ORDER
V.V.S. Rao, J.
1. The petitioner is an Ex-serviceman. He served Indian Army from 1969 to 1987. After his discharge, he worked as Armed Guard on daily wage basis from July, 1988 to July, 1989. Pursuant to a Notification issued by the State Bank of India, to fill up vacancies of various posts including bank guards he applied to the respondent-Bank for the post of Armed Guard. He was not selected and he was
not considered. Therefore, he filed the writ petition seeking a direction to regularise his services pursuant to the Notification.
2. A counter-affidavit is filed admitting the averments made by the petitioner in the affidavit. It is, however, stated that as per the Notification for the post of Armed Guard candidates should be non-matric. As the petitioner is Matriculate, his name was not considered.
3. The short question therefore is whether the educational qualifications prescribed by the respondent-Bank are arbitrary and capricious?
4. The notice inviting applications to fill up vacancies full-time or part-time Messengers, Farrashes, Cash Coolies, Sweepers, Bank Guards etc., was issued by the State Bank of India, Hyderabad Local Head Office in accordance with settlement dated 27-10-1988 entered into between the State Bank of and All India State Bank of India Staff Federation. As per Section 2(p) of the Industrial Disputes Act, 1947 read with the settlement dated 27-10-1988 the bank proposed to give a chance to full-time or part-time ad hoc employees of being appointed on regular basis. Accordingly, the Notification was issued prescribing the following educational qualifications.
Educational Qualifications:
Candidates should have been non-matriculate on the date of initial temporary appointment. Candidates who had passed 8th class but are not matriculate will be considered for Messengerial positions; others will be considered for non-Messengerial positions. However, if a candidate has acquired higher educational qualification by passing High School/SCC/Matriculation/other equivalent examination in 2nd or 3rd division only after having ceased to be in the bank’s temporary service, he will be deemed eligible for availing of the chance provided the higher qualification has not been used
by him to secure employment elsewhere.
5. The learned Counsel for the respondent-Bank Sri S.R. James placed reliance on the educational qualifications prescribed by the Notification and submits that the petitioner being a Matriculate is not qualified for being regularised/appointed as Armed Guard. I am not able to agree with the submission. There cannot be any valid objection if the bank prescribes non-matriculation or VIII Class as minimum qualification. However, if a policy is taken that persons with minimum qualifications, in this case non-matriculates, are alone will be eligible, the same would be violative of Article 14 of the Constitution of India. In other words, if any public authority or the Government body prefers only less qualified persons to more qualified persons, the same would be violative of Article 14 of the Constitution of India. It would be different thing if in prescribing qualifications the authority totally adopts an arbitrary and capricious policy in which event it might violate doctrine of social justice. For instance if, for a post of sweeper, the authority prescribed the qualifications of Post-Graduation it would certainly violative of Article 14 of the Constitution and principles of social justice for, in effect such prohibition would certainly exclude all the poor and poorer classes for competing for the post of Sweepers. This view is supported by the judgment of the Supreme Court in T.R. Kothandaraman v. T.N. Water Supply and Drainage Board, , wherein it was held.
Further, even if in a case the classification would not be acceptable to the Court on principle, it would, before pronouncing its judgment, bear in mind the historical background. It is apparent that while judging the validity of the classification, the Court shall have to be conscious about the need for maintaining efficiency in service and also
whether the required qualification is necessary for the discharge of duties in the higher post……The aforesaid propositions seems
indisputable to us. We, however, propose to project two other determinants, or to put it differently, introduce two more spokes in the wheel. They are call of social justice and importance of education. In view of the interrelationship which exists in the fundamental rights, which got established by the decision in Bank Nationalisation case , we have to see, while examining the provision on the anvil of Articles 14 and 16 of the Constitution, whether Article 21 is offended in any way. This Article has expanded its reach almost phenomenally. For the purpose of the cases at had we may not dwelt upon that; it would be enough to note that even education (upto primary stage) was held by a Constitution Bench to be a part of Article 21 in Unnikrishnan v. State of Andhra Pradesh . The importance of education has been well brought home by Mohan, J. (a majority Judge) in his concurrent judgment by stating that education is “a preparation for living and for life, here and hereafter,” and that education is “at once a social and political necessity,” and that “victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battle fields but in educational institutions which are seedbeds of culture, where children in whose hands quiver the destinies of the future, are trained.”
6. Further, in Mohd, Riazul Usman Gani v. District and Sessions Judge, Nagpur, 2000 (1) Supreme 460, the Supreme Court referred to T.R. Kothandaraman case (supra) and held that when there are large number of candidates, it is permissible to lay down a criteria, but that criteria must be reasonable and not arbitrary having regard to the post for which recruitment is to be made. It was further held:
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 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.
7. Excluding these citizens with more qualifications on the ground that they possess qualifications higher than the minimum qualifications would certainly violate Article 14 of the Constitution of India. This principle was laid down in Y. Srinivasa Rao v. J. Veeraiah, . In the said case, for appointment of fair price shop dealers, the Government of Andhra Pradesh under A.P. Scheduled Commodities (Regulation of Distribution by Card System) Order, 1973 the Government evolved a policy to give preference to less educated persons. The appellant who was a Graduate in Commerce questioned the same. The Supreme Court dealing which the question laid down.
The decision to prefer an uneducated person over an educated person amounts to allowing premium on ignorance, incompetence and consequently inefficiency. The only fault of the appellant is to have pursued his studies beyond 10th Class of his school. If he had discontinued his career as a student even earlier, say after passing 7th or 8th class, he would have been running the shop today. This clearly amounts to gross arbitrariness and therefore, illegal discrimination. Pursuing this line the State will have to be going in search of a more inefficient person and we do not know where this process would end. If we assume that since a better qualified person
has got a better chance to succeed in life, an intelligent applicant who can run the shop efficiently should be rejected and a dim witted fellow should be selected. This is an absurd situation.
8. In this case the petitioner satisfied
all the eligibility criteria and qualifications
except that he is Matriculate. In view of
the dicta laid down by the Supreme Court
in Srinvasa Rao’s case (supra) the
qualifications prescribed by the respondent-
Bank excluding the person with qualifications
higher than non-matriculation must be held
to be arbitrary and illegal. Accordingly, the
writ petition succeeds and the same is
allowed directing the respondent-Bank to
consider the case of the petitioner for
regularisation as Armed Guard. Necessary
orders shall be passed within a period of
four weeks from the date of receipt of a
copy of this order. The respondents
shall pay costs of the writ petition to the
petitioner quantified at Rs. 2,000/- (rupees
two thousand only).