# Ompal Singh Irrigation Supervisor v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 534
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-26
- **Case number:** Writ A No. 5027 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ompal-singh-irrigation-supervisor-v-state-of-u-p-ors-53221
- **Pages:** 17

## Headnote

A. Constitution of India, 1950 - Article 226 -
Mandamus - U.P. Retirement Benefit Rules,
1961 - Uttar Pradesh Qualifying Service for
Pension and Validation Ordinance, 2020 -
Uttar Pradesh Qualifying Service for Pension
and Validation Act, 2021 - Retrospective
Amendment Effect - Scope and Limits -
Legislative power cannot be exercised to
undo a judgment under which rights of
parties have crystallized - Impermissibility
of undoing a mandamus that has become
final between parties by an executive order
or even legislation - If in the exercise of
powers of judicial review under Article 226
of the Constitution, a mandamus is issued
by the High Court ordering authorities, who
were parties to the lis, to do something or
forbear
from
doing
it,
a
subsequent
amendment to the law by the legislature
cannot undo the mandamus that has
become final between parties. The state of
the law, on the foot of which that
mandamus has been issued, may be
changed
by
the
legislature
by
an
amendment to the statute, but that would
be a change that would govern future
transactions between parties. A judgment
that has become final inter partes and led to
a mandamus, cannot be undone by the
supervening amendment to the law. A
judgment that has become final between
parties on a given state of the law, can only
be set aside at the instance of the party
aggrieved by carrying an appeal (Para 16,
17)
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
535
B. Mandamus was issued in Writ-A
No.14563 of 2018 on 14.02.2020 directing
authorities to re-fix the petitioner's
pension after adding his services from the
date
he
joined
the
work
charged
establishment i.e. 21.04.1980 and pass
necessary orders for grant of pension,
with re-fixation done in the said manner.
That judgment attained finality with no
appeal filed. In the impugned order, it was
held that the mandamus issued by the
High Court on 14.02.2020 in Writ-A No.
14563 of 2018 stood ipso facto nullified
upon promulgation of the Ordinance under
Section 3. Held : No mandamus, that has
become final inter partes, can ever be
nullified by legislation as that would
constitute usurpation of the judicial power
of the State by the legislature, entrusted
to the Courts under the Constitution.
Subsequent promulgation of the U.P.
Ordinance, 2020 and the U.P. Act, 2021
introducing retrospective amendment to
Rule 3(8) of the U.P. Retirement Benefit
Rules, 1961, could not override the said
final
judgment.
Court
quashed
the
impugned order, imposed ₹50,000 as
costs on the State (Para 17, 19, 30)

Allowed. (E-5)

## Text

_Characters 0–39,751 of 54,220. This is a partial read: ask again with offset=39751 for what follows._

534 INDIAN LAW REPORTS ALLAHABAD SERIES
by the delinquent Government servant after
giving reasons for the same.

26. In the present case, it is noticed
that despite specific objections being raised
by the delinquent Government servant with
regard to the preliminary inquiry conducted
by a three member Committee, no
consideration was made by him at the time
of passing the impugned order and this in
itself, renders the impugned order illegal
and arbitrary and liable for interference by
this Court under Article 226 of the
Constitution of India.

27. It is for the aforesaid reasons,
this Court finds that there are serious
infirmities in the inquiry report dated
23.06.2023 as well as impugned order of
punishment dated 06.11.2024.

28. In the aforesaid circumstances
and considering the allegations levelled
against petitioner and also the time which
has lapsed during the said period, it would
not be equitable to remit the matter back to
the inquiry officer. This Court further finds
that apart from the preliminary inquiry
report there was no other cogent material
adduced by the respondents in support of
the charges, is available, hence it would not
be in the fitness of things to remit the
matter back to the inquiry officer for
inquiring the matter afresh.

29. In the light of above, writ
petition is allowed. The impugned orders
dated 06.11.2024 as well as 19.10.2024 are
hereby set aside.
----------
(2025) 3 ILRA 534
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2025

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 5027 of 2021

Ompal Singh Irrigation Supervisor
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Atipriya Gautam, Gaurav Bishan, Lal Chandra
Srivastava, Neeraj Srivastava, Vijay Gautam (Sr.
Adv.)

Counsel for the Respondents:
C.S.C.

