SUSHAMA SINHA D/O SRI SHASHI RANJAN W/O SRI ANIL KUMAR VERMA Vs. STATE OF BIHAR THROUGH HUMAN RESOURCES DEPTT, THROUGH PRINCIPAL SECRETARY, GOVT.OF BIHAR, PATNA

JUDGEMENT

(1.) Heard the counsel for the petitioner and the counsel appearing for the State.

(2.) Petitioner's prayer is for quashing of order dated 11.8.2009 passed by the District Teachers Employment Appellate Tribunal, Darbhanga to the extent to which the direction for petitioner's reinstatement as Panchayat Teacher has been declined. The Appellate Authority, by the impugned order has recorded finding in favour of the petitioner so far his illegal termination is concerned and his initial appointment observing all formalities as provided under Rule 2006 is concerned. However, regarding issuance of direction to reinstate the petitioner on the post of Panchayat Teacher in the light of the order, it is stated that no direction for reinstatement can be issued in view of letter No. 496 dated 16.4.2009 issued by Principal Secretary, Human Resources Development Department, Govt of Bihar, Patna wherein it is stated that against the post which remained vacant in the first phase of the appointment, no direction can be issued for appointment and those vacancies will be included for appointment in the year, 2008.

(3.) Counsel for the petitioner submits that this part of the order is illegal and without jurisdiction for the reason that the post was not a vacant post. The petitioner was appointed on this post observing all formalities as per rule. He was terminated illegally on the ground of ex parte order of the Block Development Officer without considering the material on record relating to selection of the Panchayat Teacher. In case the appellate authority has recorded a finding regarding legality of appointment, illegal termination and illegality in issuing appointment letter in favour of Gunjan Kumari, who had not participated in the counseling, in this circumstance, issuing no direction for petitioner's reinstatement shows that the appellate forum has refused to exercise jurisdiction vested in it. The appellate forum treated the post as vacant which was in fact not vacant. It was a matter relating to reinstatement and not of appointment on this post vacant on account of illegal termination, though already appointment made against this post. Such vacant posts will not come within the purview of Letter No. 496 dated 16.4.2009 issued by the Principal Secretary. Such vacancy cannot be included as vacant post for second phase of appointment. Since, the illegal termination order was under challenge and subjudice before different forums, a final direction for reinstatement was mandatory. The Appellate Forum, committed jurisdictional error, by not doing so.