S.J.MUKHOPADHAYA, J. - (1.)THE petitioner who was in the service of Bihar Renewable Energy Development Agency (BREDA), Patna, his services were terminated, vide Order No.326 dated 4th June '98 on the ground of higher qualification at the time of regular appointment. For the said reason, both the order of termination and the guidelines dated 25th April '97, wherein qualification for appointment against Class -IV posts laid down, are under challenge.
(2.)THE sole question to be determined is as to whether a qualification can be laid down for appointment to disqualify the persons having higher qualification or not.
In the present case, the petitioner, an Intermediate in Arts, was engaged by way of stop gap arrangement on 4th April '91 under BREDA to perform the job of Class -IV post after following some procedure. The Board of Directors of BREDA in its meeting decided to regularise the services of daily wage/ad hoc employees, by considering their cases with outsiders. The Director, BREDA called for the names from Employment Exchange, Patna by its Letter No.221 dated 2nd April '97, in pursuance of which the Employment Exchange forwarded the names of eligible persons, including the petitioner, vide letter no.1613 dated 4th June '97. The petitioner and others were called for interview held on 22nd May '98 (petitioner called, vide Interview Letter No.259 dated 12th May '98) and on interview and selection, service of petitioner was regularised. While so functioning, the Respondent, Director, BREDA issued impugned order No. 326. dated 4th June '98 terminating the services of petitioner on the ground of higher qualification, giving referrence of the guidelines issued by the Chief Secretary, Govt. of Bihar, vide letter No.3577 dated 25th April '97. It is not in dispute that the BREDA is an instrumentality of the State of Bihar which follows the guidelines issued by the State for appointment against Class -IV posts. The State of Bihar issued such guidelines from its Personnel and Administrative Reforms Department, from time to time, for appointment against Class -IV posts. Initial guideline was issued, vide Resolution No.7566 dated 16th May '73 and Resolution No. 10747 dated 20th June 74, which were superseded by guideline circulated, vide letter No.16441 dated 3rd December '80. Under the said guideline, no qualification was laid down for appointment against Class -IV posts, including peon, though selection was stipulated to be made on the recommendation of Selection Committee headed by the Collector of the district. Subsequently, the State Govt. came out with Resolution dated 18th June '93, whereby and whereunder, while it was decided to terminate the services of daily wage employees appointed after 1st August '85, it was decided to provide regular appointment to those engaged prior to 1 st August '85 by giving preference over outsiders, on the basis of their seniority. No qualification was laid down thereunder. A literate person having knowledge of cycling was eligible for appointment. The Respondents -State subsequently issued guideline for appointment against Class -IV posts, vide impugned letter No. 3577 dated 25th April '97. Under the said guideline, again while it was stipulated to give weightage to daily wage employees over outsiders on the basis of their seniority, and it was ordered that the procedure laid down, vide Circular No.16441 dated 3rd December '1980 shall be followed for preparation of panel, this time minimum qualification and maximum qualification was laid down under clause(2) of the said Circular dated 25th April '97. It stipulates minimum qualification of 8th Class and maximum matriculation for appointment against Class -IV posts, including peon. In view of aforesaid guideline, the petitioner having higher qualification of I.A. was held to be ineligible for appointment against Class -IV post and impugned order of termination was issued on 4th June '98.

(3.)THE Respondent BREDA while appeared and filed counter affidavit, no separate counter affidavit has been filed on behalf of the State of Bihar.