A. Constitution of India, 1950 - Article 226 -
Mandamus - U.P. Retirement Benefit Rules,
1961 - Uttar Pradesh Qualifying Service for
Pension and Validation Ordinance, 2020 -
Uttar Pradesh Qualifying Service for Pension
and Validation Act, 2021 - Retrospective
Amendment Effect - Scope and Limits -
Legislative power cannot be exercised to
undo a judgment under which rights of
parties have crystallized - Impermissibility
of undoing a mandamus that has become
final between parties by an executive order
or even legislation - If in the exercise of
powers of judicial review under Article 226
of the Constitution, a mandamus is issued
by the High Court ordering authorities, who
were parties to the lis, to do something or
forbear
from
doing
it,
a
subsequent
amendment to the law by the legislature
cannot undo the mandamus that has
become final between parties. The state of
the law, on the foot of which that
mandamus has been issued, may be
changed
by
the
legislature
by
an
amendment to the statute, but that would
be a change that would govern future
transactions between parties. A judgment
that has become final inter partes and led to
a mandamus, cannot be undone by the
supervening amendment to the law. A
judgment that has become final between
parties on a given state of the law, can only
be set aside at the instance of the party
aggrieved by carrying an appeal (Para 16,
17)
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
535
B. Mandamus was issued in Writ-A
No.14563 of 2018 on 14.02.2020 directing
authorities to re-fix the petitioner's
pension after adding his services from the
date
he
joined
the
work
charged
establishment i.e. 21.04.1980 and pass
necessary orders for grant of pension,
with re-fixation done in the said manner.
That judgment attained finality with no
appeal filed. In the impugned order, it was
held that the mandamus issued by the
High Court on 14.02.2020 in Writ-A No.
14563 of 2018 stood ipso facto nullified
upon promulgation of the Ordinance under
Section 3. Held : No mandamus, that has
become final inter partes, can ever be
nullified by legislation as that would
constitute usurpation of the judicial power
of the State by the legislature, entrusted
to the Courts under the Constitution.
Subsequent promulgation of the U.P.
Ordinance, 2020 and the U.P. Act, 2021
introducing retrospective amendment to
Rule 3(8) of the U.P. Retirement Benefit
Rules, 1961, could not override the said
final
judgment.
Court
quashed
the
impugned order, imposed ₹50,000 as
costs on the State (Para 17, 19, 30)

Allowed. (E-5)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against the order dated 28.01.2021 passed
by the Superintending Engineer, Irrigation
Works Division-I, Irrigation and Water
Resources Department, Meerut, rejecting
the petitioner's claim to re-fix his pension,
adding his services as a work charged
employee to his regular service. The
aforesaid claim is based on a mandamus of
this Court issued in Writ-A No.14563 of
2018, decided on 14.02.2020. The basis to
disregard the claim in enforcement of the
mandamus is founded on the supervening
promulgation
of
the
Uttar
Pradesh
Qualifying
Service
for
Pension
and
Validation Ordinance, 2020 (for short, 'the
Ordinance'), which the Superintending
Engineer says, nullifies the mandamus inter
partes. The Ordinance has subsequently
been replaced by the Uttar Pradesh
Qualifying
Service
for
Pension
and
Validation Act, 2021 (for short, 'the Act of
2021'), which carry provisions that are
almost a replication of the Ordinance.

2. The petitioner was an Irrigation
Supervisor in the Department of Irrigation,
Water Resources. He was last posted in the
establishment of the Executive Engineer,
Ganga Canal Division, Muzaffar Nagar. He
retired from service on 31.07.2017 upon
attaining the age of superannuation.

3. The petitioner was initially
appointed as a Chowkidar on 21.04.1980
by the Executive Engineer, Central Ganga
Canal Division-II, Aligarh in the work
charged establishment. He was appointed
as a Work Supervisor vide order dated
28.04.1983
passed
by
the
Executive
Engineer. The Chief Engineer, Central
Ganga Canal Project, Aligarh promoted the
petitioner to the position of an Irrigation
Supervisor (Seench Paryavekshak) and
posted him in the regular establishment. By
an order of 20th January, 2004, passed by
the
Superintending
Engineer,
Barrage
Construction
Division,
Agra,
the
petitioner's services were regularized. He
was placed in the pay-scale of Rs.40006000/-. The petitioner was posted at the
Barrage Construction Division, Agra at this
time. The petitioner's salary was fixed by
the Executive Engineer, Muzaffar Nagar
Ganga Canal Division, Muzaffar Nagar
vide order dated 31.01.2017 at a figure of
Rs.38,100/-, adding to it the annual
increment due on 01.07.2016. At the time
of his retirement on 31.07.2017, the
petitioner's last drawn salary was in the
sum of Rs.39,200/-.
536 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Upon the petitioner's retirement,
his pension was wrongly fixed, as the
petitioner says, reckoning only 13 years of
service
for
him
from
the
date
of
regularization, to wit, 20.01.2004 until his
superannuation. The respondents did not
take into account the 24 years service that
the petitioner had rendered in the work
charged establishment from the year 1980
to 2004.

