1. These three Civil Writ Petitions namely, 3758, 4066 and 4203 of 1984 involve common question of law and substantially of fact as well and, therefore a common judgment is proposed. Wherever necessary facts would be referred to from C.W.P. No. 3758 of 1984.
2. The proposition of law that falls for consideration is as to whether the services of the petitioners employed as ad hoc Physical Training Instructors who are graduates with Diploma in Physical Education (D.P.Ed.) can be terminated merely on the ground that on the date of appointment the petitioners possessed qualifications, which were not exactly those minimum qualifications prescribed in the rules and given instructions, being higher than such minimum qualifications.
3. Petitioner No. 1 was appointed as I.T.I. in Education Department on 18th December, 1978 and petitioner No. 2 on 16th July, 1979. Petitioners Nos. 1, 2 and 3 in C.W.P. No. 4203 of 1984 were appointed on 24th April, 1982, 8th October, 1980 and 18th October, 1980 respectively and petitioners Nos. 1 and 2 in C.W.P. No. 4066 of 1984 on 21st December, 1981 and 15th December, 1979 respectively.
4. The action to weed out the employees placed in the category of the petitioners, it appears, started with the issuance of the letter Annex. P-2 in November, 1983 by the Director of Public Instructions, Haryana, to all District Education Officers that in future no appointment on ad hoc basis of such candidates (be made) as did not possess the exact minimum prescribed qualifications or possessed qualifications different from the qualifications mentioned in the pro forma attached to the said letter. The qualifications for the post of Physical Training Instructor prescribed in the said attached pro forma are as follows:
i) Matric Pass (Full Subjects),
ii) Certificate in Physical Education conducted by Haryana Education Department or any equivalent qualification recognised by Haryana Education Department.
5. The case set up by the petitioners is that the Director of Public Instructions himself had earlier issued letter dated 10th November, 1981, Annex. P. 3 providing therein that the persons possessing the qualification of Diploma in Physical Education were entitled to be appointed as Physical Training Instructor. Hence in the event of their work and conduct being satisfactory, they were entitled to be regularised in view of the executive instructions issued by the Government of Haryana in this regard. In the alternative, it has been averred that since persons with similar qualifications as possessed by the petitioners had been regularised, removal from the service of the petitioners on the ground that they did not possess the requisite qualifications for the post would amount to discrimination against them and, therefore, contrary to provisions of Articles 14 and 16 of the Constitution.
6. The stand taken on behalf of the respondent-State is that the services of an ad hoc employee could be terminated in accordance with the contract of service at any time; that no person who is not possessed of requisite qualifications of a given post is entitled to be recruited to the said post and if inadvertently recruited, was not entitled to continue on that post; that one of the conditions in the executive instructions issued by the Government for regularisation is that the person must possess the requisite qualifications for the post and since the petitioners did not possess the requisite qualifications, they, therefore, were not entitled to be regularised to the post in question.
7. Mr. R.K. Malik, counsel for the petitioners, sought support for his submission from a single Bench judgment of this Court rendered in C.W.P. No. 1033 of 1984 (Kitab Singh v. State of Haryana) decided on 15th October, 1984: (reported in (1985) 1 Serv. L.R. 438). On the other hand, on behalf of the respondent-State reliance is placed on Full Bench judgment of this Court reported in Som Dutt v. State of Haryana (1983)3 Serv L.R. 141: a Division Bench judgment of this Court reported in Smt. Sudesh v. State of Punjab (1984)1 Serv. L.R. 71 and a Division Bench Judgment of this Court reported in Om Parkash v. State of Haryana (1981)1 Serv. L.R. 314.
8. There is no dispute with the proposition laid down in Om Parkash's case (supra). The question that came up for consideration before the Division Bench in that case was as to whether the services of an ad hoc employee could be terminated only for a valid justification and not otherwise. The Bench held that the services of an ad hoc employee could be terminated in accordance with the terms of employment without any prior notice and without assigning any reasons. The judgment in Om Parkash's case (supra) is of no avail to the respondent-State. The services of the petitioners are being terminated for a reason. When a reason for action is assigned then it becomes necessary for this Court to scrutinise as to whether the reason given is a valid reason.
9. The Division Bench in Smt. Sudesh's case (supra) was concerned with a case of an employee who did not satisfy the minimum qualifications for the given post - her qualifications being less than the minimum prescribed. Her services were terminated on the ground that the qualifications possessed by her escaped notice and she came to be appointed to the post inadvertently. She not being qualified for the said post, was ineligible for appointment to the post and, was, therefore, not entitled to continue on that post. When she challenged this order, this Court sustained the order holding that the services of an employee not possessing even the minimum requisite qualifications and being inadvertently selected by the departmental selection committee could be validly terminated afterwards.
10. The significant fact that deserves highlighting in Smt. Sudesh's case (supra) is that the qualifications that she possessed were less than the minimum qualifications prescribed for the post.
11. The purpose of prescribing qualifications for a given job is on the assumption that a person holding such qualifications was capable of performing the duties of the given job. So, the possession of given qualifications by a candidate, held out an apparent assurance that he was possessed of the requisite competency for the job. Anybody who possessed less than the minimum prescribed qualifications obviously fell short of that minimum standard of competency for the job and, therefore, his or her employment on the said job would be against the public interest. In a situation of large scale unemployment cases can occur where a candidate with the connivance of appointing authority may secure a job for which he did not possess even the minimum prescribed qualifications. In such a case, whenever the authorities become aware of the mistake in appointing such a person would be entitled to terminate his or her services on that ground because his appointment and continuance in that job would not for the reason that he lacked the requisite minimum qualifications for the job, be in public interest.
12. The Full Bench in Som Dutt's case (supra) was considering the claim of the petitioner for a writ of mandamus directing the respondent-State to consider his claim for appointment to a post for which the minimum qualifications prescribed were the following:
i) Matric (Full) with the English as one of the Subjects.
ii) Pass in two years J.B.T./Diploma in Education Training Course from the Haryana Education Department or equivalent qualification recognised by the Haryana Education Department.
Whereas he was possessed of, according to him, qualifications superior to those prescribed under the Rules for the said post.
13. The Full Bench held that even if the petitioner was possessed of supposedly superior qualifications than the minimum qualifications prescribed for the post, yet the concerned authority could insist upon recruiting only such candidates as were possessed of the precise qualifications prescribed for the post.
14. Though, we have our reservations in regard to the proposition enunciated by the Full Bench that person with superior qualifications may be ignored for a given post, without anything more, and a person who barely satisfies the minimum qualifications for the job is preferred to that other person, because, in our view, recruitment of a person with superior qualifications would be in public interest as it would ensure performance of such job by a better hand.
15. However, the enunciation of the law by the Full Bench is not an authority for the proposition that if a person with superior qualifications had been recruited for the job by the competent authority and he had been in saddle for some time, that he can be eased out of the job merely on the ground that he possessed more than minimum qualifications prescribed for the job.
16. In view of the above, it is unnecessary to go into the allied question of discrimination or that the letter of the Director, Public Instructions issued in November, 1983 was to operate in future and not with retrospective effect.
17. For the reasons mentioned above, the writ petitions are allowed and the respondent-authorities are directed to consider the cases of the petitioners for regularisation on the assumption that they were possessed of the requisite qualifications for the job.
18. Petitioners Nos. 1 to 3 in C.W.P. No. 4203 of 1984 and petitioner No. 2 in C.W.P. No. 4066 who have been relieved of their job are directed to be taken back on the job forthwith with continuity of service and with entitlement of pay and other monetary benefits as also seniority etc.