D.N.PATEL, J. - (1.) This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(S) No.2529 of 2011 dated 22.09.2016, whereby the petition preferred by this appellant was dismissed and hence, the original petitioner has preferred the present Letters Patent Appeal.
(2.) Factual Matrix - It is an allegation levelled by the erstwhile State of Bihar and now by State of Jharkhand also that few illegally appointed teachers cannot be continued and, hence, their services were terminated. - Those persons whose services were terminated, they were teachers. They challenged this order upto Hon'ble Supreme Court and it had been directed by the Hon'ble Supreme Court that fresh advertisement will be issued; the so-called illegally appointed teachers should be given an opportunity to apply and their case for re-appointment should be re-considered. This order was passed in Contempt Case No.236-46/1991 and 263/1991 in S.L.P. Nos.11699 and other analogous cases of 1988. The order passed in the Contempt Case is dated 22nd November,1991 (Annexure-9 to the memo of this Letters Patent Appeal). - In pursuance of the direction given by the Hon'ble Supreme Court, there was a re-advertisement by the erstwhile State of Bihar for appointment of the teachers. This appellant was not appointed and, hence, he preferred writ petition being C.W.J.C. No.5679 of 1997. Similarly situated another teacher had also preferred writ petition being C.W.J.C. No.5439 of 1997. The writ petitions preferred by these two teachers were disposed of by the learned Single Judge of this Court vide judgment and order dated 19th January, 2010. It has been observed by this Court as under: - "Further, now it will not be open to the respondents to add any fresh ground other than the grounds mentioned in the impugned order or the grounds mentioned in the counter affidavit. The decision will be taken by the respondents within two months of the date on which certified copy of this order is presented before the respondent No.3 i.e. the Director, Primary Education, Government of Jharkhand who is the counterpart of the authority which had passed the impugned order in the undivided State of Bihar. This writ petitioner is disposed of with the aforesaid direction." (Emphasis supplied) - Upon remand of the matter, fresh decision was taken by the Director, Primary Education, which is annexed at Annexure-20 dated 04.09.2010. Initially, objection was taken not to appoint this appellant as he had never joined the service after his selection and he was never paid the salary. While deciding C.W.J.C. No.5439 of 1997 and C.W.J.C. No.5679 of 1997 vide order dated 19th January, 2010, one more ground was taken by the Government to the effect that when the re-advertisement was issued, this appellant had never applied for the post of teacher and, therefore, it was observed by the learned Single Judge, as stated herein above, that every time new ground cannot be added. Affidavit cannot supply the reasons to the impugned order as has been held by the Hon'ble Supreme Court rendered in the case of Mohinder Singh Gill v. Chief Election Commissioner reported in AIR 1978 SC 851. - Nonetheless, when the decision was taken by the Director Primary Education dated 04.09.2010 (Annexure-20), now third ground is agitated by the State to the effect that list of selected candidates cannot be now operated after lapse of one year. Thus, initially one ground was taken and when the writ was preferred, second ground was added. Thereafter, the matter was remanded and, now, third time third ground is added which has given birth to the instant W.P.(S) No.2529 of 2011, which has been dismissed by the learned Single Judge vide order dated 22nd September,2016 and, hence, the present Letters Patent Appeal has been preferred by the original petitioner.
(3.) Arguments Canvassed By The Counsel For The Appellant (Original Petitioner) - It is submitted by the counsel for the appellant that consistently this appellant has agitated the ground that he has never been illegally appointed and his termination from the service as teacher was wrong and ultimately by the Hon'ble Supreme Court, a direction was given to the erstwhile State of Bihar for re-advertisement of the post, in which this appellant had applied, but, this appellant was not appointed on the ground that initially when he was appointed in the year 1982, he had never joined the services. When a writ petition was preferred by this petitioner being C.W.J.C. No.5679 of 1997 and another similarly situated person had also preferred a writ petition being C.W.J.C. No.5439 of 1997, at that time, one more ground was added by the Government to the effect that these persons had never applied when the re-advertisement was given and it has been observed by the learned Single Judge vide order dated 19th January, 2010 while disposing of the writ petition being C.W.J.C. No.5439 of 1997 as well as C.W.J.C. No.5679 of 1997 that both the factual aspects of the matter will be verified by the respondents-State authorities, viz., (a) Whether this appellant has joined his service in the year 1982 or not, because as per Annexure 2 to the Memo of this Letters Patent Appeal to be read with Annexure-1 of the Memo of this Letters Patent Appeal, which was also annexed in the earlier writ petition, the factual aspect was directed to be verified. (b) Whether this petitioner had applied for the post, in question, or not in pursuance of the re-advertisement, because as per page 90 of this Letters Patent Appeal, there is an ostensible evidence which was also annexed in the earlier writ petition and at that time it was never denied in the earlier counter affidavit. These two aspects were directed to be verified and the matter was remanded for taking afresh decision vide order at Annexure 19. - It is further submitted by the counsel appearing for the appellant that without verifying the aforesaid two factual aspects for which prima facie evidences were also on record of the writ petition when the Director Primary Education was deciding the case of this appellant, now third ground is being added by him on his own that the panel of selected candidates cannot be operated after period of one year. Every time new officer gives a new ground which cannot be permitted, as submitted by learned counsel for the appellant, otherwise, there will be no end of the litigations and brand new reasons which are being reflected from the fertile mind of the respondents-officers. These aspects of the matter have not been properly appreciated by the learned Single Judge while dismissing the W.P.(S) No.2529 of 2011 and, hence, the said order dated 22nd September, 2016 deserves to be quashed and set aside and the matter be remanded with strict observation for fresh decision by the Director Primary Education. ;