JUDGMENT : Sujit Narayan Prasad, J. The instant intra-court appeal under Clause 10 of the Letters Patent is preferred against order/judgment dated 23.02.2021 in W.P.(S) No.4631 of 2017 whereby and whereunder, the learned Single Judge quashed the order as contained in letter dated 26.04.2017, by which the appellants-State refused to confirm the services of the writ petitioner as also extend the benefits MACP/ACP, and directed to issue the order of confirmation with regard to petitioner and consequently grant the benefit of 1st and 2nd ACP. 2. The brief facts of the case, as per the pleading made in the writ petition, which require to be enumerated, read hereunder as: The writ petitioner was appointed vide order dated 04.07.1980 in terms of advertisement for appointment on the post of Clerk in Commercial Taxes Department in the erstwhile State of Bihar floated in the year 1979. After his appointment, he started to discharge his duties as Clerk at Darbhanga, Bihar wherefrom he was transferred to Jamshedpur Division vide order dated 16.01.1985. It is the case of the writ petitioner that he qualified the requisite typing test as would be evident from letter dated 16.10.1981 issued by the Joint Commissioner, Commercial Taxes, Darbhanga, as such recommendation for confirmation of his service was made. He has further passed the requisite Hindi noting and drafting examination, as would be evident from letter dated 22.12.1983. The petitioner has also passed the Accounts Examination, as would be evident from letter dated 11.05.1994 issued by the Revenue Department. But, even after completing 33 years of service no order of confirmation of service was passed till his retirement i.e. 31.03.2013. Being aggrieved, the petitioner approached this Court by filing writ petition being W.P. (S) No. 6480 of 2012, which was disposed of vide order dated 11.12.2012 with a direction to respondent no. 2-the concerned competent authority to take appropriate decision on the representation of the petitioner within a stipulated period. Pursuant thereto, the writ petitioner submitted representation before the competent authority which was rejected vide order dated 20.02.2013. 2-the concerned competent authority to take appropriate decision on the representation of the petitioner within a stipulated period. Pursuant thereto, the writ petitioner submitted representation before the competent authority which was rejected vide order dated 20.02.2013. Aggrieved thereof, the writ petitioner again approached this Court by filing writ petition being W.P.(S) No. 1437 of 2013, which was allowed vide order dated 13.11.2013, whereby order dated 20.02.2013 was quashed and direction was issued to pass fresh order regarding confirmation of service of the petitioner and on his claim for benefits of 1st and 2nd ACP maintaining equality with the case of the similarly situated employee and also pass order regarding payment of admitted dues of salary and post retiral benefits within a stipulated period. Pursuant thereto the competent authority of the State passed order dated 02.12.2014 whereby claim of the petitioner for confirmation of service and extending the benefit of ACP/MACP was rejected. Being dissatisfied with order dated02.12.2014 the writ petitioner filed W.P. (S) No. 295 of 2015 which was disposed of vide order dated 26.10.2015 in terms of order dated 09.09.2015 passed in W.P. (S) No. 259 of 2013 [Manoj Kumar Sinha Vs. State of Jharkhand & Ors] holding that the case of the present writ petitioner is required to be considered by the respondent-Department through the procedure evolved and taking into consideration judgment passed in Manoj Kumar Sinha (supra).The case of the writ petitioner was again considered and rejected vide order dated 26.04.2017. The writ petitioner questioning order dated 26.04.2017 approached this Court by filing W.P. (S) No. 4631 of 2017. The learned Single Judge, after appreciating the arguments advanced by the parties, quashed order dated 26.04.2017 and directed the respondents-authorities to issue confirmation order with regard to service of the petitioner and consequential order for granting the benefits of 1st ACP and 2nd ACP, which is the subject matter of present intra-court appeal 3. Mr. Ashutosh Anand, learned A.A.G. III appearing for the appellants-State of Jharkhand has questioned the order passed by learned Single Judge on the ground that the post in question on which the writ petitioner was appointed was not sanctioned one as also procedure for appointment was not followed, which was not appreciated by learned Single Judge, therefore, the order passed by the learned Single Judge is not sustainable. 4. 4. We have heard learned counsel for the appellant, perused the documents available on record as also the finding recorded by learned Single Judge. 