5. Shorn of unnecessary details,
suffice it to say that the petitioner's gratuity,
leave encashment, commutation of pension
etc. were all reckoned on the length of
service rendered post regularization. He
was sanctioned a pension of Rs.10,187/-
per month. The entire period of 24 years
rendered in the work charged establishment
was
excluded
for
the
purpose
of
computation
of
petitioner's
qualifying
service relating to grant of pension. The
petitioner, finding the aforesaid stand
utterly illegal, instituted Writ-A No.14563
of 2018 before this Court, praying that a
mandamus be issued commanding the
respondents to take into consideration the
period
of
services
rendered
by
the
petitioner
in
the
work
charged
establishment
for
the
purpose
of
computation of his qualifying service. It
was prayed that his pension payment order
be directed to be suitably modified and
arrears on account of pension lawfully due
be directed to be paid with interest. The
aforesaid writ petition was heard by this
Court and relying upon the authority of the
Supreme Court in Prem Singh v. State of
U.P., (2019) 7 SCC 354, vide order dated
14.02.2020, a mandamus was issued to the
respondents in the following terms:

"For
the
reasons
give
above,
the
respondent
no.4Executive Engineer, Ganga Nahar
Division, Muzaffarnagar is directed
to refix the pension of the petitioner
after adding the service of the
petitioner from the date of his
joining as work charge employee
i.e. 21.04.1980 and necessary order
for grant of pension after refixation
shall be passed within a period of
two months from the date of
production of certified copy of this
order.
The
writ
petition
is,
accordingly, allowed with no order
as to costs."

6. It is common ground between
parties that the mandamus issued by this
Court on 14.02.2020 in Writ-A No.14563
of 2018 became final inter partes and no
appeal was carried from the said judgment.
The petitioner made an application dated
05.03.2020 along with a copy of this
Court's judgment dated 14.02.2020, serving
it upon the Superintending Engineer,
Irrigation Works Division-I, Irrigation and
Water Resources Department, Meerut, who
was the competent authority to carry out
the mandamus issued by this Court. The
application did not elicit response. It was
followed
by
another
application
on
13.08.2020, requesting compliance with the
mandamus issued by this Court. The
petitioner also made similar applications, as
the one made to the Superintending
Engineer, the Executive Engineer, Muzaffar
Nagar Ganga Canal Division, Muzaffar
Nagar and the Engineer-in-Chief, Civil
Irrigation
and
Water
Resources
Department, U.P., Lucknow. The Executive
Engineer, Muzaffar Nagar Ganga Canal
Division, Muzaffar Nagar sought opinion
of the learned Chief Standing Counsel,
High Court and the learned District
Government Counsel, Muzaffar Nagar vide
letter dated 26.08.2020 (a copy whereof
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
537
was marked to the petitioner), if he was
obliged to add the work charged period of
service
to
determine
the
petitioner's
entitlement to pension in terms of our
judgment and order dated 14.02.2020.

7. It is the petitioner's case,
specifically pleaded, that on the basis of
legal opinion received from the learned
Chief Standing Counsel, High Court and
the learned District Government Counsel,
Muzaffar Nagar, the Executive Engineer,
Muzaffar Nagar Ganga Canal Division,
Muzaffar Nagar wrote a letter to the
Superintending Engineer, Irrigation Works
Division-I, Irrigation and Water Resources
Department, Meerut, clearly saying that the
petitioner was appointed on 02.04.1981 and
worked since 02.04.1981 to 23.01.2004 in
the
work
charged
establishment
continuously. It was also said that his
services have been regularized on the post
of an Irrigation Supervisor on 24.01.2004.
The communication from the Executive
Engineer further said that the petitioner had
worked in the work charged establishment
for a total period of 22 years 9 months and
21 days, and, thereafter, 13 years 6 months
and 8 days in the regular establishment.
The communication from the Executive
Engineer unequivocally said that in view of
the legal opinion of the learned Chief
Standing Counsel, High Court and the
learned
District
Government
Counsel,
Muzaffar Nagar dated 26.08.2020, the
petitioner is entitled to re-fixation of his
salary after including the services rendered
in the work charged establishment. This
communication was addressed by the
Executive Engineer to the Superintending
Engineer vide letter dated 13.10.2020,
which too is on record. These facts have
been pleaded in paragraph No.19 of the
writ petition. Instead of complying with the
mandamus issued by this Court on
14.02.2020 in Writ-A No.14563 of 2018,
the Superintending Engineer proceeded to
reject the petitioner's claim, ignoring the
period of his services in the work charged
establishment
for
the
purpose
of
computation of qualifying service for the
determination of his entitlement to pension,
falling back on the provisions of Sections 2
and 3 of the Ordinance. It is remarked in
the impugned order, passed by the
Superintending Engineer, that because
services rendered in the work charged
establishment under the Service Rules
(reference to the U.P. Retirement Benefit
Rules, 1961) are no longer to be treated as
qualifying service by dint of Sections 2 and
3 of the Ordinance, the petitioner's claim in
terms of the mandamus issued by this Court
vide judgment and order dated 14.02.2020
in Writ-A No.14563 of 2018, could not be
accepted.

