JUDGMENT Hon’ble Kalyan Jyoti Sengupta, J. (Oral) 1. This petition was initially filed for the relief asking for a writ of mandamus directing the respondents to regularize the services of the petitioner w.e.f. 12th March, 1987 under the State Government and grant him all consequential benefits. Further, direction was sought for to give seniority to the petitioner appropriately. When this writ petition was moved, by an interim order dated 16th April, 2005, the learned Single Judge of this Court directed the respondents to consider the petitioner’s representation wherein his grievances have been ventilated. Pursuant to the order of the Court, the representation was considered, however, the prayer for absorption of the petitioner has been turned down. The said order was also challenged by making an application for amendment of writ petition, and the same was allowed and subsequent order dated 20th June, 2005 is also brought under challenge. Therefore, all the issues involved in the writ petition have to be considered. 2. It appears from the reasoned order, the Government has expressed the stand that absorption would not be granted in view of the fact that the petitioner did not secure 2nd division in B.Com. There is no other ground for rejection. Before I decide the issue, the short fact leading to filing of the writ petition is required to be stated. The same is hereby done: On 28th June, 1977, the petitioner was appointed as Clerk in Nainital Polytechnic, Nainital (hereinafter as the said polytechnic). The said Polytechnic at that time was managed by the Board of Management under the Chairmanship of Commissioner, Kumaon Division and financially aided by the Government. On 13th May, 1978, pursuant to advertisement issued for filling up the post of Instructor, the petitioner applied for the same and after taking test and being selected, he was appointed to the post of Instructor, Commercial practice on 23rd June, 1978 in the pay scale of Rs.325-575 w.e.f. 5th July, 1978. On 25th April, 1986, the petitioner was confirmed to the said post. On 12th March, 1987, the said college was taken over by the State Govt. wholly. The said college was renamed as Govt. Polytechnic, Nainital and some new posts were created abolishing the existing posts. The persons working on the earlier posts were re-appointed in the new posts according to their salary. The option was invited to become Govt. On 12th March, 1987, the said college was taken over by the State Govt. wholly. The said college was renamed as Govt. Polytechnic, Nainital and some new posts were created abolishing the existing posts. The persons working on the earlier posts were re-appointed in the new posts according to their salary. The option was invited to become Govt. servant from the date of taking over of the said Polytechnic. The petitioner duly exercised option to become the employee of the Govt. Polytechnic. Inspite of option being exercised, the petitioner was not enlisted in the regular list of government employee. Several representations were made for regularization and/or absorption. The petitioner’s services were not discontinued rather his services has been accepted by the respondents. 3. Under this circumstance, now the court has to look into the reasons for refusal to accept the petitioner’s services is sustainable in the eyes of law or not. 4. The learned counsel for the petitioner submits that the reasons for refusal is not tenable in case of petitioner as at the time of appointment, there was no qualification as mentioned later on and the said stipulation of securing IInd division in B.Com cannot have any retrospective operation as on that point of time there was no mention as to the division, rank and qualification. Moreover, he submits that other candidates who were similarly placed were also absorbed and regularized whereas the petitioner’s case has been denied. 5. Learned counsel for the respondents contends that at the time of taking over and as a matter of policy in order to absorb a candidate to fill up this post, it is provided that the candidate must secure IInd division in B.Com. It is not the question of continuation of the same management after taking over by the Government. The petitioner cannot claim continuation of earlier services. 6. Having considered respective contention of the learned counsel, now the question is on the date of taking over whether the petitioner is required to fulfill the education qualification as decided by the Government. 7. There is no dispute that the petitioner was appointed to the post of Instructor pre taking over period and he continued to the said post. Indisputably, the petitioner on the date of taking over was the existing staff of the said college. Government admittedly invited option from existing employees to become Government employee. 7. There is no dispute that the petitioner was appointed to the post of Instructor pre taking over period and he continued to the said post. Indisputably, the petitioner on the date of taking over was the existing staff of the said college. Government admittedly invited option from existing employees to become Government employee. In my view, when this option was invited, the Government must have examined the eligibility criteria. The stipulation of IInd division in B.Com is a subsequent decision as rightly pointed out by the learned counsel for the petitioner and at the time of appointment there was no such stipulation. Hence, after having invited option, the Government is estopped from putting any different condition with regard to educational qualification in the case of the petitioner. The said stipulation would be prospective and cannot be retrospective to deny absorption. Moreover, I find in the supplementary rejoinder affidavit, some of the candidates who were similarly placed have been absorbed. The said fact has not been denied in supplementary counter affidavit. Therefore, I hold that the respondents while refusing to absorb the petitioner meted out hostile discrimination towards the petitioner. In any view of the matter, continuous working over the years on the same post without any complaint whatsoever, is one of the factors to be considered. Minimum educational qualification cannot always be a factor to deny the legitimate right. In this case, the learned counsel for the petitioner appropriately drew attention of the Court to Supreme Court judgment in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation (1990) 1 SCC 361 . In paragraph 6 of the said report, it is ruled as follows: “…………………The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification.” 8. The aforesaid ruling was made by the Apex Court in an extreme case where at the time of appointment the petitioner lacks minimum educational qualification. The aforesaid ruling was made by the Apex Court in an extreme case where at the time of appointment the petitioner lacks minimum educational qualification. In this case, the petitioner is in better position factually as at the entry level, the petitioner did have requisite qualification but at the stage of taking over of the Government and because of change of management, changed requisite qualification is sought to be thrust upon, even after the petitioner was asked to exercise option. Under this circumstance, I think that the reasoned order is not sustainable on any logic or in any sense. The court accordingly doth set aside the same. 9. In view of the discussion above, I allow the writ petition directing the respondents to take all steps to absorb the petitioner on and from the date of taking over and grant all consequential benefits. Obviously, seniority list has to be re-cast in accordance with law. This exercise shall be completed within a period of eight weeks from the date of communication of this order. 10. No order as to costs.