# Dr. Sushma Chandel v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-25
- **Case number:** WRIT A No. 9396 of 2021
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-sushma-chandel-v-state-of-u-p-ors-47382
- **Pages:** 18

## Headnote

A. Service Law - Addition of adhoc
services for the computation of pensionary
benefits - Civil Service Regulations -
Regulations 368 & 370 - Uttar Pradesh
Retirement Benefit Rules, 1961 - Rules
2(3) & 3(8) - U.P. Regularization of Ad hoc
Appointments
(On
Post
Within
the
Purview of the Public Service Commission)
(Third Amendment) Rules, 2001- Uttar
Pradesh Qualifying Service for Pension
and Validation Ordinance 2020 (U.P.
Ordinance No. 19 of 2020).

The right to claim pensionary benefits is
now and by virtue of the provisions
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1277
introduced retroactively by the Validating
Act made dependent upon it being found
that the employee was appointed in
accordance with the applicable service
rules and held a permanent or temporary
post. (Para 31)

Impact of Validating Act - The right of an
employee to seek addition of continuous,
temporary or officiating service followed
by confirmation or regularisation would
remain preserved notwithstanding the
deletion of Regulation 370. The period prior
to regularisation cannot be ignored as long as it
is established that it was service rendered
against a particular post be it temporary or
permanent. The only fetter which now remains
in place for the purposes of computing
qualifying service is of the service rendered
being shown to have been discharged against a
permanent
or
temporary
post
and
the
appointment having been made in accordance
with the service rules. (Para 33, 34, 35)

Notwithstanding the above, the question of
whether the engagement of the officer or
employee shown against a work charged
establishment was merely an "exploitative
measure" [an expression which the Court
borrows from Prem Singh itself] and designed to
deny benefits of long service would still be open
to canvassed. (Para 34)

B. A claim for pensionary benefits cannot
be negatived solely on the basis of a mere
reiteration of the Validating Act having
been introduced. The respondents would
have to necessarily evaluate such claims
bearing in mind the following questions
which would arise:-

## Text

_Characters 0–39,989 of 59,343. This is a partial read: ask again with offset=39989 for what follows._

1276 INDIAN LAW REPORTS ALLAHABAD SERIES
bodies had been hid by the co-accused
Shamshad with the help of his brother-inlaw Dilshad (Sala) in the floor of the room,
which were recovered on the pointing out
of
the
co-accused,
Shamshad
in
a
decomposed
condition.
The
deceased
would never have imagined that the place
where they lived would become their
graveyard. From the Call Detail Report of
the accused persons it is clear that in the
intervening night of 28/29.3.2020 and in
day
time
on
29.3.2021
there
were
continuous
telephonic
conversation
amongst the accused persons and they also
sent messages to each others and the
location of their phones were traced at the
place
of
occurrence,
therefore,
the
involvement of the applicant in the crime
cannot be ruled out. The dead bodies of the
both the deceased have been buried by the
co-accused to destroy the evidence. A
criminal conspiracy is generally hatched in
secrecy and it is difficult to obtain direct
evidence. It is well settled that a man may
tell a lie, but circumstances do not. The
circumstances of this case as mentioned
above are conclusive in nature, which is in
proximity to the time and situation. In view
of above, the innocence of the applicant
cannot be adjudged at pre trial stage.

11. Having considered the facts and
circumstances of the case, nature of
offence, the gravity involved therein and
the manner in which the crime has been
committed, no case for bail is made out.

12. The application for bail is hereby
rejected.

13. The observation made herein
above is only limited for the purpose of
disposal of this bail application and will in
no way be construed as an expression on
the merits of the case. The trial court shall
be absolutely free
to arrive
at its
independent conclusions on the basis of
evidence led uninfluenced by anything
expressed in this order.

14. Office is directed to communicate
the facsimile of this order to District Judge,
Meerut and the complainant of this case at
the earliest.
----------
(2021)09ILR A1276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

WRIT A No. 9396 of 2021
with
WRIT A No. 22070 of 2018
with
WRIT A No. 9744 of 2021

Dr. Sushma Chandel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shanshank Shekhar Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Addition of adhoc
services for the computation of pensionary
benefits - Civil Service Regulations -
Regulations 368 & 370 - Uttar Pradesh
Retirement Benefit Rules, 1961 - Rules
2(3) & 3(8) - U.P. Regularization of Ad hoc
Appointments
(On
Post
Within
the
Purview of the Public Service Commission)
(Third Amendment) Rules, 2001- Uttar
Pradesh Qualifying Service for Pension
and Validation Ordinance 2020 (U.P.
Ordinance No. 19 of 2020).

