Smt.Sunita Kumari Vs. the State of Bihar and ors - Court Judgment

Excerpt:
in the high court of judicature at patna letters patent appeal no.1264 of 2011 in civil writ jurisdiction case no. 5274 of 2010 ====================================================== smt.sunita kumari w/o sanjay kumar r/o village padehi bhikha, p.o. anirudh balsor, p.s. vaishali ( belsar o.p. ) distt. vaishali .... .... respondent-appellant versus 1. the state of bihar through secretary, rural department, govt. of bihar, patna 2. the principal secretary, panchayat raj department, govt. of bihar, patna 3. the director, panchayat raj department govt. of bihar, patna 4. the district magistrate, vaishali 5. the district panchayat raj officer, vaishali 6. the block development officer, block patedhi belsar, distt. vaishali 7. the sarpanch, gram kachahari, panchyat raj ( saaeen ) block - patedhi belsar, distt. vaishali . .respondents/respondents 8. poonam sinha w/o sri sanjay singh r/o village- bedauliya, p.s. vaishali ( belsar o.p. ), distt. vaishali. .... .... petitioner/respondent ====================================================== appearance : for the appellant/s : mr. kaushal kishore, advocate. for the state : mr. dhurandhar pd. choudhary, s.c. 2 mr. a. k. bhaskar, a.c. to s.c.2. ====================================================== coram: honourable the chief justice and honourable mr. justice birendra prasad verma oral order (per: honourable the chief justice”19. 01-2012 feeling aggrieved by the common judgment and order dated 30th august 2010 passed by the learned single judge insofar as cwjc no. 5274 of 2010 is allowed; the respondent no. 8 has preferred this appeal under clause 10 of the letters patent. the matter at issue is the appointment of the writ petitioner-respondent no. 8 herein as secretary, gram kutchery made prior to 31st january 2008. it appears that under the then prevalent bihar gram 2 patna high court lpa no.1264 of 2011 (5) dt.19-01-2012 2/3 kutchery secretary (appointment, service conditions and duties) rules, 2007 (hereinafter referred to as the rules of 2007) only those persons who posses the matriculation certificate were eligible for appointment as such. accordingly the petitioner was selected and appointed as gram kutchery secretary in village- bedauliya, p.s. vaishali, district- vaishali. the aforesaid rules of 2007 were amended under government notification dated 5 th january 2009 effective from 31st january 2008. under the amended rules not only the matriculates but also the candidates who posses the qualification equivalent to the matriculation have been made eligible for appointment as gram kutchery secretary. thus since 31st january 2008 the candidates possessing qualification equivalent to the matriculation have become eligible for appointment as gram kutchery secretary. the appellant is one of such candidates who possesses madhyama awarded by the bihar sanskrit parishad, which is considered equivalent to matriculation. pursuant to the above referred amendment to the rules of 2007 the state government, on 2nd march 2009 issued a direction that the candidates possessing madhyama who had applied for appointment prior to 31st january 2008 and were placed higher on the merit list be appointed as gram kutchery secretary by replacing such secretaries who were below them in the merit list. feeling aggrieved by the aforesaid instruction dated 2nd march 2009 the writ petitioner filed above cwjc no. 5274 of 2010 under article 226 of the constitution. pending the petition, the service of the writ petitioner came to be terminated. pursuant to the above referred circular dated 2nd march 2009 in place of the 3 patna high court lpa no.1264 of 2011 (5) dt.19-01-2012 3/3 writ petitioner, the appellant was appointed as gram kutchery secretary. challenge to the aforesaid circular dated 2nd march 2009 and the termination of her service made by the writ petitioner has been upheld by the learned single judge. the learned single judge has held that the statutory rules which were made effective from 31st january 2008 cannot be given retrospective effect by an executive instruction. consequently the learned single judge has held that the petitioner was entitled to go back to her old post with continuity in service and consequential benefit. the learned single judge also held that the appellant was not entitled to continue in service as secretary, gram panchayat (sic: gram kutchery). feeling aggrieved the respondent no. 8 has preferred this appeal. we agree with the learned single judge. no case for interference is made out. appeal is dismissed in limine. (r.m. doshit, cj) sujit/- (birendra prasad verma, j)

