JUDGMENT : The instant intra-court appeal under Clause 10 of the Letters Patent is directed against the order/judgment dated 10.12.2020 passed by learned Single Judge in W.P. (S) No. 3025 of 2019 whereby and whereunder order dated 30.04.2019, passed by the concerned authority of the appellants-State by which the claim of the petitioner for regularization of service was rejected, was quashed and set aside with a direction to regularize the services of the petitioner with all consequential benefits within a period of six weeks from the date of receipt/production of copy of the order. 2. The brief facts, necessary for consideration of the lis, stand enumerated as hereunder: The writ petitioner was appointed on temporary basis on 19.11.1979 against the sanctioned and vacant post on account of leave vacancy. Thereafter a fresh notification was issued on 26.12.1979 i.e., after the person who was on leave namely, Mohan Prasad returned, by which the petitioner’s service was extended and he was posted in different circle i.e., Jharia Circle on account of non-availability of fresh clerk against the sanctioned and vacant post. On 27.04.1983 another letter was issued stating therein that the case of the petitioner is not the case of leave vacancy on account of issuance of fresh letter of posting of the petitioner in different circle. Thereafter, the writ petitioner was provided pay-scale in view of the fact that the petitioner has passed departmental examination on 01.07.1989. However, after lapse of several years, the service of the petitioner was not confirmed whereas services of the persons who were appointed later namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash Kumar and Ramesh Prasad, e.t.c., were confirmed vide memo dated 15.07.2005 and they were provided benefit of Assured Career Progression Scheme also. Aggrieved thereof, the writ petitioner approached this Court by filing writ petition being W.P. (S) No. 4199 of 2011 for quashing the decision dated 11.12.2016 by which the claim of the petitioner for regularization of service was rejected. The Court, after going through the materials on record, quashed the impugned decision dated 11.02.2016 and directed the respondents to consider the case of the petitioner afresh for regularization and pass reasoned order. The Court, after going through the materials on record, quashed the impugned decision dated 11.02.2016 and directed the respondents to consider the case of the petitioner afresh for regularization and pass reasoned order. Pursuant thereto, order dated 30.04.2019 was passed by the concerned authority by which again the claim of the petitioner for regularization of service was rejected, which has been challenged by the writ petitioner by filing writ petition being W.P. (S) No. 3025 of 2019. The learned Single, considering the materials available on record and on appreciation of rival submissions made on behalf of parties as also considering the fact that the writ petitioner is working since 1979 and rendered 41 years of service and going to retire on 31.01.2021, quashed order dated 30.04.2019 by which the concerned authority had rejected the claim of the petitioner for regularization of service with a direction to regularize the services of the petitioner with all consequential benefits, which is the subject matter of present intra-court appeal. 3. Mr. Sachin Kumar, learned A.A.G. II appearing for the appellants-State has submitted that the learned Single Judge has committed gross illegality in passing the impugned order as the same has been passed without considering the fact that the post, on which the petitioner was allowed to continue in service, was not sanctioned. He further submits that the learned Single Judge considering the cases of Sanjeev Kumar Jha, Vimalendu Kumar, Vikash Kumar and Ramesh Prasad, whose services were confirmed as also they were provided with A.C.P. passed the impugned order but that does not create a right upon the writ petitioner to claim regularization in service and consequential benefit of A.C.P even though he was allowed to perform his duty for a period of 41 years as also superannuated from service on attaining the age of superannuation w.e.f. 31.01.2021. According to learned counsel for the appellant since the learned Single Judge has not considered the aforesaid aspect of the matter, the order impugned is not sustainable in the eyes of law and therefore, the same may be quashed and set aside. 4. We have heard learned counsel for the appellants-State and perused the materials available on record as also the findings recorded by learned Single Judge. 5. 4. We have heard learned counsel for the appellants-State and perused the materials available on record as also the findings recorded by learned Single Judge. 5. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed facts, which are necessary for proper adjudication of the lis. 6. Admittedly, the writ petitioner was appointed on the post of Lower Division Clerk on temporary basis vide Officer Order dated 19.11.1979 against leave vacancy arisen due to proceeding on leave by one Lower Division Clerk, namely, Mohan Prasad. Thereafter the concerned authority, keeping the fact into consideration that there is vacancy against the sanctioned and vacant post at Circle level, issued another Office Order dated 26.12.1979 by which the petitioner’s service was extended and he was posted in different circle i.e., Jharia Circle. It further appears from letter dated 27.04.1983, which is an intra-departmental communication in which list of class 3 and 4 employees, who were said to be working against leave vacancy and whose services were recommended to be put an end was annexed, that the name of the writ petitioner did not find place in that letter which goes to suggest that at that time he was not working against leave vacancy rather he was working against vacant and sanctioned post, as would appear from letter dated 26.12.1979. It further appears that by passage of time, vide Office Order dated 01.07.1989, the writ petitioner was provided the up-graded pay-scale in view of the fact that the petitioner had passed departmental examination. But after lapse of several years, neither the services of the petitioner was confirmed nor benefit of A.C.P. was granted in favour of petitioner whereas similarly situated persons, namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash Kumar and Ramesh Prasad, etc., who were