IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 5156 of 2010 1. MERAJ BEGUM D/O LATE MD. BASHIRUDDIN R/O VILL MUKARI BASTI , P.S.THAKURGANJ, DISTT-KISHANGANJ Versus 1. THE STATE OF BIHAR 2. THE DISTRICT TEACHERS APPOINTMENT APPELLATE AUTHORITY , THROUGH ITS MEMBER DISTT-KISHANGANJ 3. THE DISTRICT SUPERINTENDENT OF EDUCATION KISHANGANJ 4. THE BLOCK EDUCATION EXTENSION OFFICER THAKURGANJ BLOCK, DISTT- KISHANGANJ 5. THE MUKHIYA , GRAM PANCHAYAT RAJ KANAKPUR, BLOCK THAKURGANJ, DISTT-KISHANGANJ 6. THE SECRETARY, GRAM PANCHAYAT RAJ KANAKPUR, P.S.& BLOCK THAKURGANJ, DISTT-KISHANGANJ 7. THE HEAD MASTER OF THE MIDDLE SCHOOL BEHLULDANGI, P.S.THAKURGANJ, DISTT-KISHANGANJ 8. THE PRESIDENT-CUM-MUKHIYA , PANEL NIRMAN SAMITI G.P.KANAKPUR, P.S.THAKURGANJ, DISTT-KISHANGANJ *** For the petitioner : Mr Firoz Ahmad, Advocate For the S t a t e : Mr Raj Kamal, AC to SC 20 *** 2 23.08.2010 The petitioner challenges the order dated 14.01.2010 of the District Teachers Appointment Appellate Tribunal, Kishanganj in Appeal No 645 of 2009 whereby the Tribunal has held that on the 01st of January 2005, the year in which petitioner was appointed as Shiksha Mitra, she was 25 days short of completing 18 years and, as such, even though appointments were made in July 2005, it could not be held to be valid. In this connection, the Tribunal has relied on Clause – 5 (gha) of Resolution No 1458 dated 11.08.2004 of the Government with regard to appointment of Panchayat Shiksha Mitra. The said clause does not prescribe minimum age limit but prescribes that for determination of age, it is the 01st of January of the year of appointment which has to be taken into account and 2 the appointee shall not be more than 30 years on the said date. Firstly, the Tribunal is correct in holding that a minor cannot be appointed for the very simple reason that the minor lacks the capacity to contract and, as such, cannot take up any employment much less under the State but when we come to the State Government Resolution as aforesaid, there is some difficulty so far as petitioner is concerned. On petitioner’s own showing, she is 25 days short on the 01st of January, 2005 from attaining majority. In this connection, reliance has been placed on judgment of this Court in the case of Sangita Kumari –Versus- State of Bihar & Others since reported in 2009 (4) BBCJ 11 (High Court). In that decision, this Court held that there was only a difference of 24 days and the Court noticed the Clause – 5 (gha) above and held that the age would be calculated from the date of advertisement and if that is done, the petitioner therein was a major. In my view, that could be one interpretation but a Government clarification has been brought to my notice issued by the Secretary, Primary and Adult Education being Memo No 672 dated 21.04.2005. To specific query in paragraph-4 of the said communication, it has been clearly stipulated that as appointments are to be made on financial year basis, the age would have to be calculated with effect from 01.04.2005 that is beginning of the financial year in which appointments are to be made. Obviously, if that is applied, then petitioner is not under age. Having considered the matter, in my view, the Tribunal erred in not taking note of the clarification as issued by the Department itself. That being the position, the age has to be worked out with effect from the 01st day of financial year in which appointment is to be made. 3 In that view of the matter, the writ petition is allowed. The impugned order of the Tribunal is set aside. Petitioner, if not already relieved, would be deemed to be continuing in service for all purposes. If removed, would be immediately reinstated with all consequential benefits without break in service. M.E.H./ (Navaniti Prasad Singh)