5. This Court before proceeding to screening the legality and propriety of the impugned order deem it fit and proper to refer certain undisputed facts, which is necessary for proper adjudication of the lis: In pursuance to advertisement issued by the competent authority of the State, the writ petitioner participated and after being declared successful in the skill test and interview was appointed on the post of Clerk in Commercial Taxes Department in the erstwhile State of Bihar vide order dated 04.07.1980. After his appointment, he started to discharge his duties as Clerk in Darbhanga, Bihar and thereafter he was transferred to Jamshedpur Division vide order dated 16.01.1985. The writ petitioner claims that he qualified the requisite typing test as would be evident from letter dated 16.10.1981 issued by the Joint Commissioner, Commercial Taxes, Darbhanga, therefore, his services was recommended for confirmation, as per clause (2) of the terms and conditions of the offer of appointment dated 04.07.1980 and thereafter, he was allowed to continue in service till attaining the age of superannuation and finally he retired on 31.03.2013 but neither his services was confirmed nor he was granted applicable ACP/MACP. The petitioner has also passed the Accounts Examination, as would be evident from letter dated 11.05.1994 issued by the Revenue Department. The competent authority under the applicable pension rule sanctioned pension in favour of writ petitioner and forwarded the same to the Accountant General for issuance of authority slip. The office of the Accountant General issued authority slip and thereafter, the writ petitioner is getting pension regularly. The writ petitioner seeking the benefit of regular promotion as well as benefits of 1st and 2nd ACPs approached this Court by filing W.P. (S) No. 6408 of 2012, which was disposed of vide order dated 11.12.2012 with a direction to respondent no. 2-the concerned competent authority to take appropriate decision on the representation of the petitioner within a stipulated period. Thereafter, the writ petitioner submitted representation which was rejected by the authority concerned vide order dated 20.02.2013 whereby claim of the writ petitioner for confirmation of service as also grant of ACP/MACP was rejected. 2-the concerned competent authority to take appropriate decision on the representation of the petitioner within a stipulated period. Thereafter, the writ petitioner submitted representation which was rejected by the authority concerned vide order dated 20.02.2013 whereby claim of the writ petitioner for confirmation of service as also grant of ACP/MACP was rejected. Against that the writ petitioner again filed writ petition being W.P.(S) No. 1437 of 2013, which was allowed vide order dated 13.11.2013, whereby order dated 20.02.2013 was quashed and direction was issued to pass fresh order regarding confirmation of service of the petitioner and on his claim of benefits of 1st and 2nd ACP maintaining equality with the case of the similarly situated employee and also pass order regarding payment of admitted dues of salary and post retiral benefits within a stipulated period. Pursuant thereto, order was passed by the competent authority of the State passed order dated 02.12.2014, whereby claim of the petitioner for confirmation of his service and extending the benefit of ACP/MACP was rejected. Being aggrieved with order dated 02.12.2014, the writ petitioner filed W.P. (S) No. 295 of 2015, which was disposed of vide order dated 26.10.2015 in terms of order dated 09.09.2015 passed in W.P. (S) No. 259 of 2013 [Manoj Kumar Sinha Vs. State of Jharkhand & Ors] holding that the case of the present writ petitioner is required to be considered by the respondent-Department through the procedure evolved and taking into consideration judgment passed in Manoj Kumar Sinha (supra). In the light of aforesaid direction, the case of the writ petitioner was considered and claim of the writ petitioner was rejected by the authority concerned vide order dated 26.04.2017, which was challenged by filing W.P. (S) No. 4631 of 2017. The writ Court considering the material available before the Court quashed the order dated 26.04.2017 directing the authority concerned to issue confirmation order of service of the petitioner and consequent thereupon grant the benefit of 1st and 2nd ACP, which is the subject matter of present intra-court appeal. The appellants-State has raised the question about non-sanction of the post on which the writ petitioner was working since 198o. The advertisement and the process of selection has not been disputed by the appellants-State however statement has been made in the counter affidavit filed in the writ petition to the effect that it is a matter of record. The appellants-State has raised the question about non-sanction of the post on which the writ petitioner was working since 198o. The advertisement and the process of selection has not been disputed by the appellants-State however statement has been made in the counter affidavit filed in the writ petition to the effect that it is a matter of record. The issue of post having not been santioned is the main question raised by the appellants for assailing the order passed by the learned Single Judge. In the factual aspect of the matter, this Court is of the view that the question ‘post having been sanctioned’ or ‘post having not been sanctioned’ is of paramount consideration. Admittedly, the writ petitioner was appointed after going through the process of