# Munni Prasad Mishra v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-11
- **Case number:** Civil Misc. Writ Petition No. 13307 of 2008
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munni-prasad-mishra-v-state-of-u-p-anr-43095
- **Pages:** 9

## Headnote

Constitution of India, Art.-226-Voluntary
Retirement-application filed on 29.08.2003by notice dated 19.09.2003 S.P. Required
the petitioner disclose reason for seeking
voluntary
retirement-petitioner
given
explanation on 24.09.2003-S.P. Passed
termination order on 09.03.2004-appeal
also got same fact-held-once petitioner
sought voluntary retirement-as per Rule
56(c) and (d)-S.P. Bound to inform in
writing within 90 days otherwise- deemed
to
be
accepted-termination
as
well
appellate
order-not
sustainable-deemed
retirement
since
29.08.2003.-petition
allowed.

Held: Para-18 & 19

## Text

3 All]. Munni Prasad Mishra Vs. State of U.P. & Anr.
1113
Article 226 without exhausting the remedy
available in law. It is only where the Court
is satisfied that there is an inaction on the
part of the competent statutory authority
designated to exercise powers under Section
122-B and Rule 115-D, that the Court may
assume jurisdiction in an appropriate case
and issue directions. Otherwise, the filing of
a writ petition before this Court under
Article 226 should not be taken as a
substitute for invocation of the normal
remedies which are provided under the Act
and the Rules.

12. In view of this discussion, we
leave it open to the petitioner to pursue
the remedy available under Section 122-B
or, as the case may be, under Rule 115-D.

13. At this stage, the interference of
the Court would not be warranted. Hence,
we are not inclined to entertain the
petition at the present stage.

14. The petition is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 13307 of 2008

Munni Prasad Mishra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri A.K. Rai, Sri Vishnu Kumar Singh, Sri
D.K. Singh, Sri H.P. Shahi

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Voluntary
Retirement-application filed on 29.08.2003by notice dated 19.09.2003 S.P. Required
the petitioner disclose reason for seeking
voluntary
retirement-petitioner
given
explanation on 24.09.2003-S.P. Passed
termination order on 09.03.2004-appeal
also got same fact-held-once petitioner
sought voluntary retirement-as per Rule
56(c) and (d)-S.P. Bound to inform in
writing within 90 days otherwise- deemed
to
be
accepted-termination
as
well
appellate
order-not
sustainable-deemed
retirement
since
29.08.2003.-petition
allowed.

Held: Para-18 & 19
18. It is admitted situation that in spite
of the said acknowledgment, the same
was never acted upon and his application
for voluntarily retirement was never
decided, and, it is apparent that the said
application, had never been processed by
the competent authority as per the U.P.
Fundamental Rules.

19. Since the petitioner had never been
informed before the expiry of the notice
period
(three
months)
since
his
application dated 19.9.03, it would will
deemed
to
be
accepted
by
the
department and the petitioner would
deemed to be voluntarily retired on the
expiry of three months.

Case Law discussed:
(1978) 2 Supreme Court Cases 202; (1) [1970]
2 S.C.R. 657; AIR 1978 Supreme Court 17;
2004 (1) AWC 412; 1995 (1) LBESR 871.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri H.P. Shahi, who
appears for the petitioner and Mr. Pankaj
Rai, learned Additional Chief Standing
Counsel for the respondents.

2. By means of the present writ
petition the petitioner has prayed for
quashing of the impugned termination
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 9.3.2004(Annexure No.1 to
the writ petition) passed by Senior
Superintendent of Police, Kanpur Nagar
as well as order dated 10.12.2007
(Annexure No.2 to the writ petition)
passed by the State Government.

3. The brief facts giving rise to the
present writ petition are as follows. :-

4. The petitioner was initially
appointed as Constable in the year 1978
and, thereafter, he was promoted to the
post of Head Constable. Due to absence
from the duty since 28.9.2002 he had
been served upon charge sheet on
3.3.2003. Subsequently, the petitioner
moved
an
application
seeking
for
voluntary
retirement
on
29.8.2003.
Immediately
on
19.9.2003
the
Superintendent of Police had issued
notices calling upon the petitioner to
explain as to why he is seeking voluntary
retirement. The notice dated 19.9.2003 is
being brought on record as Annexure - 6
to the writ petition. In response to the
notice dated 19.9.2003 the petitioner
made application giving reasons for
voluntary
retirement
on
24.9.2003.
Thereafter, the impugned termination
order dated 9.3.2004 had been passed.
The reasons mentioned in the impugned
termination order was only unauthorized
absence of 181 days.

