IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4494 of 2010 1. AKHILESH KUMAR SINGH S/O SRI RAMDAYAL SINGH R/O VILL.- PASAHICHAK, P.O.- RIFATPUR, P.S.- PIRPAINTI, DISTT.- BHAGALPUR Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR, PANCHAYATI RAJ GOVERNMENT OF BIHAR, PATNA 4. THE DISTRICT MAGISTRATE BHAGALPUR 5. THE BLOCK DEVELOPMENT OFFICER PIRPAINTI, BHAGALPUR 6. SARPANCH, GRAM PANCHAYAT RIFATPUR SIMANPUR BLOCK, PIRPAINTI, BHAGALPUR 7. RAMESH KUMAR S/O KISHORI RAM R/O VILL.- SIMANPUR, P.S.- PIRPAINTI, DISTT.- BHAGALPUR ----------- 2/ 04/11/2010 Heard learned counsel for the petitioner, for the State and for private respondent No.7. An amendment application is stated to have been filed on behalf of the petitioner today in the Registry of the Court numbered as I.A. No.9543/10 challenging his termination dated 25.8.2010 issued during the pendency of the writ petition. Copies have been served on the respondents. The original not being available on the record, the Court requested learned counsel for the petitioner to place his copy for perusal by the Court. Having considered the pleadings in the amendment application and having heard learned counsel for the parties, I.A.No.9543/10 is allowed. The controversy relates to the eligibility of the qualification for appointment on the post of Secretary, Gram Kutchery, under the Bihar Gram Kutchery - 2 - Secretary (Appointment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as the 2007 Rules) framed in exercise of powers under Section-94(1) of the Bihar Panchayat Raj Act, 2006 read with Section-146 thereof. Rule-5 prescribes the essential eligibility qualification for the appointment: (a) The applicant must be a citizen of India and a resident of the concerned Gram Panchayat; (b) The minimum educational qualification for the post was Matric pass. Learned counsel for the petitioner submitted that he holds the qualification of ‘Madhyama’. In response to the advertisement issued in the year-2007 he also applied. After consideration along with the eligible including the private respondent, the petitioner who was having higher marks than the private respondent was placed at serial No.1 of the panel and the latter was placed at serial No.3. The qualification of ‘Madhyama’ was equivalent to Matriculation. Appointment was therefore wrongly denied to the petitioner and granted to the private respondent who is acknowledged to have joined on 21.10.1987. The petitioner represented. In light of a government decision dated 2.3.2009 the appointment of the private respondent was terminated on 12.8.2009 and the petitioner was appointed on 24.8.2009. The private respondent then preferred C.W.J.C. No.15201/09 - 3 - in which the petitioner was not impleaded as a party respondent. Holding that the order was unreasoned, it was set aside by this Court on 15.12.2009 as it stood in its present form. On 19.2.2010 the private respondent was permitted to resume duties. No orders for termination of the petitioner was passed. But during the pendency of the writ petition his services have been terminated on 25.8.2010 questioned in I.A. No.9543/10. It is submitted on behalf of the petitioner that Madhyama was equivalent to Matriculation as pronounced by the Bihar Sanskrit Siksha Board under a Gazette notification of August, 2010. Therefore, there was no illegality in the respondents’ accepting the petitioner’s application and considering him followed by empanelment and subsequent appointment. Reliance is further placed on a Division Bench order of this Court in C.W.J.C. No.10435/04 (Union of India vs. Birendra Thakur & Anr.) which is stated to have been followed by another Division Bench in C.W.J.C. No.9460/08 (Union of India & Ors. Vs. Madan Prasad). It is submitted that the Division Bench upheld the appointment based on a Madhyama qualification even though the requisite qualification for appointment on the post of Supervisor/equivalent post was Matriculation. - 4 - Learned counsel for the State submitted that the conditions of eligibility were provided for in the Rules as Matriculation. The Rules have been amended with effect from 31.1.2008 recognizing Madhyama as an equivalent qualification. Earlier by an executive direction the Principal Secretary had directed consideration of Madhyama qualification holders also if they had applied prior to 31.1.2008 by order dated 2.3.2009 which did not find favour with this Court in C.W.J.C. No.6762/09 leading to modification of the Circular dated 2.3.2009 by a fresh circular dated 5.7.2010 clarifying that under the Rules Madhyama became a qualification for appointment with effect from 31.1.2008 only. Learned counsel for the private respondent made similar submission that there was no illegality in his appointment. In fact, it was the petitioner who was ineligible to apply and his application was wrongly considered. If an appointment is regulated by statutory rules, the rules alone shall prevail. Any application for appointment has to be considered strictly in accordance with the Rules. An application submitted, not eligible under the Rules, is an illegal application which cannot be considered. Any acceptance of such an application and consideration thereof is contrary to the law and shall vest - 5 - no right in the applicant. If the very submission of the application by the petitioner suffered from the vice of illegality, there would be no rectification or condonation of the same. Unless the Rule itself provided for relaxation of the conditions of eligibility, there could be no relaxation. Matriculation prescribed as the minimum qualification for appointment was an essential condition of the eligibility for appointment and which cannot be diluted under any circumstances in law. A qualification may be equivalent to another academically. Issue of equivalence for the purposes of academics and issue of equivalence for purposes of appointment are entirely different issues. Even though academically a qualification may be considered equivalent to another, the employer still has the right to decide if it desired to consider only those who held a particular qualification and not an equivalent qualification. The Rules provided for a minimum qualification of Matriculation and not any other equivalent qualification. The language of the Rule is clear. There is no ambiguity. There