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2012 DIGILAW 491 (PAT)

Pintu Das v. State of Bihar

2012-03-21

SHIVA KIRTI SINGH, VIKASH JAIN

body2012
ORDER : SHIVA KIRTI SINGH Heard the parties. 2. Petitioner was a Shiksha Mitra appointed in March, 2003 for successive three terms of 11 months each. He could not acquire the Intermediate degree before expiry of his term of 33 months on the post of Shiksha Mitra as per policy decision of the Government. The higher qualification of Intermediate was necessary for continuance on the post of Panchayat Shiksha Mitra and for subsequent absorption on the post of Panchayat teacher under the rules of 2006. The authorities discontinued the service of the petitioner obviously because he acquired Intermediate Degree in the year 2007 after the statutory rules had come into effect. 3. The relevant issue as to whether Shiksha Mitra, like the petitioner had a right to continue beyond the contract period of 33 months in absence of acquiring the required degree of Intermediate was considered by a Division Bench of this Court in the case of Kishori Prasad Vrs. State of Bihar and others, reported in 2008 (2) PLJR 458. The Division Bench considered the policy decision of the Government and held that candidates having matriculation qualification and already engaged on the post of Panchayat Shiksha Mitra had only 33 months time to acquire the higher qualification and those who acquired the required qualification before expiry of 33 months from the date of engagement should be allowed to continue or shall be treated to have continued in employment as Shiksha Mitra for getting benefit of absorption on the post of Panchayat teacher under the Rules of 2006. 4. The learned single Judge in the case of Indu Devi Vrs. The State of Bihar and others reported in 2010 (2) PLJR 211 took a contrary view by differing with the JUDGMENT : in the case of Kishori Prasad (supra) rendered by a Division Bench and by finding lacunae in subsequent circular dated 7-4-2008 issued by the State of Bihar in the light of JUDGMENT : of the Division Bench in the case of Kishori Prasad. 5. The issue again fell for consideration before the Division Bench in the case of Bhagwan Mahto Vrs. State of Bihar (C.W.J.C. No. 7719 of 2010) decided on 19-1-2011. 5. The issue again fell for consideration before the Division Bench in the case of Bhagwan Mahto Vrs. State of Bihar (C.W.J.C. No. 7719 of 2010) decided on 19-1-2011. The Division Bench did not approve the views of learned single Judge in the case of Indu Devi ( supra) and held that the Circular dated 4-7-2008 could not be held bad on the ground that it granted certain benefits with retrospective effect. Thus taking a different view from that in the case of Indu Devi the Division Bench dismissed a similar claim on 19-1-2011. It appears that in the meantime the appeal preferred by the State of Bihar in L.P.A. No. 1247 of 2009 against the JUDGMENT : in the case of Indu Devi was dismissed by another Division Bench on 9th March, 2011. Learned counsel for the petitioner has placed reliance upon that Division Bench JUDGMENT :. We have gone through that JUDGMENT : and find that none of the parties had brought to the notice of the Division Bench the JUDGMENT : in the case of Kishori Prasad (supra) and Bhagwan Mahto ( supra). In such circumstances, we are constraint to hold that the Division Bench JUDGMENT : dated 9th March,2011 passed in L.P.A. No. 1247 of 2009 ( State of Bihar Vrs. Indu Devi ) is per incurium, rendered without noticing two earlier Division Bench JUDGMENT :s of this Court . It may be indicated herein that in a similar matter in the case of Sakita Kumari Vrs. The State of Bihar and others ( C.W.J.C. No. 11620/2010 ) a Division Bench of which one of us ( Shiva Kirti Singh,J) was a member, noticing the earlier precedents, particularly, JUDGMENT : in the case of Bhagwan Mahto and others, dismissed a similar writ petition. It may be indicated that the JUDGMENT : dated 9th March,2011 rendered by the Division Bench in the case of Indu Devi (supra) was, however, not brought to the notice of the Division Bench in the case of Shakita Kumari(supra) decided on 24-2-2012. 6. We have considered the relevant JUDGMENT :s.We are in agreement with the views taken by earlier Division Benches in the case of Kishori Prasad, Bhagwan Mahto and Shakita Kumari. (supra). Hence, we find no merit in this application. It is therefore dismissed but without costs.