IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10393 of 2009 MUKESH KUMAR, SON OF VISHWANATH DAS, RESIDENT OF VILLAGE-VISHNUPUR, P.S.-MIRJAPUR, DISTRICT- BEGUSARAI ……. PETITIONER Versus 1. THE STATE OF BIHAR through the Secretary, Human Resources Development Department, Govt of Bihar, Patna 2. The Principal Secretary, Human Resources Development Department, Govt of Bihar, Patna 3. The Director, Human Resources Development Department, Govt of Bihar, Patna 4. The District Magistrate, Begusarai. 5. The District Superintendent of Education, Begusarai. 6. The Block Development Officer Begusarai. 7. The Block Education Officer, Begusarai. 8. The Mukhiya of Gram Panchayat Raj, Matihani-2 Block-Matihani, Begusarai. 9. The Panchayat Secretary, of Gram Panchayat Matihani-2, Begusarai …………… ………….. Respondents. ----------- 2. 16.09.2009 Heard the counsel for the petitioner and the counsel appearing for the state. Petitioner has filed this application for quashing the order contained in Letter dated 07.07.2009 issued under signature of the Panchayat Secretary , Matihani-II, whereby selection of the petitioner on the post of Panchayat Teacher in Primary School, 2 Punarwash in Gram Panchayat Matihani-II has been cancelled. Counter affidavit has been filed on behalf of the respondent No. 7 and as stated in paragraph-1, the person who has sworn affidavit to the counter affidavit is posted as Block Education Officer, Begusarai. Since there is no such post as Block Education Officer,, the counter affidavit has not been sworn by a competent person, as such, this counter is rejected. What I find that several such writ applications are being filed in which the appointment of petitioners is being challenged. Orders of termination are being issued on the ground that petitioners were appointed considering their qualification of upshastri degree, which is not requisite qualification for appointment on the post of Panchayat/Prakhand Teachers. Appointments which are being held illegal and terminated were made in the year, 2006 under Bihar Panchayat Primary Teachers (Appointment & Service Conditions) Rule, 2006. Under 2006 rules, there were specific provisions that for being appointed on the post of Panchayat teacher, requisite qualification should be intermediate or any equivalent degree. Since upshastri degree was considered as equivalent to intermediate, several persons were appointed as Panchayat Teacher, considering their qualification. Since under the rule, the upshastri degree was considered as equivalent to intermediate. Subsequently, such appointments could not have been considered as illegal appointments. The Principal Secretary, Human Resources 3 Development Department, Govt of Bihar, Patna issued letter No. 4240 dated 15.11.2007 which contained directions that certificate of Upshastri will not be considered as a requisite qualification for appointment and persons appointed with such qualification should be terminated or should not be paid their salary. Letter No. 4240 dated 15.11.2007 has already been considered by this court in C.W.J.C. No. 2456 of 2008 (Ribha Rani Vs The state of Bihar & Ors.) and it was held that on the basis of an executive direction, the provision under any rule, cannot be amended. It has also been held that executive instruction/directions/guidelines cannot have any retrospective effect. However, it was also held in this decision that the State Government, if so interested, may amend the rule and that amendment will have prospective effect. Since this issue has already been decided and settled, it is strange that still relying on same letter, directions are being issued for terminating services of appointed teachers, withholding their salary. The most surprising aspect which I find that ever in the counter affidavit, same stand has been taken which shows total non-application of mind of the authorities. I must say that the counter affidavits are being filed from the office of the Advocate General without considering that statements which are going to be made in counter affidavits, whether are correct or incorrect. It needs that the counsels who prepare counter affidavit in the office of the Advocate General should properly consider these matters before including it in the counter affidavit. 4 The order which has been issued for cancelling petitioner’s appointment is patently illegal and must be quashed. The order contained in the letter dated 07.07.2009 issued under the signature of Panchayat Secretary, Matihani-II cancelling petitioner’s appointment is quashed. It is directed that the petitioner should be reinstated with effect from the date; he was terminated from his service, with all consequential benefits. Order of re-instatement must be passed, forthwith. This writ application is, accordingly, allowed. AKV/ (Mridula Mishra, J.)