appointment and after being declared successful in the typing test and interview offer of appointment was issued vide order dated 04.07.1980, wherein at clause (2) in unequivocal terms it has been stipulated that the writ petitioner has to again appear for typing test till 31.12.1980 and to pass the typing test and only thereafter his services will be regularized. The writ petitioner claims that he qualified the requisite typing test as would be evident from letter dated 16.10.1981 issued by the Joint Commissioner, Commercial Taxes. Besides, the writ petitioner had also passed the Hindi noting and drafting examination, as would be evident from letter dated 22.12.1983 and also the Accounts Examination, as would be evident from letter dated 11.05.1994 issued by the Revenue Department. The writ petitioner continued to discharge his duties till his retirement without any demur. But, when in the year 2012 before his retirement the writ petitioner raised grievance for extending the benefit of A.C.P./M.A.C.P, by way of filing W.P. (S) 6480 of 2012, the writ Court directed to dispose of the representation of the writ petitioner, whereupon case of the writ petitioner was considered and his claim for confirmation of service and grant of benefit of ACP/MACP was rejected vide order dated 20.02.2013. On the one hand, the claim of the writ petitioner for confirmation of service and grant of benefit of ACP/MACP was rejected vide order dated 20.02.2013 but on the other hand, the competent authority of the State under the applicable pension rule sanctioned pension in favour of writ petitioner and forwarded the same to the Accountant General for issuance of authority slip. The office of the Accountant General issued authority slip and thereafter, the writ petitioner is getting pension regularly, which has been accepted by both the parties. Herein, it would be required to mention that pension is only paid, if appointment of the public servant is made on the substantive post, as would be evident from Rule 58 of the Jharkhand Pension Rule. Thus, it is evident that entitlement for qualifying pension will only come on the basis of fulfilment of three conditions, i.e.: First—The service must be under Government. Second—The employment must be substantive and permanent. Third—The service must be paid by Government. Therefore, the sine qua non for getting the pension is that the appointment must be substantive and permanent. The substantive post denotes that appointment, if made in the regular establishment of the State Government in a particular pay-scale and against sanctioned post and only when the appointment will be found to be in the regular establishment of the State Government in a particular pay-scale, will be treated to be appointment on substantive capacity. No objection regarding sanction of the post was raised before sanction of the authority slip of the pension of the writ petitioner rather the same was forwarded and pension was sanctioned by the competent authority of the Accountant General from where the authority slip for pension has been issued and writ petitioner has been extended the benefit of pension. It is also not the case of the State that even though the service of the writ petitioner was temporary as such resorting to the provision of Rule 59 of the Pension Rule, pension has been sanctioned rather case of the State is that pension has been sanctioned considering Rule 58 of the Pension Rules. This action of the State Government clearly indicates that the appointment of the writ petitioner cannot be treated to be made on non-sanctioned post. This action of the State Government clearly indicates that the appointment of the writ petitioner cannot be treated to be made on non-sanctioned post. Therefore, on the basis of stand of the State Government it cannot be accepted that the post of the petitioner was not sanctioned since no such document has been annexed by the State Government that the post was not sanctioned rather it will be treated to be admission on the part of the State Government that writ petitioner was appointed against sanctioned post on the basis of their action that the pension has been sanctioned considering the provision as under Rule 58 of the Jharkhand Pension Rule. Further, we have considered the order passed by the writ Court in W.P. (S) No. 1437 of 2013 dated 13.11.2013. For ready reference, the relevant paragraph is quoted hereunder as: “I have heard learned counsel for the parties and considered the facts and materials on record. It is an admitted position that the petitioner was appointed in the year 1980; he remained in service for more than three decades; he was given salary and other service benefits during his entire tenure of more than three decades. After attaining the age of superannuation, the petitioner retired on 31.3.2013. It is also not disputed that the services of one Yogendra Prasad, who was similarly appointed on the post of Clerk in the Department of Commercial Taxes, was confirmed and he has been given the benefits of 1st and 2nd A.C.P. In view thereof, the respondents cannot discriminate, withhold or deny the petitioner's confirmation and benefits of 1st