# Pankaj Kumar Dubey v. Punjab National Bank & Ors

- **Citation:** (2014) 2 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-11
- **Case number:** Civil Misc. Writ Petition No. 69034 of 2009
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-kumar-dubey-v-punjab-national-bank-ors-43031
- **Pages:** 7

## Headnote

Constitution of India, Art.-14-Cancellation
of appointment-petitioner finally got
selected-on post of peon-cancellation on
ground
of
over-qualification-whether
justified-held-'No'.

Held: Para-20
I am not inclined to accept the argument
of learned counsel for the bank that the
petitioner had concealed material facts.
Further, this Court having already held
that condition regarding disqualification
for
possessing
higher
education,
is
violative of constitutional rights of the
petitioner under Article 14 and 16 cannot
be denied relief on any such technical
ground.

Case Law discussed:
AIR 2000 SC 919; 2011(1) 115 (P & H)(FB);
AIR 2002 SC 1503; 1996 Law Suit (SC) 1321.

## Text

912 INDIAN LAW REPORTS ALLAHABAD SERIES
merely on the basis of the pendency of the
criminal proceedings the petitioner is
being paid interim pension.

7. In my opinion, the aforesaid
judgement is fully applicable to the present
case and the petitioner is entitled for full
pension. However, since the recovery of Rs.
6841/- is being made on the basis of the
direction of the Accountant General, (Lekha
and Hakdari)-I, U.P., Allahabad, respondent
no. 2, I find that no reason worth taking into
consideration either from the report or on the
basis of the argument advanced by the
petitioner to interfere in the recovery being
made in pursuant to the letter dated
18.10.2008. The aforesaid amount is liable to
be adjusted from the payment made
henceforth to the petitioner.

8. It is made clear that as left open
by the Division Bench of this Court in
Narendra Kumar Singh vs. State of
U.P.(supra), it will be open to department
to proceed afresh after decision in a
criminal case in case the department after
initiating the proceedings is satisfied that
the petitioner is liable for loss caused to
the department or for any misconduct if
proved in such proceedings.

9. It is expected that the respondent
will
proceed
with
the
matter,
as
expeditiously as possible strictly in
accordance with law, preferably within a
period of six months.

10. With the aforesaid observations,
the writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2014

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
Civil Misc. Writ Petition No. 69034 of 2009

Pankaj Kumar Dubey ...Petitioner
Versus
Punjab National Bank & Ors. Respondents

Counsel for the Petitioner:
Sri Umakant, Sri Narendra Pratap Singh
Sri Rishu Mishra

Counsel for the Respondents:
Sri Dharmendra Vaish, Sri S.S. Yadav,
S.C.

Constitution of India, Art.-14-Cancellation
of appointment-petitioner finally got
selected-on post of peon-cancellation on
ground
of
over-qualification-whether
justified-held-'No'.

Held: Para-20
I am not inclined to accept the argument
of learned counsel for the bank that the
petitioner had concealed material facts.
Further, this Court having already held
that condition regarding disqualification
for
possessing
higher
education,
is
violative of constitutional rights of the
petitioner under Article 14 and 16 cannot
be denied relief on any such technical
ground.

Case Law discussed:
AIR 2000 SC 919; 2011(1) 115 (P & H)(FB);
AIR 2002 SC 1503; 1996 Law Suit (SC) 1321.

(Delivered by Hon'ble Manoj Kumar
Gupta, J.)

1. Higher education is considered to be
a golden wand to ameliorate poverty;
eradicate social backwardness by opening
new horizons for employment with enhanced
skill, social acceptability and intellectual well
being. But it is not always so, like in the
instant case, where higher education has
become a curse, a malediction, a stumbling
block, in snatching from the petitioner the
source
of
livelihood.
2 All]. Pankaj Kumar Dubey Vs. Punjab National Bank & Ors.
913

2. Shorn of details, the petitioner,
after completing VIII standard in the year
1996, got himself registered with the local
employment exchange. However, as luck
would have it, the petitioner could not get
any employment and therefore, pursued
further studies and succeeded in passing
standard X and XII. He remained
unemployed till the year 2008, when the
magic wand conjured upon him a public
employment as peon in Punjab National
Bank vide appointment letter dated
29/3/2008. However, the happiness was
short lived. By letter dated 17/4/2008, he
was
informed
that
on
perusal
of
testimonials
produced
by
him,
it
transpired that he did not possess the
prescribed qualifications and thus, his
offer of employment has been cancelled.