5. Aggrieved by the said termination
order, the petitioner has filed an appeal
under Rule 25 of Uttar Pradesh Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991.
Thereafter, the State Government had
rejected the claim of the petitioner and
affirmed the termination order. Aggrieved
by the said rejection order dated 10.12.07
the present writ petition is being filed.

6. The law relating to voluntary
retirement has now been settled by the
Apex Court as well as by this Court.
Some of the Judgments are referred
herein. :-

7. The Hon'ble Apex Court, while
considering the voluntary retirement in
B.J. Shelat Versus State of Gujarat and
others (1978)2 Supreme Court Cases 202
especially considered the intention to
withhold and also considered the duty of
the State Government to communicate
such intention to withhold. Relevant
portion of the judgement are reproduced
as hereunder. :-

"Mr. Patel next referred us to the
meaning of the word "withhold" in
Webster's
Third
New
International
Dictionary which is given as "hold back"
and submitted that the permission should
be deemed to (1) [1970] 2 S.CR. 657.

(2) A.T.R: 1966 S.C. 1313.

559 have been withheld if it is not
communicated. We are not able to read
the meaning of the word "withhold" as
indicating that in the absence of a
communication is must be understood as
the permission having been withheld. It
will be useful to refer to the analogous
provision in the Fundamental Rules
issued by the Government of India
applicable to the Central Government
servants.
Fundamental
Rule
56(a)
provides
that
except
as
otherwise
provided in this Rule, every Government
servant shall retire from service on the
afternoon of the last day of the month in
which lie attains the age of fifty-eight
years. Fundamental Rule 56 (j) is similar
to Rule 161 (aa) (1) of the Bombay Civil
Services Rules conferring an absolute
3 All]. Munni Prasad Mishra Vs. State of U.P. & Anr.
1115
right on the appropriate authority to
retire a Government servant by giving not
less than three months notice. Under
Fundamental Rule 56(k) the Government
servant is entitled to retire from service
after he has attained the age of fifty-five
years by giving notice of not less than
three months in writing to the appropriate
authority on attaining the age specified.
But proviso (b) to sub-rule 56(k) states
that it is open to the appropriate authority
to withhold permission to a Government
servant under suspension who seeks to
retire under this clause. Thus under the
fundamental
Rules
issued
by
the
Government of India also the right of the
Government servant to retire is not an
absolute right but is subject to the proviso
wherever the appropriate authority may
withhold permission to a Government
servant
under
suspension.
On
a
consideration of Rule 161(2) (ii) and the
proviso we are satisfied that it is
incumbent
on
the
Government
to
communicate to the Government servant
its decision to withhold permission to
retire on one of the ground specified in
the proviso."

8. The Hon'ble Apex Court in the
case of Dinesh Chandra Sangma Vs. State
of Assam and others in AIR 1978
Supreme Court 17 has also considered the
same issue. The relevant paragraphs are
reproduced hereunder. :-

"7.Before we proceed further we may
read F. R. 56 as amended "F.R.56(a) The
date of compulsory retirement of a
Government servant is the date on which
he attains the age of 55 years. He may be
retained in service after this age with
sanction of the State Government on
public grounds which must be recorded in
writing, and proposals for the retention of
a Government servant in service after this
age should not be made except in very
special circumstances.

(b)
Notwithstanding
anything
contained in these rules the appropriate
authority may, if he 'is of the opinion that
it is in the public interest to do so, retire
Govt. servant by giving him notice of not
less than three months in writing or three
months' pay and allowances in lieu of
such notice, after he has attained fifty
years of age or has completed 25 years of
service, whichever is earlier.

(c) Any Govt. servant may, by giving
notice of not less than three months in
writing to the appropriate authority,
retire from service after he has attained
the age of fifty years or has completed 25
years of service, whichever is earlier".

It is clear from the above that under
F. R. 56(b) the Government may retire a
Government servant in the public interest
by giving him three months: notice in
writing
or
three
months
pay
and
allowance,; in lieu thereof after he has
attained the age of fifty years or has
completed 25 years of service, whichever
is earlier.

