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Judgment
Shobha Dikshit, J.—The petitioner, an unfortunate widow, has approached this Court under Article 226 of the Constitution of India with the grievance that, like others, the benefit of relaxation in the educational qualifications, in the matter of appointment of dependents of deceased employees has been denied to her illegally thereby violating the fundamental rights guaranteed to her under Articles 14, 16 and 21 of the Constitution of India.
The facts of the case in brief are that late Sri Suresh Kumar Gupta, the husband of the petitioner while working as Junior Branch Manager in the District Cooperative Bank at Etawah fell seriously ill and it was diagnosed that he was suffering from Cancer. He was taken to All India Institute of Medical Sciences, New Delhi for treatment but he died on 511992, leaving behind his widow, who is the petitioner herein and three minor daughters aged, 5, 3 and 1 � years. There is no doubt that the family of these four helpness persons has been left behind in a completely shattered state, both mentally and financially as huge debts were incurred due to the expensive treatment which was provided to the deceased and there being no source of livelihood for future subsistance.
It is in these circumstances that the petitioner applied before the opposite party No. 1 to appoint her on a Class III post of a Clerk with opposite party No. 2 granting her relaxation in her educational qualifications as she was only an Intermediate (Class XII pass) whereas the prescribed educational qualifications under the rules for the said post is a Graduate degree This application dated 2531992 is annexure 3A to the writ petition. In support of her application and request for the relaxation, the petitioner quoted the past precedences of Smt. Anjum Rani Gupta, Hemant Kumar Sharma and Mahendra Pratap Singh etc. A copy of the order dated 2721988 issued by the Deputy Registrar communicating that the Registrar, Cooperative Societies has granted relaxation in the educational qualifications exercising the powers under Section 120 of the U.P. Cooperative Societies Act, 1965 to Smt. Anjum Rani Gupta has been annexed as Annexure2 to this petition. It was further stated in this application that though she had passed Intermediate but with a view to acquire Graduate degree, she has already taken admission in Graduate courses (B. A.) and has every hope that she will obtain the said degree as early as possible. The Registrar vide his order dated 1251992 (Anrexure4) rejected the request of the petitioner on the ground that there is no provision in the relevant regulations for bank employees to grant relaxation in educational qualifications, hence appointment can only be given to her on a Class IV post as per her existing educational qualifications. It is this order of refusal to grant relaxation which has been challenged in this writ petition interalia on the ground that the impugned order has been passed arbitrarily, discriminating her from other similarly situated persons, and without application of mind ignoring'' the relevant rules and regulations which has resulted into grave miscarriage of justice to her as also denial of equality before law as enshrined in Articles 14 as well as 16 of the Constitution of India.
This Court while entertaining the writ petition on 961992 directed the opposite parties to reconsider and dispose of the petitioner''s representations contained in Annexure3C and 3D to the writ petition on humanitarian grounds and in judicious manner. The opposite parties reconsidered the matter but maintained the previous order of refusal vide orders dated 2391992 AnnexureS3 to this writ petition, on the ground that the Registrar has powers to prescribe educational qualifications for a class of persons but not for individuals. Further, the Registrar recorded in this order that the relevant Regulation 104 relating to dependents of deceased clearly provides for giving appointment to a dependent on the basis of the educational qualifications possessed by the said dependent. It appears that the petitioner again moved an application before this Court that the opposite parties have not reconsidered the representations in the light of the directions issued by this Court. Therefore, opposite party No. 1 was again directed by order dated 24111992 passed by a learned Single Judge to decide the representation afresh by a speaking order keeping in view the order of this Court dated 961992 as also to take into consideration the fact that relaxation of two years to acquire educational qualifications has already been given to Smt. Anjum Rani Gupta and others in past. The opposite parties were further directed to give an opportunity of hearing to the petitioner before deciding the said representation.
Pursuant to the aforesaid directions, the Registrar opposite party No. 1 while giving the opportunity of hearing to the petitioner recorded the reasons for rejecting the representation vide orders dated 431993 which has been placed on record as Annexure6 to the writ petition. A perusal of this order shows that the Registrar has not denied the fact that the relaxation in educational qualifications was given to some of the dependents of the deceased employees in past but since such employees failed to fulfill the conditions of relaxation i.e. acquiring of educational qualifications within the prescribed period therefore, after 1989 as many as 9 applicants of this category have been refused relaxation in educational qualifications, It appears that the Registrar for these reasons alone maintained his previous order dated 1251992 and declined to grant relaxation in educational qualifications as the same would not be in the interest of efficient working of the bank,
No counter affidavit has been filed in this case by the opposite parties as it was not felt necessary for the reasons that the facts of the case are not in dispute, hence rebuttal of the same was not necessary Learned counsel for both the parties were heard at length and they had no objection in the matter being decided finally at this stage on the basis of the material already on record.
At this juncture, it would be expedient to notice the relevant provisions of law.
U.P. Cooperative Societies Act, 1965.
