IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1996 of 2010 ==================================================== 1.Kiran Kumari D/o Shri Jagar Nath Pandey, W/o Dinesh Upadhyay R/o Vill.- Kajipur, P.O.- Rasalpura, P.S.- Doriganj, Distt.- Saran. at present posted and working as a Gram Kachahari Secretary, Gram Kachahari Jalalpur, Anchal+Block- Sadar Chapra, Distt.- Saran (Chapra) 2.Sanjay Kumar Gupta S/o Lal Babu Prasad R/o At+ P.O.+P.S.- Garkha, Distt.- Saran 3.Dwarika Prasad Yadav S/o Sri Bishwanath Prasad Yadav R/o Vill.- Nawtan Panchayat, Mane, P.S.- Ekma, Distt.- Saran (Chapra) 4.Mala Kumari W/o Deo Kumar Prasad R/o Vill.- Karinga Mushehari Panchayat Karinga, P.S.- Chapra Mufasil, Distt.- Saran 5.Barun Kumar Rajhansh S/o Late Ram Ayodhya Singh R/o Vill.- Manohar Basant Panchayat, Mirjapur, P.S.- Garka, Distt.- Saran 6.Vinay Kumar Paswan S/o Krishna Kumar Manjhi R/o Vill.- Banwari Basant, Panchayat Sripal Basant, P.S.- Garkha, Distt.- Saran (Chapra) 7.Puspa Devi W/o Sri Dev Kumar Sharma R/o Vill.- Parsa Gargh Bazar, P.S.- Ekma, Distt.- Saran, (Chapra) Versus 1. The State Of Bihar 2. The Chief Secretary, Govt. Of Bihar, Patna 3. The Principal Secretary, Panchayat Rajya Deptt., Govt. of Bihar, Patna 4. The Director, Panchayati Raj, Govt. of Bihar, Patna 5. The District Magistrate, Saran at Chapra 6. The Block Development Officer, Chapra Block, Distt.- Saran at Chapra 7. The Block Development Officer, Ekma Block Ekma Saran 8. The Block Development Officer, Garkha Block, Garkha, Saran ==================================================== Appearance : For the Petitioners: Mr. Ramanuj Tiwary, Advocate Mr. Prabhat Ranjan Singh, Advocate Mr. Rakesh Narayan Singh, Advocate Mr. Anshuman, Advocate 2 For the Respondents: Mr. Ashutosh Kumar,GP-2 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 7 05.04.2011 The petitioner was appointed on 28th September 2007 as Secretary, Panchayat Katchahry and was removed from service on 25th October 2007. He has filed this petition under Article 226 of the Constitution to challenge the constitutional validity of Government Notification dated 5th January 2009 in so far as the Bihar Gram Katchahry Secretary (Appointment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as “the 2007 Rules”) has been amended with effect from 31st January 2008. According to the petitioner the introduction of effective date of 31st January 2008 is arbitrary and that the amendment should have been made effective from the inception of the 2007 Rules. The Appointment, conditions of service and duties of the Secretary of the Gram Katchahry is governed by the Rules of 2007 framed by the State of Bihar in exercise of the powers conferred by Section 94(1) read with Section 146 of the Bihar Panchayat Raj Act, 2006. 3 Rule 5 ( d ) of the 2007 Rules provides for eligibility. Clause 2 thereof provided for a minimum educational qualification of passing of matriculation examination. In the selections made pursuant to the 2007 Rules the petitioner was appointed as Secretary of the Gram Katchahry on 28th September 2007. Admittedly, the petitioner possesses qualification of Madhayama awarded by Bihar Sanskrit Shiksha Board and he does not possess matriculation certificate awarded by Bihar Secondary Education Board. As the petitioner did not possess the requisite qualification of matriculation his service came to be terminated on 25th October 2007. Challenge to the said order of termination in C.W.J.C. No. 1529 of 2008 was upheld to the extent that the learned Single Judge was, by his order dated 26th February 2008, pleased to direct the respondent authorities to consider the qualification of „Madhayama‟ held by the petitioner equivalent to „matriculation‟. Although, the learned Single Judge did observe that the eligibility conditions did not visualize a situation of equivalence to consider such persons eligible. In absence of the eligibility the Court did not make further order in favour of the petitioner. 