8. As is well known Government
servants hold office during the pleasure of
the President or the Governor, as the case
may be, under Article 310 of. the
Constitution.
However,
the
pleasure
doctrine under Article 3 1 0 is limited by
Article 3 1 1 (2). It is- clear that the
services of a permanent Government
servant cannot be terminated except in
accordance with the rules made under
Article 309 subject to Article 311(2) of the
Constitution and the Fundamental Rights.
it is also well-settled that even a
temporary Government servant or a
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
probationer cannot be dismissed or
removed or reduced in rank except in
accordance with Article 311(2). The
above doctrine of pleasure is invoked by
the Government in the public interest
after a Government servant attains the
age of 50 years or has completed 25 years
of
service.
This
is
constitutionally
permissible as compulsory termination of
service under F.R. 56(b) does not amount
to removal or dismissal. by way of
punishment.
While
the
Government
reserves its right to compulsorily retire a
Government servant, even against his
wish, there is a corresponding right of the
Government servant under F. R. 56(c)
611 to voluntarily retire from service by
giving the Government three months'
notice in writing. There is no question of
acceptance of the request for voluntary
retirement by the Government when the
Government servant exercises his right
'under F. R. 56(c). Mr. Niren De is
therefore right in conceding this position.

9. We have, therefore, next to turn to
rule 119 of the DISI Rules which is the
sheet-anchor of the respondents. Rule
119, so far as material, reads as follows :-

"(3) Any person engaged in any
employment or class of employment to
which this rule applies, who-

(a) x xx

(b)
Without
reasonable
excuse
abandons any such employment or
absents himself from work, or

(c) x x x shall be deemed to have
contravened this rule ".

"Explanation 2. A person abandons
his employment within the meaning of cl.
(b), who, notwithstanding that it is an
express or implied term of this contract of
employment that he may terminate his
employment on giving notice to his
employer of his intention to do so, so
terminates his employment without the
previous consent of his employer Clause
(5) of rule 1 19 may be read "If any
person contravenes any provisions of this
rule or of any order made under this rule,
he shall be punishable, without prejudice
to any action which may be taken against
him under any other law for the time
being in force, with imprisonment for a
term which may extend to one year, or
with fine or with both".

13. F.R. 56 is one of the statutory
rules which binds the Government as well
as the Government servant. The condition
of service which is envisaged in rule 56(c)
giving an option in absolute terms to a
Government servant to voluntarily retire
with three months' previous notice after
he reaches 50 years of age or has
completed 25 years of service cannot
therefore be equated with a contract of
employment as envisaged in Explanation
2 to rule 119.

14.The field occupied by F. R. 56 is
left untrammelled by Explanation to rule
1 19. The words "his contract of
employment" in Explanation are clinching
on the point.

15. It is a cardinal rule of
construction that no words should be
considered redundant or surplus in
interpreting the provisions of a statute or
a rule. Explanation 2 does not say an
express or implied term of employment,
but refers to "an express or implied term
of his contract of, employment". If the
language in Explanation 2 were different,
namely, an express or implied term of
employment, instead of "con tract of
employment", the position would have
been different, Explanation 2 in rule. 119,
albeit, a penal rule, takes care to use the
3 All]. Munni Prasad Mishra Vs. State of U.P. & Anr.
1117
words "contract of employment" and
necessarily excludes the two categories
(1) [1968] (1) S.C.R. 185.

(2)
Salmond
and
Williams
of
Contracts, 2nd edition p. 12.

614 of employment, namely, the one
under the Central Government and the
other under the State Government.
Explanation 2 only takes in its sweep the
third category of employment where the
relationship between the employer and
the employee is one governed by a
contract of employment Since F. R. 56 is a
statutory condition of service, which
operates in law, without reference to a
contract of employment, there is nothing
inconsistent between rule 119 and F.R.
56.

16. The appellant has voluntarily
retired by three months' notice, not in
accordance with an express or implied
term of his contract of employment, but in
pursuance of a statutory rule. Explanation
2 to rule 119 makes no mention of
retirement under a statutory rule and
hence the same is clearly out of the way.
The submission that rule 119 is superimposed on F.R. 56 has no force in this
case.