3. This followed the fight for
survival.
Representations
made
by
petitioner to the higher authorities fell on
deaf ears. Recourse to law was the only
way out; this is how the petitioner has
landed before this Court.

4. The respondent bank in its
response put forth a shocking defence.
The petitioner is over-qualified for the
post of peon and hence, the dispensation
of his service. His intermediate pass
certificate is responsible for his doom. It
is a disqualification for the coveted post
of peon, as according to the HRD circular
dated
14/10/2004,
the
minimum
qualification for the post is pass in
English standard with the rider that the
candidate should not have passed 10 + 2
exam or its equivalent. It is contended that
the petitioner had concealed his actual
qualification but when the correct facts
came to the knowledge of the authorities,
the impugned order dated 17/4/2008 was
passed, cancelling his appointment.

5. Per contra, the petitioner claimed
that he has not concealed any fact. His
candidature was sponsored by the local
Employment
Exchange.
He
passed
standard VIII in the year 1996 and the
same year, he got himself registered with
the Employment Exchange. The petitioner
could not get employment and therefore,
pursued
further
studies.
Since
his
candidature
was
sponsored
by
the
Employment
Exchange
on
basis
of
registration done in the year 1996, as such,
it forwarded the details available with in at
the time of registration. The vacancy was
not advertised in any newspaper nor
minimum qualification was notified to the
petitioner.
He
fairly
and
truthfully
produced all his testimonials before the
authorities both at the time of interview
and again when he reported for joining. He
had thus, not concealed any fact. The
stipulation
in
HRD
circular
dated
14/10/2004 making higher educational a
disqualification for the job is irrational,
arbitrary, violative of Article 14 and is
liable to be struck down.

6. Now, the principal consideration
is whether higher education can be a
disqualification for the post of peon. What
is the rationale behind it? Does it
withstand the test of rationality imbibed in
Article 14 of the Constitution.

7. Courts have repeatedly said that
Article 14 is edifice of our constitution, which
eschew
arbitrariness,
irrationality
and
discrimination. It prohibits class legislation but
permits classification based on intelligible
differentia, having nexus to the object sought
to be achieved. The classification cannot be
based on ipse dixit of the authorities. Not
every mark of distinction, however, irrational
to the object of the provision, would justify
the classification.
914 INDIAN LAW REPORTS ALLAHABAD SERIES

8. This principle of law has time and
again been reiterated by the Apex Court,
and
does
not
require
any
further
exposition. The question posed is to be
tested on the anvil of article 14 and 16 of
the Constitution of India. The respondent
by
providing
higher
education
of
Intermediate a disqualification for the
post of peon, have carved out a class of
individuals who are more qualified in
comparison
to
those
with
lesser
qualification, having passed VIII standard
but have not passed intermediate. The
question immediately arises is whether
such a classification is permissible in law
and what is the rationale behind it.

9. It is noticeable that the stipulation
in this regard has been challenged as
arbitrary and unreasonable restriction on
the right of the petitioner to such
employment by filing a supplementary
affidavit dated 26/4/2010 and again by
seeking quashing of the said clause by
means of amendment application dated
9/1/2014. In reply to it, the bank has also
filed supplementary counter affidavit, but
therein, no rationale or logic has been
disclosed for making such classification.
However, Sri D. Vaish, learned counsel
for the Bank at the time of argument
submitted that such classification for
entry into service is necessary as it had
been the experience that more qualified
persons are not serious in performance of
their duties as a class IV employee. They
feel distressed and let down doing such
menial jobs and there is a lot of discontent
amongst such persons. It is contended that
because of this reason, such stipulation
has been incorporated.

10. A very similar situation arose
before the Apex Court in the case of
Mohd. Riazul Usman Gani and others vs.
District & Sessions Judge, Nagpur &
others AIR 2000 SC 919, while it was
called upon to adjudicate upon the
validity of the recruitment rules for the
post of peon in the judgeship of Nagpur.
The provision was to the following effect
:-

5.(d)
Applications
of
those
candidates
possessing
minimum
educational qualification of passing IVth
Vernacular standard and/or educated upto
passing of VIIth Standard only should be
considered for the interview to the posts
of peons and those who have studied
above Vllth vernacular standard may not
take proper interest in the work of peons
and, therefore, should not be called for
interview.

It was observed as under : -

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 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.