The right to claim pensionary benefits is
now and by virtue of the provisions
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1277
introduced retroactively by the Validating
Act made dependent upon it being found
that the employee was appointed in
accordance with the applicable service
rules and held a permanent or temporary
post. (Para 31)

Impact of Validating Act - The right of an
employee to seek addition of continuous,
temporary or officiating service followed
by confirmation or regularisation would
remain preserved notwithstanding the
deletion of Regulation 370. The period prior
to regularisation cannot be ignored as long as it
is established that it was service rendered
against a particular post be it temporary or
permanent. The only fetter which now remains
in place for the purposes of computing
qualifying service is of the service rendered
being shown to have been discharged against a
permanent
or
temporary
post
and
the
appointment having been made in accordance
with the service rules. (Para 33, 34, 35)

Notwithstanding the above, the question of
whether the engagement of the officer or
employee shown against a work charged
establishment was merely an "exploitative
measure" [an expression which the Court
borrows from Prem Singh itself] and designed to
deny benefits of long service would still be open
to canvassed. (Para 34)

B. A claim for pensionary benefits cannot
be negatived solely on the basis of a mere
reiteration of the Validating Act having
been introduced. The respondents would
have to necessarily evaluate such claims
bearing in mind the following questions
which would arise:-

1. Whether the service rendered in temporary,
ad hoc, or officiating capacity was one which
was
discharged
against
a
permanent
or
temporary post;

2. Whether the appointment was made in
accordance with the provisions made in the
prevalent service rules;

3. Whether such service can be excluded
notwithstanding the provisions made in the
proviso to Rule 3(8) of the 1961 Rules;
4. Whether the service rendered in a workcharged
establishment
followed
by
regularisation can be legally excluded while
computing qualifying service;

5. Whether such service was performed in
connection with work which was regular and
perennial and the engagement in a work charged
establishment was a mere ruse to deny benefits of
long service. (Para 36)

C. It is a settled position of law that the
objective of a proviso is to carve out from the
main section a class or category to which the
main section does not apply. A proviso must
prima facie be read and considered in relation to the
principal matter to which it is a proviso. It is not a
separate or independent enactment.

Provisions similar to those enshrined in Regulation
370 remain preserved and untouched in the proviso
to Rule 3(8). That proviso has neither been
amended nor deleted. (Para 29)

D. 'Qualifying service' - The expression
"qualifying service" would now have to be
interpreted in accordance with the provisions
made in the Validating Act notwithstanding
anything to the contrary that may be contained in
any other act, rule or regulation.

The Validating Act introduces provisions with
retrospective
effect
from
1
April
1961.
Consequently, the provisions of the 1961 Rules
which came to be promulgated from that date
would have to be construed accordingly. (Para 30)

Matters remitted. Writ petitions disposed off.
(E-4)

Precedent followed:

1. Dr. Dhirendra Prakash Tiwari Vs St. of U.P. &
ors., Writ-A No. 26637 of 2012 (Para 5)

2. Dr. Yogendra Singh & ors. Vs St.of U.P. &
ors., Writ Petition No. 3201 of 1992 (Para 5)

3. Prem Singh Vs St. of U.P. & ors., (2019) 10
SCC 516 (Para 14)

4. St. of U.P. & ors. Vs Mahendra Singh, Special
Appeal Defective No. 1003 of 2020 (Para 18)
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
5. St. of U.P. & ors. Vs Bhanu Pratap Sharma,
Special Appeal no. 97 of 2021 (Para 19)

6. St. of U.P. & 4 ors. Vs Narayan Singh
Sharma, Special Appeal Defective No. 156 of
2021 (Para 20)

7. Durgabai Deshmukh Memorial Sr. Sec. School
Vs J.A.J. Vasu Sena, (2019) 17 SCC 157 (Para
29)

Precedent distinguished:

1. Brahmanand Singh & ors. Vs St. of U.P. &
ors., 2018 (3) ALJ 546 (Para 21)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Shashank Shekhar
Mishra, Sri Siddharth Khare and Sri Jamil
Ahamad Azmi learned counsel for the
petitioners, Sri Govind Krishna who
appears for the Nagar Palika Parishad
Azamgarh and Sri Ajit Kumar Singh
learned
Additional
Advocate
General
assisted by Sri Chandan Kumar learned
Standing Counsel for the State respondents.

2. These three petitions which raise a
common question have with the consent of
parties been taken up for disposal together.

