JUDGMENT 1. - The instant writ petition has been filed challenging the award of the learned Labour Court dated 11.2.2000-(Annex. 7) by which the claim of the respondent-workman has been accepted and the termination order dated 23.5.94 has been quashed. 2. The facts and circumstances giving rise to this case are that the appropriate Government made a reference to the Central Industrial Tribunal whether the termination of the service of the workman vide order dated 23.5.94 was legal and justified and if not to what relief he was entitled for. Before the learned Labour Court both the parties adduced evidence and it was found that the workman had joined the service on 22.6.93 and he was asked orally on 23.5.94 that his services stood terminated. Being aggrieved and dissatisfied the workman filed the Writ Petition No. 5370/97 which was dismissed vide order dated 8.7.98 with liberty to approach the learned Labour Court. Before the learned Labour Court plea was taken by the present petitioner employer that the respondent workman obtained the employment by misrepresentation as after his joining it came to the notice of the employer that he was possessing higher qualification than the maximum qualification prescribed for the post and thus he was not eligible for the post of Peon. The workman filed the reply that there was no misrepresentation at the time of filling up the form. He had mentioned that he had passed IXth Class and failed in Xth and he would produce the relevant certificate and he did so. 3. The main issue before the learned Labour Court had been whether the workman had obtained the employment by misrepresentation. The advertisement was issued asking the applications from the persons who had earlier worked temporarily for a particular period but the eligibility was that the applicant must be VIIth passed but he should not have passed VIIIth Class. Applicant was asked to furnish the information regarding his qualification. In the form filled up by the workman he had shown himself in Column No. 3 as VIIth passed while working temporarily but he did not furnish the information regarding his qualification on the date of filing the application. Applicant was asked to furnish the information regarding his qualification. In the form filled up by the workman he had shown himself in Column No. 3 as VIIth passed while working temporarily but he did not furnish the information regarding his qualification on the date of filing the application. Subsequently, complaint was received by the Establishment and after investigation it came to its notice that he had passed IXth which ultimately was also accepted by the workman, therefore, the termination order was passed for concealment of fact and obtaining the employment by misrepresentation. On this issue, the learned Labour Court has recorded the findings of fact that the workman did not disclose that he possessed the qualification higher than VIIth. So far as other issues are concerned they were decided in favour of the workman and a finding of fact has been recorded that he had completed 240 days in a calendar year counting backwards from the date of retrenchment and his termination was found to be in flagrant violation of the provisions of Section 25-F of the Industrial Disputes Act as he had not been removed after holding the disciplinary enquiry. However, the learned Labour Court held that termination of the workman was bad and the Management would be at liberty to hold an enquiry and remove the workman or remove him after complying with the provisions of Section 25-F of the Industrial Disputes Act. Hence this petition by the Management. 4. Shri Kala, learned counsel appearing for the petitioner has raised the issue that the employment obtained by fraud or misrepresentation cannot be permitted to bear the fruits and therefore the learned Labour Court has seriously erred in deciding the matter in favour of the workman. 5. There could be no quarrel to the settled legal proposition that fraud unravels everything. The employment obtained by misrepresentation or fraud cannot be permitted to be sustained but at the same time one should not lose sight of what was the nature of misrepresentation. 5. There could be no quarrel to the settled legal proposition that fraud unravels everything. The employment obtained by misrepresentation or fraud cannot be permitted to be sustained but at the same time one should not lose sight of what was the nature of misrepresentation. There may be cases where concealing the material itself may amount to moral turpitude but in a case like the instant where the petitioner himself issued an advertisement that no person possessing the qualification over and above VIIth Class should apply and respondent workman who had passed IXth Class concealed his higher qualification and obtained the employment whether even in the instant case it should amount to moral turpitude. 6. In Police Department while advertising the posts of Constables the candidates were asked to furnish information whether they had ever been involved in a criminal case and those who did not furnish the information or filled up the form wrongly were either subsequently not given appointments or they were terminated if they had been offered appointments. The matter was agitated and concluded by the Full Bench of this Court in Dharam Pal Singh v. State of Rajasthan 2000(2) WLC (Raj.) 400 and the Court held that not furnishing such an information itself amounts to moral turpitude and such an employee cannot be held to have a right to continue in service. 