Dismissed

State of U.P. Thru. Prin. Secy. Sainik Kalyan Vibhag Govt. of U.P. Lko. and 6 Others v. Rakesh

Allahabad HC27 Nov 2024SPLAD/604/2024

Case brief

AI extract

What is this about?

This Special Appeal impugned a court order withdrawing service benefits from a confirmed sweeper. Dismissing the appeal despite a 463-day procedural delay, the court held the employee was validly entitled to benefits after long service and confirmation under Rule 4 and 5 of the U.P. Confirmation Rules, finding the confirmation competent and the withdrawal unjustified.

What did the court decide?

Special Appeal rejected; order withdrawing benefits to respondent sustained.

State of U.P. Thru. Prin. Secy. Sainik… — Pension and Retirement Benefits | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:78670-DB

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Court No. - 1

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Case :- SPECIAL APPEAL DEFECTIVE No. - 604 of 2024 Appellant :- State Of U.P. Thru. Prin. Secy. Sainik Kalyan Vibhag Govt. Of U.P. Lko. And 6 Others Respondent :- Rakesh Counsel for Appellant :- C.S.C. Counsel for Respondent :- Rajesh Kumar Singh

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Hon'ble Attau Rahman Masoodi,J. Hon'ble Subhash Vidyarthi,J.

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Heard learned counsel for the appellant-State and Sri Rajesh Kumar Singh, learned counsel for the respondent.

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The intra-court appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is delayed by 463 days. The appeal is accompanied with an application seeking condonation of delay duly supported with an affidavit.

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The explanation offered in the affidavit filed in support of the delay condonation application spells out ministerial exercise and movement of the file from one desk to another. The sanction order by the State itself was granted on 18.1.2024 yet the intra court appeal has come to be filed in the month of November, 2024. However, adopting a liberal approach, the delay is being condoned and we proceed to examine the merits of the matter.

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The subject matter of the writ petition before the writ court was an order dated 2.1.2023 whereby several benefits granted

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to the respondent working as Sweeper were withdrawn. The respondent who had been appointed as far back as on 21.10.1997, on being confirmed subsequently, was granted the service benefits on the post of Sweeper. It is not in dispute that the initial appointment of the respondent on a temporary post was made in accordance with the rules.

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The argument made before us that an employee appointed as per rules on a temporary post could not be confirmed as per the rules applicable, in our considered opinion, is misleading and misconceived for the reason that the cadre of Class-IV employees comprises of both permanent and temporary posts notified from time to time and the rule of confirmation for extension of service of an employee once he is appointed on probation, is in place.

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This is what the relevant rules i.e. Rule 4 and 5 of the Uttar Pradesh State Government Servants Confirmation Rules, 1991 mandate and the same for ready reference are extracted below :-

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4. Confirmation where necessary.

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(1) Confirmation of a Government servant shall be made only on the post on which he is substantively appointed (i) through direct recruitment or, (ii) by promotion, if direct recruitment is one of the sources of recruitment or, (iii) by promotion if the post belongs to a different Service.

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(2) Such confirmation shall be made -

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(i) against a post, whether permanent or temporary, on which any other person does not hold a lien;

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(ii) subject to the fulfilment of the conditions of confirmation laid down in the relevant service rules, or executive instructions issued by Government, as the case may be;(

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(iii) formal order shall be necessary to be issued by the appointing authority with regard to confirmation.

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Explanation. - Notwithstanding the fact that a Government servant is confirmed anywhere else, if he is directly recruited on any post, or is promoted to a post, where direct recruitment is one of the sources of recruitment, he will have to be confirmed thereon.

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5. Confirmation where not necessary.

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(1) Confirmation will not be necessary if a Government servant is promoted, on a regular basis, after following the prescribed procedure to a post in the cadre where promotion is the only source of recruitment.

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(2) On promotion to a post referred to in sub-rule (1), the Government servant will have all the benefits that a person confirmed in that grade would have if no probation had been prescribed.

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(3) Where probation is prescribed the appointing authority shall, on completion of the prescribed period of probation, assess the work and conduct of the Government servant himself and in case the conclusion is that the

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Government servant is fit to hold the higher grade, he will issue an order declaring that the person concerned has successfully completed the probation. If the appointing authority considers that the work and conduct of the

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Government servant concerned has not been satisfactory or needs to be watched for some more time, he may revert him to the post or grade from which he was promoted, or extend the period of probation in the manner prescribed.

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(4) Where confirmation on a lower feeding post is prescribed as a necessary condition for eligibility for promotion to a higher post, a person confirmed on the lowest post under sub-rule (1) of Rule 4 shall be eligible for promotion to the higher post and his confirmation on the lower feeding post shall not be necessary if his work and conduct on that post has been satisfactory.

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The plea that the respondent having been initially appointed

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against a temporary post by following due procedure under law, could not be treated to be entitled to all the service benefits accorded to him after being confirmed is a plea raised at a highly belated stage when the respondent had already worked for more than 26 years and had earned the service benefits by performing duties attached to the post. Besides, two ACPs were also granted in favour of the respondent-employee which could not be taken away by a stroke of a pen after such a long delay and without due application of mind. Even if there was an irregularity in the matter of his confirmation, the same, in our opinion, does not open the scope beyond the rules as extracted above.

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On the aspect of the competence of the officer having granted confirmation, a circular was issued by the Director,

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Directorate Sainik Kalyan Evam Punarvas, Lucknow on 3.8.1983 whereby the power of confirmation was delegated to the District Level Officer.

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For all these reasons, we do not find any good ground to entertain this intra court appeal.

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The Special Appeal is accordingly rejected.

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[Subhash Vidyarthi,J.] [Attau Rahman Masoodi, J.]

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Order Date :- 27.11.2024 kanhaiya

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Digitally signed by :- KANHAIYA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Prin. Secy. Sainik Kalyan Vibhag Govt. of U.P. Lko. and 6 Others v. Rakesh

Case brief

What is this about?

What did the court decide?

State of U.P. Thru. Prin. Secy. Sainik Kalyan Vibhag Govt. of U.P. Lko. and 6 Others v. Rakesh

Case brief

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What did the court decide?

What the court decided

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