IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1247 of 2009 1. THE STATE OF BIHAR 2. THE EDUCATION SECRETARY, DEPARTMENT OF HUMAN RESOURCES, NEW SECRETARIAT, PATNA 3. THE DISTRICT MAGISTRATE, VAISHALI 4. THE BLOCK DEVELOPMENT OFFICER, JANDAHA, P.S.- JANDAHA, DISTRICT- VAISHALI 5. THE DISTRICT EDUCATION OFFICER, VAISHALI 6. THE DISTRICT SUPERINTENDNET EDUCATION OFFICER, VAISHALI 7. THE BLOCK EDUCATION EXTENTION OFFICER, JANDAHA, P.S.- JANDAHA, DISTRICT- VAISHALI ………………………….APPELLANTS Versus 1. INDU DEVI WIFE OF RAMA SHANKAR SINGH, R/O VILLAGE- JANDAHA, P.S.- JANDAHA, DISTRICT- VAISHALI ………………………….RESPONDENT. ********* FOR THE APPELLANTS :-Mr. Avinash Kumar, AC to SC XI FOR THE RESPONDENT:-Mrs. Sushmita Mishra, Advocate ********************* 8 09/03/2011 This Letters Patent Appeal is against the order dated 14.7.2009 passed by the learned Single Judge in C.W.J.C. No. 3700 of 2009 by which the order of termination dated 11.2.2009 (contained in Annexure-1 to the writ petition) passed by the concerned authority on the ground that she has not acquired Intermediate qualification as required within 33 months from the date of her initial engagement was set aside. Grievance of the respondent was that she has been appointed as Panchayat Shiksha Mitra on 7.3.2002 and subsequently she continued as such and when the 2 Prarambhik Shikshak Niyojan Rule, 2006 has been enunciated by the State Government, Rule 22 thereof indicates that one has to acquire educational qualification of Intermediate to claim continuation on the said post. It is indicated that the petitioner (respondent herein) has not acquired the qualification of Intermediate and on that ground her services was terminated. The main contention before the learned Single Judge was that the respondent-petitioner was initially appointed on 7.3.2003 and her services was extended for 33 months tenure which expire on 6.4.2006. However, Prarambhik Shikshak Niyojan Rule, 2006 came into force in the month of September, 2006. According to which, all working Panchayat Shiksha Mitra were formally treated as Panchayat/Prakhand Shikshak who had acquired Intermediate qualification shall continue as such. Termination order has been passed on the ground that she has not acquired Intermediate qualification. Counter affidavit filed before the learned Single Judge indicating at paragraph 6 thereof that the respondent has not acquired Intermediate qualification within 33 months and therefore, the official respondent, namely, Block Education Extension Officer, Jandaha was directed to take appropriate action against the petitioner (respondent herein) and accordingly, he terminated the respondent vide letter 3 No. 5003 dated 21.11.2008. The learned Single Judge had gone into the merits and after hearing both the parties, allowed the writ petition indicating that the respondent-petitioner has passed her Intermediate examination on 20.9.2006 which is five months later from the date on which she has completed 33 months but however, as she appeared in her examination for the Sessions 2003-05 and the results have been announced a little bit late for which she cannot be penalized. It is also indicated by the learned Single Judge that the Government Circular could not be used with retrospective effect as she has already appointed as long back in the year 2003. The learned government pleader appearing before us has contended that her services cannot be continued beyond the period of 33 months as required under the Directive Principle for appointment of Panchayat Shiksha Mitra under Sub-rule (Cha) of Rule 8 which reads as follows:- ^^ ¼p½ fo|ky; f”k{kk lfefr@ xzke f”k{kk lfefr dh vuq”kalk ij lsok larks’ktud ik;s tkus dh fLFkfr esa iapk;r }kjk iapk;r f”k{kk fe= dks mlds }kjk vuqlwfpr ^^x** esa layXu izi= esa vkosnu nsus vkSj vkj{k.k fu;eksa ds vuqlkj fjfDr miyC/k gksus ij vfrfjDr X;kjg ekg ds fy, iqu% vuqca/k ij fu;ksftr fd;k tk ldsxk A bl lanHkZ esa ;fn fujh{kh inkf/kdkjh dh dksbZ izfrdwy vH;qfDr izfrosfnr gks rks xzke iapk;r }kjk iqufuZ;kstu ds fu.kZ; ds iwoZ ml ij lE;d~ fopkj fd;k tk,xk A ,sls 4 fu;kstu dh vof/k esa xzh’edkyhu vodk”k lfEefyr ugha gksxh A mi;qZDr “krksZ ds v/khu fdlh ,d f”k{kk fe= dks xzh’edkyhu vodk”kksa dks NksM+dj 11 ekg dh vof/k ds fy, vf/kdre 3 ckj ;kfu dqy vof/k 11 x 3 = 33 ekg ds fy, gh fu;ksftr fd;k tk ldsxk A ** Learned Single Judge has also indicated in paragraph 6 of its order that: “Counter affidavit has been filed on behalf of the State. Counsel appearing for State relying on Government Circular dated 21.4.2005 has submitted that in petitioner‟s case 33 months „time expired on 2006, from the date of her first engagement as Panchayat Shiksha Mitra, she did not obtain intermediate degree within 33 months time as such in view of the Government Circular, she is not entitled to continue in service.” However, perusal of the termination order shows that it has not been passed in consonance with the Rule 20 sub-clause iii of the Bihar Panchayat Primary Teacher (Employment and Service Condition) Rule, 2006 which reads as follows:- “20- (iii) fdUrq iwoZ ds ifji=] vkns“k] vuqns“k ds vkyksd esa fu;ksftr ,oa dk;Zjr iapk;r f“k{kkfe= bl fu;ekoyh ds rgr iapk;r f“k{kd ds :i esa fu;ksftr ekus tk;saxsA” Further the termination order shows that the respondent‟s services was terminated only on the ground that she has not acquired the qualification of Intermediate within 33 months of her initial appointment on the post of 5 Shiksha Mitra. But however, the order of termination has not been passed in consonance with the Rule 20 Sub Clause 3 rather the only ground indicated in the order of termination that she has not acquired educational qualification. But the fact remains that she appeared in her examination for the Sessions 2003-2005 and the results have been published in the month of September, 2006 and she has qualified the Intermediate examination as the results have been published a little bit late and it cannot be the ground for penalizing the respondent-petitioner. Accordingly, in view of the fact that the order of termination did not indicate that the order of termination was not passed in consonance with sub clause iii of Rule 20, we are of the opinion that the argument of the government pleader is germane to the order passed by the authorities and accordingly, we reject his contention. In the result, we affirm the order passed by the learned Single Judge and this Letters Patent Appeal is dismissed. (T. Meena Kumari, J.) (Shyam Kishore Sharma, J.) avin