IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4051 of 2010 1. ANITA DEVI W/O SRI RAJESH PATEL R/O VILL.- PURKHAS DUKHRAN TOLA, P.O.- BODHACHHAPA, P.S. GOPALPUR, DISTT.- GOPALGANJ Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, GOPALGANJ 4. THE BLOCK DEVELOPMENT OFFICER, KUCHAIKOT, DISTT.- GOPALGANJ 5. THE BLOCK AGRICULTURE OFFICER-CUM-NODEL OFFICER, KUCHAIKOT, DISTT.- GOPALGANJ 6. THE SARPANCH, GRAM PANCHAYAT RAJ PURKHASH BLOCK, DISTT.- GOPALGANJ ----------- 02. 30.09.2010 Heard learned counsel for the petitioner and learned counsel for the State. It is acknowledged that the petitioner possess the qualification of Madhyama. The Rules regulating appointment on the post of Secretary, Gram Kutchery stipulated only Matriculation as eligibility qualification. Notwithstanding the same, the application of the petitioner was accepted and she was placed at serial no.1 in the merit list dated 2.9.2007 leading to appointment on 10.10.2007. She is now aggrieved by the order dated 1.11.2007 terminating her service on the ground that she was not eligible for appointment. Learned counsel for the petitioner submits that the respondents have acknowledged Madhyama as equivalent to Matriculation for such appointment by an legislative amendment of the Rules with effect 2 from 31.1.2008 by a notification dated 5.1.2009. Pursuant thereto an executive instruction has been issued on 2.3.2009 that, if an applicant had Madhayama qualification and had applied for appointment prior to 31.1.2008 and was senior in the merit list then the other appointment made be cancelled treating Madhyama as eligible and appointment be made. It was thus submitted that the termination of the petitioner was not in accordance with law. If, by a legislative amendment with effect from 31.1.2008 Madhyama has been made an acceptable qualification equivalent to Matriculation, the petitioner’s application based on Madhyama qualification could not have been accepted in the year, 2007. Her incorporation in the merit list and the consequent appointment on 10.10.2007 was contrary to the advertisement and the eligibility qualification as per the Rules. Any appointment made contrary to the same was valid in law. The Executive instruction dated 2.3.2009 purports to give further retrospective effect to a legislative amendment. That is impermissible in the law. This Court therefore finds no infirmity in the order of termination warranting interference. In A.I.R. 1995 Supreme Court 277 (Ravinder Sharma Versus State of Punjab) 3 considering an appointment made contrary to regulations the Court at paragraph 12 held as follows:- “12. Admittedly, the appellant did not possess this qualification. That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regn.17 of the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regn. 7, it was liable to be set aside. That being so, no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.” Notwithstanding the present order, subject to availability of vacancy in order of merit, nothing precludes the respondents from considering the case of the petitioner. The application is dismissed with the aforesaid observations. P.K. (Navin Sinha, J.)