4 Since the aforesaid order dated 26th February 2008 the State Government has issued the impugned Notification dated 5th January 2009. Under the impugned Notification the aforesaid Clause 2 of Rule 5(d) of the 2007 Rules has been amended to include the qualification equivalent to the qualification of matriculation for appointment of Secretary of the Gram Katchahry. The said amendment has been given effect from 31st January 2008. In other words, since 31st January 2008 the eligibility criteria stand amended. The existing eligibility has been diluted to include not only the matriculation but any other equivalent qualification. Obviously, as the petitioner was appointed and removed from service prior to 31st of January 2008 he does not benefit of the aforesaid amendment. Learned advocate Mr. Ashutosh Ranjan Pandey has appeared for the petitioners. He has submitted that the question whether the „Madhayama‟ awarded by the Bihar Sanskrit Shiksha Board is equivalent to matriculation or not is not a matter of dispute. The State Government has, as early as on 11th January 1999, held that the „Madhayama‟ awarded by the Bihar Sanskrit Shiksha Board is equivalent to the „Matriculation‟ awarded by Bihar Secondary 5 Education Board. This Court also has on 31st January 2008 taken note of the said equivalence in its order made on C.W.J.C. No. 13905 of 2007 in respect of appointment to the post of Secretary, Gram Katchahry. The Court held that in view of the Government policy dated 11th January 1999 qualification of „Madhayama‟ is equivalent to matriculation. Challenge to the said order in Letters Patent Appeal No. 308 of 2008 failed. In the submission of Mr. Pandey the equivalence of „Madhayma‟ awarded by the Bihar Sanskrit Shiksha Board to that of „matriculation‟ awarded by the Secondary Education Board is unquestionable. The petitioner, therefore, ought to be held eligible for such appointment and his appointment should be upheld by making the amendment applicable from inception of the 2007 Rules. The cut off date of 31st January 2008 introduced under the amendment is arbitrary and has no rationale with the object to be achieved. The said cut off date creates an unreasonable and irrational classification amongst the Gram Katchahry Secretaries appointed prior to 31st January 2008 and appointed after 31st January 2008. 6 We see no substance in the argument advanced by Mr. Pandey. As we have noted earlier the extant Rule 5(d) (2) did not envisage any qualification other than matriculation; not even an equivalent qualification. The impugned Notification dated 5th January 2009 amends the said rule effective from 31st January 2008, i.e. effective from 31st January 2008 not only the matriculates but also candidates possessing equivalent qualification have been made eligible for appointment as the Secretary of the Gram Katchahry. What should be the date from which the Rule should be made effective is a matter of policy. This Court exercising power of judicial review will not interfere with the policy decision of the State. As to the aforesaid order dated 31st January 2008; we must note that all that the learned Single Judge held was that the „Madhayama‟ awarded by the Bihar Sanskrit Shiksha Board was considered equivalent to the „matriculation‟ awarded by the Secondary Education Board. The learned Single Judge did not hold that irrespective of the prevalent Recruitment Rules any person having qualification equivalent to the matriculation shall be considered eligible for appointment as Secretary, Gram Katchahry. So far as the question of 7 equivalence is concerned there cannot be any dispute that the „Madhayama‟ is considered equivalent to the „matriculation‟. In our view the aforesaid judgment has no relevance in so far as the present challenge is concerned. On the date of his appointment, the petitioner did not possess the requisite qualification of „Matriculation‟. In the aforesaid judgment dated 31st January 2008, this Court though upheld the petitioner‟s contention, did not grant any relief to the petitioner. The impugned amendment has obviously been made in compliance with the direction issued on 31st January 2008. We are unable to hold the amendment to be arbitrary or unconstitutional as alleged. The challenge to the Constitution validity of the amended Rule 5(d)(2) fails. The Rule is held intra vires Articles 14 & 16 of the Constitution. The petition is dismissed in limine. Bibhash ( R.M. Doshit, CJ.) (Jyoti Saran, J.)