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
2 All]. Pankaj Kumar Dubey Vs. Punjab National Bank & Ors.
915
in hand and should not be understood as
laying
down
a
rule
of
universal
application.

22. We do not think, therefore, that
the criterion four as laid by the Advisory
Committee constituted under the Rules
and upheld by the High Court is in any
way reasonable or rational. By adopting
such a course High Court has put its
stamp of approval to another type of
reservation for recruitment to the service
which is not permissible, A poor person
can
certainly
acquire
qualification
equivalent to SSC Examination and not
that he cannot go beyond Standard VII.
Perhaps by restricting appointment to
candidate having studied only up to
Standard VII High Court may not be
encouraging dropouts.

11. Similar question came up for
consideration before the Punjab and
Haryana High Court in case of Manjit
Singh vs. State of Punjab & others
reported in 2011 (1) 115 (P&H) (FB)
where the qualification prescribed for the
post of Physical Training Instructor was
Certificate in Physical Education. The
aspirants were Bachelors in Physical
Education,
which
was
a
higher
qualification as compared to Certificate in
Physical Education, and were thus, denied
the appointment. The Full Bench of
Punjab and Haryana High Court held that
higher education cannot be treated to be a
disqualification, as otherwise, it would be
violative of Article 14 and 16. It was
observed as under :-

26. The distinction sought to be
created to deny eligibility is arbitrary and
illusory. It goes without saying that the
higher
qualification
provides
better
knowledge, better sense and in sight and
equip
the
person
with
better
understanding of the issues and problems.
It cannot be a "bane" but has to be a
"boon". The Hon'ble Supreme Court in
the case of Mohd. Riazul Usman Gani and
others vs. District & Sessions Judge,
Nagpur, (2000) 2 Supreme Court Cases
606 had the occasion to consider whether
the higher qualification than 8th standard
prescribed for the post of Peon renders a
candidate ineligible. Examining the issue,
it is observed as under:-

"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."

27. From the facts on record and
dictum of above noticed judgments, it
emerges that the candidate possessing
higher qualification in the same line
cannot be excluded from consideration for
selection. It is a different matter that he/
she may not be entitled to any additional
weightage for higher qualification, but
cannot be denied consideration at par with
a
candidate
possessing
minimum
prescribed
qualification.
Denying
consideration to a candidate having better
and higher qualification in the same line
and discipline would definitely result in
breach of Articles 14 and 16 of the
Constitution of India.

12. The logic put forth by the
respondent bank that the more qualified
916 INDIAN LAW REPORTS ALLAHABAD SERIES
person will not be doing the job properly
is not based on any objective statistical
data or research, but merely on certain
notions which are relics of the imperial
past. The Apex Court had in the case of
Mohd. Riazul Usman Gani (Supra) turned
down such logic as irrational and
illogical. If a person does not work, it can
be a ground for taking disciplinary action
against such person, but it cannot be made
basis for denying appointment to him.
Thus, classification made on such ground
is based on whims and imagination, with
no empirical data in support thereof.
Further, such classification encourages
educational
backwardness,
which
is
against our constitutional ethos. Efforts
should be made to create a climate
conducive to an individual, even with
limited resources, to aspire for higher
goals in the field of education, instead of
encouraging an increase in school dropouts under the lure of getting public
employment.

13. The Apex Court noted that such
stipulation is a kind of reservation in
favour of a class not recognised by the
Constitution. Our constitution provides
reservation to educationally backward
classes of citizens and not to citizens who
lag behind in education. Thus, stipulation
in this regard is against the constitutional
philosophy.

14. In view of above discussion, I
am of the considered opinion that the
impugned restriction for selection to the
post of peon, is illegal, arbitrary and
violative of Article 14 and 16 of the
Constitution.

15. Sri D. Vaish, learned counsel for
the respondent bank has placed reliance
on the judgement of the Apex Court in the
case of Bibhudatta Mohanty vs. Union of
India AIR 2002 SC 1503. That was a case
where a person with higher qualification
than
what
was prescribed, claimed
preference over others. It was held that
the clause pertaining to the eligibility
providing for giving preference to a more
qualified person, only means that all the
qualifications being equal, a person
possessing higher qualification, will be
given preference. It however, cannot be
the
sole
criteria
in
selection
and
appointment.