3. All the petitioners essentially seek
the addition of services rendered in an ad
hoc or temporary capacity for the purposes
of computation of pensionary benefits. It
may at the outset be stated that these
petitions were taken up for disposal
together since the Court was faced with
similar writ petitions coming up before it
daily. It was thus thought expedient that the
basic issues which would need to be borne
in mind by the respondents while dealing
with
such
claims
would
warrant
articulation. On the aforesaid view being
expressed, Sri Ajit Kumar Singh the
learned Additional Advocate General, in
his usual fairness, suggested that since the
petitions are proposed to be disposed of
without the State being invited to file
formal replies, issues such as the statutory
regimen which would govern and the
essential
factors
which
would
merit
consideration may be enunciated leaving it
to the respondents to reevaluate the claims
as raised by the petitioners here. The sound
counsel of the learned Additional Advocate
General was duly accepted and it is on
those lines and to the aforesaid extent alone
that the Court proceeds to frame its present
decision.

4. Before proceeding forth, it would
be relevant to advert to the individual facts
of the three writ petitions which are
proposed to be disposed of by means of this
common judgment.

A.
FACTS
OF
THE
INDIVIDUAL WRIT PETITIONS

1. Sushma Chandel Vs. State of
U.P. and others [Writ A NO. 9396 OF
2021]

5. The petitioner here was initially
appointed in May 1990 on daily wage
basis. That appointment was brought to an
end in November 1990. The order of
termination was challenged by way of a
writ petition in which an interim order was
granted providing that the respondents
would not interfere with the working of the
petitioner as a Medical Officer. Pursuant to
that interim order, she is stated to have
continued to function as Medical Officer
till 27 November 1998 when she was
appointed on ad hoc basis. Various other
Medical Officers who were continuing on
ad hoc terms under the respondents agitated
their claims for regularisation before the
respondents. In the litigation which ensued,
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1279
one writ petition preferred by Dr. Smt.
Sudha Tripathi came to be disposed of by a
Division Bench calling upon the State to
consider her claim for regularisation.
Pursuant to the directions issued by the
Division Bench on that writ petition and the
dismissal of the Special Leave Petition of
the State, the services of Dr. Smt. Sudha
Tripathi came to be confirmed. In the
meanwhile, various other Medical Officers
like the petitioner who had initially been
engaged on ad hoc basis and had continued
to serve under the respondents for years
together
without
being
regularized,
petitioned the Lucknow Bench of this
Court aggrieved by the denial of their
claims. The lead matter of the batch which
came
to be instituted was of Dr.
Dhirendra Prakash Tiwari v. State of
U.P. And Others1. The Division Bench
while rendering judgment on that batch
firstly took note of the judgment rendered
by the Court in Dr. Yogendra Singh And
Others v. State of U.P. And Others2 and
the directions issued therein for the claim
of regularisation being considered in
accordance with the policy decision of the
State Government which extended the
benefit of regularisation to all ad hoc
Medical Officers who had been appointed
on or before 17 July 1991. The aforesaid
decision in Dr. Yogendra Singh was
unsuccessfully assailed by the respondents
before the Supreme Court which dismissed
the Special Leave Petitions on 02 April
1998. The Division Bench also noticed the
provisions made in respect of regularisation
in the U.P. Regularisation of Ad hoc
Appointments (On Post Within the
Purview
of
the
Public
Service
Commission) (Third Amendment) Rules
(2001)3. The Court in Dr. Dhirendra
Prakash Tiwari ultimately proceeded to
allow the writ petitions in the following
terms: -

"We
are
of
the
considered
opinion that all the petitioners are entitled
to be treated as ad hoc medical officers
from a date prior to 30.6.1998, leaving it
open for the respondents to determine the
exact date in the light of pronouncement of
this Court dated 21.11.1996 in the earlier
proceedings. To this extent the government
order dated 27.11.1998 will not come in the
way of the petitioners for consideration of
their regularisation. Respondent No.1 is
directed
to
reconsider
the
case
of
petitioners, including those who have
retired from service, for regularisation of
their services under the Regularisation
Rules of 1979 strictly in accordance with
the
observations
made
hereinabove,
treating them as ad hoc medical officers,
from a date prior to 30.6.1998. Respondent
no.1
shall
pass
requisite
orders
accordingly, within a period of two months
from the date a certified copy of this order
is produced before him. While considering
the
case
of
the
petitioners
for
regularisation, the date of regularisation of
their seniors and juniors shall also be kept
in mind by the respondents. It is made clear
that the case of the petitioners shall not be
rejected on the ground that they were not
ad hoc medical officers prior to 30.6.1998.