17.The High Court committed an
error on law in holding that consent of the
Government was necessary to give legal
effect to the voluntary retirement of the
appellant under F.R. 56

(c). Since the conditions of F.R. 56(c)
are fulfilled in the instant case, the
appellant must be hold to have lawfully
retired as notified by him with effect from
2nd August, 1976.

18. In this view of the matter the
permission accorded by the Government
to retire and its subsequent order of July
28, 1976, revoking the permission, are
ineffectual in law and are therefore null
and void. Since the appellant voluntarily
retired in accordance with F.R. 56(c), the
High Court's order of July 31, 1976, on
the administrative side, transferring him
to Dhubri is invalid and is hereby
quashed. In the result the judgment and
order of the High Court of March 4, 1977,
are set aside and the Writ Petition is
allowed. The appeal is allowed with costs
in this Court as well as in the High Court.

S.R. Appeal allowed.''

9. The Hon'ble High Court in the
case of Surendra Kumar Agarwal Versus
Engineer-in-Chief, U.P. P.W.D. Lucknow
and another 2004(1) AWC 412 has also
considered the U.P. Fundamental RulesRule 56 c&d in which the Court has held
if
the
petitioner
moves
voluntary
retirement on the said date when vigilance
enquiry was pending against him, as per
provisions of second proviso to Rule 56d
the Government Servant is to be informed
before 90 days that his notice has not been
accepted.

10. In the present matter, learned
counsel for the petitioner has placed
reliance to the U.P. Fundamental Rules 56
c & d by which he has submitted that the
authority concerned was duty bound to
decide the application of the petitioner for
voluntary retirement within a stipulated
time i.e., within three months' time. The
said rule had been flouted and his
application for voluntary retirement had
never been considered and finally the
impugned termination order had been
passed.

11. The Hon'ble High Court, while
considering
premature
retirement
in
Surendra Narain Singh Vs. D.I.G. of
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
Police, Gorakhpur 1995(1)LBESR 871
has held that on expiry of a period of
three months notice, the pre-mature
retirement
of
the
employee
stood
accepted, subsequent suspension and
dismissal from service on ground of
absence from leave is totally unacceptable
and void. For ready reference the relevant
paragraphs 7, 8 &9 are reproduced here
under. :-

"7. In string of judicial precedents it
has been held that request for premature
retirement does not require a specific
order accepting it by the concerned
authority before an employee can be
deemed to have retired from service. In
other words, unless a particular Rule says
otherwise, on the expiry of the period of
the notice for premature retirement, the
employee seeking it shall be deemed to
have retired, unless, in the meanwhile, a
specific order has been passed, to the
contrary,
whether
on
account
of
contemplated disciplinary proceedings or
otherwise.

8. In a recent judement, the Supreme
Court in Union of India V. Sayeed
Muzaffar Mir, (1995) I UPLBEC 146
held, while interpreting Rule 56(c) of the
Fundamental Rules, that where the
Government servant seeks premature
retirement, the same does not require any
acceptance and comes into effect on the
completion of the notice period. A similar
view was expressed in two earlier
judgments of the Supreme Court in
Dinesh Chandra Sangama V. State of
Assam, AIR 1978 SC 17 and B.J.. Shelat
v. State of Gujarat, (1978) 2 SCC 202.

9.
Applying
the
rationals
as
enunciated by the Supreme Court in the
judicial precedents referred to, it cannot
but follow that the request of the
appellant for premature retirement must
be deemed to have stood accepted on the
expiry of the three months' period of
notice from the date thereof, that is,
February, 1989. This being so, the
subsequent orders of suspension and of
dismissal passed against the appellant
have inevitably to be held to be void."

12. For ready reference Fundamental
Rules 56 c&d are read as follows. :-

"4. Fundamental Rule 56 (c) and (d)
read as follows:

"(c)
Notwithstanding
anything
contained in clause (a) or clause (b) the
appointing authority may, at any time by
notice
to
any
Government
Servant
(whether
permanent
or
temporary),
without assigning any reason, require him
to retire after he attains the age of fifty
years or such Government servant may by
notice
to
the
appointing
authority
voluntarily retire at any time after
attaining the age of forty-five years or
after he has completed qualifying service
of twenty years.

