IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7719 of 2010 BHAGWAN MAHATO, SON OF LATE MEWA LAL MAHATO, RESIDENT OF VILLAGE-BALAHAN, P.O. RAJAPATTI KOTHI, POLICE STATION-BAIKUNTHPUR, DISTRICT-GOPALGANJ……………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, PRIMARY EDUCATION, BIHAR, PATNA. 4. THE DISTRICT MAGISTRATE, GOPALGANJ. 5. THE DIVISIONAL COMISSIONER, SARAN DIVISION AT CHAPRA. 6. THE DEPUTY DEVELOPMENT COMMISSIONER-CUM- CHAIRMAN, DISTRICT EDUCATION ESTABLISHMENT COMMITTEE, GOPALGANJ. 7. THE DISTRICT SUPERINTENDENT OF EDUCATION, GOPALGANJ. 8. THE DISTRICT SUPERINTENDENT OF EDUCATION- CUM-DISTRICT PROGRAMMER COORDINATOR, BIHAR EDUCATION PROJECT, GOPALGANJ. 9. THE BLOCK DEVELOPMENT OFFICER, BAIKUNTHPUR, DISTRICT-GOPALGANJ. 10. THE BLOCK EDUCATION OFFICER, BAIKUNTHPUR, DISTRICT-GOPALGANJ. 11. THE MUKHIYA OF GRAM PANCHAYAT RAJ GAMHARI, ANCHAL-BAIKUNTHPUR, DISTRICT-GOPALGANJ. 12. THE PANCHAYAT SECRETARY OF GRAM PANCHAYAT RAJ GAMHARI, ANCHAL-BAIKUNTHPUR, DISTRICT- GOPALGANJ. ……………………………………………..RESPONDENTS. --------- For the Petitioner: Mr. Umesh Kumar Mishra, Advocate. For the State : Mr. Sushil Kumar Singh, AC to G.P. II. ----------- 5 19.01.2011 Heard learned counsels for the petitioner and the 2 State. (2) The petitioner wants a declaration that he be treated in service as Shiksha Mitra beyond 25.07.2005 and as Panchayat Teacher under Panchayat Teachers (Appointment and Service Condition) Rules, 2006 (hereinafter referred to as the Rules of 2006) on the basis of Government Resolution dated 04.07.2008 contained in Annexure-9 and judgment of a single bench of this Court in the case of Indu Devi Versus The State of Bihar and others dated 14.7.2009 (Annexure-10). (3) The facts are not in dispute that when the petitioner was appointed as Shiksha Mitra for 11 months on 22.2.2003, he had qualification of Matriculation as required for such appointment. Subsequently as per scheme he got renewal for further term of 11 months but when the appointment was required to be further renewed, as per revised qualification, the minimum qualification had become Intermediate with 45% marks. It is also not in dispute that there was litigation and as a result, Government reconsidered the entire matter and vide resolution contained in Annexure- 9, it was decided that those who had been engaged for limited periods with qualification of Matriculation would also be entitled for being treated in service as Shiksha Mitras if they 3 could acquire degree of Intermediate even without 45% marks within 33 months from the date of their engagement. Such eligible/qualified Shiksha Mitra would also become Panchayat/Block Teacher with effect from 01.07.2006 as per provisions in the Rules of 2006. (4) In order to take benefit of Government decision, contained in Annexure-9, learned counsel for the petitioner gave us the date of appointment of the petitioner as Shiksha Mitra as 05.02.2003 and at that time he was having degree of Matriculation. Admittedly, his engagement was not extended and he could not continue beyond two terms, each of 11 months. In order to take benefit of the Government Resolution, petitioner was required to show that he acquired Intermediate degree within 33 months from 05.02.2003, the date of engagement. But he has failed to do so. (5) On behalf of petitioner it has been submitted that petitioner acquired the degree of Sahitya Bhushan from Deoghar Vidyapeeth some time in the year 2007 as and when the result was published. According to learned counsel for the petitioner, the degree of Sahitya Bhushan from Deoghar Vidyapitha is equivalent to Intermediate degree which will also appear from the decision of this Court in the case of Indu 4 Devi Versus The State of Bihar and others decided on 14.07.2009 in CWJC No.3700 of 2009 (Annexure-10). And in the aforesaid judgment it was held that Circular dated 04.07.2008 being an executive order could not have been made retrospective and, therefore, 33 months period mentioned in that circular should be calculated from the date of the said circular and not from the date of initial appointment/engagement as mentioned in the said circular. (6) Learned counsel for the State has advanced submissions only on legal issues to oppose the writ petition because no counter affidavit has been filed so far. He has submitted that in the case of Indu Devi Versus The State of Bihar and others (Annexure-10), the learned Single Judge wrongly disregarded the judgment of Division Bench passed in LPA No.940 of 2007 (Kishori Prasad Versus State of Bihar and Others), reported in 2008(2)PLJR 458. He placed reliance upon the aforesaid Division Bench judgment and pointed out that in that case the Court had heard both the parties as it is evident from Paragraph 1 thereof and hence the learned Single Judge erred in observing that the said judgment by the Division Bench was passed without hearing counsel for the appellant. He further submitted that although the Division 5 Bench did not have the occasion to notice the circular dated 04.07.2008 (Annexure-9) but the decision contained in the said circular was apparently placed before the Division Bench and the State counsel conceded that candidates having Matriculate qualification had been provided 33 months time to acquire the higher qualification and those who acquired the required qualification of Intermediate before expiry of 33 months from the date of engagement would be allowed to continue or treated to have continued in employment as Shiksha Mitras. He pointed out that in the circular dated 04.07.2008, the aforesaid decision of the Division Bench in LPA No.940 of 2007 is clearly mentioned and the decision in the circular is same as the concession recorded in the judgment of the Division Bench. Hence according to learned counsel for the State, there is no difficulty in upholding the decision of the State Government, contained in Annexure-9, as a fair and good decision taken to help the candidates to reasonable limits and the decision needs no interference and