M.R.SHAH, J. - (1.) Leave granted. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 22.11.2019 passed by the Division Bench of the High Court of Orissa at Cuttack in Writ Appeal No. 278 of 2019, by which the Division Bench of the High Court has dismissed the appeal preferred by the appellant herein and has confirmed the judgment and order dated 13.03.2019 passed by the learned single Judge of the High Court in W.P. (C) No. 19261 of 2016, by which the learned single Judge allowed the said writ petition preferred by the respondent herein and directed the appellant Bank to allow the respondent herein - original writ petitioner to discharge his duties as a Peon as per the appointment order dated 03.10.2016, the employer - Punjab National Bank has preferred the present appeal.
(2.) Applications were invited by the appellant Bank for the post of Peon by publishing an advertisement in the local newspaper. The eligibility criteria mentioned in the said advertisement was that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English. It specifically provided that a candidate should not be a Graduate as on 01.01.2016. A candidate was also required to submit the bio-data as per the prescribed format. The respondent herein, though a Graduate, applied for the said post. However, neither in the application nor in the bio-data, he disclosed that he was a graduate. At this stage, it required to be noted that the eligibility criteria and the educational qualification prescribed above was as per the Circular Letter No. 25 of 2008 dated 06.11.2008 issued by the Human Resources Development Division (for short "HRD Division") of the Bank specifying the guidelines for recruitment of staff in subordinate cadre in the bank and prescribing the eligibility criteria. That on the basis of the information provided by the applicants in their applications, a list of eligible candidates was prepared on the basis of the marks obtained in 10th Class and 12th Class. As per Circular dated 04.03.2016 issued by the HRD 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. That so far as the respondent herein - original writ petitioner is concerned, based on the information provided by him in his application, his name appeared in the selected candidates of Balsar District. That an order of appointment was issued. It appears that while scrutiny of the documents was going on, the appellant Bank came to know about a graduate certificate showing that the respondent - original writ petitioner was a graduate since 2014. Thus, it was noticed and found 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. That, thereafter, the respondent filed the writ petition before the High Court, being Writ Petition (C) No. 19261 of 2016, for an appropriate order to allow him to discharge his duties as Peon as per the appointment order dated 03.10.2016 and to further direct that his appointment may not be cancelled on the ground that he has possessed higher qualification. That the said petition was opposed by the bank by filing a detailed affidavit-in-reply. It was specifically pointed out that the eligibility criteria and the educational qualification was fixed as per the Circular letter No. 25 of 2008 dated 06.11.2008 issued by the HRD Division of the Bank. It was also pointed out that on 04.03.2016 the HRD Division issued another Circular letter No. 6 of 2016 pursuant to the decision of the Bank's Board in their meeting dated 29.02.2016, by which it was decided that the selection of the Peons will be made on the basis of the percentage of marks obtained by the candidates in 10thstandard and 12th standard. It was also submitted that the respondent deliberately, wilfully and intentionally suppressed the material fact that he was a graduate. It was pointed out 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. Despite the above, the learned single Judge of the High Court allowed the said writ petition solely relying upon the decision of the Allahabad High Court in Civil Writ Petition No. 69034 of 2019 [Pankaj Kumar Dubey vs. Punjab National Bank], in which the Allahabad High Court referring to the judgment and order passed by this Court in Civil Appeal No. 1010 of 2000 dated 11.02.2000 [Mohd. Riazul Usman Gani vs. District and Sessions Judge, Nagpur) held that a candidate cannot be denied the appointment solely on the ground that he is possessing a higher qualification. The learned single Judge directed the bank to allow the respondent herein to discharge his duties as a Peon as per the appointment order dated 03.10.2016. 2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned single Judge allowing the aforesaid writ petition and directing the bank to allow the respondent -original writ petitioner to discharge his duties as a Peon as per the appointment order dated 03.10.2016, 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 non-speaking 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. Hence, the present appeal.
(3.) Learned counsel appearing on behalf of the appellant Bank has vehemently submitted that in the facts and circumstances of the case, more particularly, when in the advertisement it was specifically mentioned that a candidate should not be a graduate as on 01.01.2016 and that it specifically provided that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English and the educational qualification/eligibility criteria mentioned in the advertisement was as per Circulars dated 06.11.2008 and 04.03.2016 issued by the HRD Division of the Bank and admittedly the respondent - original writ petitioner was 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. 3.1 It is further submitted on behalf of the appellant Bank that in the present case the original writ petitioner did not challenge the eligibility criteria/educational qualification mentioned in the advertisement. He never challenged the circular prescribing the educational qualification/eligibility criteria. 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 him to contend that he cannot be denied appointment on the ground of having higher qualification. 3.2 It is further submitted by the learned counsel appearing on behalf of the appellant Bank that the High Court has clearly erred in relying upon the decision of the Allahabad High Court, in which the decision of this Court in Mohd. Riazul Usman Gani (supra) was relied upon. It is submitted that in the case of Mohd. Riazul Usman Gani (supra) 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. 3.3 It is submitted that even otherwise it is required to be noted that the said Circulars dated 06.11.2008 and 04.03.2016 were issued prescribing the eligibility criteria/educational qualification on the basis of the decision approved by the Board of the Bank and considering the nature of the post - Peon/subordinate cadre and a conscious decision was taken by the bank that a candidate having the qualification of graduation shall not be eligible and the candidate who passed in 12th standard or its equivalent with basic reading/writing knowledge of English shall only be eligible. It is submitted therefore apart from the fact that the original writ petitioner did not challenge the eligibility criteria/educational qualification mentioned in the advertisement, 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. Reliance is placed on the decisions of this Court in the cases of J. Rangaswamy vs. Government of Andhra Pradesh (1990) 1 SCC 288, Yogesh Kumar vs. Government of NCT of Delhi (2003) 3 SCC 548 and a recent decision of this Court in the case of Zahoor Ahmad Rather vs. Imtiyaz Ahmad (2019) 2 SCC 404. 3.4 It is further submitted by the learned counsel appearing on behalf of the appellant Bank that even otherwise on the ground that the respondent - original writ petitioner deliberately and willfully suppressed the material fact of having been graduate and did not disclose the same even in the bio-data which was required to be submitted in the prescribed form, the High Court has materially erred in directing the appellant Bank to allow the respondent -original writ petitioner to perform his duties as a Peon as per the appointment order dated 03.10.2016 which, as such, was already cancelled. Reliance is placed on the decisions of this Court in the cases of State of Orissa vs. Bibhisan Kanhar (2017) 8 SCC 608 and in the case of Kendriya Vidyalaya Sangathan vs. Ram Ratan Yadav (2003) 3 SCC 437. 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. It is submitted that based on the bio-data and the application submitted by him, in which he gave the particulars of having passed 12th standard, his candidature was accepted. It is submitted that before he was permitted to resume/join the duty, the bank came to know that he was a graduate since 2014 and therefore was not eligible at all and thereafter his candidature was cancelled and he was not allowed to join the duty. It is submitted that therefore the High Court has erred in directing the appellant bank to allow the respondent -original writ petitioner to discharge his duties as Peon as per the appointment order dated 03.10.2016. ;