(d) The period of such notice shall be
three months:

provided:

(i) any such Government servant may
by order of the appointing authority,
without such notice or by a shorter notice,
be retired forthwith at any time after
attaining the age of fifty years, and on
such retirement the Government servant
shall be entitled to claim a sum equivalent
to the amount of his pay plus allowances,
if any, for the period of the notice, or as
the case may be, for the period by which
such notice falls short of three months, at
3 All]. Munni Prasad Mishra Vs. State of U.P. & Anr.
1119
the same rates at which he was drawing
immediately before his retirement.

(ii) It shall be open to the appointing
authority to allow a Government servant
to retire without any notice or by a
shorter notice without requiring the
Government servant to pay any penalty in
lieu of notice:

Provided further that such notice
given by the Government servant against
whom a disciplinary proceeding is
pending
or
contemplated,
shall
be
effective only if it is accepted by the
appointing authority, provided that in the
case of a contemplated disciplinary
proceeding the Government servant shall
be informed before the expiry of his notice
that it has not been accepted."

5. A perusal of the impugned order
shows that the petitioner's application
had been rejected on the ground that a
vigilance enquiry is pending.

6. The submission of the learned
counsel is that no order has been passed
with reference to the second proviso to
clause (d) of Fundamental Rule 56, within
90 days of the submission of the said
application and hence in view of the
second proviso to clause (d) the petitioner
will be deemed to have voluntarily
retired.

7. No doubt, it has not been
specifically mentioned in the second
proviso to clause (d) of Fundamental Rule
56 that if the prayer of the employee
seeking voluntary retirement is not
accepted within three months it will be
deemed to have been accepted. However,
in our opinion, since second proviso puts
a time limit for intimating the applicant
about the refusal of his prayer, this by
implication means that if no such
intimation is given within three months
the prayer will be deemed to have been
accepted.

8. In this connection we may refer to
the series of decisions of the Supreme
Court which have laid down that while
ordinarily a probationer will be deemed
to have continued on probation even after
the period of probation has expired, if the
maximum period of probation has been
fixed in the service rules, then there will
be
deemed
to
have
been
implied
confirmation on the expiry of that
maximum period, vide Wasim Beg V.
State of U.P.1998 (2)AWC 1342 (SC)
1998(3) SCC 321 (vide para 15) State of
Punjab v. Dharam SIngh, AIR 1968 SC
1210; State of Gujarat v. Akhilesh
Bhargava, (1987) 4 SCC 482 O.P.
Maurya v. U.P. Cooperative Sugar
Factories Federation, 1986 (Supp) SCC
95 and M.K. Agarwal v. Gurgaon Gramin
Bank, 1987 (Supp) SCC 643 etc.

9.The analogy of these decisions
applies in this case too. Here the
maximum
period
within
which
the
intimation of rejection of the application
seeking voluntary retirement is fixed by
the rules. Hence on the expiry of that
period, if no intimation is sent by them,
the application will be deemed to have
been allowed.

10. No doubt, it has been stated in
Annexure-22 to the writ petition that
petitioner's application dated 4.12.2000
has not been received by the Chief
Engineer and the Government. However,
this statement does not appear to be
correct because it has been positively
asserted in paragraphs 16,19 and 27 of
the writ petition that petitioner served a
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
notice dated 2.12.2000 on respondent
No.2. It has been stated in paragraph 27
of the writ petition that the said
application seeking voluntary retirement
was received in the office of the Engineerin-Chief and for this a receipt has also
been
received
by
the
office
(vide
Annexure-15 to the writ petition). Since
there is no counter affidavit these
allegations are unrebutted and have to be
accepted.

11. Since the petitioner was not
informed before the expiry of the notice
period (three months) that his application
has not been accepted, it will be deemed
to have been accepted and the petitioner
would have also be deemed to have
voluntarily retired on the expiry of three
months.

12. For the reasons given above, the
petition is allowed. The impugned orders
are quashed. Respondents are directed to
treat the petitioner as having voluntarily
retired with effect from the expiry of 90
days from 4.12.2000."

13. Learned counsel for the
petitioner has criticized the impugned
order on two folds. Firstly the charge
against the petition was only unauthorized
absence for 181 days in different spells
which he had adequately explained, but in
spite of the categorical stand the same
was not taken care of, and the impugned
termination
order
was
clearly
disproportionate to the charges leveled
against him. Secondly, once the petitioner
had moved the application for voluntary
retirement, the authority was duty bound
to decide the said application as per
Fundamental Rule 56 c&d and the
Government Servant is to be informed
before 90 days that his notice has not been
accepted. He further submits that the said
rule had been flouted and his application
for voluntary retirement had never been
considered, even though which was duly
acknowledged by the authority.

14. However, Mr. Pankaj Rai, learned
Additional Chief Standing Counsel has
refuted the claim on the ground that the
petitioner was habitual absconder from the
duty without any proper leave. Due to
absence
from
duty
the
departmental
proceeding was initiated against him and in
preliminary enquiry the petitioner was primafacie found guilty. Thereafter, departmental
proceeding under Rule 14(1) of the U.P.
Police
Officer
of
Subordinate
Rank
(Punishment & Appeal) Rules, 1991 was
initiated against the petitioner and after
conducting detailed enquiry vide order dated
09.03.2004 the services of the petitioner were
terminated by the respondent no.2. Against
the said termination order dated 09.03.2004
the petitioner filed an appeal before the State
Government, which was rejected by the State
Government vide order no.5409(1)/6-Po-12007 dated 10.12.2007.

15. Heard rival submission and
perused the record.

16. A perusal of the impugned order
shows that the petitioner's application for
voluntary retirement was never been
rejected in the matter and further the
submission of the learned counsel for the
petitioner is that no order has been passed,
the same is apparant from the records.

17. In the present matter, admittedly,
the petitioner has moved an application
seeking voluntary retirement on 29.8.03.
Immediately thereafter, the notices had
been sent by the Superintendent of Police
calling upon the petitioner as to explain
3 All]. Sunder Singh Vs. State of U.P. & Ors.
1121
why he is seeking voluntary retirement.
This clearly shows that the application
was served upon the competent authority,
the same is also reflected from paragraph
6 of the counter affidavit filed by State,
the same is reproduced herein.:-

"6. That the contents of paragraph no.10
of the writ petition as stated are incorrect and
as such are denied. In reply thereto it is stated
that although the petitioner has moved an
application on 01.01.2004 seeking voluntary
retirement,
but
since
departmental
proceeding
was
pending
against
the
petitioner he was not allowed pension."

18. It is admitted situation that in
spite of the said acknowledgment, the
same was never acted upon and his
application for voluntarily retirement was
never decided, and, it is apparent that the
said
application,
had
never
been
processed by the competent authority as
per the U.P. Fundamental Rules.

19. Since the petitioner had never been
informed before the expiry of the notice
period (three months) since his application
dated 19.9.03, it would will deemed to be
accepted by the department and the petitioner
would deemed to be voluntarily retired on
the expiry of three months.

20. For the reasons given above, the
impugned
termination
order
dated
9.3.2004 and appellate order dated
10.12.2007
are
unsustainable
and,
accordingly, quashed. The respondents
are directed to treat the petitioner as
having voluntarily retired with effect from
the expiry of 90 days since 29.8.03.

21. With the aforesaid orders, this
writ petition is allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 13505 of 2011

Sunder Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Sharma

Counsel for the Respondents:
C.S.C.

U.P. Secondary Service Commission Rule
1998-Rule-14-Recruitment by promotionon post of lecturer-vacancy advertised on
30.06.2003-petitioner being selected as L.T.
Grade teacher joined on basis of mutual
consent on 26.05.2006-in pursuance of
recommendation of service selection board
on 23.11.2004-contention that period of
working on substantive post of L.T. Grade
prior to selection by board be also taken
account
for
considering
eligibility
for
promotion held-when the post of lectureradvertised-petitioner being not selected
even on post of L.T. Grade-ineligible for
consideration under rule 14-order passed
by DIOS-justified-petition dismissed.

Held: Para-21
In view of the above, it is not possible to
accept the contention of the learned
counsel for the petitioner that services
rendered from 30.10.1996 to 31.07.2004
should be counted for determining his
eligibility for the promotion in question. The
petitioner not having been appointed nor in
service as per the Act of 1982, as on the
date
of
occurrence
of
vacancy,
i.e.
30.06.2003,
he
was
not
eligible
for
consideration. It being so, I do not find any
error
in
the
impugned
order
dated
04.02.2011. The claim of the petitioner is
misconceived. The respondents have rightly