ORDER 1. The petitioner by way of filing the present petition before this Court has challenged the order dated 30th October, 2000, which is Annexure P-11 to the petition. This order has been passed by the Senior Divisional Manager by which the penalty of removal from serviced has been imposed on the petitioner and also forfeiture of the terminal benefits as a penalty has been passed. 2. Against the aforesaid order, the petitioner submitted an appeal to the Zonal Manager-cum-appellate authority which has been rejected on 18.2.2003, which is Annexure P-13 to the petition. 3. The petitioner was issued a charge-sheet which is Annexure P-3 to the petition. The petitioner has been charged for misconduct that when he submitted an application for the post of peon on 20th January, 1996 he has shown his educational qualification as Higher Secondary (Class 11th, old course) though the petitioner was possessing bachelor's degree. It was also found that the petitioner has carried out his studies by getting admission in B.A. Part III and subsequently also sought admission in M.A. (previous) in Economics. Thus, according to the Management, this conduct of the petitioner is a conduct which is a misconduct for which the petitioner was charge-sheeted. 4. Petitioner submitted a reply to the said charge-sheet, the copy of which is placed on record as Annexure P-4 to the petition. The petitioner while submitting the reply to charge-sheet stated that he has shown his educational qualification in the application form as 11th class passed and the over qualification since was not coming in his way in submitting the application, therefore, he has not mentioned the same. He submitted that he was not having intention to suppress over qualification which he was possessing. 5. As against the aforesaid charge-sheet the Management decided to conduct a departmental enquiry and accordingly an inquiry was conducted. In the departmental enquiry the petitioner was found guilty of the charges by the inquiry officer. The findings recorded by the inquiry officer are Annexure P-8 to the petition. 6. That, thereafter a show cause notice. Annexure P-9 to the petition, was issued to the petitioner directing the petitioner to show cause as to why the penalty of removal from service be not imposed on him along with the penalty of forfeiture of terminal benefits. 7. The findings recorded by the inquiry officer are Annexure P-8 to the petition. 6. That, thereafter a show cause notice. Annexure P-9 to the petition, was issued to the petitioner directing the petitioner to show cause as to why the penalty of removal from service be not imposed on him along with the penalty of forfeiture of terminal benefits. 7. The petitioner submitted reply to the said show cause notice and thereafter the disciplinary authority passed the impugned order dated 30th October, 2000, which is Annexure P-11 to the petition, and directed to impose a penalty of removal from service including the forfeiture of terminal benefits. The petitioner submitted a detailed appeal to the appellate authority, which was considered and rejected by an order Annexure P-14 dated 13th October, 2003. 8. In view of the aforesaid factual matrix of the case the counsel for the petitioner submitted that possessing over qualification is not a bar in acquiring the employment. It is also submitted that if the minimum qualification is prescribed for the post of peon such as in the present case then persons those who are having higher qualification cannot be debarred from applying to the post by submitting their candidature. The counsel for the petitioner relied upon the judgment as reported in (2002)2 SCC 606 [Mohd. Riaazul Usman Gani and others v. District and Sessions Judge, Nagpur and others] and submitted that the apex Court has already decided that if a candidate is having higher qualification then the candidate as such cannot be debarred because he has over qualification with him than the minimum qualification prescribed for the post. 9. The apex Court has already held in the aforesaid judgment that if the Management debars the candidates having over qualification by insisting upon the minimum qualification then such an act of the Management would be arbitrary and violative of Article 14 of the Constitution of India. The relevant paragraph of the said judgment is reproduced as under : "21. 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. 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. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application." 10. The learned counsel for the respondents submitted that the apex Court in 2003(1) JLJ 403 =2003 AIR SCW 1126 [Kendriya Vulyalaya Sangathan v. Ram Ratan Yadav], has held that suppression of material fact would by itself be enough to terminate the services of as incumbent and therefore on that basis it is submitted that by the counsel for the respondents that in the instant case the petitioner had been guilty of suppressing the material fact in relation to his criminal prosecution and therefore the Management has rightly imposed a penalty of removal from service on the petitioner. 