16. The other judgement relied upon
by learned counsel for the respondent is in
the case of Security Health Department of
Health and others vs Anita Puri 1996
LawSuit (SC) 1321, wherein, it is held
that when suitability of candidate for a
specified post is considered by an expert
body, after due consideration of relevant
factors, courts should not ordinarily
interfere
with
such
selection
and
evaluation.

17. However, these judgements are
of no help to the petitioner as they are not
attracted to the controversy at hand.

18. Sri D. Vaish, learned counsel for
the
respondents
submitted
that
the
petitioner has concealed correct facts
regarding his qualification and thus, there
is
no
illegality
in
cancelling
his
appointment. On the other hand, counsel
for the petitioner contended that there is
no concealment of any relevant fact by
the petitioner. The petitioner had got
himself
registered
with
the
local
Employment Exchange in the year 1996
and at the relevant time he was VIII
passed. The petitioner had not submitted
any application for appointment pursuant
to any advertisement. His name was
2 All]. Pankaj Kumar Dubey Vs. Punjab National Bank & Ors.
917
forwarded by the Employment Exchange
and on the date of interview, he produced
all
the
original
testimonials.
The
respondents after verifying the same,
offered employment to him vide letter
dated 29/3/2008. The petitioner reported
for joining and again produced the
original testimonials, whereupon, the
impugned order was passed, even without
any show cause notice or opportunity of
hearing to him.

19. Order sheet dated 21/2/2012 is to
the following effect :-

"Sri Uma Kant learned counsel
appearing for the petitioner submitted that
the vacancy was not advertised in the
newspaper and the names were called
only through employment exchange and it
was never brought in the notice of the
petitioner that what should be the
qualification for appointment on the post
of peon. Taking note of that learned
counsel appearing for the Bank is directed
to file supplementary counter affidavit
brining on record the relevant rules
governing the selection of peon in Punjab
National Bank and the copy of the
advertisement in which the vacancies
were
advertised
if
any.
Learned counsel for the petitioner is also
at liberty to file supplementary rejoinder
affidavit to the supplementary counter
affidavit filed by the respondent.

List this case on 26th March, 2012."

20. In pursuance of the said
direction, no affidavit was filed by the
respondent bank. A perusal of the record
reveals that a supplementary counter
affidavit was filed on 19/1/2014, in which
also the required information has not been
given. As such, there appears to be
considerable force in the submission of
the
petitioner
that
his
name
was
considered for selection to the post, as it
was sponsored by the Employment
Exchange, without his having made any
separate application in this regard. The
application filed by the petitioner at the
time of interview only discloses his name,
date of birth, his address and that he has
duly passed standard VIII, which is the
minimum qualification prescribed for the
post. The declaration filed alongwith the
application is to the effect that the
petitioner is not involved in any criminal
case. Indisputably, the petitioner had
himself produced all his testimonials at
the time of joining and wherefrom, the
respondents
concluded
that
his
appointment for the post is illegal and
cancelled the same. Had there been any
intention on part of the petitioner to
procure appointment by misleading the
authorities, nothing prevented him from
withholding his intermediate certificate at
the time of reporting. Thus, I am not
inclined to accept the argument of learned
counsel for the bank that the petitioner
had concealed material facts. Further, this
Court having already held that condition
regarding disqualification for possessing
higher
education,
is
violative
of
constitutional rights of the petitioner
under Article 14 and 16 cannot be denied
relief on any such technical ground.

21. Before parting, it is noteworthy
to mention that now the respondents
themselves have prescribed standard XII
as the minimum qualification for the post
of peon, as is evident from letter by the
Bank dated 6/7/2011 (Annexure 1 to the
amendment application). The respondents
have filed their counter affidavit in reply
to the amendment application but have
not denied the said fact. Sri D. Vaish
918 INDIAN LAW REPORTS ALLAHABAD SERIES
admits
that
now
the
minimum
qualification for the post of peon is
intermediate. This is clear recognition by
the Bank that higher education of
intermediate is infact a necessity for due
performance of duties attached to the post
of peon, in a bank.

22. Thus, higher education if not a
magic wand, but surely a jewel on one's
crown; if not a hero but can never be a
villain.
A
fortiori,
the
denial
of
appointment to the petitioner cannot be
sustained.
Impugned
order
dated
17/4/2008 is quashed. Respondents are
directed to forthwith permit the petitioner
to join his duties in pursuance to the offer
of appointment dated 29/3/2008 and he
shall be paid his regular salary, in
accordance with law.

23. Writ petition is allowed with
costs.
--------