W.P.(C).Nos.12508 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 12508 OF 2022
PETITIONER:
SREENATH C.P.,
AGED 21 YEARS
S/O. SURESH KUMAR A.K.,
PRANAMAM, PUNNAD P.O., IRITTY, KANNUR 670 703.
BY ADVS.
K.P.PRADEEP
HAREESH M.R.
SANAND RAMAKRISHNAN
NEENA ARIMBOOR
RASMI NAIR T.
T.T.BIJU
T.THASMI
M.J.ANOOPA
RESPONDENTS:
1 PUNJAB NATIONAL BANK,
HEAD OFFICE, 7 BHIKA AIJI CAMA PALACE, NEW DELHI
110607, REPRESENTED BY ITS MANAGING DIRECTOR.
2 FUNCTIONAL MANAGER,
(HRD),
DEPARTMENT CIRCLE OFFICE, KOZHIKODE, MINI BY PASS
ROAD, GOVINDAPURAM P.O., KOZHIKODE 673 016,
3 CHIEF MANAGER (HRD),
PUNJAB NATIONAL BANK, CIRCLE OFFICE, KOZHIKODE
MINI BYPASS ROAD, GOVINDAPURAM P.O., KOZHIKODE
673 016.
W.P.(C).Nos.12508 of 2022
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BY ADVS.
P.BENNY THOMAS
D.PREM KAMATH
TOM THOMAS (KAKKUZHIYIL)
ABEL TOM BENNY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 7.07.2022, THE COURT 27.07.2022 DELIVERED THE
FOLLOWING:
W.P.(C).Nos.12508 of 2022
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ANU SIVARAMAN, J.
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W.P.(C).No.12508 of 2022
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Dated this the 27th day of July, 2022
JUDGMENT
1. This writ petition is filed seeking the following prayers:-
"i.To issue a Writ of Mandamus or any other appropriate writ or writs or order or direction to the respondents herein to allow the petitioner to join in the post of Peon in Subordinate Cadre, in terms of his appointment in Ext P5 order. ii.To issue a Writ of Certiorari or any other appropriate writ or Writs or order or direction to set aside Ext P8 proceedings of the 3rd respondent to the extent of it suggest cancellation of Ext. P5 appointment order.
iii.To declare that the subsequent acquisition of higher qualification, after the last date for submission of the application for post, shall not disentitle the petitioner from joining the post for which he is appointed in Ext P5."
2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents.
3. The learned counsel for the petitioner submits that the petitioner had applied for selection to the post of Peon W.P.(C).Nos.12508 of 2022 4 pursuant to Exhibit P3 notification issued by the 1st respondent Bank. Exhibit P3 notification specifically provided the educational qualification for the post as follows:-
"Educational Qualification: Pass in XII standard with basic reading and writing knowledge of English. The candidates having completed higher qualification/s (i.e.
graduation and above are not eligible.)"
It is submitted that the petitioner's qualification as on the last date of submission of applications, that is, 28.01.2022, was pass in plus two. He had failed in the Degree examination in the year 2021 and had attempted the examinations again. The results were not declared. On 4.3.2022, the petitioner's documents were verified and on 10.3.2022, an appointment order was issued to him. It is stated that on 8.3.2022, the final result of the BBA examination was published and the petitioner passed the examination. It is stated that when the petitioner approached the 2nd and 3rd respondent to join the post as per Exhibit P5 appointment order, he was asked to submit a fresh undertaking stating that he does not possess any higher qualification as on the date of joining of the post. W.P.(C).Nos.12508 of 2022 5 Since the petitioner could not submit such an undertaking, he was not permitted to join. The learned counsel for the petitioner submits that he was fully qualified as on the last date for submitting applications and therefore he is to be considered as fully qualified for appointment. It is stated that Exhibit P3 specifically says that the age is to be reckoned as on 1.1.2022. It is further contended that the educational qualification is also liable to be considered as on the last date for submission of applications and that refusal to permit the petitioner to join duty is, therefore, completely misconceived. This Court by interim order dated 7.4.2022 had directed that the petitioner's candidature shall not be cancelled.
