IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1057 of 2010 1. KAMLESH KUMAR S/O AMERIKA SINGH R/O VILL.- ORE, POST- NARENDRA KHAP, P.S.- KUTUMBA, DISTT.- AURANGABAD (BIHAR) Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY DEPARTMENT OF PANCHAYAT RAJ, GOVERNMENT OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE AURANGABAD (BIHAR) 4. THE DISTRICT PANCHAYAT RAJ OFFICER AURANGABAD 5. THE SUB-DIVISIONAL OFFICER AURANGABAD 6. THE BLOCK DEVELOPMENT OFFICER KUTUMBAAT, DISTT.- AURANGABAD 7. THE CHAIRMAN/SARPANCH GRAM KACHARI JAGDISHPUR, BLOCK KUTUMBA, DISTT.- AURANGABAD 8. MANOJ KUMAR S/O RAMYASH MISHRA R/O VILL.- TAMSI, P.O.- NARENDRA KHAP, P.S.- KUTUMBA, DISTT.- AURANGABAD (BIHAR) ----------- 3. 30.11.2010 Petitioner was appointed as Panchayat Secretary Gram Kachahari on 28.11.2007. At that time he was having the qualification of Matriculation which was the requisite qualification for the post. Two candidates, namely, respondent No. 8 and one Smt. Sunita Sahu filed their representations before the appropriate authority claiming that they were having Madhayama qualification which is treated as equivalent to Matriculation. Since they had higher marks in Madhayama, they should be considered for appointment in preference to the petitioner. Their representations remain pending and therefore, they moved this Court through C.W.J.C. No. 12379 of 2009. The writ application was heard on 17.9.2009. The petitioner’s counsel 2 brought the order of this Court dated 31.1.2008 passed in C.W.J.C. No. 13905 of 2007 and letter of the Principal Secretary of the Panchayat Raj Development contained in Memo No. 518 dated 2.3.2009 to the notice of this Court and contended that Madhayama qualification was treated as equivalent to Matriculation. Considering the said order and the letter of the Principal Secretary, this court disposed of the writ application with liberty to the petitioner to file a fresh copy of representation before the District Magistrate Aurangabad, who was directed to consider the same within one month and pass appropriate orders. Accordingly, the representations of the said two writ petitioners were considered and orders were passed by the District Magistrate, which was communicated to the petitioner by the Sarpanch, through his letter dated 30.11.2009 as contained in Annexure-1, Whereby service of the petitioner was dispensed with finding that respondent No. 8 had higher percentage of marks in Madhayama than the petitioner had in Matriculation. Petitioner has challenged the said order in this writ application. 3 The order passed by this Court on 31.1.2008 in C.W.J.C. No. 13905 of 2007 is Annexure-5 with the writ application. From perusal of the order, it appears that this Court took notice of the Government policy decision dated 11.1.1999 which had held the qualification of Madhayama as equivalent to Matriculation. This court therefore, disposed of the writ application with a direction to the respondents to consider the case of the writ petitioner for appointment taking into account his seniority position in the merit list. Learned counsel for the petitioner submits that the said policy decision dated 11.1.1999 was a general policy decision, whereas the appointment of Panchayat Secretary is governed by the special rules and regulations. He submits that the Madhayama degree has been treated equivalent to Matriculation for the purposes of appointment of Panchayat Secretary etc. under the Rules by order contained in memo No. 518 dated 2.3.2009. He submits that this order will only apply prospectively and not retrospectively. Since the petitioner was 4 appointed prior to passing of this order and there was no legal infirmity in his appointment, his service could not be terminated on the ground that the respondent was having higher marks in Madhayama. Learned counsel for the respondent submits that in this order itself, it was clarified that all such appointments made previously, by passing such candidates who may have been higher in the merit list having Madhayama degree, have to be cancelled. Hence, in reference to this clear stipulation in the said order, the appointment of the petitioner has been cancelled. Learned counsel for the petitioner, in reply, has produced an order of the Department contained in Memo No. 4839 dated 5.7.2010, from perusal of which it appears that, in view of orders passed by this court in several writ applications, the matter was examined by the Department as to whether the said earlier order dated 2.3.2009 shall apply retrospectively or not. From perusal of paragraph 5 of the said order dated 5.7.2010 it is clear that, after careful consideration, the Department has come to a 5 decision that the said order will apply only prospectively and from the date of the order passed by this court in C.W.J.C. No. 13905 of 2007, that is 31.1.2008. It is also made clear therein that the appointments made prior to that date shall not be affected with this changed legal position. Learned counsel for the petitioner has also produced an order passed by a Bench of this court on 27.10.2009 in a batch of writ applications led by C.W.J.C. 6762 of 2009 which also confirms this position. Earlier notices were issued to respondent No. 8 and, as per the office report, the same has been validly served. However, respondent No. 8 has not filed any power in the case. As a result, in view of above clarification of the Department, this writ application is allowed, Annexure-1, order terminating services of the petitioner is quashed and respondents are directed to restore the services of the petitioner with all consequential benefits. Since the clarification came only on 5.7.2010, it is directed that the petitioner shall be 6 entitled to the consequential benefits from that date only. Devendra/ ( J. N. Singh, J.)