Judgment:
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1264 of 2011 In Civil Writ Jurisdiction Case No. 5274 of 2010 ====================================================== Smt.Sunita Kumari W/O Sanjay Kumar R/O Village Padehi Bhikha, P.O. Anirudh Balsor, P.S. Vaishali ( Belsar O.P. ) Distt. Vaishali .... .... Respondent-Appellant Versus 1. The State of Bihar through Secretary, Rural Department, Govt. of Bihar, Patna 2. The Principal Secretary, Panchayat Raj Department, Govt. of Bihar, Patna 3. The Director, Panchayat Raj Department Govt. of Bihar, Patna 4. The District Magistrate, Vaishali 5. The District Panchayat Raj Officer, Vaishali 6. The Block Development Officer, Block Patedhi Belsar, Distt. Vaishali 7. The Sarpanch, Gram Kachahari, Panchyat Raj ( SAAEEN ) Block - Patedhi Belsar, Distt. Vaishali . .Respondents/Respondents 8. Poonam Sinha W/O Sri Sanjay Singh R/O Village- Bedauliya, P.S. Vaishali ( Belsar O.P. ), Distt. Vaishali. .... .... Petitioner/Respondent ====================================================== Appearance : For the Appellant/s : Mr. Kaushal Kishore, Advocate. For the State : Mr. Dhurandhar Pd. Choudhary, S.C. 2 Mr. A. K. Bhaskar, A.C. to S.C.

2. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE”

19. 01-2012 Feeling aggrieved by the common judgment and order dated 30th August 2010 passed by the learned single Judge insofar as CWJC No. 5274 of 2010 is allowed; the respondent no. 8 has preferred this Appeal under Clause 10 of the Letters Patent. The matter at issue is the appointment of the writ petitioner-respondent no. 8 herein as Secretary, Gram Kutchery made prior to 31st January 2008. It appears that under the then prevalent Bihar Gram 2 Patna High Court LPA No.1264 of 2011 (5) dt.19-01-2012 2/3 Kutchery Secretary (Appointment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as the Rules of 2007) only those persons who posses the matriculation certificate were eligible for appointment as such. Accordingly the petitioner was selected and appointed as Gram Kutchery Secretary in village- Bedauliya, P.S. Vaishali, District- Vaishali. The aforesaid Rules of 2007 were amended under Government Notification dated 5 th January 2009 effective from 31st January 2008. Under the amended Rules not only the matriculates but also the candidates who posses the qualification equivalent to the matriculation have been made eligible for appointment as Gram Kutchery Secretary. Thus since 31st January 2008 the candidates possessing qualification equivalent to the matriculation have become eligible for appointment as Gram Kutchery Secretary. The appellant is one of such candidates who possesses Madhyama awarded by the Bihar Sanskrit Parishad, which is considered equivalent to matriculation. Pursuant to the above referred amendment to the Rules of 2007 the State Government, on 2nd March 2009 issued a direction that the candidates possessing Madhyama who had applied for appointment prior to 31st January 2008 and were placed higher on the merit list be appointed as Gram Kutchery Secretary by replacing such Secretaries who were below them in the merit list. Feeling aggrieved by the aforesaid instruction dated 2nd March 2009 the writ petitioner filed above CWJC No. 5274 of 2010 under Article 226 of the Constitution. Pending the petition, the service of the writ petitioner came to be terminated. Pursuant to the above referred Circular dated 2nd March 2009 in place of the 3 Patna High Court LPA No.1264 of 2011 (5) dt.19-01-2012 3/3 writ petitioner, the appellant was appointed as Gram Kutchery Secretary. Challenge to the aforesaid Circular dated 2nd March 2009 and the termination of her service made by the writ petitioner has been upheld by the learned single Judge. The learned single Judge has held that the statutory Rules which were made effective from 31st January 2008 cannot be given retrospective effect by an executive instruction. Consequently the learned single Judge has held that the petitioner was entitled to go back to her old post with continuity in service and consequential benefit. The learned single Judge also held that the appellant was not entitled to continue in service as Secretary, Gram Panchayat (Sic: Gram Kutchery). Feeling aggrieved the respondent no. 8 has preferred this Appeal. We agree with the learned single Judge. No case for interference is made out. Appeal is dismissed in limine. (R.M. Doshit, CJ) Sujit/- (Birendra Prasad Verma, J)