P.K. Deb, J.
1. This review petition has been preferred under Article 226 of the Constitution of India in respect of an order passed on 4-2-2002 by the Hon'ble Mr. Justice S.J. Mukhopadhyaya, as he then was in this High Court in C.W.J.C. No. 8000/93.
2. The present petitioner, Anjani Kumar Mishra was respondent No. 6 in the original writ petition. Five persons filed the above-mentioned writ petition challengr ing the appointment of respondents 5 to 9 on the ground that they were appointed without following the process of selection. All the private respondents had contested the writ petition and after adjudication it was directed to the official respondents to remove respondents 5 and 6 from the post of Clerk, if no formal order of termination is issued till date. Such order should be issued on an earlier date but not later on a period of a month from the date of receipt/production of the copy of the order. In respect of the present petitioner, it was held in the following manner in the writ petition itself:
So far as respondent No. 6 is concerned, he has appeared, but failed to show that he competed in the typing test. Thereby it can be safely stated that the appointment of respondent No. 6 was made without following the procedure....
and consequence to such finding the order of termination was directed. But in the counter-affidavit filed by respondent No. 6, it was contended that respondent No. 6, this present petitioner in this review petition was practically a retrenched employee and he was purely appointed on temporary basis on the basis of a local advertisement which was approved by the District Establishment Committee in its meeting dated 15-7-1988. It was further stated that the services of respondent No. 6 was regularised by the order of the State Government as contained in Memo No. 882 dated 29-11-1988 of the Director, Secondary Education on his being a retrenched employee. The order of regularisation was also annexed to the counter-affidavit as Annexure-5.
3. On previous occasion in C.W.J.C. No. 5188/89, appointment of this petitioner, Anjani Kumar Mishra along with three others, who were arrayed as respondent Nos. 5 to 8 in the original writ petition was quashed. They preferred Civil Review No. 67/94 and Civil Review No. 69/94 for review of the judgment passed in C.W.J.C. No. 5188/89 and the same were pending and were admitted for hearing.
4. One Chandra Shekhar Prasad, who was appointed on ad hoc basis in the similar mannerto that of the petitioner. Anjani Kumar Mishra, also did not appear in the interview held in 1989 and he was terminated from service. Then, he preferred C.WJ.C. No. 9088/89 challenging the order of termination from services. Vide the order dated 2-11-1989 the order of termination from services of Chandra Shekhar Prasad was quashed and the said order was also annexed as Annexure-E to the counter-affidavit filed by the petitioner in the original writ petition along with others and it was categorically stated that the petitioner's case stood on the same footing as that of Chandra Shekhar Prasad. On the basis of the local advertisement made by the Office of the District Education Officer, Deoghar, the petitioner was appointed as a Clerk in +2R. Mitra High School, Deoghar on temporary basis vide the appointment letter No. 722 dated 12-4-1988 and such appointment of the petitioner along with 3 others were ratified in the meeting of the District Establishment Committee vide the decision dated 15-7-1988 and then the petitioner's services were also regularised by the Government, as already mentioned above. As the petitioner's case was not taken up in its proper perspective and the factual aspect and the legal position, as revealed in the counter-affidavit, had not been properly assessed, the petitioner filed L.P.A. No. 255 of 2000 against the order dated 4-2-2000 passed in the original writ petition, i.e. C.W.J.C. No. 8000/98, but in view of the Supreme Court's decision as reported in : [1985]3SCR580 , the said LPA was withdrawn and the present review petition was filed.
5. This review-petition was entertainable by Hon'ble Mr. Justice S.J. Mukhopadhyaya, who then was in this High Court and he passed an order on 26-4-2000 and observed in the following manner:
According to the review petitioner, his service having been regularised, he did not choose to appear in the typing test. It is stated that the Opposite Party, if gives chance to the review petitioner, he may appear and pass the typing test. Further, according to him, if the order of regularisation was bad then the review petitioner should have been reverted to the original post which has a lower regular scale of pay....
and on such position, notices were issued to the official respondents and also to the petitioner.
6. A supplementary affidavit has been filed by the petitioner and it has been submitted that in view of the observations made earlier, as mentioned above, a typing test was arranged in the light of the order dated 26-4-2000 and the petitioner appeared in such typing test and he came out successful and to that aspect Annexures 7 and 8 had been filed. In that way, it appears that petitioner's appointment was not only regularised earlier by the State Government but his position has again been ratified when he came out successful in the typing test and as such, he remained at par with other appointees after such typing test was made as desired by this Court. In that way, the order of the learned Single Judge dated 4-2-2000 passed in C.W.J.C. No. 2000/98 in its last part is required to be modified to the extent that the petitioner, Anjani Kumar Mishra should not be issued of any order of termination and this modification is made in view of the developments made in the case and that his case had not been considered in its proper perspective in the earlier order passed because of non-consideration of the case of the petitioner in the counter-affidavit filed with its annexures, as already mentioned in the foregoing paragraphs.
7. Learned Counsel for the petitioner in the original writ petition had raised on objection to the effect that such typing test was arranged particularly for the petitioner-respondent No. 6 whereas the original writ petitioners had not been given that chance otherwise they would have also come out successful. Such sort of submission does not lie in the mouth of the petitioners because it was already held that in the typing test, the petitioners failed and as such in any way their case does not come at par with the respondent No. 6 (the petitioner in this review petition). The termination of Anjani Kumar Mishra, as ordered by the Court was improper on the face of it as his case stood totally on different footing as that of other respondents or the petitioners. He was an ex-employee in the Pusa Agricultural University and as such a retrenched employee, against the local advertisement, he was appointed as a Clerk and his such appointment was ratified by the District Establishment Committee as per the then rule and then his services were regularised also by the State Government. In that way even if he would not have been considered as an appointee in the higher post, he remains as an appointee in the lower post. But by the further development, as mentioned above, he came at par with other appointees when he came out successful in the typing test. He had valid reasons for the regularisation made by the State Government in not appearing in the typing test on earlier occasion. Thus. I find that the review petitioner's case is in a unique position and considering the position and circumstances it is a fit case where the order of termination, as directed by this Court in C.W.J.C. No. 8000/98 on 4-2-2000 is hereby withdrawn. This review petition is thus allowed.