JUDGMENT 1. - Heard learned counsel for the parties. This is the second innings for the petitioner-appellant. 2. The appellant has applied for being appointed as Primary Teacher in pursuance of Advertisement No. 1/91 issued by the respondents. The advertisement was for appointments of 400 Primary Teachers. The petitioner held the qualification of a Graduate and was also holding a Bachelor's Degree of Education. According to the petitioner, he filed application form and had also submitted a copy of bona fide certificate issued by S.D.M. Nohar that he is a bona fide resident of Rajasthan and certificate of Sarpanch that he is a resident of the Gram Panchayat Deidas, Tehsil Nohar in the then District Sriganganagar. 3. According to the scheme, 10 marks were to be allotted to the person, who was resident of Gram Panchayat where the appointment was made and also 10 marks for being the bona fide resident of Rajasthan. The petitioner having not found his place amongst the merit list of 317 persons published by the respondents Zila Parishad on 21.8.1992 filed a writ petition before this Court which was numbered at S.B. Civil Writ Petition No. 6420/92. 4. The petitioner pointed out that he has secured 44.49% marks in Secondary examination and 46.95% in B.Ed. examination and that the persons securing lower marks than him had been given appointment whereas petitioner has not been given such appointment. He raised an issue that it appears that while those persons who have secured lesser marks in the two qualifying examinations had been brought over the petitioner in merit list by awarding additional marks for the residents of Gram Panchayat and of the bona fide residents of Rajasthan, but the same benefit has not been given to the petitioner. The evaluation format having been fixed, if the petitioner is treated alike, he would come much higher in order of the merit. The petitioner along with the writ petition has placed on record the copy of the advertisement; the copies of the two certificates stated above; the Government's directions about evaluation of marks and determination of the merit for recruitment of a Teacher Gr. III as they came to be designed by that time. He made a representation to the Collector also to that effect, copy of which was also annexed with the writ petition. 5. III as they came to be designed by that time. He made a representation to the Collector also to that effect, copy of which was also annexed with the writ petition. 5. In view of the aforesaid material before the Court, the learned Single Judge of this Court while issuing notice of the petition also granted an interim order to consider the petitioner's case in the light of the two documents and if by addition of such marks, he find place in merit then he may be given provisional appointment on that basis as Teacher Gr. III in Primary School. 6. Thereafter, the matter came for orders before this Court on 29.9.94 after the respondents were served, in the presence of the learned counsel for the parties, the petition was dismissed as having become infructuous by noticing that in view of the relief granted to the petitioner during the pendency of this writ petition the same has become infructuous. No reply whatsoever to the writ petition or the stay petition was filed nor any foundation was laid about the grant of relief to the petitioner during the pendency of the writ petition. Thus, apparently, the matter regarding appointment to the petitioner on the post of Teacher Gr. III in Primary School stood closed. 7. However, after the aforesaid writ petition was decided on 29.9.94 as stated above, the respondent i.e. District Establishment Committee, Zila Parishad Sriganganagar terminated the services of the petitioner interalia on the ground that the writ petition No. 6420/92 has since been dismissed and that Jagdish Sihag has got himself transferred to Panchayat Samiti Nohar, Zila Parishad Hanumangarh by stating wrong facts. It was also stated in the order that was limited to made by the Court in S.B. Civil Writ Petition No. 6420/92 which was not extended thereafter. It was also stated that after the next date of hearing, the interim order passed by this Court in the writ petition No. 6420/92 was no more in force. 8. This order has been challenged by way of writ petition No. 4705/95 by the petitioner out of which this appeal has arisen. 9. It was also stated that after the next date of hearing, the interim order passed by this Court in the writ petition No. 6420/92 was no more in force. 8. This order has been challenged by way of writ petition No. 4705/95 by the petitioner out of which this appeal has arisen. 9. In reply to present writ petition, the respondents have filed a reply stating that in earlier writ petition No. 6420/92, the respondents have filed a reply and it was specifically contended that the petitioner has never submitted any certificate along with his application certifying that the petitioner is a bona fide resident of Rajasthan which is to be issued by the Competent Authority i.e. the S.D.M. and therefore, he has not been awarded 20 prescribed marks. 