So far as the claim of the
petitioners for regularisation of their
services with effect from the date of their
initial appointment is concerned, we do not
find any merit in the same."

6. Following the aforesaid decision,
the writ petition preferred by the petitioner
here being Writ-A No. 21307 of 2012 was
allowed on similar terms on 07 August
2014. The challenge to the judgment
rendered on the aforesaid writ petition by
the State came to be negatived with the
Supreme Court dismissing the Special
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
Leave Petitions on 27 March 2015. The
petitioner was ultimately regularised in
service by an order of 24 September 2015.
That order provided that she would be
deemed to have been regularised in service
with effect from 16 March 2005. Before
this Court it is not disputed that the
regularisation of the petitioner with effect
from the aforesaid date was in light of the
directions framed by the Division Bench in
Dr. Dhirendra Prakash Tiwari which
required the respondents to regularise
individual ad hoc Medical Officers bearing
in mind the date from which their seniors
and juniors had been accorded that facility.
The respondents while preparing the
pension papers of the petitioner here have
taken note of her entry into government
service as being on 22 December 1998.
That admittedly is the date on which the
petitioner joined service pursuant to the
order of appointment dated 27 November
1998. However, the total length of
qualifying service has been computed to be
13 years 4 months and 15 days. The
aforesaid computation has essentially been
made with the period of service rendered
post 16 March 2005 along being liable to
be included in qualifying service. The
service rendered by the petitioner between
December 1998 till 16 March 2005 has not
been considered. It is in the aforesaid
backdrop that the present writ petition has
come to be preferred.

2. Chiraunjilal and 7 others Vs.
State of U.P. and others [Writ A NO.
22070 OF 2018]

7. The petitioners here were appointed
as part time/ad hoc Tubewell Operators on
different dates. All of them were confirmed
and regularised in terms of the details
which have been set forth in paragraphs 10
to 15 of the writ petition. They have
approached this Court aggrieved by the fact
that while computing qualifying service,
the respondents have only accounted for
service rendered by the petitioners post
their regularisation. It is in the aforesaid
backdrop that they contend that the services
rendered by them on part time and ad hoc
basis is also liable to be included for the
purposes of computation of pensionary
benefits.

8. The respondents in the counter
which has been filed have referred to the
fact that the petitioners were initially
engaged as short term Tubewell Operators
on consolidated pay. They also allege that
their initial appointment was not made in
accordance with the relevant rules and
regulations framed nor were they appointed
against substantive posts. In paragraph-20
it is contended by the respondents that the
provisions of Articles 368 and 370 of the
Civil Service Regulations can only apply to
those
who
worked
on
the
regular
establishment of the State and in view of
the aforesaid, the period of service rendered
by the petitioners prior to their date of
regularisation is not liable to be included
for the purposes of pensionary benefits.

3. Ram Chandra Yadav and
other Vs. State of U.P. and others [Writ
A NO. 9744 OF 2021]

9. The petitioners here were initially
appointed on a temporary basis as Pump
Attendants on 01 April 1988 and 05
January 1990 respectively. Their services
were ultimately regularized with effect
from 14 February 2005 and 05 January
2001. Both the petitioners are stated to
have retired in June and September 2018.
They are essentially aggrieved by the
fixation of their pensionary benefits with
the respondents excluding the period which
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1281
was rendered by them prior to their
regularisation. It is in the aforesaid factual
backdrop that the issues raised are liable to
be considered.

B.
THE
STATUTORY
BACKGROUND

10. The Court firstly deems it
necessary
to
advert
to
the
relevant
provisions as made in the Civil Service
Regulations4. Article 361 reads thus: -

"361. The service of an officer
does not qualify for pension unless it
conforms to the following three conditions-

First- The service must be under
Government.

Second- The employment must be
substantive and permanent.

Third- The service must be paid
by Government. "

11. Regulations 368 provides that
service does not qualify unless the officer
holds
a
"substantive
office"
on
a
"permanent
establishment"
of
the
Government.

12. Regulation 370 makes the
following additional provisions in respect
of pension:-

"370. Continuous temporary or
officiating service under the Government of
Uttar Pradesh followed without interruption
by confirmation in the same or any other
post shall qualify except-

(i) periods of temporary or
officiating
service
in
non-pensionable
establishment;

(ii) periods of service in workcharged establishment, and

(iii) periods of service in a post
paid from contingencies."

