IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1351 of 2009 1. THE STATE OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE DISTRICT MAGISTRATE CUM COLLECTOR JEHANABAD 3. THE DISTRICT SUPERINTENDENT OF EDUCATION CUM DISTRICT PROGRAM CO-ORDINATOR SARVA SHIKSHA ABHIYAN, JEHANABAD 4. THE BLOCK EDUCATION EXTENSION OFFICER, KAKO, DISTT- JEHANABAD Versus 1. SANGITA KUMARI D/O MUNILA YADAV, VILL- SALEMPUR, P.S- KAKO, DISTT- JEHANABAD 2. THE GRAM PANCHAYAT NERTHUA THROUGH ITS PANCHAYAT SECRETARY, NERTHUA GRAM PANCHAYAT UNDER THE KAKO BLOCK IN THE DISTRICT OF JEHANABAD 3. THE MUKHIYA, GRAM PANCHAYAT NERTHUA UNDER KAKO BLOCK IN THE DISTRCT OF JEHANABAD 4. THE HEADMASTER, PRIMARY SCHOOL, KOIRY BIGHA UNDER KAKO BLOCK IN THE DISTRICT OF JEHANABAD ----------- Advocate for the Appellants :- Mr. Harendra Pd. Singh, G.A.-6 Mr. Santosh Kumar, AC to GA-6 For the Petitioner/Respondent No. 1 :- Mr. Sunil Kumar For the Respondent Nos. 2,3 and 4:- Mr. Bindhyachal Singh, Adv. Mr. Umesh Kumar, Adv. -------------- 4. 20.5.2010 Heard learned counsel for the appellants, for the respondent no. 1 and respondent no. 3. The petitioner was appointed as a Shiksha Mitra on 28.5.2005 and joined duties on 30.5.2005. A show cause notice was issued to her in context of her being under age on the date of appointment and the absence of any orders for renewal upon expiry of the original contractual tenure of 11 months. The final order came to be passed on 22.4.2008 unseating her, aggrieved with which the petitioner preferred C.W.J.C. 2 No. 2057 of 2009. The writ petition came to be allowed and is thus questioned by the Appellants. Learned counsel for the Appellants urged that the judgment under appeal is erroneous in law when it holds that the petitioner had completed the age of 18 years as on the date of her appointment. Under the circulars of the State Government, a candidate was required to be not more than 30 years as on the 1st of January of the year in which the appointment was to be made. The date of birth of the petitioner being 25.1.1987, she had not completed 18 years as on the 1st of January 2005. Though the circular does not provide the minimum prescribed age, the same standards as prescribed for reckoning the maximum age shall apply to the minimum age of eligibility for appointment. The second ground urged is that the appointment was contractual for a period of 11 months only which ended on 30.4.2006. It never came to be renewed. The petitioner also admits that no honorarium has been paid to her. Counsel for the respondent no. 3, adopted the arguments made on behalf of the State appellants. Counsel for the respondent no. 1, urged that the judgment under appeal rightly holds that the petitioner had acquired the age eligibility on the date of 3 appointment and therefore it warranted no interference. It was next urged that even if there were no formal orders for renewal of the contract for appointment after expiry of the initial period of 11 months i.e., after 30.4.2006, it shall be deemed to have been renewed as the petitioner had annexed documentary evidence dated 10.12.2008, issued by the Principal of the Panchayat School that the petitioner was discharging duties continuous since from 30.5.2005. On the facts from government circulars regulating the appointment (at Anenxure-5, to memo of appeal). Clause 5(gha), we find that it only stipulates the maximum age of a candidate as 30 years on the 1st of January for the year in which the recruitment is being made. Reading the minimum age for appointment in government service under the law to be 18 years, there is ambiguity in the circular that the candidate was required to be 18 years of age on the 1st of January for the year in which the recruitment was being made, or on the date of appointment. If the view taken by the writ Court is one of the possible interpretations to an ambiguous circular, merely because we may be inclined to arrive at a different interpretation, that in our view shall not be sufficient justification for us to interfere with the order. To that 4 extent, we find no error in the judgment under appeal and hold that there was no infirmity in the appointment of the petitioner as Shiksha Mitra made on 28.5.2005 on grounds of being under age. Though the necessary administrative circulars of the State Government regulating contractual appointment of Shiksha Mitra for 11 months and renewal thereof, have not been placed before us, counsel for the parties were unanimous in their submission during argument that there was no controversy amongst them that prior to promulgation of the statutory rules in 2006, a Shiksha Mitra was appointed on contractual basis for a period of 11 months only. The initial contract of 11 months was amenable to renewal for a maximum of three duration each of 11 months. But this was not automatic. On the contrary, it was subject to satisfactory performance of duties. It is therefore apparent that renewal of the contract after the initial period of 11 months cound not be automatic, but being conditional, it required a positive and conscious act of a decision with regard to satisfactory performance of duties followed by written orders for renewal of the contract. This would require a fresh contract to be executed. Even if there was no fresh contract executed, there still had to be a positive 5 written order for renewal of the contract. The Government functions on basis of written orders only. The appointing authority being the Gram Panchayat, the Headmaster of the school in question could not renew the contract. On the contrary, the order of the District Magistrate impugned in the writ petition itself reflects that certain fresh persons came to be appointed after the expiry of the initial period of 11 months evident from the memo of appeal also at Anenxure-8 dated 2.6.2006. This demonstrates that the contract of the petitioner was not renewed. Merely because the petitioner may have continued without a written renewal of the contract, shall not vest any claim in her under the law with regard to a deemed renewed contract by conduct. It was for the petitioner to assert in the writ petition that her contract had been renewed. We have gone through the pleadings in the writ petition. There is no such pleading. Paragraph-16 is only suggestive from the certificate of the headmaster of a deemed renewal when the respondents have specifically come out with documentary evidence of a fresh contract granted to others after 11 months leading to a deemed rejection of any renewal of the contract of the petitioner. To that extent, we find it difficult to hold that since the 6 respondents had described the averments in Paragraph- 16 of the writ application as “irrelevant” there is a deemed renewal of the contract. The strength of the writ petition would come from its own pleadings and not from the defective pleadings in the counter affidavit. We, therefore, hold that there being no renewal of the contract of the petitioner after 30.4.2006, the judgment under appeal becomes unsustainable on that ground. We have arrived at the finding that the initial appointment of the petitioner on 30.5.2005 was not contrary to the law on account of being under age. In view of that finding, we hold that the petitioner is entitled to her full honorarium for the initial period of 11 months, in accordance with law, if not already paid. The appeal stands allowed but only to the extent indicated. P. Kumar (Navin Sinha, J.) (Dinesh Kumar Singh, J.)