10. We have also noticed above that no such reply has been filed by the respondents in the writ petition No. 6420/92, record of which is before us. The copies of documents in the form of two certificates issued by competent authorities viz. Sarpanch of Gram Panchayat, Deidas and S.D.M. Nohar were also placed on record by the petitioner with specific averment that the same had been annexed with application form as required. Clearly the contention of the respondents that, denial of submission of requisite material was already submitted when writ petition No. 6420/92 was decided by filing reply thereto is incorrect 11. Moreover, if in spite of submitting such reply, if the court has dismissed the writ petition by noticing that relief to the petitioner has already been granted, hence the petition become infructuous, thus considering the appointment in absolute terms, without any demur on the part of respondents that it is not so, the appointment could not have been recalled on the ground of technical recording of dismissal of writ petition, which was not by negativing the claim of the petitioner but by taking into account positive action of respondents in giving relief to the petitioner. 12. This fact is still not in dispute that the petitioner appellant was not given appointment because he was not awarded additional marks as has been done in the case of others and than if like others, petitioner is given the benefit of such marks, he gets much above those who have been given appointment in pursuance of selection in question. 13. 13. The learned Single Judge finding that the question whether the petitioner has submitted relevant document about his bona fide resident of the District and the State having been denied by the respondents, it is disputed question of fact which cannot be gone into in writ jurisdiction under Article 226 of the Constitution of India and therefore, the petition was dismissed vide judgment under appeal. 14. We have heard learned counsel for the parties and perused the record of the case including that of writ petition No. 6420/92 which is available before us. 15. It is apparent that the petitioner has taken a definite stand way back in 1992 that he has submitted relevant documents along with the receipt of application form under the seal of Secretary, Zila Parishad, which does not state that the form was deficit in any manner. The certificate issued by the Sarpanch of the Gram Panchayat Deidas, Tehsil Nohar, District Sriganganagar certifying that the petitioner is a bona fide resident of Gram Panchayat Deidas, Tehsil Nohar, District Sriganganagar, also discloses that name of the petitioner and his father is in the voters list as Annexure-3. The petitioner has also submitted a copy of the bona fide certificate issued by the Sub-Divisional Magistrate Nohar, who was the competent officer to issue such certificate even as per respondents. 16. These documents had never been doubted to be non-existent or having not been received by the respondents when the first writ petition was before this Court with clear assertion about submission of such forms along with application. 17. One of the reason which has prevailed terminating the services of the petitioner vide impugned order dated 4.12.1995 was that the interim order was to operate for a limited period which is factually contrary to record as would be apparent from the order dated 3.12.1992 passed in S.B. Civil Writ Petition No. 6420/92. "Issue notices of the stay application to the non-petitioners returnable six weeks and be given 'Dasti' to the learned counsel for the petitioner for service. Meanwhile the respondents are directed that if after providing 10 marks to the petitioner for being resident of village area and 10 marks for being bona fide resident of Rajasthan, if the petitioner comes within the merit then he may be provisionally given appointment on the post of III Gr Primary School Teacher. Meanwhile the respondents are directed that if after providing 10 marks to the petitioner for being resident of village area and 10 marks for being bona fide resident of Rajasthan, if the petitioner comes within the merit then he may be provisionally given appointment on the post of III Gr Primary School Teacher. If the petitioner fails to get the services served on the non-petitioners within six weeks, then this stay order shall automatically stand vacated without reference to the Bench." 18. The aforesaid order clearly states in terms that the order was not limited in its period and for its operation but was subject to a condition that the respondents were to be served within six weeks from the date of order. It is nobody's case that the respondents had not been served within six weeks and therefore the order ceased to be operative. 