11. The counsel for the petitioner further submitted that the Management has discriminated while inflicting the punishment on the petitioner. He submitted that once Shri Daluram Patidar who was also appointed as peon by suppressing the over qualification was also subjected to departmental enquiry by issuing a charge-sheet to him and ultimately the said Shri Daluram Patidar was imposed a penalty of withholding two annual increment permanently. The counsel for the petitioner, to substantiate the said submission, has also filed an order of penalty which was issued to Shri Daluram Patidar. The said order is Annexure P-15 to the petition dated 2nd June, 1997. On the basis of the aforesaid, he submitted that under the similar circumstances the petitioner has been inflicted a penalty of removal from service and for the similar charge Shri Daluram Patidar has been meted out with the minor penalty. The Management, thus, cannot be permitted to discriminate while inflicting the punishment to two different employees for the same nature of misconduct. 12. The counsel for the respondents submitted that in the present case against the petitioner no lenient view can be adopted. He further submitted that both the cases are on different footings and therefore there is no discrimination. 13. 12. The counsel for the respondents submitted that in the present case against the petitioner no lenient view can be adopted. He further submitted that both the cases are on different footings and therefore there is no discrimination. 13. On consideration of the rival contentions of the parties, I am of the view that the present petition deserves to be allowed. The counsel for the petitioner is correct in his submission that if the petitioner is over-qualified then that will not be a bar in getting the employment. Ignoring the candidates having more or over-qualification than the prescribed has already been held to be arbitrary and violative of Article 14 of the Constitution of India by the apex Court in the judgment as reported in 2000(2) SCC 606 (supra). The said judgment would be relevant in the present case to ascertain whether a person who has the over-qualification will not be qualified or will not be eligible to get the employment. If the persons having higher qualification are ignored as they possess the higher qualification than the minimum qualification prescribed for the post then it may lead to discrimination and therefore it is not a case where a person having higher qualification would be debarred from getting the employment. Thus, in the present case there does not seem to be a case of material suppression which could have debarred from getting the employment for the petitioner. 14. It is not the case of the Management in the charge-sheet that the petitioner was not having even minimum qualification and he has submitted a false certificate by prescribing over qualification which he does not possess, therefore, he fraudulently obtained the employment. In view of the aforesaid discussion, it is held that it is not a case where the petitioner has obtained the employment fraudulently. 15. That, the submission of the learned counsel for the respondents is that the apex Court in Kendriya Vidyalaya Sangathan's case (supra), has already laid down that obtaining employment by submitting a false information in the character antecedent form would be enough to terminate the services of the petitioner because in the said form, it is already stipulated that a candidate filling up the said character antecedent form if gives a false information or suppresses any material information then the employment of such a candidate shall be liable to be terminated. 16. 16. In the case decided by the apex Court and relied upon by the counsel for the respondents, the apex Court was considering the case where the candidate while filling up his character antecedent form suppressed the information with regard to his criminal prosecution and therefore the apex Court considered that if an employee honestly informs the employer about the pendency of case against him and also about the result of the criminal case against him then the employer at that point of time would be able to decide on receiving the correct information about the suitability of the candidate and also his desirability to continue in the employment or even in giving the employment keeping in view the nature of charges for which the employee was prosecuted. The relevant extract of the said judgment is reproduced as under : "The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and the antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature of gravity of the offence of the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not." 17. On the basis of same it is clear that the apex Court considered the said case in the light of the suppression by an employee with regard to his criminal cases or the prosecution including the conviction or otherwise. The present case is not a case where having over qualification would be material for obtaining the employment, therefore, the petitioner cannot be charged for suppressing the material education qualification. The present case is not a case where having over qualification would be material for obtaining the employment, therefore, the petitioner cannot be charged for suppressing the material education qualification. The suppression of material educational qualification has to be judged in the light of aspect whether the petitioner would have employment or not, which means that a person having a lesser qualification than the minimum prescribed would be debarred from obtaining the employment but the person having over qualification will not be debarred from consideration of his appointment. 