4. A detailed counter affidavit has been placed on record by respondents 1 to 3. It is submitted by the learned counsel for respondents that the petitioner has an alternative remedy under the provisions of the Industrial Disputes Act and that as such the writ petition is not maintainable. W.P.(C).Nos.12508 of 2022 6
5. Relying on a decision of the Apex Court in Kerala Solvent Ext.Ltd v. A.Unnikrishnan and Another [1994 (I) KLT 888], it is contended that where a specific qualification is prescribed in the notification itself and it is specified that the candidate should not be overqualified, the termination of services of an overqualified candidate would be perfectly in order. The decision of the Apex Court in Chief Manager Punjab National Bank and others v. Anit Kumar Das in Civil Appeal No.3602 of 2020 dated 3.11.2020 is also relied on. It is contended that the fixation of a qualification of Plus two and providing that the candidate should not be overqualified is with a specific intention of providing employment opportunities to under-qualified candidates as well and that as such, permitting a person like the petitioner, who is admittedly a graduate, to work as Peon would take away the rights of those candidates, who are qualified as per the notification and who would not be able to get the employment, which are available to persons with qualifications of graduation.
W.P.(C).Nos.12508 of 2022 7
6. I have considered the contentions advanced on either side. Exhibit P3 notification specified that the candidate should not have completed higher educational qualification/ qualifications. It was specifically stated that persons, who complete graduation and above are not eligible. It is the petitioner's case that he had completed only his plus two qualification as on the date of submitting of his application and as on the last date for submission of the applications, which,according to him is the crucial date. It cannot be said that the petitioner had completed his graduation as on the said dates, since completion of graduation occurs only when he passes the course and can be considered as a graduate. The petitioner, therefore. had not suppressed any material fact, since admittedly his results were declared only on 8.3.2022. The decisions relied on by the learned counsel for the respondents including the decision in Avtar Singh v. Union of India [(2016) 8 SCC 471] was specifically with regard to situations where the possession of the qualification or material facts were suppressed by the applicant. In the instant case, the petitioner cannot be said to have suppressed W.P.(C).Nos.12508 of 2022 8 any material fact in view of the fact that he did not possess any higher educational qualification other than plus two at the time of submission of this application. If that be so, the contention raised that his application was liable to be rejected cannot be accepted.
7. The further question is whether a person who is fully qualified as on the last date for submission of application should continued to be so qualified on the date of appointment as well. On a consideration of the contentions raised, I am of the opinion that the said contention cannot be accepted. A person who is fully qualified as on the last date for submission of the application is clearly entitled to have his case considered on the basis of the qualification that he possesses as on the said date. If that be so, the acquisition of a qualification on a late date cannot be relied on him to contend that he is qualified for appointment to the post. The converse also would, therefore, be true. In view of the specific wording used in the notification, a person who acquires the disqualification after submission of the application and after the selection process W.P.(C).Nos.12508 of 2022 9 is complete cannot be held to be disqualified only on account of the fact that he passed the degree examination and the results were announced after the selection process was complete. In the above view of the matter, I am of the opinion that the contentions raised by the petitioner are liable to be accepted.
The writ petition is, therefore, allowed. There will be a direction to the respondents to permit the petitioner to join the post of Peon in terms of Exhibit P5. Exhibit P8 proceedings are therefore set aside.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).Nos.12508 of 2022 10 APPENDIX OF WP(C) 12508/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE NO S NO.
SSE/2016 DATED 28.05.2016 ISSUED BY THE CENTRAL BOARD OF SECONDARY EDUCATION.
Exhibit P2 TRUE COPY OF THE CERTIFICATE NO. HSE 3/2018/412079 DATED 105-2018 ISSUED BY THE BOARD OF HIGHER SECONDARY EXAMINATION, GOVERNMENT OF KERALA.
Exhibit P3 TRUE COPY OF THE NOTIFICATION DATED 6.1.2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE COMMUNICATION N0 HRD 248/2022 DATED 25.2.2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 10.3.2022 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 29.3.2022 SUBMITTED TO THE 2ND RESPONDENT.
Exhibit P7 TRUE COPY OF THE REPLY DATED 29.3.2022 ISSUED BY THE 3RD RESPONDENT.
Exhibit P8 TRUE COPY OF THE NOTICE NO. HRD 457/2022 DATED 30.3.2022 ISSUED BY THE 3RD RESPONDENT.
RESPONDENT EXHIBITS Exhibit R1A TRUE COPY OF THE LETTER OF APPOINTMENT DATED 10.3.2022 True copy PS to Judge