8. Aggrieved by this order, the
present writ petition has been instituted.

9. This Court issued a notice of
motion on 25.03.2021 in terms of the
following order:

"Learned
Standing
Counsel has accepted notice on
behalf of all the respondents. He
prays for and is granted four
weeks' time to file counter affidavit.
The petitioner will have one week
thereafter to file rejoinder affidavit.
List immediately thereafter."

10. A counter affidavit was filed on
behalf of the respondents on 09.05.2022. A
separate short counter affidavit was filed on
behalf of respondent No.1, that is to say,
the State Government. This affidavit has
been filed by one Vichitra Narain, an Under
Secretary in the Department of Irrigation
538 INDIAN LAW REPORTS ALLAHABAD SERIES
and
Water
Resources
Department,
Government of U.P. In paragraph No.3 of
his affidavit filed on behalf of the State
Government, it is averred:

"3. The Engineer-in-Chief,
Irrigation
&
Water
Resources
Department,
Uttar
Pradesh,
Lucknow (Respondent No.3), The
Chief Engineer (Sharda Sahayak)
Ganga
Irrigation
Building,
Telibagh, Uttar Pradesh, Lucknow
(Respondent No.4), The Chief
Engineer, (Ganga) Irrigation &
Water
Resources
Department,
Meerut
District
Meerut
(Respondent
No.5),
The
Superintending Engineer, Irrigation
work Division-I, Irrigation & Water
Resources
Department,
Meerut
District Meerut (Respondent No.6),
Executive
Engineer,
Meerut
Division, Ganga Canal, Meerut
District Meerut (Respondent No.7),
Executive Engineer Muzaffarnagar
Division Ganga Canal, District
Muzaffarnagar (Respondent No.8)
and The Chief Treasury Officer,
Baghpat,
District
Baghpat
(Respondent No.9) are the only
competent authorities to give reply
to the issues as raised by the
Petitioner.
Executive
Engineer
Muzaffarnagar
Division
Ganga
Canal,
District
Muzaffarnagar
(Respondent
No.8)
has
been
directed to file proper reply/counter
in the matter and to take all proper
legal steps."

11. It is, therefore, evident that the
entire stand of the Government is expressed
in the counter affidavit dated 09.05.2022,
which is one on behalf of respondent Nos.2
to
9,
the
various
officers
of
the
Government, who have been declared
competent to answer the petitioner's claim
in the writ petition. When this matter came
up before this Court on 26.09.2024, the
following order was passed:

"This
matter
was
mentioned in the morning in the
first hour with the most startling
fact brought to the notice of this
Court that the judgment and order
passed by the Court in Writ-A No.
14563 of 2018 preferred by the
petitioner
allowing
it
on
14.02.2020
and
directing
his
services in the work charged
establishment to be added to his
regular service has been held to be
a nullity by the Superintending
Engineer, First Division Irrigation,
Meerut, by the impugned order
dated 28.01.2021. It is pointed out
by the learned counsel for the
petitioner that the judgment of this
Court dated 14.02.2020 passed in
Writ-A No. 14563 of 2018 has not
been appealed much less set aside
modified or
reviewed.
It
has
become final inter partes. The
impugned
order
nevertheless
relying on the Uttar Pradesh
Qualifying Service for Pension and
Validation Ordinance, 2020 has
held that the judgement of this
Court has become a nullity in view
of Section 3 of the Ordinance.
In
view
of
the
very
extraordinary facts shown here,
this matter was immediately taken
up at the time of mention.

