Allahabad High Court
BALKRISHNA SHARMAversusSTATE OF U.P. AND OTHERS
- Decided
Holding
Termination of the appellant’s appointment on the basis that the advertised post was later deemed temporary violated Article 14 and his legitimate expectation, rendering the termination illegal and entitling him to retirement benefits.
Summary
The appellant, a general‑category candidate, was selected for a Junior Clerk post advertised in 1997, received an appointment letter and served from September 1997 until his termination in 2000 on the ground that the vacancy was only temporary. The State argued that the appointment was illegal because the post was filled on a leave vacancy, not a substantive one, and therefore the termination was justified. The appellant contended that the advertisement created a legitimate expectation of a regular appointment and that termination violated Article 14 and principles of natural justice. The Court examined precedents on legitimate expectation, the prohibition against arbitrary mid‑process changes, and the requirement that procedural fairness be maintained. It held that the State could not retrospectively deem the advertised post non‑existent to terminate the appellant’s service, and that his right to retirement benefits accrued by virtue of his length of service. Consequently, the Court set aside the lower court’s order, directed calculation and payment of retirement benefits, and allowed the special appeal.
Issues considered
- Whether termination of an appointment made against an advertised substantive vacancy on the ground that the post was later deemed temporary violates Article 14 and natural justice.
- Whether the appellant is entitled to regularisation and retirement benefits despite the termination.
- Whether the State can rely on a non‑existent post to justify termination after the appellant had already joined.
- Whether a legitimate expectation arises from an appointment letter issued for a advertised post.
Subjects
- appointment
- temporary appointment
- regularisation
- legitimate expectation
- Article 14
- natural justice
- retirement benefits
- public service employment
- constitutional law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
SPECIAL APPEAL No. - 1835 of 2012
Balkrishna Sharma
…..Appellant(s)
Versus
State of U.P. and others
…..Respondent(s)
Counsel for Appellant(s) : Abhinav Gaur, Anoop Trivedi,
Vibhu Rai
Counsel for Respondent(s) : C.S.C.
Reserved
A.F.R.
In Chamber
HON'BLE SARAL SRIVASTAVA, J.
HON'BLE SIDDHARTH NANDAN, J.
(Per: 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.
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SPLA No. - 1835 of 2012
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
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SPLA No. - 1835 of 2012
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 corrigendum to the said advertisement and proceeded to not only
select the petitioner on the post advertised but also issued an
appointment order dated 12.09.1997, in his favour and allowed him to
join the services. Once the petitioner has been appointed against a
regular vacancy being advertised, what is required to be seen is whether
the State, in terminating his services on account of the said vacancy
being filled subsequent to the date of advertisement, i.e., on 25.07.1997,
while still proceeding to make the appointment and create a right in
favour of the petitioner, was justified in terminating his services
subsequently.
10. The petitioner has also relied upon a recent judgment of the Apex
Court in the case of Jaggo vs. Union of India1. For ready reference
paragraphs 21, 22 and 25 of the said judgment is reproduced below:-
"21. The High Court placed undue emphasis on the initial label of the
appellants’ engagements and the outsourcing decision taken after their
dismissal. Courts must look beyond the surface labels and consider the
realities of employment: continuous, long-term service, indispensable
1. 2024 SCC Online SC 3826/Supreme Court
4
SPLA No. - 1835 of 2012
duties, and absence of any mala fide or illegalities in their
appointments. In that light, refusing regularization simply because their
original terms did not explicitly state so, or because an outsourcing
policy was belatedly introduced, would be contrary to principles of
fairness and equity.
22. The pervasive misuse of temporary employment contracts, as
exemplified in this case, reflects a broader systemic issue that adversely
affects workers' rights and job security. In the private sector, the rise of
the gig economy has led to an increase in precarious employment
arrangements, often characterized by lack of benefits, job security, and
fair treatment. Such practices have been criticized for exploiting
workers and undermining labour standards. Government institutions,
entrusted with upholding the principles of fairness and justice, bear an
even greater responsibility to avoid such exploitative employment
practices. When public sector entities engage in misuse of temporary
contracts, it not only mirrors the detrimental trends observed in the gig
economy but also sets a concerning precedent that can erode public
trust in governmental operations.
