Md. Warish Khan vs The State of Bihar and Others

Navin Sinha, J.—Heard Learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 9.3.2010 passed by the District Teachers Appointment Appellate Authority, Patna, rejecting the challenge to his termination order dated 25.7.2008.

Learned Counsel for the petitioner submits that the findings are in favour of the petitioner but the conclusion is that because the vacancy arisen out of his termination has now been clubbed with the 2008 phase of appointments the petitioner was not entitled to any relief.

Counsel for the State submits that it is apparent from para 6(ii) of the order that one Surendra Pandit was appointed and was working on a reserved vacancy. If the petitioner was appointed consequent to the former''s termination in the general category apparently the petitioner''s appointment was contrary to the law. The impugned order needs no interference.

The petitioner moved the District Magistrate against his termination order in 2008 itself followed by institution of CWJC No. 12734 of 2009 when he was relegated to the alternate remedy before the Tribunal.

The Court has perused the impugned order. Para 6(i) contains the contentions of the petitioner. Para 6(ii) contains the objection of the Mukhiya that the petitioner was wrongly appointed as a general candidate against the reserved vacancy consequent to termination of Sri Pandit working on a backward class category post. Para 6(iii) is the second objection of the Mukhiya that the petitioner was not a resident of the concerned Panchayat and therefore ineligible to be considered under departmental instruction dated 11.8.2004.

The finding of the Tribunal on the two objections is to be found at paras 7 and 8 respectively. The two paragraphs after perusing the original documents rejects the objection of the Mukhiya holding that Sri Pandit was appointed on a general category post. The petitioner was held appointed on the vacancy in unreserved category and the objection of Mukhiya held not sustainable as he has produced no evidence in support of his objection. Likewise the finding of the Tribunal is that the petitioner was a resident of Paliganj Panchayat rendering him eligible for appointment. If the two objections of the Mukhiya were found to be unsustainable the relief to be granted was to set aside the order and direct reinstatement. A wrong termination followed by any subsequent conduct of the respondents cannot be a ground to deny relief to the petitioner. In other words the Tribunal holds that the respondents acted wrongly in terminating the services of the petitioner and then proceeds to grant the benefit to the respondents for their subsequent conduct founded on an illegal termination. The findings and conclusions are held to be self-contradictory. Once the order of the Tribunal is reasoned and the respondents have not challenged the findings of the Tribunal, no counter affidavit can improve what may have been produced before the Tribunal and on which the discussion is founded. The Court does not consider it necessary to adjourn the matter for a counter affidavit.

The order dated 9.3.2010 to the extent of Para 11(i) is set aside. The petitioner is held entitled to appointment. The writ application is allowed.