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2009 DIGILAW 925 (PAT)

Indu Devi W/o Ramashankar Singh v. State Of Bihar

2009-07-14

MRIDULA MISHRA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel appearing for the State. 2. Petitioner has been terminated from service by order dated 11.2.2009 issued by the Block Education Extension Officer, Jandaha with retrospective effect, since she has not acquired the degree of Intermediate examination within 33 months of her first engagement as Panchayat Shiksha Mitra in compliance of Circular No. 2517 dated 4.7.2008. Further prayer of the petitioner is for quashing part of Circular dated 4.7.2008 whereby criteria for acquiring Intermediate qualificatidn within 33 months of first engagement has been fixed. Petitioner has also prayed for a direction to the respondents to reinstate her with all consequential benefits. 3. Petitioner was initially appointed as Panchayat Shiksha Mitra on contract basis for 11 months on 7.3.2003. At the time of her first engagement she possessed matriculation qualification which was the requisite qualification for this post in accordance with the Government Circular No. 1079 dated 20.6.2002. Department of Human Resources Development, Govt. of Bihar vide Circular No. 1458 dated 11.8.2004 enhanced minimum qualification for appointment on the post of Panchayat Shiksha Mitra as Intermediate with 45 per cent marks. The circular was vague on this point, whether enhanced qualification will be applicable to Panchayat Shiksha Mitras appointed earlier with matriculation qualification. Petitioners first engagement was renewed on 25.3.2004 and again on 6.5.2005. Accordingly, she completed 33 months tenure on 6.4.2006. Subsequently on 29.6.2007 she was re-engaged and while continuing on the post of Panchayat Shiksha Mitra, Primary Teachers Appointment Rules, 2006 came into force with effect from 1.7.2006 and all Panchayat Shiksha Mitras working on that date were absorbed/treated as Panchayat Block Teachers under Rule 20 of 2006 Appointment Rules. The Government at this juncture decided to terminate those Panchayat Shiksha Mitras absorbed as Panchayat Teachers having Intermediate qualification with less than 45 per cent marks. The teachers who were terminated from their services filed writ application and finally vide order dated 12.2.2008 passed in LPA No. 940/07 it was decided that the candidates who had acquired intermediate qualification within 33 months from the date of their initial selection/appointment even with less than 45% marks, shall be treated as properly appointed on the post of Panchayat Shiksha Mitras and will be absorbed on the post of Panchayat/Prakhand Teachers. 4. 4. Petitioners case is that she took up course of Sahitya Bhushan, which is equivalent to Intermediate in sessions 2003- 05 but on account of delayed examination petitioners result was delayed and finally published on 20.9.2006. She obained Intermediate degree on 20.9.2006. The Government later on reinstated all such terminated Panchayat/Prakhand Teachers whose appointment had been cancelled on account of not possessing Intermediate qualification. Subsequently the concerned department of State Government came out with Resolution No. 2517 dated 4.7.2008, whereby 33 months time has been fixed for obtaining Intermediate degree from the date of first appointment on the post of Panchayat Shiksha Mitra. 5. Counsel for the petitioner submits that part of the Resolution contained in Circular No. 2517 dated 4.7.2008 is arbitrary, as it has been made retrospective. Panchayat Shiksha Mitras who were engaged on the basis of their matriculation qualification had no knowledge that in future Government will come out with any circular relating to enhancement of qualification with retrospective effect. The condition of acquiring Intermediate degree within 33 months from the first engagement is arbitrary. Counsel for the State submits that Circular No. 2517 dated 4.7.2008 has been issued consequential to order passed in LPA No. 940/07. In reply, the counsel for the petitioner submitted before the LPA Bench Government Circular dated 21.4.2005, whereby the qualifications for appointment on the post of Panchayat Shiksha Mitra enhancing qualification is Intermediate was mis-quoted by the counsel assisting the court. No such condition is mentioned in the Circular dated 21.4.2005, that persons already appointed on the basis of their qualification of matriculation as Panchayat Shikhsa Mitra, will have to acquire higher qualification within 33 months from first engagement, for their further continuance in service. On account of this mis-representation and misquotation the Division Bench held that Panchayat Shiksha Mitras, not having intermediate qualification shall obtain such qualification within 33 months of her initial appointment, failing which the service of such Panchayat Shiksha Mitras shall be liable to be terminated. 6. 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 petitioners case 33 months time expired on 6.2.2006, 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. 7. Counsel appearing for State relying on Government Circular dated 21.4.2005 has submitted that in petitioners case 33 months time expired on 6.2.2006, 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. 7. On consideration of the statements made by counsel for the parties and their pleadings, I find that the Division Bench has passed order in LPA No. 940/07, in absence of counsel for the appellant, Government Circular dated 21.4.2005 was relied on for holding that within 33 months time Panchayat Shiksha Mitra should obtain intermediate degree, but in fact in the said Government Circular there is no such provision. Petitioner took up equivalent to Intermediate course in the sessions 2003- 05, which could have completed prior to 6.2.2006, if the examination would have been held in time. The Government Circular dated 4.7.2008 being an executive order, should not have been made retrospective, since it is will settled that no executive order, direction can be made effective retrospectively. 8. Petitioner is now Intermediate and possesses qualification for continuing in service as Primary Teacher simply because she passed her. course on 20.9.2006 i.e. seven months later to the date on which she completed 33 months from the date of her initial appointment, cannot be a ground for termination from service. Intention behind fixing time for acquiring enhanced qualification of intermediate must have been to improve educational qualification and knowledge capacity of Shiksha Mitras, already absorbed on the post of Panchayat Teachers. Enhancement of qualification was essential for improving standard of teaching in Primary Schools, which is the starting point of educational system. It is for the benefit of both i.e. teachers and students. Intention behind these Government Circulars in no case can be punitive and should not be used as a weapon to harass Panchayat Shiksha Mitras already absorbed as Teachers. 9. Accordingly, impugned order dated 11.2.2009, terminating petitioner from service is quashed. Respondents are directed to reinstate the petitioner with all consequential benefits, without loosing any time, preferably within two weeks from the date of production/communication of this order. 10. This application is allowed.