IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18302 of 2009 1. SUPRIYA KUMARI D/O RAM LAL PRASAD, R/O VILL- PARSAGARH BAZAR, P.O-PARSAGARH, BLOCK- EKMA, P.S-EKMA, DISTT- SARAN (CHAPRA) Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYAT RAJ, GOVT. OF BIHAR, PATNA 3. THE DIRECTOR, DEPARTMENT OF PANCHAYAT RAJ, GOVT. OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE, SARAN (CHAPRA) 5. THE DISTRICT PANCHAYAT RAJ OFFICER, SARAN (CHAPRA) 6. THE BLOCK DEVELOPMENT OFFICER, EKMA, SARAN (CHAPRA) 7. THE SARPANCH, GRAM KATCHEHRY PARSA UTTARI, EKMA, SARAN (CHAPRA) 8. PUSHPA DEVI, W/O DEO KUMAR SHARMA R/O VILL- PARSAGARH BAZAR, P.O- PARSAGARH BAZAR, P.S- EKMA, DISTT- SARAN (CHAPRA) ----------- 2. 18.3.2010 Heard learned counsel for the petitioner, for the State and for the private respondent no.8, who has appeared suo motu. Respondent no. 8 was an applicant for the post of Secretary, Gram Katchehry based on ‘Madhyama’ qualification. The advertisement stipulated only ‘Matriculate’ as the qualification. This Court was called upon to adjudicate the issue of equivalence of ‘Madhyama’ to ‘Matriculation’ for such appointment when it held that the two were equivalent in light of certain Government circulars. In light of the orders of this Court, respondent no. 8, filed C.W.J.C. No. 9077 of 2009. On 31.7.2009, this Court directed her case to be 2 considered in accordance with law pursuant to the legislative amendment made by the respondents in the Bihar Gram Katchehry (Appointment Service Conditions and Duties) Amendment Rules, 2008 effective from 31.1.2008 retrospectively by a notification dated 5.1.2009. The respondent no. 8 has now been directed to be appointed and the petitioner terminated by order dated 16.9.2009/23.9.2009. Learned counsel for the respondents sought to persuade this Court that the respondent no. 8 had been appointed in pursuance of the directions of this Court in C.W.J.C. No. 9077 of 2009 and therefore there was no error in the act of the respondents. It is not in dispute that the petitioner on basis of her qualification as matriculate was appointed as Secretary, Gram Katchehry on 28.11.2007. The impugned orders do not mention any ineligibility of qualifications on part of the petitioner vitiating her appointment. The only issue arising for consideration by this Court in law is whether a legislative amendment made effective from 31.1.2008 can be given retrospective effect prior to 31.1.2008 by executive orders. 3 The law stands well settled that a legislative amendment, a prerogative of the legislature, its power cannot be arrogated by the executive to give retrospective to such legislative amendments without further incorporation in the legislation itself. To that extent the impugned order dated 16.9.2009/23.9.2009 is not sustainable and are accordingly set aside. Learned counsel for the State sought to persuade this Court from the order dated 16.9.2009 that issues of validity of the appointment of petitioner allegedly not having been done by the competent committee also find reflection in the impugned order. He further submits that the petitioner has also participated in the deliberation as apparent from the impugned order dated 16.9.2009. The discussions do not reflect that the petitioner was given a show cause notice of any irregularity in procedures of her appointment with an opportunity to meet the same. There is no consideration of her claim with regard to any procedural irregularity in her appointment. Simultaneously, the writ petition is also silent on this issue and does not state whether any show cause notice was given to the petitioner or not. Issues of the eligibility of her 4 appointment on alleged violation of procedure is quite distinct from the conflict of her appointment, vis-à-vis, respondent no. 8. The petitioner cannot be visited with an adverse order setting aside her appointment except after being informed the reasons and an opportunity to meet the same. The present order shall therefore not preclude the State respondents in any manner from proceeding afresh in accordance with law in so far as the validity of appointment of the petitioner in accordance with law and procedure thereof be concerned but not with regard to her eligibility, vis-à-vis, respondent no. 8. The writ application is allowed to the extent indicated with liberty granted to the respondents. P. Kumar (Navin Sinha, J.)