Mr. S.C. Upadhyay, learned
Standing Counsel appearing for the
State is granted 24 hours time to
seek instructions.
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
539
Prima facie, the impugned
order is a nullity and an act of
brazen
contempt
since
the
judgement passed in Writ-A No.
14563 of 2018 has become final
inter partes which cannot be held
legislatively overruled as between
the parties.
The
Superintending
Engineer, who has passed the
impugned order will indicate by
Monday, i.e. 30.09.2024 why apart
from the petitioner being granted
the
necessary
relief
with
the
quashing of the order impugned,
exemplary costs be not imposed
recoverable from him personally
besides
directing
a
separate
contempt case to be registered
against him.
Put up on Monday i.e.
30.09.2024 at 10 am.
Let
this
order
be
communicated
to
the
Superintending Engineer, Irrigation
Work
Division-I,
Irrigation
&
Water
Resource
Department,
Meerut through the Chief Judicial
Magistrate,
Meerut
by
the
Registrar (Compliance) within 24
hours."

12. In order to explain his position,
the Superintending Engineer, Irrigation
Works Division-I, Irrigation and Water
Resources Department, Meerut addressed
written instructions to the learned Chief
Standing Counsel dated 28.09.2024, the
relevant part whereof reads:

"प्रकरण के सम्बन्ध में अदधशासी
अदियन्ता मु0नगर खण्ड गांगा नहर मुजफफरनगर
(पैरोकार अदधकारी) ने अदिलेखो के आधार पर अपने
पत्राांक 4758 / मुखगनमु / कोटज केस/ददनाांक
28.09.2024 आख्या उपलब्ध करायी है। दजसके
क्रम में अवगत कराना है दक वादी ने मा0 न्यायालय
द्वारा पाररत दनणजय ददनाांक 14.02.2020 को सांलग्न
कर ददनाांक 05.03.2020 को अदधशासी अदियन्ता
मु0नगर खण्ड गांगा नहर मुजफफरनगर/अधीक्षण
अदियन्ता प्रथम मण्डल दसांचाई कायज मेरठ/प्रमुख
अदियन्ता दसांचाई एवां जल सांसाधन दविाग उ0प्र0
लखनऊ को प्रत्यावेदन ददया। पुनः ददनाांक
13.08.2020 को वादी द्वारा अनुस्मारक प्रेदित
दकया गया ददनाांक 28.08.2020 का अदधशासी
अदियन्ता मु0नगर खण्ड गांगा नहर मुजफफरनगर द्वारा
मुख्य स्थायी अदधवक्ता से दवदधक राय माांगी गयी।
ददनाांक 18.06.2020 को अदधशासी
अदियन्ता मु0नगर खण्ड गांगा नहर मुजफफरनगर ने
अधीक्षण अदियन्ता प्रथम मण्डल दसांचाई कायज मेरठ को
मागजदशजन हेतु पत्र दलखा ददनाांक 13.10.2020 को
अदधशासी अदियन्ता मु0नगर खण्ड गांगा नहर
मुजफफरनगर
पुनः
अनुस्मारक
िेजा,
परन्तु
उच्चादधकाररयों द्वारा कोई मागजदशजन देने से पूवज ही
21.10.2020 (िायाप्रदतसांलग्न-2) को अध्यादेश
जारी हो गया दजसकी धारा-3 दकसी न्यायालय के
दकसी दनणजय, दडक्री या आदेश के होते हुए िी इस
अध्यादेश के प्रारम्ि होने के पूवज उ0प्र0 ररटायरमैन्ट
बैनेदफट रूल्स 1961 के दनयम-3 के उप दनयम (8)
के सम्बन्ध में या तद्धीन कृत या की गयी तात्पदयजत कोई
कायजवाही, इस अध्यादेश के उपबन्धों के अधीन दकये
जाने हेतु और सदैव से कृत या की गयी समझी जायेगी।
और यह उतनी ही दवदधमान्य होगी तथा सदैव से
दवदधमान्यकृत समझी जायेगी, मानों इस अध्यादेश के
उपबन्ध ददनाांक 01 अप्रैल 1961 से समस्त सरवान
समयों पर प्रवि थे।"
अतः उच्चादधकारी कायाजलय प्रमुख
अदियन्ता (कायजप्रिाररत अदधष्ठान प्रकोष्ठ) गांगा दसांचाई
िवन तेलीबाग दसांचाई दविाग उ0प्र0 लखनऊ के
पत्राांक 1508 / कप्रअप्र / ददनाांक 26.11.2020
(िायाप्रदत सांलग्न-3) में ददये गये दनदेशानुसार दक
पुरानी पेंशन योजना से अच्िाददत यादचयों के प्रत्यावेदन
का दनस्तारण उ0प्र0 शासन दवधायी अनुिाग-01 के
अदधसूचना सांख्या 1877/79-वी0-1-2020-2
(क)20-2020 ददनाांक 20.10.2020 द्वारा दनगजत
540 INDIAN LAW REPORTS ALLAHABAD SERIES
उ0प्र0 पेंशन हेतु अहजकारी सेवा तथा दवदधमान्यकरण
अध्यादेश 2020 में दनदहत प्रादवधानो के अनुसार
दनयुदक्त अदधकारी/सक्षम अदधकारी द्वारा प्रत्यावेदन को
दनस्ताररत करने के आदेश है जो उदचत माध्यम से
कायाजलय को प्राप्त है। इसके अनुक्रम में ददनाांक
28.01.2021 को श्री अदमताि कुमार तत्कालीन
अधीक्षण अदियन्ता प्रथम मण्डल दसांचाई कायज मेरठ
द्वारा वादी का प्रत्यावेदन आदेश पाररत कर दनरस्त
दकया गया। उक्त अध्यादेश दवदिन्न वादो में Under
Challenge है दजसके कारण वादी का क्लेम
कन्सीडर नहीं दकया जा सका। वादी के क्लेम को
कन्सीडर करने के दलए और मा0 न्यायालय के आदेशो
की अनुपालन हेतु शासन से व्यदक्तगत समन्वय स्थादपत
कर दनदेश दलये जा रहे है। सादर अवगत कराना है दक
शासन द्वारा ददये गये दनदेशो का अनुपालन कर ददया
जायेगा।"
(emphasis by Court)

