It is for the employer to determine and decide the relevancy and suitability of qualifications: SC

 A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service.

Chief Manager, Punjab National Bank & Anr. v. Anit Kumar Das

Civil appeal no.3602 of 2020 [Arising out of SLP (C) No. 8343 of 2020]

3rd November, 2020.

The Hon'ble Supreme Court Justices Ashok Bhushan, R. Subhash Reddy, M.R. Shah in this present case observed that it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. The Court also held that suppression of material facts or hiding any information cannot form a basis for claiming right to continue in duty.

The appellant Bank welcomed applications for the post of Peon by advertising in a local newspaper which specifically provided that a candidate should not be a Graduate as on 01.01.2016. The respondent herein, though a Graduate since 2014, applied for the said post. However, neither in the application nor in the bio­data, he disclosed that he was a graduate. As per Circular dated 04.03.2016 issued by the Human Resource Development Division of the Bank, the selection of the peons was required to be made on the basis of the percentage of marks obtained by the candidates in 10th standard and 12th standard. The respondent's name appeared in the selected list of Balsar District based on his application and an appointment order was issued. Consequently, it was noticed and found out that he was not eligible as per the advertisement and the Circulars and that the respondent deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Therefore, his candidature was cancelled and he was not allowed to join the bank in subordinate cadre. Thereafter, the respondent filed the writ petition before the High Court for an appropriate order to allow him to discharge his duties as Peon as per the appointment order and the said petition was opposed by the bank by filing a detailed affidavit in reply.

Despite the above, the learned single Judge of the High Court allowed the said writ petition and directed the bank to allow the respondent herein to discharge his duties as a Peon as per the appointment order dated 03.10.2016. Feeling aggrieved with the judgment the appellant Bank preferred the writ appeal before the Division Bench of the High Court. By the impugned judgment and order, which as such is a non­speaking and unreasoned order, the Division Bench of the High Court has dismissed the appeal and has not interfered with the judgment and order passed by the learned single Judge.

The learned counsel for appellants submitted that, when in the advertisement it was particularly mentioned that the applicant should not be a graduate as on 01.01.2016 along with the eligibility criteria satisfying the guidelines of the HRD Division and the writ petitioner being a graduate as on 01.01.2016 and therefore not eligible even to apply, both the learned single Judge as well as the Division Bench of the High Court have materially erred in directing the appellant Bank to allow the original writ petitioner to perform his duties as a Peon pursuant to the appointment order dated 03.10.2016. Furthermore, it is submitted that once having not challenged the eligibility criteria/educational qualification mentioned in the advertisement, and thereafter having participated in the recruitment process, it is not open for the respondent to contend that he cannot be denied appointment on the ground of having higher qualification.

It is also submitted that the High Court has clearly erred by relying upon the Mohd. Riazul Usman Gani v. District and Sessions Judge, Nagpur case, where this Court has specifically stated in Para 21 that the said decision is on the facts of the case in hand and should not be understood as laying down a rule of universal application. Relying upon J. Rangaswamy v. Government of Andhra Pradesh (1990) 1 SCC 288, Yogesh Kumar v. Government of NCT of Delhi (2003) 3 SCC 548 and a recent decision of this Court in the case of Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404, once a conscious decision was taken by the employer – bank prescribing a specific qualification, thereafter unless it is found to be most arbitrary, the same cannot be the subject matter of a judicial review. It is submitted that had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank.

The counsel for respondents submitted that as rightly held by the High Court relying upon the decision of this Court in the case of Mohd. Riazul Usman Gani (supra) and the decision of the Allahabad High Court in the case of Pankaj Kumar Dubey v. Punjab National Bank, the higher qualification cannot be a disqualification. It is submitted that in the case of Mohd. Riazul Usman Gani (supra), this Court has deprecated the criteria of maximum qualification for the post of Peon and hence the High Court has not erred in its judgment. It is submitted that in the present case the eligibility criteria/educational qualification mentioned in the advertisement was 12th standard and cannot be said to be a maximum educational qualification and therefore merely because the respondent was having a higher qualification than 12th standard, his candidature could not have been cancelled.

The issue raised before this court based on the contentions are as follows:

1) Whether in the facts and circumstances of the case and despite the fact that there was suppression of the material fact by the respondent in not disclosing in the application/ bio­data that he was a graduate, the High Court is justified in directing the appellant Bank to allow the respondent to discharge his duties as a Peon as per appointment order dated 03.10.2016 which, as such, was cancelled?

The eligibility criteria as mentioned in the advertisement is as per the guidelines of HRD Division of the Bank dated 06.11.2008 and a conscious decision was taken by the bank providing eligibility criteria/educational qualification that a graduate candidate shall not be eligible for the post of Peon/subordinate staff.

At this stage, it is required to be noted that the original writ petitioner never challenged the eligibility criteria/educational qualification mentioned in the advertisement. He participated in the recruitment process on the basis of the advertisement, without challenging the eligibility criteria/educational qualification mentioned in the advertisement. Therefore, once having participated in the recruitment process as per the advertisement, thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/educational qualification mentioned in the advertisement. (Para 6)

In the case of Yogesh Kumar (supra), it is observed and held by this Court that recruitment to public service should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. This Court in the case of Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 took the view that in a case where lower qualification is prescribed, if a person has acquired higher qualifications, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post.

This Court hence observed that

"Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts."(Para 7.3)

This court further held that the High Court has erred in directing the appellant Bank to allow the respondent petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria mentioned in the advertisement and on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate. The court held that it is a clear case of suppression of material fact by the original writ petitioner and therefore observed that the order passed by the High Court is unsustainable and quashed and set aside the same.

Hence, the appeal stands allowed.

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M. Maheswari