18. Therefore, keeping in view this aspect of the matter, it cannot be said that the petitioner by not highlighting his over qualification has suppressed the material information and thus the petitioner even otherwise cannot be held guilty of the charges. 19. That, the another question is also relevant to consider that the petitioner in para 5.13 of the petition has specifically stated that under the similar circumstances one Shri Daluram Patidar also obtained the employment, as he was also having over qualification with him and was appointed on the post of peon. He was also subjected to the disciplinary action. The Management has passed an order of penalty on 2nd June, 1997, which is Annexure P-15 to the petition, whereby said Shri Daluram Patidar has been inflicted with the minor penalty of withholding his two annual increments permanently and the petitioner has been imposed a penalty of removal from service. Thus, according to the petitioner, the Management has discriminated against the two sets of persons similarly situated; one has been inflicted with the minor penalty and another i.e., the petitioner has been inflicted with the major penalty of removal from service. Both the employees obtained the employment by suppressing the over qualification. Thus, the charges under the circumstances against the petitioner and against Shri Daluram Patidar were the same. 20. Though in the return filed by the respondents it has been stated that the case of Shri Daluram Patidar is on different footings but nothing has been stated in the return or during the course of argument as to how the case of Shri Daluram Patidar is found to be on different footings. 20. Though in the return filed by the respondents it has been stated that the case of Shri Daluram Patidar is on different footings but nothing has been stated in the return or during the course of argument as to how the case of Shri Daluram Patidar is found to be on different footings. The charges if compared from the charge-sheet issued to the petitioner which is Annexure P-3 to the petition and the charges mentioned in Annexure P-15, i.e., the order of punishment passed by the Management in case of Shri Daluram Patidar, then the conclusion necessarily shall be that charges against both the employees were the same. 21. The counsel for the petitioner relied upon the following judgments; (2001) 10 SCC 530 [Tata Engineering and Locomotive Co. Ltd. v. Jitendra Prasad Singh and another], and WP(S) No.3334/2004 [Om Prakash Sharma v. Union of India and others], decided by the Division Bench of this Court on 13.5.2005 and submitted that the Management cannot discriminate while imposing the punishment for the same set up of charges. 22. No circumstances have also been shown by the Management as to on what basis Shri Daluram Patidar was dealt leniently and as to how the petitioner was inflicted with the penalty of removal from service. The punishment which has been inflicted to Shri Daluram Patidar for the same charges has resulted into discrimination by the Management. Therefore, even otherwise, the order of dismissal Annexure P-11 has to be set aside. Thus, Annexure P-11 and Annexure P-13 are quashed. 23. Question remains now about the relief which could be granted by this Court to the petitioner. The petitioner has already submitted the order of punishment, which is Annexure P-15 to the petition related to Shri Daluram Patidar. 24. Thus, the respondents shall reinstate the petitioner without back wages and shall consider the case of the petitioner for imposing the same punishment as imposed to Shri Daluram Patidar. 25. The present case is not a case where the petitioner has been completely exonerated of the charges and the Management under the circumstances cannot be saddled with the liability of paying the back wages to the petitioner, and further the petitioner shall not claim any benefit in service that he is over qualified. 26. 25. The present case is not a case where the petitioner has been completely exonerated of the charges and the Management under the circumstances cannot be saddled with the liability of paying the back wages to the petitioner, and further the petitioner shall not claim any benefit in service that he is over qualified. 26. Therefore, the petitioner shall be reinstated in services of the respondents within a period of 60 days from the date the order is either received by the respondents or submitted by the petitioner to the Management and thereafter the Management is also directed to consider the imposing of same set of penalty as passed in the case of Shri Daluram Patidar by an order dated 2nd June, 1997, which is Annexure P-15 to the petition. 27. The petition is thus allowed to the extent as above.