IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8575 of 2002 RADHA KRISHNA SINGH Versus THE STATE OF BIHAR & ORS ----------- 5 23.03.2009 Heard learned Counsels for the petitioner, the State and the learned Counsel for Bihar State Scheduled Caste Co-operative Development Corporation Limited. The controversy in this case centres around the issue whether petitioner can be considered a fresh appointee after 9.2.1989 or will he be deemed to re-appointee of 10.3.1987. If he is considered a fresh appointee of the former date, the impugned order of his termination dated 4.2.2000 requires no interference. But if he is an appointee of the latter date the impugned order is not sustainable in law. The petitioner was appointed on - 2 - daily wages on 10.3.1987. He was terminated on 26.5. 1987. He came to be reappointed on daily wages on 16.6.1989. The submission is that the petitioner was wrongly terminated and his reinstatement was nothing but reaffirmance of his continuance. Counsel for the Corporation sought to persuade this Court that the petitioner was in fact a fresh appointee on daily wages on 16.8. 1989, after the cut off date of 9.2.1989. The order of termination requires no interference. He further sought to rely upon certain observation of a Bench of this Court in CWJC No. 8850 of 1993 when allegations were made of discriminatory treatment that while the present petitioner was being continued in service, the petitioner therein had been wrongly terminated. It is submitted that in pursuance of the observation of this - 3 - Court in the aforesaid writ application the impugned order has been passed. This Court in CWJC No. 8850 of 1993(Arun Kumar Vs. the State of Bihar & ano.) by order dated 20.4.1995 at Annexure-14 did not arrive at any finding on the illegality of the appointment of the petitioner. All that this Court said was that if the assertion of the petitioner therein with regard to the present petitioner of being similarly situated be correct, then the appointment of the present petitioner may also be void. The Court however clarified that since the present petitioner was not party therein this Court was not expressing any final opinion in the matter. It was only directing the Administrator to look into the matter. Technically speaking the petitioner was removed from service on - 4 - 26.5.1987. To that extent, the order dated 16.6.1989 can be deemed to be a fresh appointment. But when the veil is lifted this Court finds from Annexure-11 dated 21.11.1992 issued by the Administrator of the Corporation addressed to the Secretary Department of Welfare in paragraph 5 holding that the petitioner had been wrongly terminated on 26.5.1987. If that be correct, the situation emerges as if the petitioner had never been terminated but continued in service.This however shall not entitle him for any other claim. Once the Corporation acknowledges the termination to be wrongful the ground urged by them is non est and they cannot be permitted to take advantage of their own wrong. This Court finds difficulty in accepting the submission of the respondents in virtually challenging the - 5 - order dated 21.7.1992 of its own Administrator. This Court can do no better than to refer to the judgment of the Supreme Court in AIR 1988 S.C. 1247 (Assistant Commissioner of Commercial Taxes(Asst.) Vs. Dharmendra Trading Co.etc.) at paragraph 5 that it is impermissible for the Administrator or the Corporation to challenge their own order. “5.The next submission of learned Counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by - 6 - way of refunds, although in a more limited manner and that is not even the case of the appellants.” In so far as CWJC NO. 8850 of 1993 is concerned, this Court never pronounced authoritatively on the appointment of the petitioner. There is no material before this Court that the petitioner therein was similarly situated as the present petitioner inasmuch as the Corporation had itself acknowledged that the termination was illegal. In that view of the matter, the impugned order dated 4.2.2000 is not sustainable and it is accordingly set aside. Writ application stands allowed. (Navin Sinha,J.) A.Kumar - 7 -