13. On 01 April 1961 the State
Government framed and promulgated the
Uttar Pradesh Retirement Benefit Rules
19615 by virtue of the powers conferred by
the
proviso
to
Article
309 of
the
Constitution. The 1961 Rules define the
expression "qualifying service" in Rule
3(8) as under:-

"3.

...

(8) "Qualifying service" means
service which qualifies for pension in
accordance with the provisions of Article
368 of the Civil Service Regulations:

Provided
that
continuous
temporary or officiating service under the
Government of Uttar Pradesh followed
without interruption by confirmation in the
same or any other post except-

(i) periods of temporary or
officiating service in a non-pensionable
establishment;

(ii) periods of service in workcharged establishment, and

(iii) periods of service in a post,
paid from contingencies shall also count as
qualifying service.

Note-If service rendered in a nonpensionable establishment, work-charged
establishment or in a post paid from
contingencies falls between two periods of
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
temporary
service
in
a
pensionable
establishment or between a period of
temporary service and permanent service in
a pensionable establishment, it will not
constitute an interruption of service.

... "

14. The provisions as made in the
CSR as well as in the 1961 Rules fell for
consideration before the Supreme Court in
the matter of Prem Singh v. State of Uttar
Pradesh and Others6. Prem Singh was
essentially considering the claim of workcharged
employees
who
had
been
continued in that capacity for decades and
ultimately denied pensionary benefits with
the respondents taking the position that
service rendered in such an establishment is
not liable to be included while calculating
qualifying service in accordance with the
provisions made in the CSR and the 1961
Rules. The Supreme Court in Prem Singh
ultimately came to hold:-

"30. We are not impressed by the
aforesaid submissions. The appointment of
the work-charged employee in question had
been made on monthly salary and they
were required to cross the efficiency bar
also. How their services are qualitatively
different from regular employees? No
material indicating qualitative difference
has been pointed out except making bald
statement. The appointment was not made
for a particular project which is the basic
concept of the work-- charged employees.
Rather, the very concept of work-charged
employment has been misused by offering
the employment on exploitative terms for
the work which is regular and perennial in
nature. The work-charged employees had
been subjected to transfer from one place to
another like regular employees as apparent
from documents placed on record. In
Narain Dutt Sharma & Ors. v. State of
Uttar Pradesh & Ors. (CA No.______2019
@ SLP (C) No.5775 of 2018) the
appellants were allowed to cross efficiency
bar, after ''8' years of continuous service,
even during the period of work-charged
services.
Narain
Dutt
Sharma,
the
appellant, was appointed as a work-charged
employee as Gej Mapak w.e.f 15.9.1978.
Payment used to be made monthly but the
appointment was made in the pay scale of
Rs.200-320. Initially, he was appointed in
the year 1978 on a fixed monthly salary of
Rs.205 per month. They were allowed to
cross efficiency bar also as the benefit of
pay scale was granted to them during the
period
they
served
as
work-charged
employees they served for three to four
decades and later on services have been
regularized time to time by different orders.
However, the services of some of the
appellants in few petitions/ appeals have
not been regularized even though they had
served for several decades and ultimately
reached the age of superannuation.

31. In the aforesaid facts and
circumstances, it was unfair on the part of
the State Government and its officials to
take work from the employees on the workcharged basis. They ought to have resorted
to an appointment on regular basis. The
taking of work on the work- charged basis
for
long
amounts
to
adopting
the
exploitative device. Later on, though their
services have been regularized. However,
the period spent by them in the workcharged establishment has not been counted
towards the qualifying service. Thus, they
have not only been deprived of their due
emoluments during the period they served
on
less
salary
in
work
charged
establishment but have also been deprived
of counting of the period for pensionary
benefits as if no services had been rendered
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1283
by them. The State has been benefitted by
the services rendered by them in the
heydays of their life on less salary in work-
charged establishment.

32. In view of the Note appended
to Rule 3(8) of the 1961 Rules, there is a
provision to count service spent on workcharged, contingencies or non pensionable
service, in case, a person has rendered such
service in a given between period of two
temporary appointments in the pensionable
establishment or has rendered such service
in
the
interregnum
two
periods
of
temporary and permanent employment. The
work-charged service can be counted as
qualifying service for pension in the
aforesaid exigencies.

