IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8903 of 2007 SUDHIR KUMAR Versus THE STATE OF BIHAR & ORS For the Petitioner : Mr. Nand Kishore Pd. Sinha For the Respondents : Mr. Niraj Nandan, G.P. 18 ----------- 4. 24.06.2008 Heard learned counsel for the petitioner, for the Respondent-State and for Respondent no. 6. No one appears on behalf of Respondent no. 10, despite having entered appearance. An advertisement was published on 27.1.2006 for appointment to the post of Shiksha Mitra. The petitioner then came to be appointed on a contract for 11 months on 21.2.2006. His tenure would have expired on 21.1.2007. In the meantime on 1.7.2006 under statutory Rules framed by the Government those Shiksha Mitra who were on contract appointment and were in service on the said date acquired the status of Government servant. It is the specific case of the petitioner that in the counselling done leading to the appointment of the petitioner on 21.1.2006, Respondent no. 10 did not participate. The submission, therefore, is that in absence of participation of Respondent no. 10, the fact that he may have had higher marks than the petitioner is irrelevant. The petitioner having been found most competent on the date of counseling came to be appointed. It was only belatedly in view of the subsequent development that Respondent no. 10 woke up to claim his alleged rights. The order of termination of the petitioner then came to be passed on 7.5.2007 on the premise that his appointment was wrong as Respondent no. 10 had higher marks than - 2 - him. The order of termination was also assailed as being bad inasmuch as it was sought to be given retrospective effect. Separate counter affidavit has been filed on behalf of Respondent State and on behalf of Respondent no. 6. From the counter affidavit of both the Respondents it does not remain in controversy that Respondent no. 10 did not participate in the counseling when the petitioner came to be selected and appointed. The specific assertion in that regard made in paragraph 11 of the writ application remains unanswered in both the counter affidavits. Applying the principles of non-traverse, the contention of the petitioner is deemed to be admitted. If Respondent no. 10 never participated in the process of counselling, the question of terminating the services of the petitioner to appoint Respondent no. 10 subsequently allegedly on grounds of his having higher marks simply does not arise. In any event of the matter, the impugned order of termination is also bad on the face of it on ground of it being retrospective in nature, which is not permissible in law. Reference may be made to A.I.R. 1966 Supreme Court 951 (R. Jeevaratnam v. State of Madras). The impugned order of termination dated 7.5.2007 at Annexure-5 is hereby quashed. The petitioner stands reinstated to his status as Panchayat Shikshak. The petitioner further claims that he has not been paid his salary for certain period mentioned in paragraph 1 of the writ application, which has not been denied in the counter affidavit. The - 3 - petitioner is, therefore, held entitled to the same. Since the order of termination has been found to be bad and the petitioner has been prevented from working as Panchayat Shikshak, the Court holds that he is entitled for the salary for the period that he remained out of service also. The Respondent-State shall be at liberty to take appropriate action in accordance with law against those concerned with regard to the salary to be paid to the petitioner for the period that he was wrongfully kept out of service. Let such payment be made to the petitioner within a period of three months from the date of receipt and/or production of a copy of this order. The writ application stands allowed. AKS/ (Navin Sinha, J.)