1. Appeal against termination of appointment on ground of non-existent post despite selection and long service. (Para 3 , 4 , 5 )
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2026 Supreme(All) 1405
HIGH COURT OF JUDICATURE AT ALLAHABAD
SARAL SRIVASTAVA, SIDDHARTH NANDAN, JJ.
Balkrishna Sharma - Appellant
Versus
State of U.P. and others - Respondent
SPECIAL APPEAL No. - 1835 of 2012
Decided On : 14-09-2026
Important Points
An employee appointed against an advertised substantive vacancy who serves for a long duration is entitled to retirement benefits based on the length of service, as the "rules of the game" cannot be changed midway and fundamental rights under Article 14 cannot be waived by contractual labels.
Subject
Service Law - Employment Termination & Retirement Benefits
Act Referred
CONSTITUTION OF INDIA : Art.14, Art.226
Headnote
(A) Constitution of India - Article 14 and Article 226 - Legitimate expectation and non-arbitrariness in government appointments - Termination of service on ground of non-existence of post - Long service tenure - Right to retirement benefits.
(B) Service Law - Recruitment Process - Rules of the game cannot be changed midway - Once a substantive vacancy is advertised and a candidate is selected and appointed, the State cannot subsequently terminate the appointment on the ground that the vacancy was filled by other means after the advertisement date, as the candidate cannot be made to suffer for the fault of the appointing authority. (Paras 16, 17)
(C) Service Law - Temporary vs. Regular Employment - Misuse of "temporary" labels to evade long-term obligations is discouraged - Fundamental rights under Article 14 are incapable of waiver and cannot be bypassed through contractual terms - Long-term service creates a legitimate expectation of retirement benefits regardless of the initial label of the appointment. (Paras 10, 11, 18, 20, 21)
Facts of the case:
An individual was selected for the post of Junior Clerk against an advertised substantive vacancy and appointed in 1997. Subsequently, the services were terminated on the ground that the appointment was actually against a leave vacancy and the substantive posts had been filled by others. Despite the termination order, the individual continued to serve for nearly 30 years until the date of retirement.
Findings of Court:
The court found that the individual had a legitimate expectation of regular service after undergoing a formal selection process for an advertised post. The State's action in terminating the service due to its own administrative errors in vacancy management was arbitrary. Given the long tenure of service, the denial of retirement benefits would be inequitable.
Issues: Whether the State is justified in terminating an appointment made against an advertised substantive vacancy on the ground that the post no longer exists, and whether such an employee is entitled to retirement benefits after long service.
Ratio Decidendi: The right to retirement benefits accrues by virtue of the length of service and is not strictly attached to the specific post. When a candidate is appointed following a transparent process for an advertised vacancy, the "rules of the game" cannot be changed midway to the candidate's detriment. Long service tenure creates a right to retirement benefits based on equity and the mandate of Article 14. (Paras 21, 22)
Result: Special Appeal allowed.
(B) Service Law - Recruitment Process - Rules of the game cannot be changed midway - Once a substantive vacancy is advertised and a candidate is selected and appointed, the State cannot subsequently terminate the appointment on the ground that the vacancy was filled by other means after the advertisement date, as the candidate cannot be made to suffer for the fault of the appointing authority. (Paras 16, 17)
(C) Service Law - Temporary vs. Regular Employment - Misuse of "temporary" labels to evade long-term obligations is discouraged - Fundamental rights under Article 14 are incapable of waiver and cannot be bypassed through contractual terms - Long-term service creates a legitimate expectation of retirement benefits regardless of the initial label of the appointment. (Paras 10, 11, 18, 20, 21)
Facts of the case:
An individual was selected for the post of Junior Clerk against an advertised substantive vacancy and appointed in 1997. Subsequently, the services were terminated on the ground that the appointment was actually against a leave vacancy and the substantive posts had been filled by others. Despite the termination order, the individual continued to serve for nearly 30 years until the date of retirement.
Findings of Court:
The court found that the individual had a legitimate expectation of regular service after undergoing a formal selection process for an advertised post. The State's action in terminating the service due to its own administrative errors in vacancy management was arbitrary. Given the long tenure of service, the denial of retirement benefits would be inequitable.
Issues: Whether the State is justified in terminating an appointment made against an advertised substantive vacancy on the ground that the post no longer exists, and whether such an employee is entitled to retirement benefits after long service.
Ratio Decidendi: The right to retirement benefits accrues by virtue of the length of service and is not strictly attached to the specific post. When a candidate is appointed following a transparent process for an advertised vacancy, the "rules of the game" cannot be changed midway to the candidate's detriment. Long service tenure creates a right to retirement benefits based on equity and the mandate of Article 14. (Paras 21, 22)
Result: Special Appeal allowed.
Advocates Appeared:
For the Appellant : Abhinav Gaur, Anoop Trivedi, Vibhu Rai
For the Respondent: C.S.C.