13. On 30.09.2024, when the
petition came up, the written instructions,
above quoted, were placed before the Court
by Mr. S.C. Upadhyay, learned Standing
Counsel.
Parties
having
exchanged
affidavits, the petition was admitted to
hearing,
which
proceeded
forthwith.
Judgment was reserved.

14. Heard Mr. Lal Chandra
Srivastava,
learned
Counsel
for
the
petitioner and Mr. S.C. Upadhyay, learned
Standing Counsel appearing on behalf of
the State.

15. We have carefully heard
learned Counsel for both sides, perused the
record as also the impugned order.

16. It is a proposition far too well
settled to brook doubt that, once a
judgment of a Court, particularly a
Constitutional Court, rendered inter partes,
becomes final and, in the exercise of
powers of judicial review under Article 226
of the Constitution, a mandamus is issued
by the High Court ordering authorities, who
were parties to the lis, to do something or
forbear from doing it, a subsequent
amendment to the law by the legislature
cannot undo the mandamus that has
become final between parties. The state of
the law, on the foot of which that
mandamus has been issued, may be
changed, no doubt by the legislature by an
amendment to the statute, but that would be
a change that would govern future
transactions between parties. May be on the
same facts and a similar cause of action,
that has led to the issue of a mandamus
between two parties by the High Court,
after amendment to the statute, it may not
be granted on the terms of the altered law.
This, however, would not mean that a
mandamus issued by this Court, through a
judgment inter partes, would be rendered
nugatory because under the amended
statute, if the cause were heard, that
mandamus might not have been granted.
Differently said, a judgment that has
become final inter partes and led to a
mandamus, cannot be undone, or, so to
speak, virtually set aside, as if it were, by
the supervening amendment to the law. The
mandamus that was issued in Writ-A
No.14563 of 2018 on 14.02.2020 by a
judgment
inter
partes,
obliged
the
Executive Engineer, Muzaffar Nagar Ganga
Canal Division, Muzaffar Nagar to re-fix
the petitioner's pension after adding his
services from the date he joined the work
charged establishment i.e. 21.04.1980 and
pass necessary orders for grant of pension,
with re-fixation done in the said manner,
within two months of production of a
certified copy of this Court's judgment.

17. The Ordinance came into force
on 20.10.2020 and if we were to accept the
reasoning carried in the impugned order, it
would abnegate the judicial power of the
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
541
State exercised through Courts under the
Constitution and subject it to an unknown
authority ultra vires the Constitution. If by
a subsequently promulgated Ordinance or
an enactment of the competent legislature,
a judgment of a Constitutional Court, that
has become final inter partes, were held to
be nullified as the impugned order seeks to
do, we would be accepting the principle of
a legislative review of judgments of Court
that have become final between parties.
There is no such principle known to the
Constitution. A judgment that has become
final between parties on a given state of the
law, can only be set aside at the instance of
the party aggrieved by carrying an appeal,
invoking higher judicial powers as may be
available under the law. It is true that, in
some cases, if an appeal is carried from a
final judgment, even of a Constitutional
Court to a Higher Court, and, pending the
appeal,
the
legislature
retrospectively
amends the law, then, subject to known
exceptions against retrospective legislation,
the rights of parties may be judged by the
amended law, with an event in appeal that
may be different from what it would have
been if the law were not amended. This is
not a case of the kind where pending an
appeal from the judgment of this Court in
Writ-A No.14563 of 2018, the basis of the
law on which the judgment proceeded, has
been
retrospectively
amended.
The
judgment in Writ-A No.14563 of 2018
admittedly became final between parties
with no invocation of appellate procedures
by the respondents.