25. It is a disconcerting reality that temporary employees, particularly
in government institutions, often face multifaceted forms of
exploitation. While the foundational purpose of temporary contracts
may have been to address short-term or seasonal needs, they have
increasingly become a mechanism to evade long-term obligations owed
to employees. These practices manifest in several ways:
Misuse of "Temporary" Labels: Employees engaged for work
that is essential, recurring, and integral to the functioning of an
institution are often labeled as "temporary" or "contractual,"
even when their roles mirror those of regular employees. Such
misclassification deprives workers of the dignity, security, and
benefits that regular employees are entitled to, despite
performing identical tasks.
Arbitrary Termination: Temporary employees are frequently
dismissed without cause or notice, as seen in the present case.
This practice undermines the principles of natural justice and
subjects workers to a state of constant insecurity, regardless of
the quality or duration of their service.
Lack of Career Progression: Temporary employees often find
themselves excluded from opportunities for skill development,
promotions, or incremental pay raises. They remain stagnant in
their roles, creating a systemic disparity between them and their
regular counterparts, despite their contributions being equally
significant.
Using Outsourcing as a Shield: Institutions increasingly resort to
outsourcing roles performed by temporary employees,
effectively replacing one set of exploited workers with another.
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SPLA No. - 1835 of 2012
This practice not only perpetuates exploitation but also
demonstrates a deliberate effort to bypass the obligation to offer
regular employment.
Denial of Basic Rights and Benefits: Temporary employees are
often denied fundamental benefits such as pension, provident
fund, health insurance, and paid leave, even when their tenure
spans decades. This lack of social security subjects them and
their families to undue hardship, especially in cases of illness,
retirement, or unforeseen circumstances.”
11. The perusal of the aforesaid judgment indicates, that the Apex Court
has taken cognizance of the fact regarding exploitation of the workers
and the arbitrary termination after rendering long long years of services,
fulfilling ongoing necessary functions of the State or its
instrumentalities; and their termination on the pretext that the vacancy
was temporary.
12. However, in the present case, we have to examine, whether the same
analogy will apply in case of appointment on non-existent post.
13. In the present case, admittedly the petitioner has worked since his
initial date of appointment on 12.09.1997 and as informed across the
Bar, that he shall now also retire on 31.08.2026.
14. There is much similarity, in effect, even when Termination is on the
ground of non-existence of the Post; and this practice undermines the
principles of natural justice and subjects workers to a state of insecurity,
regardless of the quality and duration of the service.
15. In the case of Tej Prakash Pathak and others versus Rajasthan High
Court and others2 while examining the issue whether the appointing
authority/recruiting authority/competent authority, in absence of Rules to
the contrary, can devise a procedure for selection of a candidate suitable
to the post; it was held that it may set benchmarks for different stages of
the recruitment process including the written examination and interview;
but however if any benchmark is set the same should be stipulated
before the commencement of the recruitment process, so that neither the
candidate nor the evaluator/examiner/interviewer is taken by surprise.
2. 2025 (2) SCC 1
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SPLA No. - 1835 of 2012
16. In the present case, the admitted position is that a substantive
vacancy was advertised and the selection procedure was brought to its
logical end, by issuance of an appointment letter and the joining of the
candidate; and it is only thereafter that the appointment was sought to be
terminated on the ground, that subsequent to the advertisement, an
appointment has been made under the dying-in-harness rules, which has
resulted in lesser vacancies than advertised; therefore in view of the
aforesaid what is to be examined that whether the appointing authority
can be given the said leverage, once a third party right has already
accrued and on account of their own fault, can the incumbent be made to
suffer? For ready reference para-65.4 of the Tej Prakash Pathak (supra)
judgment is reproduced below:-
“65.4- Recruiting bodies, subject to the extant Rules, may devise
appropriate procedure for bringing the recruitment process to its
logical end provided the procedure so adopted is transparent, non-
discriminatory/non-arbitrary and has a rational nexus to the object
sought to be achieved.”