"Section 120. Qualifications for appointment as Secretary, manager etc. of cooperative societies
(1) No person shall be appointed by a cooperative society as secretary, manager, Accountant or as any other officer to be paid or remunerated by the society unless he possesses such qualifications and furnishes such security, if any, as may be specified by the Registrar from time to time in respect of any cooperative society or class of societies.
(2) Any person appointed in contravention of the provisions contained in subsection (I) shall be liable to removal from his office by the Registrar."
U.P. Cooperative Societies Employees'' Service Regulations, 1975.
"Regulation 7 The minimum educational qualifications and experience required of candidates for direct recruitment shall be such as may be specified by the Registrar, with prior approval of the Board, keeping in view the nature of duties and responsibilities attaching to the post. If no such qualifications have been specified by the Registrar, the society shall request the Registrar for the same."
"Regulation 104. Recruitment of dependents of employees dying in harness :(1) In case an employee of a cooperative society, who is either permanent in his appointment or if temporary, who has been recruited in accordance with the provisions of the Uttar Pradesh Cooperative Societies Employees'' Service Regulations, 1975 and has been holding his post for a minimum continuous period of three years dies in harness after the commencement of these regulations, one member of his family, who is not already employed under the Central Government or a State Government or a Corporation or an undertaking owned or controlled by the Central Government or a State Government, shall on making an application for the purpose, be given a suitable employment under the society concerned provided such member possesses the minimum educational qualifications prescribed for the post and is otherwise fit for appointment thereto. Such employment shall be given to the said member without delay and as far as possible, under the same society in which the deceased servant was employed at the time of his death............"
A perusal of Section 120 clearly shows that opposite party No. 1 i.e. the Registrar of the Cooperative Society is vested with the powers to prescribe essential educational qualifications for various posts. Accordingly, the Registrar under Regulation 7 has prescribed Graduation as the requisite educational qualification for appointment to a Class III post i.e. Clerk. Regulation 104 provides for giving suitable appointment to the dependent of a deceased employee, provided such member possesses the requisite qualifications prescribed for the post and is otherwise fit for the appointment thereto. It further provides that the employment to the said member be given without delay. This regulation provides for relaxation in recruitment procedure also.
The main contention put forward by the learned counsel for the petitioner is that if the Registrar has powers under Section 120 of the Act to prescribe the educational qualifications from time to time for different posts, then he also has the power to change/relax the said qualifications in special circumstances, and more so when in the past, the Registrar has admittedly made relaxation in the educational qualifications for the dependents of the deceased employees. It has been contended that denial to grant similar relief to the petitioner amounts to hostile discrimination and violation of equality clause of the Constitution of India. According to the petitioner, her case in fact stands on higher/better footing for the grant of relaxation as she has already joined the degree course and successfully passed the first year and is sincerely and seriously pursuing the second year course whereas the other beneficiaries of this relaxation in past were only Intermediate pass.
Learned counsel for the petitioner further contends that the case of the opposite party No. 1 has never been that of lack of power to grant relaxation in educational qualifications. The learned counsel points out that opposite party No. 1 has been consistently changing its stand from one reason to another reason. In the impugned order dated 1251992 (Annexure4) the reason given for refusal to grant the relaxation is that Registrar has no power to grant the same under Section 120 which the learned counsel submits is contrary to his own letter dated 2721988 (Annexure2) by which relaxation was granted to Smt. Anjum Rani Gupta mentioning specifically that the same is being granted under Section 120 of the Act. In the second letter dated 2391992 (AnnexureS3), the stand taken by the Registrar is that relaxation in individual cases is not permissible but can be granted to a class of people. Lastly, the Registrar has taken a stand in the order dated 431993 (Annexure6) that the grant of relaxation may adversely affect the efficient functioning of the bank as also its customary service. Therefore, it may not be in the interest of the bank to grant the same. The fact of refusal to grant the relaxation to 9 applicants has also been mentioned to support its stand. Learned counsel for the petitioner at this stage points out with great emphasis that the fact of grant of relaxation in educational qualifications in past has neither been denied nor it has been said that the same was granted illegally. The underlying reason appears to be that since the earlier beneficiaries have misused the relaxation or failed to fulfill the conditions imposed while granting the relaxation, therefore, the same is being refused to the petitioner.
Learned counsel for the petitioner while repelling all the three reasons recorded in support of refusal to grant relaxation submits that Section 120 clearly empowers the Registrar to fix the educational qualifications which includes the power to change the same. Regarding past experience of misuse of grant of relaxation, he submits that such a ground cannot be a valid ground to refuse the grant of similar benefit to the petitioner. He contends that even assuming that such an apprehension in the mind of Registrar is bonafide even then at the most more stringent and onerous conditions can be imposed on the petitioner at the time of grant of relaxation but the aforesaid reason can under no circumstance be a valid ground for refusal of the grant of the same. So far as the fact of refusal to grant relaxation to 9 applicants is concerned, the learned counsel submits that merely because those 9 applicants did not choose to assail the refusal, hence the same would not validate or justify the impugned order.