appointed later, were extended the benefit of A.C.P. vide memo dated 15.07.2005, which shows that the petitioner was subjected to discrimination by not confirming his service and extending the benefit of A.C.P. while such benefit was extended to other similarly situated persons. Being aggrieved, the petitioner had earlier approached this Court by filing writ petition being W.P. (S) No. 4199 of 2011 for confirmation/regularization of service as also for grant of benefits under A.C.P. Scheme but during pendency of the writ petitioner the petitioner came to know that vide decision dated 11.12.2016 the claim of the petitioner for regularization of service was rejected, as such further prayer was made for quashing of decision dated 11.12.2016 by filing Interlocutory Application being I.A. No. 8296 of 2017. Learned Single Judge, going through the materials on record as also order passed in W.P. (S) No. 2678 of 2017 and W.P. (S) No. 1648 of 2017 whereby decision of the respondents-authorities dated 11.02.2016 was quashed and set aside, quashed the impugned decision dated 11.02.2016 and directed the respondents to consider the case of the petitioner afresh for regularization and pass reasoned order in accordance with law. Pursuant thereto, order dated 30.04.2019 was passed by the concerned authority by which the claim of the petitioner for regularization of service was rejected, which was challenged by the writ petitioner by filing writ petition being W.P. (S) No. 3025 of 2019. The learned Single Judge, taking into consideration the fact in entirety, quashed order dated 30.04.2019 and directed to regularize the service of the petitioner with all consequential benefits. 7. Learned counsel for the appellants-State has primarily raised the issue of appointment of the writ petitioner against the post which was never sanctioned rather accordingly to him appointment was made against leave vacancy. 8. This Court has considered the aforesaid submission of the appellants-State in the light of fact that the date of appointment of the writ petitioner i.e. 19.11.1979 is not in dispute and since then he was allowed to continue in service till the date of superannuation i.e. 31.01.2021. The question of post having not been sanctioned has been considered by the Hon’ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi & Ors [ 2006 (4) SCC 1 ] wherein at paragraph 53 it has been held that there cannot be appointment in absence of post having not been sanctioned and in the backdrop of that aspect of the matter, the Hon’ble Apex Court has laid down the proposition that such type of appointment is illegal. Uma Devi & Ors [ 2006 (4) SCC 1 ] wherein at paragraph 53 it has been held that there cannot be appointment in absence of post having not been sanctioned and in the backdrop of that aspect of the matter, the Hon’ble Apex Court has laid down the proposition that such type of appointment is illegal. But the question which is to be considered in the case in hand is as to whether State Government can be allowed to take such decision after allowing the petitioner to continue in service after 41 years as also allowing the petitioner to superannuate from service on attaining the age of superannuation w.e.f. 31.01.2021 ? 9. It is not in dispute, as per the materials available on record, that apart from writ petitioner other persons, namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash Kumar and Ramesh Prasad were granted benefit under A.C.P. Scheme but the writ petitioner was denied such benefit and his services were also not regularized and to that effect specific statement was made in the writ petition but the said averment has not been rebutted by the appellants-State of Jharkhand in the counter affidavit. In the case in hand, the writ petitioner was allowed to participate in the departmental examination and after passing of such examination he was granted up-graded pay-scale. 10. Thus, according to our considered view, the appellants-State cannot be allowed to take the plea of non-availability of sanctioned post after allowing the writ petitioner to serve for a period of 41 years of uninterrupted service. Further such plea cannot be said to have force when the services of similarly situated persons were regularized and they were granted benefit under A.C.P. Scheme, but no such decision was taken in favour of writ petitioner which itself shows the discriminatory attitude of the appellants-authorities. The question herein is that after rendering service for a period of about 41 years and after retirement of an employee from service if the plea of appointment on the non-sanctioned post will be allowed to be agitated by State-respondent while such plea has not been agitated with respect to other similarly situated employees, would it hit Article 14 of the Constitution of India as Article 14 stipulates that there cannot be any discrimination among similarly situated employees. 11. 11. It is settled position of law that there cannot be any discrimination amongst similarly situated employees, however, the persons can be treated differently in a case of reasonable classification and in that circumstance the principle of Article 14 will not come into play. But, if the discrimination is based on unreasonable classification, Article 14 will come into play as has been held by Hon’ble Apex Court in State of Jammu & Kashmir vs. Triloki Nath Khosa and Ors., (1974) 1 SCC 19 wherein the Hon’ble Court [Chandrachud, J. (as he then was)] at paragraph 20 succinctly held as under : “20. The challenge, at best, reflects the respondent’s opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.” It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Court (in paras 29 & 30) held thus : “But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class.” Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [ (1981) 4 SCC 335 ], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees’ Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court (in paragraph39) summarized thus : “39. Thus, from a detailed analysis and close examination of the eases of this Court starting from 1952 till today, the following propositions emerge : (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 can not be attracted. (2)Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Art. 