IN THE HIGH COURT OF JUDICATURE AT PATNA -------- Letters Patent Appeal No.1982 of 2010 Appeal against the Judgment dated 1-10-2010 passed By Bench of this Court in Civil Review No.274 of 2008. ---------- Ramashray Singh, son of late Palakdhari Singh, R/o Village- Ropahatha, P.S. Nokha, District- Rohtas............................................................... Appellant Versus 1. The State Of Bihar 2. The District Education Officer, Rohtas 3. The Block Education Extension Officer, Kudra, P.S. Kudra, District- Rohtas.................. Respondents ---------- 3 16-11-2011 Heard the parties. This appeal is against the dismissal of Civil Review No. 274 of 2008 by order dated 1-10-2010. The learned single Judge has dismissed the review petition on the technical ground that the order under review dated 14-2-1995 passed in C.W.J.C. No. 1538 of 1994, extracted in paragraph-2 of the order under appeal, shows that the writ petition was withdrawn by the writ petitioner without addressing the court on merits and hence no review would lie. On behalf of appellant/petitioner arguments were advanced on merits of the case as well as on technicality with a view to assail the ground which led to dismissal of 2 the review petition. For that purpose reliance was placed upon an order of the Division Bench dated 6-8-2008, contained in annexure-13, whereby L.P.A. No. 942 of 2001 was dismissed upholding the order dated 31-7-2010 whereby second writ petition preferred by the petitioner bearing C.W.J.C. No. 7531 of 2001 was dismissed but it was clarified that the order dated 14-2-95 in review passed in first writ petition will not be treated as an order passed on any prayer made by the petitioner for withdrawal of the writ petition. The Division Bench in the order contained in annexure-13 noticed Supreme Court judgment in the case of Sarguja Transport Service Vrs. State Transport Appellate Tribunal, Gwalior and others reprted in A.I.R. 1987 S.C.88 but held that the bar of filing second writ petition after withdrawal of the first writ petition without seeking liberty, would not be attracted in the case of the petitioner. For this purpose the Division Bench also took note of the judgment of the Supreme Court in the case of Sarva Shramik Sangathan (KV), Mumbai Vrs. State of Maharashtra and others reported in 2008(1) SCC 494. The Division Bench went on to hold that although there was no prayer to 3 withdraw the writ petition but still the order dated 14-2- 1995 disposed of the writ petition finally and hence the matter could be reopened only by seeking a review of the order dated 14-2-1995 and not by a separate writ petition. The review petition was filed in accordance with the findings in the order contained in annexure-13 dated 6- 8-2008. However, the learned single judge has taken a different view to hold that the petitioner had withdrawn the earlier writ petition and hence there was no occasion for considering any other material on the merits of the case. We have no option but to accept the submission advanced on behalf of petitioner that the light of views expressed by the Division Bench of this Court the learned single Judge should have accepted the finding that the writ petitioner had not made any prayer to withdraw the writ petition. In that view of the matter, the review application required consideration on the merits of case made out by the petitioner. On merits, learned counsel for the appellant/petitioner has relied upon several judgments of this Court and upon averments made in paragraphs 2 (vi), 4 (x ), (xi), (xii), (xiv), (xv) and (xviii) to the memo of appeal to substantiate the submission that there were altogether 22 similarly situated employees who were appointed on the basis of the same advertisement, same selection process and by the same authority and except the petitioner, all others have been granted relief by interfering with the orders identical to one under challenge in C.W.J.C. No. 1538 of 1994 in respect of which the review has been preferred. Several judgments annexed to the memo of appeal show that different Benches found that the appointment process might have suffered from irregularity but claims of large number of persons for appointment were considered after public notice and appointments were made after selection. There is no dispute regarding availability of posts and competence of the appointing authority. On going through the relevant materials and the judgments there is no difficulty in holding that petitioner’s case stands on similar footing as that of several other employees, said to be 22 in total, and all others have been granted relief by this Court leading to their reinstatement and continuance in service. Petitioner’s case could not be 5 considered on merits as it was dismissed as withdrawn by the order under review dated 14-2-1995. Since the case of the petitioner stands on similar footing on merits, it deserved to be allowed. But, on behalf of State an objection was raised that petitioner waited for about six years after the order passed in the earlier writ petition and preferred second writ petition to re agitate his claim only in the year 2001 and hence he does not deserve any relief. In reply learned counsel for the petitioner submitted that as per averments in paragraphs 2(x), (xi ) and (xii ) a similar writ petition of 1994 was allowed on 25-1-1995 granting relief to one Birendra Kumar Singh @ Birendra Kumar. The L.P.A. preferred by the State was dismissed in December, 1996 and thereafter another writ petition of the year 1991 preferred by Jagdish Singh and others was allowed in January, 2000 . The concerned petitioners were reinstated in 2000 . Some other persons namely, Jagarnath Singh and others preferred a writ petition in 2001 which was allowed on 12th March, 2001 by judgment and order contained in annexure-10. Thus, it was shown that even writ petition preferred after 8 6 years of cancellation of appointment was allowed and that led to filing of C.W.J.C. No, 7531 of 2001 by the petitioner and as soon as the L.P.A. No. 941 of 2001 clarified the matter by judgment and order dated 6-8-2008 (annexure- 13), the present review application was filed in 2008 itself. However, realizing that there was delay of six years in preferring the second writ petition and consequently the review petition, learned counsel for the petitioner fairly submitted that even if the petitioner is granted similar relief as granted to others and reinstated in service, he would forgo his claim for back wages for the period he remained out of service. Since on merits this Court has already decided in the case of similarly situated other employees that termination of their service was bad in law, we are inclined to allow the review petition by setting aside the order impugned in C.W.J.C. No. 1538/94. That order of termination dated 7-5-1993 is annexure-5 to this appeal. The said order is hereby quashed. The petitioner is entitled for reinstatement forthwith on the post in question but without any back wages. For other purposes he shall be 7 deemed to be in continuous service. In the writ petition a relief was claimed for wages from December, 1991 till the date of the order of removal dated 7-5-1993. In that regard it is ordered that if petitioner had worked during that period, then dues of salary for the said period shall be paid to him within three months. The order under appeal is set asid. The review application and the writ petition bearing C.W.J.C. No. 1538 of 1994 are allowed to the aforesaid extent. There shall be no order as to costs. Naresh ( Shiva Kirti Singh, J.) (Ahsanuddin Amanullah,J)