33. The question arises whether
the imposition of rider that such service to
be counted has to be rendered in-between
two spells of temporary or temporary and
permanent service is legal and proper. We
find that once regularisation had been made
on vacant posts, though the employee had
not served prior to that on temporary basis,
considering the nature of appointment,
though it was not a regular appointment it
was made on monthly salary and thereafter
in
the
pay
scale
of
work-charged
establishment the efficiency bar was
permitted to be crossed. It would be highly
discriminatory and irrational because of the
rider contained in Note to Rule 3(8) of
1961 Rules, not to count such service
particularly, when it can be counted, in case
such service is sandwiched between two
temporary or in-between temporary and
permanent services. There is no rhyme or
reason not to count the service of workcharged period in case it has been rendered
before regularisation. In our opinion, an
impermissible classification has been made
under Rule 3(8). It would be highly unjust,
impermissible and irrational to deprive
such employees benefit of the qualifying
service. Service of work-charged period
remains the same for all the employees,
once it is to be counted for one class, it has
to
be
counted
for
all
to
prevent
discrimination. The classification cannot be
done on the irrational basis and when
respondents are themselves counting period
spent in such service, it would be highly
discriminatory not to count the service on
the basis of flimsy classification. The rider
put on that work-charged service should
have preceded by temporary capacity is
discriminatory and irrational and creates an
impermissible classification.

34. As it would be unjust, illegal
and impermissible to make aforesaid
classification to make the Rule 3(8) valid
and non-discriminatory, we have to read
down the provisions of Rule 3(8) and hold
that services rendered even prior to
regularisation in the capacity of workcharged employees, contingency paid fund
employees
or
non-
pensionable
establishment shall also be counted towards
the qualifying service even if such service
is not preceded by temporary or regular
appointment
in
a
pensionable
establishment.

35. In view of the Note appended
to Rule 3(8), which we have read down, the
provision contained in Regulation 370 of
the Civil Services Regulations has to be
struck down as also the instructions
contained in Para 669 of the Financial
Handbook."

15. The Court firstly held that the
continued engagement of the petitioners
and showing them as working in a workcharged
establishment
was
clearly
exploitative
since
their
continued
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
engagement itself established that the work
performed by them was regular and
permanent in character. The Court held that
the action of the State of continuing to take
work from such employees on a workcharged basis was thus unfair and illegal.
Turning its attention then to the Note
appended to Rule 3(8) of the 1961 Rules,
the Supreme Court noted and held that
there appeared to be no logical basis for the
stipulation of service rendered as work
charged followed by regularisation being
recognised as qualifying for pension only if
such service had fallen between two spells
of temporary or in between spells of
temporary and permanent service. The
Court accordingly read down the Note to
hold that services rendered even prior to
regularisation albeit in the capacity of a
work-charged employee or contingency
paid fund employee shall also be counted
towards qualifying service even if such
service were not sandwiched between
spells of service as provided for. In light of
the reading down of the Note to Rule 3(8)
of the 1961 Rules, the Supreme Court
proceeded to strike down Regulation 370 of
the CSR.

16. Post the decision rendered in Prem
Singh the State promulgated an Ordinance
titled the Uttar Pradesh Qualifying Service
for Pension and Validation Ordinance
2020 (U.P. Ordinance No. 19 of 2020). That
Ordinance introduced the following measures
for the purposes of computation of qualifying
service: -

"1. (1) This Ordinance may be
called the Uttar Pradesh Qualifying Service
for Pension and Validation Ordinance,
2020.

(2) It shall extend to the whole of
the State of Uttar Pradesh.

(3) It shall be deemed to have
come into force on April 1, 1961.

2.
Notwithstanding
anything
contained in any rule, regulation or
Government order for the purposes of
entitlement of pension to an officer,
"Qualifying Service" means the services
rendered by an officer appointed on a
temporary or permanent post in accordance
with the provisions of the service rules
prescribed by the Government for the post.

3.
Notwithstanding
any
Judgement, decree or order of any Court,
anything done or purporting to have been
done and may action taken or purporting to
have been taken under or in relation to subrule (8) of rule 3 of the Uttar Pradesh
Retirement Benefit Rules, 1961 before the
commencement of this Ordinance, shall be
deemed to be and always to have been done
or taken under the provisions of this
Ordinance and to be and always to have
been valid as if the provisions of this
Ordinance were in force at all material
times with effect from April 1, 1961.

4. Save as otherwise provided,
the provisions of this Ordinance shall have
effect,
notwithstanding
anything
inconsistent therewith contained in any
other law for the time being in force or in
any instrument having effect by virtue of
any law for the time being in force other
than this Ordinance."

