2 is the circular dated 6.1.1988 issued by the respondent Bank and also according to the agreement between the Management and the Union, in the said circular the qualification has been prescribed which is VIII class passed and it is also submitted that the candidates should not have passed matriculation examination or examination equivalent.
4. 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.
5. The counsel for the petitioner submitted that the petitioner has been deprived of his posting order only because he is over-qualified and submitted that the over-qualification cannot be treated to be a disqualification for the purpose of seeking an employment. Counsel for the petitioner relied upon a judgment passed by the apex Court in the case of Mohd. Riazul Usman Gani and others v. District & Sessions Judge, Nagpur and others [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:
