# Raju v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1034
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-17
- **Case number:** Writ-A No. 20566 of 2019
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-v-state-of-u-p-ors-46454
- **Pages:** 7

## Headnote

A. Service Law - Termination - Uttar Pradesh
State District Court Rules, 2013 - Rules 3(3), 4,
19 & 23(5) - Once the time of probation is
prescribed and employee is allowed to continue
on the said post after completion of maximum
period of probation without an express order of
confirmation, he shall be treated confirm by
implication. (Para 11, 17)

Uttar Pradesh State District Court Rules,
2013: Rules 19(1) and (2) - Period of probation
is two years and as per Rule 19(3) of Rules, 2013, it
can be extended maximum for two years. Therefore,
once petitioner has completed the service of four
years, his probation cannot be extended beyond
that. (Para 11)

Schedule-B of Rule 3(3) and 4 provides that
for promotion on the post of Senior Assistant from
Junior
Assistant,
minimum
five
years
of
substantive and satisfactory service in the said
scale is required. Here, as petitioner is promoted
on the post of Senior Assistant, his service would
be deemed to be substantive and satisfactory and
his probation is to be deemed completed.
Therefore, his service cannot be terminated on
the ground that he was on probation. (Para 11,
20)
B. Violation of Principles of Natural Justice as
well as procedure prescribed in law - No Inquiry
Officer has been appointed except the show-cause
notice, no opportunity of hearing was given to
petitioner before passing order. In the present case,
petitioner was appointed on the post of Junior
Assistant on probation and thereafter he has been
promoted on the post of Senior Assistant and his
service is to be treated confirmed, therefore,
petitioner cannot be terminated from service without
following the procedure prescribed in Rule 23(5) of
Rules, 2013. (Para 21)

Direction for re-instatement. Writ petition
allowed. (E-4)

Precedent followed:

## Text

1034 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed subject to the observations made
above.
----------
(2021)12ILR A1034
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2021

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 20566 of 2019

Raju ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Syed Fahim Ahmed

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Ms. Pooja Agarwal

A. Service Law - Termination - Uttar Pradesh
State District Court Rules, 2013 - Rules 3(3), 4,
19 & 23(5) - Once the time of probation is
prescribed and employee is allowed to continue
on the said post after completion of maximum
period of probation without an express order of
confirmation, he shall be treated confirm by
implication. (Para 11, 17)

Uttar Pradesh State District Court Rules,
2013: Rules 19(1) and (2) - Period of probation
is two years and as per Rule 19(3) of Rules, 2013, it
can be extended maximum for two years. Therefore,
once petitioner has completed the service of four
years, his probation cannot be extended beyond
that. (Para 11)

Schedule-B of Rule 3(3) and 4 provides that
for promotion on the post of Senior Assistant from
Junior
Assistant,
minimum
five
years
of
substantive and satisfactory service in the said
scale is required. Here, as petitioner is promoted
on the post of Senior Assistant, his service would
be deemed to be substantive and satisfactory and
his probation is to be deemed completed.
Therefore, his service cannot be terminated on
the ground that he was on probation. (Para 11,
20)
B. Violation of Principles of Natural Justice as
well as procedure prescribed in law - No Inquiry
Officer has been appointed except the show-cause
notice, no opportunity of hearing was given to
petitioner before passing order. In the present case,
petitioner was appointed on the post of Junior
Assistant on probation and thereafter he has been
promoted on the post of Senior Assistant and his
service is to be treated confirmed, therefore,
petitioner cannot be terminated from service without
following the procedure prescribed in Rule 23(5) of
Rules, 2013. (Para 21)

Direction for re-instatement. Writ petition
allowed. (E-4)

Precedent followed:

1. St. of Punj. Vs Dharam Singh, AIR 1968 SC 1210
(Para 11)

Precedent distinguished:

1. High Court of M.P. Vs Satya Narain Jhavar, (2001)
7 SCC 161 (Para 10)

2. G.S. Ramaswamy Vs Inspector-General of Police,
1966 SC 175 (Para 10)

3. St. of U.P. Vs Akbar Ali Khan, AIR 1966 SC 1842
(Para 10)

4. Shamsher Singh Vs St.of Pun. & anr., (1974) 2 SCC
831 (Para 10)

5. Sukhbans Singh Vs St.of Pun. & ors., AIR 1962 SC
1711 (Para 10)

6. St. of Pun. & ors. Vs Balbir Singh (2004) 11 SCC
743 (Para 10, 18)

7. St. of U.P. Vs Harendra Arora & anr. (2001) 6
SCC392 (Para 10, 19)

8. Om Prakash Mann Vs Director of Education (Basic)
& ors., (2006) 7 SCC 558 (Para 10, 19)

Present petition assails order of termination
dated 14.11.2019, passed by District Judge,
Maharajganj.

(Delivered by Hon'ble Neeraj Tiwari, J.)
11 All. Raju Vs. State of U.P. & Ors.
1035

1. Heard learned counsel for the petitioner,
learned standing counsel for respondent No. 1
and Ms. Pooja Agarwal, learned counsel for
respondent Nos. 2 to 5.

2. Pleadings are exchanged between the
parties. With the consent of parties, writ petition
is being decided at the admission stage itself.

3. Learned counsel for the petitioner
submitted that High Court of judicature at
Allahabad
has
issued
advertisement
for
recruitment of Group 'C' post in the U.P. Civil
Court Staff Centralized Recruitment Scheme2014,
(Advertisement
No.
1/Sub.
Court/Category 'C'/Clerical Cadre/2014). He
further pointed out that as per Point No. 9 of
General Instruction, all the candidates, who are
already in Central/State Government Service or
in any Central/State Government undertaking or
in any type of other organization established and
governed by the Central/State Government, shall
have to produce no objection certificate (N.O.C.)
as and when called for. Petitioner, being fully
eligible for the said post, has submitted
application form and ultimately after going
through the due procedure as provided in
advertisement, he was appointed on the post of
Junior Assistant vide appointment letter dated
09.09.2015 at District Court Maharajganj on
probation.

4. He next submitted that prior to this
joining, petitioner was working on Group 'D'
post
in
Northern
Central
Railways.
On
10.09.2015, he had sent his resignation to Civil
Division, Mechanical Engineering, Jhansi and
on 11.09.2015, submitted his joining at District
Court, Maharajganj. On 31.05.2016, respondent
No. 5 has issued notice to the petitioner to
submit his reply as to whether prior to this
department, he was working in some other
department or not and whether he was allotted
any PRAN or not, which was replied by the
petitioner vide letter dated 13.06.2016 that
earlier he was working as class IV employee in
Northern Central Railway and submitted his
resignation. He has also informed that he was
allotted
PRAN
No.
110073384088
from
Northern Central Railway and along with his
letter, he has also annexed the photocopy of
resignation letter.

5. He further submitted that on reply dated
13.06.2016, he was directed by the Officer
concerned to inform the date of resignation and
further about no objection certificate, if obtained
and also as to why he has concealed the facts.
The same was duly replied by the petitioner vide
letter dated 21.06.2016 in which petitioner
submitted that while submitting his application
form, there was no requirement of no objection
certificate as it is stated that candidates shall
have to produce no objection certificate as and
when called for. This is also stated that he has
never concealed the facts and further he was
willing to fill up the details of his service in
police verification form, but it was never been
required to fill up, therefore, he could not
disclose about his first service.

6. It is next submitted that again, petitioner
was issued letter dated 22.08.2016 with almost
similar allegation which was also replied by the
petitioner vide letter date 15.09.2016. After
22.08.2016, no further notices were issued to the
petitioner. According to the petitioner, after
completion of two year's of probation period, as
per rule 19 of Uttar Pradesh State District Court
Rules, 2013 (hereinafter referred to as the
'Rules, 2013'), his services were made confirmed
and vide order dated 03.09.2019, he has been
promoted on the post of Senior Assistant at
District Court, Maharajganj.

7. It is further submitted that on
29.08.2019 i.e. after three years from the
issuance of last notice, he has received another
notice and submitted reply vide letter dated
03.10.2019. On 15.10.2019, petitioner was
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
issued one more notice by which he was
required to present acceptance of his resignation
letter by the Northern Central Railway within a
period of one month, failing which, his services
shall automatically be terminated. It is next
submitted that vide letters dated 02.11.2019 and
12.11.2019, petitioner requested respondents to
give more time and also provide the entire
material on the basis of which inquiry against
the petitioner was proceeded. Lastly, vide letter
dated 14.11.2019, service of petitioner was
terminated without following the procedure as
enshrined in Rules, 2013.

8. Facts are not disputed that in the
advertisement, there was no requirement to
produce no objection certificate at the time of
submission
of
application
form,
neither
petitioner has concealed any fact at any point of
time nor he was required to disclose the status of
his first service prior to his joining. It is next
submitted that petitioner was also promoted vide
letter dated 03.09.2019, therefore, in all
eventuality, it is required on the part of
respondents to follow Rule 23(5) of Rules, 2013
for holding enquiry to award major punishment.
Neither any notice has been served to the
petitioner nor any inquiry officer has ever been
appointed. Except show cause notice, no
opportunity of hearing was given to the
petitioner before passing impugned order.

9. Lastly, it is submitted that petitioner has
taken specific plea in paragraph Nos. 50 to 59 in
writ petition that he has not been provided
opportunity to face inquiry. It is further
submitted that in paragraph No. 31 of the
counter affidavit, there is no denial of the facts
and only stated that by the perusal of records, it
indicates that petitioner concealed the fact that at
the time of joining, he was working in Railway
Department. Petitioner reiterated that he has
never concealed any facts and further his
appointment was made permanent and given
promotion, therefore, Rule 23(5) of Rules, 2013
has to be followed before awarding major
punishment, therefore, order is bad and is liable
to be set aside.

10. Ms. Pooja Agarwal, learned counsel for
respondent Nos. 2 to 5 has vehemently opposed
the submissions made by learned counsel for the
petitioner, but could not dispute the facts as well
as provisions of Rules, 2013 placed by learned
counsel for the petitioner. She only submitted
that petitioner has concealed the facts about his
working at Railway Department prior to
submission of application form as well as
joining pursuant to the advertisement. Petitioner
was on probation, therefore, his services can be
terminated at any point of time. She also
submitted that promotion on the post of Senior
Assistant could not be a ground for completion
of his probation as no order has been passed for
completion of probation as required in Rule
19(5) of Rules, 2013. She next submitted that
even in case charge-sheet has not been issued,
no prejudice caused to the petitioner, therefore,
order is well within the limits of law. She further
submitted that opportunity of hearing was given
to the petitioner and petitioner has never raised
any objection that he has not been given
opportunity of hearing. In support of her
contention, she has placed reliance upon the
judgment of Apex Court in the case of High
Court of Madhya Pradesh vs. Satya Narain
Jhavar, (2001) 7 SCC 161. She further
submitted that similar view was taken by the
Courts in the case of G.S. Ramaswamy vs.
Inspector-General of Police, 1966 SC 175,
State of U.P. vs. Akbar Ali Khan, AIR 1966
SC 1842, Samsher Singh vs. State of Punjab
and another, (1974) 2 SCC 831, Sukhbans
Singh vs. State of Punjab and others, AIR
1962 SC 1711. She further placed reliance upon
the judgment of Apex Court passed in State of
Punjab and others vs. Balbir Singh (2004) 11
SCC 743 and submitted that termination of
petitioner is simplicitor and not punitive in
nature, therefore, no inquiry is required. Lastly,
11 All. Raju Vs. State of U.P. & Ors.
1037
she placed reliance upon the judgment of Apex
Court in State of U.P. vs. Harendra Arora and
Another (2001) 6 SCC 392 and submitted that
it is required on the part of petitioner to show
that prejudice is caused to him. She also
submitted that similar view was taken by the
Apex Court in Om Prakash Mann vs. Director
of Education (Basic) and other (2006) 7 SCC
558.

11. Learned counsel for the petitioner in
his
rejoinder
arguments
submitted
that
submissions made by learned counsel for
respondents is self contradictory as on one hand,
Rule 19(2) of Rules, 2013 provides two years as
period of probation and Rule 19(5) of Rules,
2013 says that for completion of probation,
specific order is required and contrary to that
Schedule-B of Rule 3(3) & 4 provides that for
promotion on the post of Senior Assistant from
Junior Assistant, minimum five years of
substantive and satisfactory service in the said
scale is required. Further, Rule 19(3) of Rules,
2013 provides maximum period of extension of
probation which cannot be more than the period
specified in Rule 19(1) & (2) of Rules, 2013. As
per Rule 19(1) & (2) of Rules, 2013, period of
probation is two years and as per Rule 19(3) of
Rules, 2013, it can be extended maximum for
two years. Therefore, once petitioner has
completed the service of four years, his
probation cannot be extended beyond that. Here,
petitioner is promoted on the post of Senior
Assistant, his service would be deemed to be
substantive and satisfactory and his probation is
to be deemed completed. In support of his
contention, he has placed reliance upon the
judgment of Apex Court in the case of State of
Punjab v. Dharam Singh, AIR 1968 Supreme
Court 1210 which says that if service rules fix a
certain period of time beyond which the
probationary period cannot be extended and an
employee appointed or promoted to a post on
probation is allowed to continue in that post
after completion of the maximum period of
probation
without
an
express
order
of
confirmation, he cannot be deemed to continue
in that post as a probationer. In fact, he would be
treated to be confirmed on the post by
implication.

12. I have considered rival submissions
made by learned counsel for the parties, perused
the records, judgments as well as Rules, 2013.

13. Certain facts of the case are
undisputed. As per terms of advertisement, there
is no requirement of annexing "No Objection
Certificate" alongwith application form and
further no opportunity was given to the
petitioner at any point of time to disclose as to
whether he was working on any other post at the
time of submission of application form or at the
time of joining. Further, as and when notices
were issued to the petitioner, he has duly replied
the same without concealment of any fact,
therefore, it cannot be said that he has concealed
any fact at any point of time.

14. Service of petitioner is governed by the
provisions of Rules, 2013 and Rule 19 provides
for probation. Rule 19 of Rules, 2013 is quoted
below:-

"19. Probation-

(1) All appointments to the Service by
direct recruitment shall be on probation for the
period of two years.

(2) All appointments by promotion shall be
on probation basis for a period of two years.

(3) The period of probation for reasons to
be recorded in writing, may be extended by the
appointing authority by such period not
exceeding the period of probation specified in
sub-rule (1) or (2).

(4) At the end of period of probation or the
extended period of probation the appointing
authority shall consider the suitability of the
person so appointed or promoted to hold the post
to which he was appointed or promoted, and-
1038 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) if it decides that he is suitable to hold the
post to which he was appointed or promoted and
has passed the examinations or tests, if any,
required to be passed during the period of
probation it shall, as soon as possible, issue an
order declaring him to have satisfactorily
completed the period of probation and such an
order shall have effect from the date of expiry of
the period of probation, including extended
period, if any, as the case may be.

(ii) if the appointing authority considers
that the person is not suitable to hold the post to
which he was appointed or promoted, as the case
may be, he shall by order-

(a) If he is a promotee, revert him to the
post which he held prior to his promotion.

(b) If he is a probationer, discharge him
from service;

(5) A person shall not be considered to have
satisfactorily completed the period of probation
unless a specific order to that effect is passed.
Any delay in passing such an order shall not
entitle the person to be deemed to have
satisfactorily
completed
the
period
of
probation."

15. Further, Schedule-B, Rule 3(3) & (4) of
Rules, 2013 deals with the procedure and
requirement for recruitment and promotion and
for promotion on the post of Senior Assistant
from Junior Assistant, minimum five years of
substantive and satisfactory service in the earlier
scale is required. Relevant part of Schedule-B is
quoted below:-

Sl.
No.
Category
Posts
Method of
Recruitmen
t
Qualificat
ion etc.
4-
Senior
Assistant
(Munsarim,
Civil
Judge
(SD & JD,
Addl.
Civil
Judge (SD &
By
Promotion
from Junior
Assistant
amongst
Clerical
Cadre
of
For
Librarian
the
qualificati
on would
be
preferably
JD)
/MunsarimcumReader/Read
ers of these
Courts
&
JSCC
&
Addl. JSCC
/Deputy;
Nazir/Record
Keeper(Cr.)/
Suits
Clerk/Decree
writer/Clerk
to
CMM,
CJM,
JM
Courts/Librar
ian/Head
Copyist
(Civil
&
Criminal),
etc.,

Protocal
Officer.,
Category
"C") & Amin
Grade-I
Category
"C")
520020,200

Grade
pay
2800
pay scale of
Rs.
520020,200
Grade Pay
2000
On
the basic of
senioritycum- merit
with
minimum
Five years
of
substantive
and
satisfactory
service
in
the
said
scale
bachelor
in Library
Science.

16. From the perusal of Rule 19 of Rules,
2013, it is apparently clear that appointment
shall be made on probation for a period of two
years and further in the light of Rule 19(3) of
Rules, 2013, probation may be extended not
exceeding the period of probation specified in
sub-rule 1 & 2 of Rule 19 of Rules, 2013 i.e. two
years. In the present case, probation of petitioner
has never been extended and he has completed
five years of service crossing the bars of Rule
11 All. Raju Vs. State of U.P. & Ors.
1039
19(1) & (3). Rule 19(5) provides that a person
shall not be considered to have satisfactorily
completed the period of probation unless a
specific order to that effect is passed. Any delay
in passing such an order shall not entitle the
person to be deemed to have satisfactorily
completed the period of probation. No doubt, in
present case, no specific order has been passed,
but Schedule-B clearly provides that promotion
on the post of Senior Assistant shall be made
only after completion of five years substantive
and satisfactory service in the earlier scale
meaning thereby
his service
was
found
satisfactory as he was promoted on the post of
Senior
Assistant.
Considering
this
fact,
respondents also have never extended his
probation, therefore, under such facts of the
case, probation of petitioner is deemed to be
treated complete for the reason that in case
service of petitioner was not satisfactory, he
should never been promoted on the post of
Senior Assistant.

17. Apex Court in the matter of State of
Punjab Vs. Dharam Singh (Supra) has clearly
held that once the time of probation is prescribed
and employee is allowed to continue on the said
post after completion of maximum period of
probation
without
an
express
order
of
confirmation, he shall be treated confirm by
implication. Paragraph No. 5 of the said
judgment is quoted below:-

"5. In the present case, Rule 6(3)
forbids extension of the period of probation
beyond three years. Where, as in the present
case, the service rules fix a certain period of
time beyond which the probationary period
cannot be extended, and an employee appointed
or promoted to a post on probation is allowed to
continue in that post after completion of the
maximum period of probation without an
express order of confirmation, he cannot be
deemed to continue in that post as a probationer
by implication. The reason is that such an
implication is negatived by the service rule
forbidding extension of the probationary period
beyond the maximum period fixed by it. In such
a case, it is permissible to draw the inference
that the employee allowed to continue in the
post on completion of the maximum period of
probation has been confirmed in the post by
implication."

18. I have also gone through the judgments
relied upon by learned counsel for respondents
in the matter of High Court of Madhya
Pradesh (Supra) where it was not the case that
petitioner
was
promoted
and
thereafter
termination was made. In G.S. Ramaswamy
(Supra), State of U.P. vs. Akbar Ali
Khan(Supra), Samsher Singh(Supra) and
Sukhbans Singh(Supra) Court has also taken
similar view in the light of different facts,
therefore, these judgments would not come into
the rescue of respondents.

19. So far as case of State of Punjab and
others vs. Balbir Singh (Supra) is concerned, it
says about determination of suitability of an
employee for a particular job, such termination
would be termination simplicitor and not
punitive in nature. In the present case,
undoubtedly, service of petitioner was found
satisfactory and considering his suitability, he
was promoted on the post of Senior Assistant,
therefore, this judgment also could not help
respondents. So far as judgments of State of U.P.
vs. Harendra Arora(Supra) & Om Prakash Mann
(supra) are concerned, facts are entirely different
and there is prejudice against the petitioner as he
was not given opportunity before Inquiry Officer
to show that at no point of time, he has never
concealed any fact. Learned counsel for
respondents could not demonstrate this fact that
at any point of time, in advertisement or at any
stage of joining, appointment or in continuation
of service, he was given opportunity to disclose
about his previous service, therefore, these
judgments also would not applicable in the case
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
of respondents. The very submission made by
learned counsel for respondents, that petitioner
was on probation, therefore, his service can be
terminated, cannot be accepted in the light of
Rule 3(3) & 4 of Rules, 2013 alongwith
Schedule-B for promotion as well as law laid
down by the Apex Court in the matter of State
of Punjab(Supra), therefore, the contention
raised by learned counsel for respondents is
having no force.

20. Therefore, under such facts of the case
as well as provisions of Rules, 2013 and law laid
down by the Apex Court, probation of petitioner
shall be treated to be complete and his service
cannot be terminated on the ground that he was
on probation.

21. Petitioner has taken specific plea that
no Inquiry Officer has been appointed except the
show cause notice, no opportunity of hearing
was given to him before passing order which
was also not denied in the counter affidavit. In
the present case, petitioner was appointed on the
post of Junior Assistant on probation and
thereafter he has been promoted on the post of
Senior Assistant and in the light of discussions
made here-in-above, his service is to be treated
confirmed, therefore, petitioner cannot be
terminated from service without following the
procedure prescribed in Rule 23(5) of Rules,
2013.

22. Therefore, under such circumstances as
well as provisions of Rules, 2013 and law laid
down by the Apex Court, order of termination
dated 14.11.2019 passed by respondent No. 3 is
bad and is hereby set aside. Respondent No. 3-
District Judge, Maharajganj is directed to
reinstate the petitioner in service forthwith
alongwith all consequential benefits.

23. Accordingly, writ petition is allowed.

24. No order as to costs.
----------
(2021)12ILR A1040
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 218 of 2021

Prashant Shukla ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Surendra Prasad Sharma

Counsel for the Respondents:
C.S.C.

A. Service Law - Right of a contractual
employee - Legitimate expectation - When a
person enters a temporary employment or gets
engagement as a contractual or casual worker
and the engagement is not based on a proper
selection as recognized by the relevant rules or
procedure, he is aware of the consequences of
the appointment being temporary, casual or
contractual in nature. Such a person cannot
invoke the theory of legitimate expectation for
being
confirmed
in
the
post
when
an
appointment to the post could be made only by
following a proper procedure for selection and
in concerned cases, in consultation with the
Public Service Commission. (Para 19)

In the present case, the petitioner-appellant entered
into a contract voluntarily and with eyes wide open
for his engagement for a fixed period from
02.03.2020 to 31.8.2020 and on expiry of the period
of agreement, his agreement was not renewed and
he was not re-engaged. Sufficient reasons have been
disclosed in the order dated 06.05.2021 passed by
CDO, Kannauj for not extending the engagement of
the petitioner-appellant. (Para 14, 15)

It is settled law that a writ of mandamus can be
issued if a petitioner is able to establish that he has
legally protected and judicially enforceable subsisting