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Supreme Court of India
State Of U.P. vs Shyam Lal Jaiswal on 7 October, 2021Author: Ajay Rastogi
Bench: Ajay Rastogi, Abhay S. Oka
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6251 OF 2021
(Arising out of SLP(C) No. 16416 of 2021
(Diary No. 210/2020)
STATE OF U.P. & ANR. APPELLANT(S)
VERSUS
SHYAM LAL JAISWAL RESPONDENT(S)
O R D E R
Delay Condoned.
Leave granted.
The instant appeal has been preferred by the
State of Uttar Pradesh assailing the order impugned
dated 03.08.2018 of the High Court of Allahabad,
Lucknow Bench, confirming the order dated
12.12.2013 of the State Public Services Tribunal,
U.P. (for short ‘the Tribunal’).
The facts in brief relevant for the purpose
are that the respondent herein was working as a
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2021.10.08
17:55:21 IST
Reason:
Cashier in the Transport Department since June,
1967. While in service, for some alleged
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misconduct, departmental inquiry was initiated
against him and was later dismissed from service by
an order dated 20.11.1975. That order came to be
set aside by the Tribunal by an order dated
14.02.1984 and finally confirmed on dismissal of
the Special Leave Petition by an order dated
20.04.2000.
It is to be noticed that the respondent during
the pendency of litigation attained the age of
superannuation on 31.03.1996.
After the order of dismissal dated 20.11.1975
came to be set aside, and finally confirmed by this
Court, a fresh litigation was initiated at his
instance on the premise that persons who were
junior to him, i.e. Mr. Ajay Kumar Sinha and Mr.
K.M. Haleem, were promoted/appointed as Assistant
Public Prosecutors on 21.02.1980 and once his
position has been restored after order of dismissal
being set aside, he too is entitled for promotion
from the date his juniors were promoted as
Assistant Public Prosecutors.
We have heard learned Counsel for the parties,
the grievance of the respondent is not sustainable
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for the reason that the post of Assistant Public
prosecutor is included in the Schedule appended to
the Uttar Pradesh Transport (Subordinate)
Prosecution Service Rules, 1979 (for short ‘the
1979 Rules’) which was published in the
extraordinary Gazette on 27.07.1979 and in terms of
Rule 5 of the 1979 Rules, the recruitment to the
post of Assistant Public Prosecutor shall be made
by direct recruitment on the basis of a competitive
examination followed by a Viva Voce test to be
conducted by the Commission.
This fact has been completely ignored by the
Tribunal and so also by the High Court in the order
impugned. Taking the Scheme of Rules 1979 and Rule
5, in particular, in our considered view, the order
of the High Court confirming order of the Tribunal
is not sustainable in law.
Consequently, the Appeal succeeds and
accordingly allowed.
The order of the High Court dated 03.08.2018
confirming the order dated 12.12.2013 of the
Tribunal is hereby set aside.
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Pending application(s), if any, shall stand
disposed of.
……………………………………………J
(AJAY RASTOGI)
……………………….……………………J
(ABHAY S. OKA)
NEW DELHI;
OCTOBER 07, 2021.
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