In support of the contention that the Registrar has power to prescribe educational qualifications under Section 120 from time to time for different posts, petitioner has annexed two circulars Annexures9 and 10 by which the earlier qualifications of possessing a B. A. degree with Second Division for a Class III post has been changed to only a Graduate degree. There is another document which shows that earlier the qualifications for this post were only Intermediate (Annexure14). There is yet another circular which has been annexed to the writ petition dated 1881990 issued by the Union Bank of India providing for the scheme of appointment of dependents of deceased employees wherein minimum qualifications for Clerical cadre for the said dependents has been prescribed as SSC/SSLC/Matriculation for appointment on compassionate grounds. Not only this, by this circular, Chairman and the Managing Director of the aforesaid bank has been empowered to relax the educational qualifications further in deserving cases. These documents have been placed to show that if the educational qualification for the post of Clerk is relaxed to Intermediate i.e. below Graduation degree, it would certainly not affect the efficiency of the bank as has been alleged by the Registrar.
Learned counsel for the petitioner put forward yet another argument in support of his contention that educational qualification upto Intermediate is not insufficient for the concerned post of Clerk because when a class IV employee is promoted to the post of a clerk after working as such for 5 years, then the only educational qualification prescribed to entitle such a person for promotion is High School. Learned counsel, therefore, submits that if the petitioner will be made to join a Class IV post then she will be much more qualified for the same and will take 5 years to be promoted to the post of a Clerk. This obviously, according to the learned counsel, would result into grave injustice to her as also would be detrimental to the interest of the family, specially the minors.
Lastly, the learned counsel for the petitioner submits that if the Registrar has exercised the power of relaxation in educational qualifications in past in favour of other similarly situated persons, which he has admitted, then the same cannot be denied to the Petitioner. It has to be exercised similarly in favour of the petitioner and other similarly situated persons and a policy of pick and choose cannot be adopted as the same would violate the equality clause as enshrined in the Constitution of India. Equals have to be treated equally and not differently as that is the mandate of our Constitution.
Learned Standing Counsel appearing for the opposite parties, in reply to the aforesaid contentions, submits that Registrar has no power to relax the educational qualifications. He, however, failed to give any reasonable explanation/justification for denying the same to the petitioner, when in past, relaxation in educational qualifications was given to several applicants of this category.
I have heard the learned counsel for both the parties and perused the record as also relevant provisions of law.
The stand of the petitioner clearly is that Registrar has power to relax the educational qualifications which he has failed to exercise, whereas the stand of the opposite parties is that Registrar has no power to grant relaxation in educational qualifications in individual eases. But it is certainly not the stand of the opposite parties that in the past, the relaxation was granted without power or in excess of power. Therefore, it is not necessary to examine this aspect of the matter in the facts of the present case since the admitted case between the parties is that in past relaxation in educational qualifications was given to the named dependents of the deceased. Therefore, in the absence of any valid justification for denial of the same in favour of the petitioner one cannot resist in holding the said action to be clearly arbitrary and discriminatory. Administrative actions cannot escape the sweep of Articles 14 and 16 of the Constitution of India. Merely because previous beneficiaries of the discretion failed to fulfill the conditions imposed for grant of relaxation i.e. to obtain the requisite educational qualifications within two years, it would not justify the opposite parties to refuse the same in favour of the petitioner. The order reasoning that the relaxation was denied to 9 applicants subsequently is also without any merit. Mere denial of exercise of discretion in favour of same others who chose not to challenge the same would not disentitle the petitioner from claiming it. In order to satisfy a challenge under Article 14, the impugned State act must not only be nondiscriminatory but should also be free from arbitrariness, unreasonableness and unfairness. I, therefore, hold that this is a clear case of hostile discrimination and violation of Articles 14 and 16 of the Constitution of India The petitioner is, therefore, entitled to grant of relaxation in educational qualifications as was given to Smt. Anjum Rani Gupta and others in past. Such a condition in fact would also be in consonance with the laudable object and spirit in which the Regulation 104 has been added to the Regulations of 1975. Such a relaxation in educational qualifications if granted to the petitioner would go a long way to rehabilitate the unfortunate family of the deceased.
The writ petition is, therefore, allowed and the orders dated 1251992 alongwith orders containing reasons dated 2391993 and 431993 contained in Annexures4, S3 and 6 respectively, are hereby quashed and a writ of mandamus is issued to the opposite parties to reconsider the case of the petitioner afresh for grant of relaxation in educational qualifications for appointment to a Class III post in the light of the findings recorded in this judgment, within a period of two weeks from the date of receipt of the certified copy of this judgment. It is made clear that the appointment to the petitioner on a Class III post shall not be denied on the ground of lack of educational qualifications. Since the matter has already been delayed much, hence it is expected from the opposite parties to do the needful as expeditiously as possible without any further delay. No orders as to costs.