interpretation because the same decision was accepted by the Division Bench of this Court in the case of Kishori Prasad (Supra). (7) This writ petition was referred to Division 6 Bench by order dated 24.09.2010 so that the Division Bench may consider the earlier Division Bench judgment in LPA No.940 of 2007 and take an appropriate decision. The aforesaid order dated 24.09.2010 contains a detailed discussion of relevant facts. It has been rightly noticed that the post of Shiksha Mitra was a contractual post for a period of 11 months and initially when petitioner was appointed in the year 2003, the qualification for the post was Matriculation as laid down in Government’s Resolution No.1079 dated 20.06.2002. According to circular, the appointment could be for 11 months tenure which could be renewed for two terms i.e for a maximum of 33 months. However, by a circular dated 11.08.2004, minimum qualification for selection as Shiksha Mitra was raised to Intermediate with a relaxation in respect of ladies who in given situation could be appointed with degree of Matriculation but they were required to improve their qualification to Intermediate within a fixed period. On 21.04.2005, Circular No.672 was issued with clear stipulation that no re-engagement or extension would be given to those Shiksha Mitras who did not have the educational qualification of Intermediate. In 2006, Panchayat Teachers (Appointment and Service Condition) Rules were 7 enacted, providing minimum educational qualification of Intermediate for appointment as Panchayat Teachers and on such post the qualified Shiksha Mitras could be absorbed. Some teachers were denied extension/absorption as Panchayat Teachers and those disputes gave rise to litigations including the one decided by the Division Bench in the case of Kishori Prasad (Supra) as noted above. Relying upon the said judgment, the circular dated 04.07.2008 (Annexure-9) was issued by the State. (8) The learned Single Judge felt difficulty in granting relief to persons like the petitioner who was denied extension because he could not acquire minimum qualification of Intermediate within 33 months from his engagement as Shiksha Mitra as Matriculate. The difficulty was due to threat to service of those persons who had educational qualification of Intermediate and subsequently got recruited to such post in the light of Rules of 2006. If the view taken by the learned Single Judge in the case of Indu Devi Versus The State of Bihar and others which was followed by a learned Single Judge in another case reported in 2010(2)PLJR, 335 is accepted, then those who could not have applied for recruitment under the Rules of 2006 because of 8 lack of minimum educational qualification of Intermediate will be entitled to get recruited to the post of Panchayat Shiksha Mitra at the cost of those who had the qualification and got selected and recruited. (9) In view of the difficulty expressed by the learned Single Judge, we have gone through the Division Bench judgment in the case of Kishori Prasad (supra). We are unable to appreciate the views taken by the learned Single Judge and the reasons assigned for not following this Division Bench judgment in the case of Kishori Prasad (supra). The ground that the Division Bench decided the case of Kishori Prasad (supra) without hearing counsel for the petitioner/appellant is not correct as already noticed by us. The second ground is equally erroneous. The fact that 33 months period for acquiring higher qualification of Intermediate was conceded by the State of Bihar cannot be disputed. On that basis, the Letters Patent Appeal in that case was allowed and following that judgment the State issued subsequent notification through Circular dated 04.07.2008. In such circumstances, in our considered view, the provision in this circular cannot be struck down or interfered with on the ground that they are retrospective in nature. The concession 9 given by the State is not retrospective but retroactive in effect and it does not deprive anyone of any vested rights. The retrospective operation of executive decisions is impermissible only when it adversely affects the vested right. The concession or relaxation of the nature given by the Government Circular dated 04.07.2008 does not interfere or affect any vested right rather it grants certain benefits to which the beneficiaries were otherwise not entitled. The effect of the circular is to entitle even those who could not have got extension after first or second renewal because the minimum educational qualification was enhanced to Intermediate. Hence, we are of the considered view that judgment of the Division Bench in the case of Kishori Prasad (Supra) should have been followed by the learned Single Judge in the case of Indu Devi. It is well-established rule of precedent that judgment of larger Bench should not be ignored by a smaller Bench and even in the case of doubt the case should only be referred to a larger Bench for decision instead of taking contrary view. (10) For all the reasons discussed above, we are not inclined to follow the view taken by the learned Single Judge in the case of Indu Devi (Supra) and some other 10 judgments following the same. (11) Nothing was brought to our notice and we find no valid ground to strike down any provision or stipulation in the Government Circular dated 04.07.2008 as contained in Annexure-9. In order to take benefit of concession given by that circular, a person must show and establish that he or she acquired the higher qualification within 33 months from the date of initial engagement on the post of Shiksha Mitra as Matriculate. (12) In the present case, from the facts, it is clear that petitioner could not acquire the higher qualification within the period of 33 months from the date of initial engagement as Shiksha Mitra. In that view of the matter, we have no option but to dismiss this writ petition. It is dismissed accordingly. No costs. Sanjay-II (Shiva Kirti Singh, J.) (Dr. Ravi Ranjan, J.)