19. Since the order was for giving provisional appointment, the order issued to the petitioner in pursuance thereby by awarding the marks as per the scheme and finding that the petitioner comes higher in the merit, he was given the appointment provisionally. In the context of the proceedings of the S.B. Civil Writ Petition No. 6420/92, it is apparent that the merit of the contention was not gone into because it was never contended by the respondents. It was also not brought to the notice of the Court by the respondents that the relief granted to the petitioner would not survive. The writ petition unless the court decides on merit. We further find from the impugned order of termination, that it also nowhere states that the petitioner had not submitted the relevant certificates along with his application or that they have been submitted later on. Thus taking the relief granted to the petitioner in absolute terms, writ petition was dismissed as having become infructuous without expressing any opinion on the controversy raised before the learned Single Judge in the earlier writ petition on the question of non-production of the documents. This further goes to show that in fact at the time of decision of writ petition No. 6420/92 there was no dispute that petitioner had submitted all relevant papers and if that were, so he ought to have been appointed in order of his merit, because otherwise no other disqualification was attached to him to ignore his merit. This further goes to show that in fact at the time of decision of writ petition No. 6420/92 there was no dispute that petitioner had submitted all relevant papers and if that were, so he ought to have been appointed in order of his merit, because otherwise no other disqualification was attached to him to ignore his merit. The conclusion was obvious that the petitioner was entitled to be treated similarly along with other persons, if found to have a place in order of merit, who have been given appointment, he had to be given appointment if otherwise not disqualified. It is not the case of the respondents that the petitioner was otherwise disqualified, he ought to have been continued in service. 20. The last reason which has been stated in the order of termination and which has not been noticed by the learned Single Judge and appears to make the order punitive that the petitioner has secured his transfer by Government order from District Sriganganagar to District Hanumangarh by not disclosing the true facts. 21. If the respondents' foundation for cancelling the appointment is securing a wrongful order of transfer by concealing foundation of the order under challenge then too, it cannot be sustained. 22. It is not any more in dispute before us that Hanumangarh was a part of District Sriganganagar when the petitioner had applied for appointment and when he was so appointed and that he was a resident of Tehsil Nohar. It was only in 1994, a separate District was carved out by the name of Hanumangarh and Tehsil Nohar was made a part of new District Hanumangarh when such reorganisation of Districts took place. The petitioner being a resident of Tehsil Nohar, came within the area falling in District Hanumangarh. The assignment of existing staff amongst two Districts cannot be attributed to any such concealment of fact by the petitioner. At best he can be presumed to have opted to remain within Hanumangarh District. Moreover the order is eloquently silent on these facts which have been concealed by the petitioner. Concealment of true facts amounts to a misconduct, no enquiry with such alleged concealment has taken place before any penalty for such alleged concealment could be imposed. 23. At best he can be presumed to have opted to remain within Hanumangarh District. Moreover the order is eloquently silent on these facts which have been concealed by the petitioner. Concealment of true facts amounts to a misconduct, no enquiry with such alleged concealment has taken place before any penalty for such alleged concealment could be imposed. 23. In fact the order of the dismissal of the writ petition No. 6420/92 as having become infructuous because the petitioner has been granted the relief by the respondents, has been read by the respondents out of context in a distorted manner to deny the petitioner his rightful due. So also learned Single Judge has fell in error by considering the factum of filing of relevant documents as disputed fact by ignoring the entire background noticed above perhaps misled by the incorrect assertion made by the respondents that such fact was denied by filing reply in earlier petition, which is factually incorrect. 24. For the reasons stated above, we are of the opinion that judgment under appeal cannot be sustained and if the impugned order of terminating the services of the petitioner is allowed to stand, it will result in miscarriage of justice. 25. Accordingly this appeal is allowed. The judgment under appeal is set aside. The writ petition is allowed. The impugned order Annexure-3 dated 4.12.95 terminating the services of the petitioner is quashed. The petitioner shall be reinstated with all consequential benefits. *******