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4)Where equals and unequals are treated differently, Article 14 would have no application. (5)Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6)In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:- (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category. (6)In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:- (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category. (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not to be found in other classes, and the like.” In the case in hand, on the basis of materials available on record, the writ petitioner claimed to have been appointed along with other similarly situated persons, namely, Sanjeev Kumar Jha, Vimalendu Kumar, Vikash Kumar and Ramesh Prasad, and in whose favour the decision of confirmation/regularization in service was taken and they were taken in regular establishment of the State Government leaving the writ petitioner apart. This specific fact has not been disputed by the State in the counter affidavit filed by them before the writ Court, therefore, according to our considered view, on the basis of fact as referred hereinabove, if the writ petitioner has not been give similar benefit it will lead to unreasonable classification and hence Article 14 will come into play. 12. Further, the plea of confirmation of services of other similarly situated employees as also up-gradation in the pay-scale by granting benefit under A.C.P. Scheme, is not in dispute since no rebuttal has been made in the counter affidavit denying the statement made by the writ petitioner in the writ petition. Further other litigant, namely, Nand Kishor Prasad whose claim for regularization were also denied vide order dated 11.02.2016 approached before this Court by filing writ petition being W.P. (S) No. 2678 of 2017 and this Court after considering the pleadings available on record, quashed the impugned order of rejection of claim of the petitioner and very surprisingly the appellants-State has not chosen to assail the said order rather as has been submitted at Bar that the order passed by the learned Single Judge has been acted upon by regularizing him in service. Therefore, action of the State Government cannot be said to be justified in adopting the policy of pick and choose amongst similar set of employees. 13. Although, the Hon’ble Apex Court in Secretary, State of Karnataka Vs. Therefore, action of the State Government cannot be said to be justified in adopting the policy of pick and choose amongst similar set of employees. 13. Although, the Hon’ble Apex Court in Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) has deprecated the back-door entry but the Hon’ble Apex Court has also observed in the said order that the employee who has already been inducted in service may be taken in regular establishment, as per observation made at paragraph 53 thereof, by carving out the exception as has been made by issuing command upon the State Government to take one time exercise, if services of the employees who have been inducted in service through back-door is required, same is to be taken within the period of six months, who have completed 10 years of service as on the date of the pronouncement of the judgment without support of any interim order passed by the Court of law. There is no denial on the proposition of law that the order passed by the Hon’ble Apex Court is the rule of land in view of Article 141 of the Constitution of India but when the Hon’ble Apex Court has already given a direction in the case of Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) then why the State Government has not taken any action to dispense with the services of the writ petitioner as the State Government is taking the plea that appointment of the writ petitioner was made on the non-sanctioned post. If that be so the State Government ought to have taken adverse decision by dispensing with the services of the writ petitioner in view of the observations made by the Hon’ble Apex Court at paragraph 53 of the judgment rendered in Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) but no such decision was taken rather the writ petitioner was allowed to continue in service fairly for a period of 15 years even after pronouncement of the judgment in Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) and the appellants-State allowed the writ petitioner to superannuate from service w.e.f. 31.01.2021. 14. Therefore, according to our considered view, the ratio which has been laid down by the Hon’ble Apex Court in Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) and the appellants-State allowed the writ petitioner to superannuate from service w.e.f. 31.01.2021. 14. Therefore, according to our considered view, the ratio which has been laid down by the Hon’ble Apex Court in Secretary, State of Karnataka Vs. Uma Devi & Ors (supra) has not been complied with by the said authority and therefore, they cannot be allowed to take any decision with the aid of observations made at paragraph 53 of the said judgment at this juncture after allowing the writ petitioner to continue in service for about 15 years from the date of such judgment. 15. This Court, on the basis of discussions made herein above, is of the view that the decision of rejection of the claim of the writ petitioner for regularization in service by the competent authority of the State Government cannot be said to be just and proper and if such decision of the State Government will be declared to be just and proper it will be nothing but the concerned employee will be subjected to unfair practice and exploitation. Since we are living in the welfare State and when any rule of law has come or any judicial pronouncement has come and when the State Government has been directed to act upon on the basis of such decision, it is incumbent upon the State Government to act in pursuance to the aforesaid judgment since such judgment has become the rule of land. But no such decision was taken in compliance of such direction. Therefore, order of rejection of the claim of the writ petitioner for regularization, after allowing him to rendering service for 41 years and allowing him to superannuate from service, cannot be said to be justified and proper. 16. The learned Single Judge, considering the aforesaid aspect of the matter since has taken decision, quashing and setting aside the order passed by the concerned authority which according to our considered view, cannot be said to suffer from any error. 17. Accordingly, the appeal fails, and is dismissed.