@JUDGMENTTAG-ORDER
Navin Sinha, J.@mdashHeard learned Counsel for the Petitioners and learned Counsel for the private Respondents in C.W.J.C. Nos. 1791/10 and 5274/10. No one appears on behalf of the private Respondents in C.W.J.C. No. 594/ 10 despite having filed Vakalatnama.
2. The issue in these three writ applications being common they are being disposed by a common order.
3. The State Government framed the Bihar Gram Kutchery Secretary (Appointment, Service Conditions and Duties) Rules, 2007 (hereinafter referred to as the Rules). Rule 5 qualifying the conditions of eligibility required that the applicant must be a citizen of India or a resident of the concerned Gram Panchayat. The minimum educational qualification prescribed was Matric. The advertisement was confined to "Matriculates" only. The Petitioners were "Matriculates", came to be selected. The Petitioner in C.W.J.C. No. 1791/10 was given an appointment letter on 29.1.2008 granting him 10 days time to join. She joined on 31.1.2008. The Petitioner in C.W.J.C. No. 5274/10 was given an appointment letter and joined on 20.12.2007. The Petitioner in C.W.J.C. No. 594/10 joined on 31.12.2007.
4. The private Respondents in all the three writ applications were above the Petitioners in the merit panel holding the qualification of "Madhyama". Since the advertisement was confined to "Matriculates" only and not any equivalent qualification, they were denied appointment. C.W.J.C. No. 13905/07 was preferred by one Santosh Kumar Panday similarly aggrieved by denial of appointment for reason of his Madhyama qualification. This Court on 31.1.2008 relying upon a Government policy decision dated 11.1.1999 held that Madhyama was equivalent to Matriculation and directed consideration of his case appropriately.
5. Learned Counsel for the Petitioners contended that after the pronouncement of this Court the State Legislature made a legislative amendment to Rule 5 by inserting the words "or equivalent" after "Matriculation". The amendment was notified on 5.1.2009 with retrospective effect from 31.1.2008. Rule 1(3) of the amendment contained a saving clause preserving appointments made prior to 31.1.2008. The Petitioners were appointees prior to that date. There being no allegation of any other ineligibility or that the appointment was made contrary to any procedures, there is no legal justification for terminating the appointment of the Petitioners on that ground. The Respondent authorities by an executive order cannot give retrospective effect to the intention of the Legislature from a date prior to 31.1.2008 to treat "Madhyama" as an equivalent qualification by directing that those who had applied prior to 31.1.2008 were eligible to be considered. Long after the Petitioners had joined, the private Respondents have woken up belatedly. The private Respondent in C.W.J.C. No. 1791/10 filed her representation only on 9.7.2009 and joined thereafter on 5.12.2009. The private Respondent in C.W.J.C. No. 5274/10 has been made to join on 27.5.2009 and the private Respondent in C.W.J.C. No. 594/10 joined after 6.11.2009.
6. Learned Counsel for the private Respondents relied heavily upon the order of this Court in the case of Santosh Kumar Pandey vide C.W.J.C. No. 13905/07 directing that his case be considered in accordance with the merit position in the panel.
7. Learned Counsel for the State contended that the Respondent authorities were only giving full effect to the legislative amendment.
8. Those who come to the Court in time form one class. Those who do not come in time to the Court seeking relief on basis of parity form another class. Santosh Kumar Pandey appears to have approached this Court with more promptitude. The private Respondents presently have not done so, but have moved the authorities after more than a year. Be that as it may, earlier there was no legislative amendment for consideration before this Court. The intention of the Legislature reflected in the legislation has to be respected by the Courts because it is the will of the people. It is a settled law that a legislative amendment cannot be given further retrospective effect by any executive orders. If the Legislature in its wisdom thought it fit to fix a cut-off date as 31.1.2008 and which this Court considers extremely reasonable based on the date of pronouncement by the Court, no executive order can make "Madhyama" an acceptable qualification for appointment on the post of Secretary prior to 31.1.2008. Any direction to consider for appointment persons who applied on basis of "Madhyama" qualification prior to 31.1.2008 by invoking the legislative amendment is completely contrary to law.
9. In view of the saving clause contained in the amendment notified on 5.1.2009, the appointment of the Petitioners in C.W.J.C. Nos. 5274/10 and 594/10 having been made much prior to 31.1.2008 stands saved by the amendment itself. Insofar as the appointment of the Petitioner in C.W.J.C. No. 1791/10 is concerned, the appointment letter having been issued on 29.1.2008 and she having joined within time granted for such appointment, the same dates back to 29.1.2008 and any joining on 31.1.2008 by her is clearly fortuitous and does not put her in a category different from the other two Petitioners. This Court therefore holds that the ouster of the Petitioners to accommodate the private Respondents cannot be sustained in law. The legislative amendment has to be given its true and legal effect only from 31.1.2008. There can be no deemed retrospective effect to a legislative amendment by an executive order.
10. This Court therefore holds that the private Respondents are not entitled to continue on their respective posts as Secretary, Gram Panchayat. The Petitioners are entitled to go back to their old posts with continuity in service and consequential benefits. This Court grants them consequential benefits as the fault lies with the State Respondents in not having been cautious enough by proper application of mind at the stage that they released the advertisement. If the advertisements did not provide for "Madhyama" as a qualification, there was no occasion for them to entertain applications of those who did not fulfil the conditions of eligibility. The State suffers for the lapses of its officials. It is for the State to decide in the manner it proposes to reimburse itself for the expenses incurred on payment to the Petitioners by the fault of those who were not vigilant in the discharge of their duties.
11. This Court in context of the very present controversy has already observed in more than one orders relying upon pronouncements of the Apex Court that where the Court pronounces on an issue, the State authorities are required to accord similar treatment to all concerned similarly situated instead of multiplying litigation by asking them to bring individual orders.
12. This Court expects that the Secretary, Panchayat Raj who must have had the benefit of perusing more such orders shall issue necessary instructions for appropriate action in accordance with law so as to prevent this Court being burdened with avoidable litigations on issues on which it has already made more than one pronouncements.
13. Learned Counsel for the private Respondents urged that in the imbroglio created by the State they are unnecessary sufferers. This Court leaves it to the discretion of the State authorities to adjust the private Respondents appropriately, if so feasible in law.
14. The writ applications stand allowed to be complied with within a maximum period of one month from the date of receipt/presentation of a copy of this order.