17. The Ordinance was thereafter
replaced by an Act7 [U.P. Act No. 01 of
2021] which was notified on 05 March
2021. It becomes relevant to note that both
the Ordinance as well as the Validating Act
introduced provisions with retrospective
effect providing that it shall be deemed to
have come into force with effect from 01
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1285
April 1961. The aforesaid date as noticed
hereinabove is the date when the 1961
Rules were enforced. The Validating Act
provides that qualifying service for the
purposes of considering the entitlement to
pension would mean services rendered by
an officer appointed on a temporary or
permanent post in accordance with the
provisions of the service rules prescribed
for the post. The introduction of this
definition with retrospective effect from 01
April 1961 bids us to view Rule 3(8)
contained in the 1961 Rules accordingly.
Article 368 as noticed above had provided
that service would not qualify unless it be
found that the officer held a substantive
office on a permanent establishment. The
Validating Act thus lays in place a test
which stands retrospectively introduced
with only such service liable to be
considered when rendered on a temporary
or permanent post and with the added
qualification of the appointment having
been made in accordance with the relevant
rules. It essentially lays in place the
following twin preconditions for the
purposes of computing qualifying service

(a) The officer having rendered
service on a temporary or permanent post,
and

(b) The appointment being one
which was made in accordance with the
provisions of the service rules prescribed.

C.
DIVISION
BENCH
JUDGMENTS
POST
ORDINANCE
AND THE VALIDATING ACT

18. The effect of the Ordinance on a
claim
for
pensionary
benefits
was
considered by a Division Bench of the
Court firstly in the matter of State of U.P.
And
Others
v.
Mahendra
Singh8.
Noticing the provisions made therein the
Division Bench observed: -

"It is clear from perusal of
Section 2 of the Ordinance that it would
have
effect
notwithstanding
anything
contained in U.P. Retirement Benefit
Rules, 1961 or Regulation 361 and 370 of
the Civil Service Regulation. Though it has
been informed at the bar that in certain writ
petitions, validity of the aforesaid U.P.
Ordinance has been challenged, however,
even if for purpose of adjudicating the
present appeal the Ordinance is accepted as
it is, section 2 thereof would inure to the
benefit to the opposite party-petitioner and
not to the benefit of appellants. The word
"Qualifying Service" has been defined in
Section 2 of the aforesaid U.P. Ordinance
to mean the services rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
the
service
rules
prescribed
by
the
Government for the post.

As
discussed
aforesaid,
the
appellants have admitted the appointment
of
the
opposite
party-petitioner
on
temporary post of Godown Chaukidar from
04.09.1981 till the date of his appointment
on a regular post in 1997. Therefore, under
this very U.P. Ordinance, the petitioner is
entitled to his claim for counting the period
of his service from the date of his
appointment on 04.09.1981 on a temporary
post till his regularisation on the permanent
post in the year 1997."

19. In State of U.P. And 4 Others v.
Bhanu Pratap Sharma9, the Court was
called upon to consider the question
whether the period spent by an employee
prior to regularisation was liable to be
taken into consideration for the purposes of
pension. That claim was challenged in light
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
of the provisions made in the Ordinance
with the appellants there contending that in
light of Sections 2, 3 and 4 thereof, the
period spent prior to regularisation would
stand excluded. Dealing with the aforesaid
contention, the Division Bench held: -

"It is clear from the perusal of
section 2 of the Act of 2021 that it would
have
effect
notwithstanding
anything
contained in U.P. Retirement Benefit
Rules, 1961 or Regulation 361 and 370 of
the Civil Service Regulation. Careful
reading thereof, however, revels that
"Qualifying Service" has been defined to
mean the services rendered by an officer
appointed on a temporary or permanent
post in accordance with the provisions of
the
service
rules
prescribed
by
the
Government for the post. In the counter
affidavit filed by present appellant in the
writ petition it was categorically admitted
by the appellant that the petitioner was
appointed in the office of Executive
Engineer, Nalkoop Nirman Khand I,
Bareilly on the post of Rig Assistant on
work
charge
basis
on
25.04.1979.
Subsequently,
the
petitioner
was
regularized from work charge basis to
regular establishment on the post of helper
on 18.03.2006.

Thus admittedly, the petitioner
was appointed on a post in work charge
establishment. The record reveals that the
initial appointment of the petitioner was
as helper. Thus the post which is referred
to in the counter affidavit is that of
Helper on which he was regularized. The
post of Helper thus permanently existed.
Further more, it is not the case of the
appellant that the respondent was not
appointed
in
accordance
with
the
provisions of Service Rules. Thus having
been initially appointed on the post of
Helper, the appellant were not justified in
denying the service benefit."

20. It would also be pertinent to
notice yet another decision handed down
by a Division Bench of the Court in State
of U.P. And 4 Others v. Narayan Singh
Sharma10. Dealing with an identical
question, the Division Bench there held:-

"...

7. In the case in hand the
petitioner/ non-appellant was appointed
on ad hoc basis but was against the
sanctioned post. Thus, approval as per
rules was given to his appointment by the
District
Inspector
of
Schools.
The
regularisation
of
service
may
be
subsequently by an order issued in the
year 2016 but then as per the Ordinance
of 2020, the period of service rendered
after appointment on temporary basis as
per rules could not have been ignored.
For that purpose Ordinance of 2020 is
quoted hereunder:

...

8. A perusal of Section 2 of the
Ordinance of 2020 reveals that service
rendered by an officer appointed on a
temporary or permanent post in accordance
with the provisions of service rules would
be counted towards qualifying service.

9. In view of the above, even the
Ordinance of 2020 would not affect the
claim
of
the
petitioner/non-appellant
having
been
appointed
against
the
sanctioned post, may be initially on ad hoc
but as per rules and subsequently his
service was regularized. It is not the case of
the respondents that initial appointment of
the petitioner was against the rules. It is
9 All Dr. Sushma Chandel Vs. State of U.P. & Ors.
1287
more so when the writ petition was filed
with
clear
statement
of
fact
that
petitioner/non- appellant was appointed
against
the
sanctioned
post
and
in
accordance with rules. Therefore, even
approval to his appointment was given by
the District Inspector of Schools.

10. In the light of the discussion
made above, we do not find any reason to
cause
interference
in
the
judgment
impugned herein. However, we have given
additional reason to allow pensionary
benefits to the petitioner/non-appellant by
counting his length of service."

D. SUBMISSIONS OF THE
STATE

21. Sri Ajit Kumar Singh, the learned
Additional
Advocate
General,
has
contended that the Validating Act has
introduced seminal changes relating to
computation
of
qualifying
service.
According to the learned Additional
Advocate General since the provisions of
the Act have come to be introduced with
retrospective effect and are to operate
notwithstanding anything to the contrary
contained in any rule, regulation or
Government Order, it has now become
incumbent upon an officer to establish that
the service of which inclusion is sought for
the purposes of pensionary benefits was
one which was rendered on a temporary or
permanent post. Additionally, it is also
incumbent upon such an officer or
employee to establish that his induction
into service was in accordance with the
provisions made in the relevant service
rules. The learned Additional Advocate
General also contended that the petitioners
here having accepted the terms of their
regularisation as set forth in the orders
issued in that regard, cannot turn around
now and seek inclusion of service rendered
prior thereto for the purposes of pension.
According to the learned Additional
Advocate General, service rendered prior to
the date from which the petitioners came to
be regularized is neither liable to be
included nor can any benefits in respect of
that service be claimed. The learned
Additional Advocate General has placed
reliance upon a decision rendered by a
learned Judge in Brahamanand Singh and
others v. State of U.P. and others11 to
contend that the aforesaid submission finds
sustenance from the principles propounded
in that decision. Reliance in this regard was
placed upon the following passages of the
aforesaid decision: -

"9. Though petitioners contended
that they are entitled to be regularised from
the date of their temporary appointment in
the year 1986 to 1989, but no provision in
law has been shown whereunder such a
right could be claimed....... Even under the
Rules of 2001, petitioners could not have
been considered for regularisation prior to
7.11.2006. This Court while allowing the
petition had not directed consideration of
petitioners' claim from any date prior to
passing of order itself. Petitioners' have
otherwise
accepted
the
order
of
regularisation passed in the year 2007 and
the same was never challenged while they
remained in service......."

E. EVALUATION OF THE
SUBMISSIONS OF THE STATE

22. Before proceeding to deal with the
submissions addressed by the learned
Additional Advocate General relating to the
terms of the Validating Act and the 1961
Rules, it would be appropriate to firstly
deal with the submission advanced based
on Brahamanand Singh. The Court in
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
Brahamanand
Singh
was
essentially
called upon to consider a situation where an
employee came to be regularized post 01
April 2005 and, in that context, whether he
would be entitled to claim pensionary
benefits. It becomes pertinent to note that
Rule 2(3) of the 1961 Rules had come to be
amended with effect from 07 April 2005
and provided that they shall not apply to
employees entering service on or after 01
April
2005.
The
Court
took
into
consideration the admitted fact that the
services of the petitioner in that case had
come to be terminated. The order of
termination was ultimately set aside with
the writ petition being allowed on 07
November 2006. It was in the aforesaid
background that it was held that any period
of service falling prior to 7 November 2006
was not liable to be countenanced.