For the Appellant : Abhinav Gaur, Anoop Trivedi, Vibhu Rai
For the Respondent: C.S.C.
Table of Contents
2. Appellant claimed appointment against substantive vacancy; State contended it was against leave vacancy and post was filled. (Para 3 , 4 , 5 , 6 , 7 )
3. Termination on non-existent post after selection, appointment, and long service undermines natural justice and equity. (Para 12 , 13 , 14 , 20 , 21 )
4. Public authority cannot change rules after selection; legitimate expectation arises from appointment on advertised post. (Para 16 , 17 , 18 , 19 , 21 )
5. Set aside termination order; directed release of retirement benefits including pension and gratuity within 30 days. (Para 23 , 24 )
6. Can an appointment be terminated on the ground that the advertised post was subsequently filled, after selection and joining?
No, the appointing authority cannot change the rules mid-way; a vested right accrues upon selection and appointment against an advertised post. (Para 9 , 16 , 17 , 21 )
7. Does a temporary label on a long-term appointment justify arbitrary termination and denial of benefits?
No, courts must look beyond labels; continuous service on indispensable duties creates a legitimate expectation of permanency and fair treatment. (Para 10 , 11 , 12 , 14 , 20 )
8. Is the right to retirement benefits dependent on the post or on the length of service rendered?
The right to retirement benefits accrues by virtue of length of service, not the post; denial after long service is inequitable. (Para 21 , 22 )
JUDGMENT :
Siddharth Nandan, J.
1. Heard Shri Vibhu Rai, learned counsel appearing on behalf of the appellant and Shri Indra Bhan Singh, learned Standing Counsel for the State-respondents.
2. The present intra court appeal has been filed assailing the judgment and order dated 31.08.2012 passed by the learned Single Judge in Civil Misc. Writ Petition No.44164 of 2000 (Balkrishna Sharma vs. State of U.P. and others).
3. The contention of learned counsel appearing on behalf of the appellant is that the appellant belongs to the general category, and had applied for the post of Junior Clerk and after passing the written examination and appearing in the interview; his name finds place in the select list, issued by the Additional Commissioner (Finance and Revenue, Uttar Pradesh), Bareilly Zone, Bareilly on 31.07.1997, at serial no.2.
4. Thereafter, an appointment letter was issued on 12.09.1997, where admittedly the said appointment was against substantive vacancy but temporary in nature; and the petitioner's appointment was also approved by the District Magistrate and the same was communicated by the Sub Divisional Magistrate on 31.07.1997.
5. He does not dispute that one Shri Syed Akram Ali was selected at serial no.1 and the petitioner was selected at serial no.2, however, subsequently a report was submitted on 18.07.2000 by the Chief Accountant, indicating that the petitioner's appointment was against the leave vacancy being caused by one Smt. Pratima Saxena and since the petitioner's appointment being temporary in nature, after the joining of Smt. Pratima Saxena, the salary of the petitioner also cannot be released; and consequentially vide order dated 13.09.2000, the services of the petitioner were terminated.
6. It is a specific case of the respondents, that the contention of the petitioner that his appointment was against the substantive vacancy in pursuance of the advertisement, has no substance. It is also a specific case of the respondents, that in the report dated 18.07.1997 and 02.09.1997, submitted by the Chief Clerk in the department of District Magistrate, Pilibhit, it was clearly mentioned that the resolution for appointment of the petitioner, was against the leave vacancy and not against the substantive vacancy; and accordingly, the finding of learned Single Judge that the appointment letter dated 12.09.1997 issued by the District Magistrate, Pilibhit being ex-facie illegal, cannot be faulted.
7. The petitioner has also set up a case in the rejoinder affidavit that 2 posts of Junior Clerk fell vacant on account of promotion of 2 Junior Clerks, namely, Shri Deepak Agarwal, the then Assistant Chief Revenue Accountant and Shri Sanjeev Kumar Saxena, the then Typist, Tehsildar Puranpur; but however, from the record, it can be ascertained that against the 2 posts under the General Category, which were shown vacant, one Shri Vimal Saxena was appointed on compassionate ground on 25.07.1997 and the incumbent who was selected at serial no.1 i.e. Syed Akram Ali was appointed against the second vacant post; and accordingly the approval, was granted by the District Magistrate, Pilibhit; and as far as the petitioner's appointment was concerned, the same was not approved for the appointment, as no post was vacant. It further transpired that the petitioner's appointment was recommended for the appointment against the leave vacancy.
8. In the conspectus of the aforesaid facts what is required to be seen is, whether the post which was advertised and the petitioner being selected against the said post, adhering to the procedure prescribed, entitles the petitioner for a regular appointment or the State action, subsequently terminating his appointment, on account of the fact that this post which was admittedly advertised and the petitioner being selected against the said post, no longer exists.
9. It has not been disputed by the parties that two posts were advertised, in the general category on 11.07.1997 and the respondents did not bring any cor