7. Shri Kala has vehemently submitted that the principle laid down by the Full Bench in the aforesaid case are applicable in the instant case also. Undoubtedly, the conduct of the workman may not be worth approval but the question does arise whether this kind of advertisement could be published by a Scheduled Bank which is a State within the meaning of Article 12 of the Constitution; what is the right of the employer to issue an advertisement stipulating the condition that a person possessing the qualification over and above VIIth Class should not apply; whether the advertisement itself was permissible under the framework of our Constitution or the present petitioner wants only inefficient and incompetent persons to assist the administration. It is most unfortunate for any State/Institution or a Society laying down such a criteria that higher qualification of any candidate becomes disqualification. 8. In Mrs. Neera Mathur v. Life Insurance Corporation of India & Anr. It is most unfortunate for any State/Institution or a Society laying down such a criteria that higher qualification of any candidate becomes disqualification. 8. In Mrs. Neera Mathur v. Life Insurance Corporation of India & Anr. AIR 1992 SC 392 , the services of the employee were terminated on the ground that she had given false declaration to obtain employment regarding the last menstuation period with a view to suppress her pregnancy. The Hon'ble Supreme Court deprecated the practice of even asking for such an information and held that termination on such ground was violative of the constitutional provisions. Undoubtedly in that case also the employee had obtained the employment by giving false information regarding her pregnancy. 9. In Mohd. Riazul Usman Gani and others v. District & Sessions Judge, Nagpur and others, AIR 2000 SC 919 , the Hon'ble Supreme Court dealt with a similar situation where the posts had been advertised prescribing the minimum qualification of IVth passed and as a very large number of applications had been filed, the learned District & Sessions Judge short-listed them eliminating the candidates possessing qualifications over and above IVth standard. The Hon'ble Supreme Court deprecated the practice holding it to be violative of Article 14 of the Constitution. The Hon'ble Court also rejected the submission on behalf of the administration that after some time if persons possessing higher qualification are recruited they would claim further appointment on the post of L.D.C. etc. by way of promotion observing that if Rules provided to certain extent promotions from Class IV to clerks there could be no justification denying them the said right as they possessed the requisite qualification for the post. The Hon'ble Court also rejected the plea that the persons possessing the higher qualification may not properly do the work of peons. The Court observed as under: "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 appointments 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. An employer cannot throw up his hands in despair and devise a method denying appointments 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 criteria which has the effect of denying candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be justified. We have not been able to appreciate as to why those candidates who possessed the qualifications equivalent to SSC Examination could also not be considered." 10. Even otherwise it is not permissible for the petitioner Bank to prescribe maximum qualification for such a post for the reason that by doing so it would tantamount to be a reservation for the persons possessing the qualification up to a particular level, therefore, employer has a right only to fix the minimum qualification; maximum qualification would violate the rights of other persons possessing the higher qualification and denying them the fundamental rights guaranteed under Article 14 and 16 of the Constitution. Therefore, the petitioner itself cannot be held to have acted in a bonafide and legitimate manner. 11. Whatever maybe the fault of the workman, the petitioner Bank is also equally at fault by prescribing such qualification. Advertising the vacancies in such a clandestine manner is impermissible in law and in such cases the maxim DELICTUM EST DUORUM SEMPER ONERATUR PETITOR ET MALIOR AABETUR POSSESSOR'S CAUSA: meaning thereby when both the parties are at fault the Court should not unnecessarily interfere. The said principle was made applicable in Jawaharlal v. Union of India, AIR 1962 SC 370 and was also followed in Dr. G.D. Harsh v. Rajasthan State Seeds Certification Agency, 1989 (1) RLW 449 . 12. In view of the above I am not inclined to interfere merely on the ground that the employment had been obtained by the workman by misrepresentation. 13. The facts and circumstances involved in this case warrant a further direction to be made to do substantial justice between the parties that employer be restrained from holding enquiry on the said ground of misrepresentation against the workman as the advertisement of the petitioner itself cannot be held to be permissible and it is ordered accordingly.Thus, the petition is disposed of.Orders accordingly. *******