and 2nd A.C.P. It appears ridiculous that the matter regarding confirmation of the petitioner's service will be considered after framing of the scheme, when the petitioner has already completed his long tenure of service and retired. In the counter affidavit, nothing has been stated to justify the different treatment to the petitioner while the services of similarly situated Yogendra Prasad was confirmed and benefits of 1st and 2nd A.C.P have already been given to him. The impugned order (Annexure-4) rejecting the petitioner's prayer for confirmation and giving benefits of 1st and 2nd A.C.P is, thus, wholly arbitrary, discriminatory and unsustainable. The said order contained in Letter No. 839 dated 20.2.2013 (Annexure-4) is quashed. This writ petition is allowed. The impugned order (Annexure-4) rejecting the petitioner's prayer for confirmation and giving benefits of 1st and 2nd A.C.P is, thus, wholly arbitrary, discriminatory and unsustainable. The said order contained in Letter No. 839 dated 20.2.2013 (Annexure-4) is quashed. This writ petition is allowed. The respondents are directed to pass a fresh order regarding confirmation of the petitioner's service and on his claim of benefits of the 1st and 2nd M.A.C.P maintaining equality with the case of the similarly situated employee, as mentioned above, within six weeks from the date of receipt / production of a copy of this order. Since the petitioner has already retired, the respondents shall pass order regarding payment of admitted amounts of difference of salary and post retiral benefits in terms of the said order with statutory interest, within six weeks thereafter”. Thus, it is evident from perusal of the order, as quoted herein above that even this Court sitting under Article 226 of the Constitution of India has noted that the admitted fact is that appointment of the writ petitioner was made three decades ago and he was given salary and other benefits during the entire period of service till his retirement. Learned Single Judge further observed that services of one Yogendra Prasad, who was similarly appointed on the post of Clerk in the Department of Commercial Taxes, was confirmed and he has been given the benefits of 1st and 2nd A.C.P, as such the respondents-State cannot discriminate, withhold or deny the petitioner's confirmation and benefits of 1st and 2nd A.C.P. Accordingly, quashed the order dated 20.02.2013, whereby claim of the petitioner for confirmation of service and grant of ACP was rejected, and directed to pass order regarding confirmation of petitioner’s service and on his claim of benefits of 1st and 2nd ACP maintaining equality with the case of the similarly situated employee. The State authority even after finding recorded by the learned Single Judge and direction made thereon, rejected the claim of the petitioner as if the State authority is sitting as an appellate forum upon the order passed by the writ Court under Article 226 of the Constitution of India. If the State was at all aggrieved by the order passed by the learned Single Judge, he had remedy of appeal, but instead of preferring any appeal, it has taken a contrary view treating it to be appellate forum. If the State was at all aggrieved by the order passed by the learned Single Judge, he had remedy of appeal, but instead of preferring any appeal, it has taken a contrary view treating it to be appellate forum. This Court on the basis of factual aspect of the matter is of the view that when the conclusive finding was recorded by the learned Single Judge, the State cannot be allowed to agitate the issue that the post having not been sanctioned. So far the argument of the State that process of appointment having not been followed according to our considered view, the same is also having no force as the fact about issuance of advertisement participation of the writ petitioner in skill as well as interview has not been disputed by the State in the counter affidavit filed before the writ Court, only the statement pertaining to issuance of advertisement has been replied by making statement that the same is matter of records so needs no comment which clearly goes to suggest that the fact about issuance of advertisement has not been denied by the State-respondent, therefore, there is no question of nonobservance of principles laid down under Article 14 and 16 of the Constitution of India. We, on the basis of entirety of facts and circumstances of the case travelled towards the order passed by the learned Single Judge has found therefrom that the learned Single Judge has considered the aforesaid aspect of the matter more particularly finding recorded in W.P. (S) No. 1437 of 2013 as also the long tenure of the writ petitioner, which was allowed by the State to serve and to allow the writ petitioner to retire on attaining the age of superannuation, and therefore, the learned Single Judge quashed impugned order dated 26.04.2017 whereby claim of the petitioner for confirmation of service and grant of ACP/MACP was denied, are of the considered view that the order passed by the learned Single Judge suffers from no infirmity. 18. Accordingly, the appeal fails, and is dismissed.