17. It is a settled law that the Rules of the Game, cannot be changed
midway, unless the extant Rules so permit, or the advertisement, which
is not contrary to the extant Rules so permits; and even if such a change
is permissible, the same has to be tested on the anvil of Article 14 of the
Constitution of India and satisfy test of non-arbitrariness.
18. The Apex Court in the case of Bholanath Versus State of Jharkhand
and others3, expressed their disapproval on the mechanical application of
precedents without engaging with the core constitutional issues involved,
thereby reducing the dispute to one of the acceptance of contractual
terms, divorced from its larger constitutional context. In the facts of the
said case, the contention before the Apex Court was that, the appellants
therein were appointed by the respondent-State, against sanctioned post,
which were contractual in nature and extendable after end of the contract
period; which was also granted from time to time; and referring to the
judgment by the Constitutional Bench in Basheshar Nath vs.
3. 2026 SCC Online SC 129
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SPLA No. - 1835 of 2012
Commissioner Income Tax4, reiterated the principle that fundamental
rights guaranteed under the Constitution are incapable of waiver and
consequently, if the action of the respondent-State is found to be in
violation of Article 14 of the Constitution of India, the mere fact that the
incumbents’ engagement was governed by contractual terms and
conditions, cannot constitute as a waiver of their fundamental rights.
19. The principle deducible was that Article 14 is intended to secure
social and economic justice and conforms to the mandate of the great
equality clause in Article 14.
20. The petitioner with a bona fide believe that his appointment is
against a sanctioned post, went through the rigors of the selection
process and was even given an appointment letter; and as such he has
every legitimate expectation that the State would recognize the services
as permanent; and thereafter for an inherent defect of their own decision,
the petitioner after rendering a long tenure in service, cannot be pushed
into a dilemma and uncertainty, after serving for almost 30 years;
without being given the benefit of the long service tenure of almost
thirty years.
21. The legitimate expectation operates in the realm of public law, i.e., a
plea of legitimate action can be taken when the public authority breaches
a promise or deviates from a consistent past practice, without any
reasonable cause; and as such for no fault of the petitioner, the court
cannot close its eyes to the long service rendered by the petitioner and
thus depriving him of the consequential benefits. The Court is also duty
bound to balance the equities between the parties. Now after the
retirement, the question of ‘Post’ will lose it’s importance; and the
examination, is to be confined to the right of the Petitioner, to the
retirement benefits, which he claims by virtue of the service rendered by
him, un-disputedly.
22. The accrual of the right to the retirement benefit is by virtue of the
length of service and it is not attached to the post; and as such after
4. 1958 SCCOnline SC 7
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SPLA No. - 1835 of 2012
taking service for almost 30 years, the denial to the retirement benefit,
will be in-equitable; and as such this Court has no hesitation, in molding
the relief, in order to do substantial justice between the parties, for the
grant of retirement benefit, to the Petitioner.
23. In view of the aforesaid, this Court is of the opinion that now since
the petitioner on the verge of retirement, after having served for almost
thirty years, without there being any complaint against his discharge of
duties; and since this Court also exercises it’s powers under Article 226
of the Constitution of India, while deciding the intra-court appeal;
therefor accordingly, in exercise of the said extraordinary powers, direct
the respondent authorities to calculate the retirement benefits of the
petitioner including the pension, gratuity, etc., which is normally
admissible to a Government employee; and release the same within a
period of thirty days from the date of service of certified copy of this
order and consequentially the order of the learned Single Judge dated
31.08.2012, is hereby set aside.
24. With the aforesaid observation and direction the Special Appeal
stands allowed.
(Siddharth Nandan,J.) (Saral Srivastava,J.)
September 14, 2026
S.Prakash
Digitally signed by :-
SHASHI PRAKASH
High Court of Judicature at Allahabad
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