is no occasion for the Court to read anything further into it. There may be certain differences in academics between the two courses which may broadly be at par. If the employer distinguishes between them for appointment, based on the needs of the - 6 - employer, of the kind of personnel required by it for a kind of duties, the Court cannot direct consideration of a person not declared eligible under the Rules. The Court, therefore, holds that the very submission of the application by the petitioner was contrary to the law. His application could not have been accepted since he held a Madhyama qualification. If his application was wrongly accepted, the Rules shall not stand diluted or amended. The illegality committed by acceptance of the application contrary to the law or any erroneous consideration of such an application contrary to the statutory rules was void from its very inception. The petitioner therefore could not have been placed at serial No.1 of the panel. The person at serial No.2 is stated not to have joined and therefore if the private respondent was the next eligible person at serial No.3, he naturally became the person empanelled to be considered for appointment. It would therefore appear that there was no illegality in his initial appointment on 21.10.2007. It appears that certain persons came to this Court aggrieved by denial from consideration for appointment based on Madhyama qualification with the plea that it was equivalent to Matriculation and therefore they were also eligible to be considered. This Court subsequently held that Madhyama was equivalent to - 7 - Matriculation based on a Government Decision itself. That again was a pronouncement dealing with issues of equivalence of academic qualifications. The Court could not have directed appointment contrary to the statutory rules. Consequent to the pronouncement of the Court, the State amended the Rules in January, 2009 by a Gazette notification giving it retrospective effect from 31.1.2008. Rule-5 now stood amended to incorporate Madhyama along with Matriculation as equivalent qualifications. Therefore, after 31.1.2008 those holding Madhyama qualification were considered eligible to apply and to be considered. The amendment did not give retrospective effect to the Rules, meaning thereby, the amendment did not ratify or lend validity to the application of the petitioner made in the year-2007. The State authorities on their interpretation of the amended Rules issued directions on 2.3.2009 that all such persons who had applied for appointment prior to 31.1.2008 on the basis of holding qualification of Madhyama were also eligible to be considered and that necessary correction to rectify errors in appointment be taken by the authorities in that light. Those aggrieved came to this Court in a batch of cases led by C.W.J.C. No.6762/09 and analogous cases disposed on 27.10.2009. The Court held that if the statutory rules - 8 - made the cut-off date fixed as 31.1.2008 it cannot be shifted further retrospectively by executive orders. Pursuant thereto the State has passed a fresh order on 5.7.2010 clarifying that the order dated 2.3.2009 shall have prospective effect from 31.1.2008 only. It has already been noticed that private respondent came to be terminated on 12.8.2009 in pursuance of the direction dated 2.3.2009. If the latter has been clarified, the order dated 2.3.2009 becomes illegal. No challenge has been laid out by the petitioner, if it could be done, to the fresh order dated 5.7.2010 that the Rules stood amended from 31.1.2008 only. Therefore, under any advertisement after 31.1.2008 only could a Madhyama certificate holder apply and be considered and not prior thereto. The termination of the private respondent obviously was not sustainable and the appointment of the petitioner dated 24.8.2009 subsequent thereto was contrary to the law. The case of Birendra Thakur (Supra) relied on by the petitioner is completely distinguishable on facts. It does not appear from the order that the requisite qualification was prescribed under any statutory rules. Moreover, the relief therein was for permission to appear at the test on the basis of his Madhyama qualification. They obtained interim orders from the Central Administrative Tribunal which permitted - 9 - them to appear in the test. The claim was thus raised at the stage of the selection process itself when they were allowed to participate under Court orders. Prior to the commencement of the selection process in the year-2003 in C.W.J.C. No.1963/03 a notification had been issued that Madhyama was equivalent to Matriculation. It is not possible to decipher from the judgement if this notification was issued at the academic level or by the Railways who were making the appointment. That judgment is therefore of no avail to the petitioner as it is not his case that he raised the issue at the stage of selection and there were any judicial orders for consideration of his application even though not eligible under the Rules. The Court in light of the aforesaid discussion holds that there is no illegality in the order dated 25.8.2010 terminating the appointment of the petitioner. At this stage, learned counsel for the petitioner presses for the limited relief of arrears of salary for the period 24.8.2009 till issuance of the impugned termination dated 25.8.2010. In view of the discussion aforesaid, it is apparent that the situation is the creation of the officials of the State Government itself. Therefore, the burden shall have to be borne by the State. However, the State - 10 - shall have the liberty to recover the amount that may have to be paid to the petitioner from the salary of the concerned due to whose flip-flop discharge of duties the State has been imposed with obligations. It remains a question of fact as to how many days the petitioner has actually and physically discharged duties. For the periods that he actually discharged duties, naturally he is entitled to his salary. Let the petitioner represent which is required to be considered by respondent No.4 who is also the designated appellate authority under Rule-13 within a maximum period of three months from the date of receipt/presentation of a copy of this order. The writ application stands dismissed with observations to the extent indicated. KC ( Navin Sinha, J.)