18. The mere fact, therefore, that
the law has now been amended, would not
affect the mandamus granted by this Court
in Writ-A No.14563 of 2018, that has
become final between parties. It has to be
carried out without reference to the
Ordinance or the Act of 2021, that has
succeeded it. The impugned order, which
treats the mandamus issued by this Court
on 14.02.2020 in Writ-A No.14563 of
2018, nullified by Section 3 of the
Ordinance, has to be regarded as non est.
This is so because any order of an
Administrative Authority, or an executive
order of the Government, or even a
legislation, insofar as it has the effect of
nullifying a judgment of a Constitutional
Court, rendered inter partes, is non est and
void. Section 3 of the Ordinance reads:

"3.
Validation.-
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."

19. The retrospective amendment
that it brings about a change to Rule 3(8) of
the U.P. Retirement Benefit Rules, 1961
(for short, 'the Rules of 1961') may
arguably be regarded as something that
affects the law laid down by the Supreme
Court in Prem Singh (supra). The decision
in Prem Singh proceeds on the basis of
Rule 3(8) of the Rules of 1961 as it stood
before the amendment by the Ordinance
and the Act of 2021. Therefore, a cause
brought or heard after coming into force of
the Ordinance and then the Act of 2021, if
542 INDIAN LAW REPORTS ALLAHABAD SERIES
sought to be supported by the law laid
down by the Supreme Court in Prem
Singh, may have to be judged with
reference
to
the
provisions
of
the
Ordinance and the Act of 2021. It is in this
sense that the words notwithstanding any
judgment, decree or order of any Court
have been employed in Section 3 of the
Ordinance and also the Act of 2021. This is
not to say in any manner that Section 3 of
the Ordinance or the Act of 2021 has the
endorsement
of
this
Court
as
a
constitutionally valid exercise of power. We
cannot and need not say anything about it
within the frame of this writ petition. The
only thing we may say is that in a challenge
to the vires of Section 3 of the Ordinance or
the corresponding provision in the Act of
2021, what would be judged, perhaps is a
case of brazen legislative overruling of a
judgment of a Constitutional Court. As
already said, that is not our concern here as
that question does not arise. Here is a
concluded judgment and a mandamus
issued by this Court on 14.02.2020 in WritA
No.14563
of
2018,
between
the
petitioner and the respondents, which the
respondents have never appealed. They say
that the mandamus is a nullity because
Section 3 of the Ordinance nullifies the
mandamus. No mandamus, that has become
final inter partes, can ever be nullified by
legislation
as
that
would
constitute
usurpation of the judicial power of the State
by the legislature, entrusted to the Courts
under the Constitution. The Superintending
Engineer has gone completely wrong in
thinking that a mandamus of this Court,
final inter partes, would ipso facto be
nullified
upon
promulgation
of
the
Ordinance.

20. The principle that legislative
power cannot be exercised to undo a
judgment under which rights of parties
have crystallized and embodied in a
mandamus issued by the High Court, has
endorsement of the Constitution Bench of
the Supreme Court in Madan Mohan
Pathak and another v. Union of India
and others, (1978) 2 SCC 50. In Madan
Mohan Pathak (supra), it was held:

"27.
The
statement
of
objects and reasons discloses that
the purpose of the impugned Act
was to undo settlements which had
been
arrived
at
between
the
Corporation and Class III and Class
IV employees on January 24 and
February 6, 1974, and actually
recognised by the order of the
Calcutta High Court. The question
could well arise whether this was
really the exercise of a legislative
power or of a power comparable to
that of an Appellate Authority
considering the merits of what had
passed into a right to property
recognised by the courts. This
Court has decided in Shrimati
Indira Gandhi v. Raj Narain [1975
Supp SCC 1 : AIR 1975 SC 2299 :
(1976) 2 SCR 347] that even a
constitutional amendment cannot
authorise the assumption of a
judicial power by Parliament. One
of the tests laid down there was
whether the decision is of a kind
which requires hearing to be given
to the parties, or, in other words,
involves at least a quasi-judicial
procedure, which the Parliament
does not, in exercise of its
legislative
power,
follow.
A
decision reached by the Central
Government, under Section 11(2)
of the Act, is the result of a
satisfaction on matters stated there
and would imply quasi-judicial
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
543
procedure where the terms of a
settlement had to be reviewed or
revised.
But,
the
legislative
procedure, followed here, does not
require that to be done. It would, in
any event, be unfair to adopt
legislative procedure to undo such
a settlement which had become the
basis of a decision of a High Court.
Even if legislation can remove the
basis of a decision it has to do it by
an alteration of general rights of a
class but not by simply excluding
two specific settlements between
the Corporation and its employees
from the purview of Section 18 of
the Industrial Disputes Act, 1947,
which had been held to be valid
and enforceable by a High Court.
Such selective exclusion could also
offend Article 14.
31. The object of the Act
was, in effect, to take away the
force of the judgment of the
Calcutta High Court recognising
the settlements in favour of Class
III and Class IV employees of the
Corporation. Rights under that
judgment could be said to arise
independently of Article 19 of the
Constitution. I find myself in
complete
agreement
with
my
learned brother Bhagwati that to
give effect to the judgment of the
Calcutta High Court is not the same
thing as enforcing a right under
Article 19 of the Constitution. It
may be that a right under Article 19
of the Constitution becomes linked
up with the enforceability of the
judgment. Nevertheless, the two
could be viewed as separable sets
of rights. If the right conferred by
the judgment independently is
sought to be set aside, Section 3 of
the Act, would, in my opinion, be
invalid for trenching upon the
judicial power.
32.
I
may,
however,
observe that even though the real
object of the Act may be to set
aside the result of the mandamus
issued by the Calcutta High Court,
yet, the section does not mention
this object at all. Probably this was
so because the jurisdiction of a
High Court and the effectiveness of
its orders derived their force from
Article 226 of the Constitution
itself. These could not be touched
by an ordinary act of Parliament.
Even if Section 3 of the Act seeks
to take away the basis of the
judgment of the Calcutta High
Court, without mentioning it, by
enacting what may appear to be a
law, yet, I think that, where the
rights of the citizen against the
State are concerned, we should
adopt
an
interpretation
which
upholds those rights. Therefore,
according to the interpretation I
prefer to adopt the rights which had
passed into those embodied in a
judgment and became the basis of a
mandamus from the High Court
could not be taken away in this
indirect fashion."

21. The principle is succinctly laid
down by a later Constitution Bench of their
Lordships of the Supreme Court in
Cauvery Water Disputes Tribunal, Re,
1993 Supp (1) SCC 96 (2). In Cauvery
Water Disputes Tribunal (supra), the
principle was stated thus:

"76. The principle which
emerges from these authorities is
that the legislature can change the
544 INDIAN LAW REPORTS ALLAHABAD SERIES
basis on which a decision is given
by the Court and thus change the
law in general, which will affect a
class of persons and events at large.
It cannot, however, set aside an
individual decision inter partes and
affect their rights and liabilities
alone. Such an act on the part of the
legislature amounts to exercising
the judicial power of the State and
to functioning as an appellate court
or tribunal."

22. The point fell for consideration
before a Three-Judge Bench of the
Supreme Court in S.R. Bhagwat and
others v. State of Mysore, (1995) 6 SCC
16. In S.R. Bhagwat (supra), elucidating
the principle, their Lordships held:

"12. It is now well settled
by a catena of decisions of this
Court that a binding judicial
pronouncement between the parties
cannot be made ineffective with the
aid of any legislative power by
enacting a provision which in
substance overrules such judgment
and is not in the realm of a
legislative
enactment
which
displaces the basis or foundation of
the judgment and uniformly applies
to a class of persons concerned
with the entire subject sought to be
covered by such an enactment
having retrospective effect. We
may only refer to two of these
judgments.
13. A Constitution Bench
of this Court in the case of Cauvery
Water Disputes Tribunal, Re [1993
Supp (1) SCC 96 (2) : 1991 Supp
(2) SCR 497] had to pronounce on
the validity of Karnataka Cauvery
Basin
Irrigation
Protection
Ordinance, 1991 by which an
interim order passed by a statutory
tribunal supported by the decision
of this Court dated 26-4-1991
which had ruled that the Tribunal
had power to consider the question
of granting interim relief since it
was specifically referred to it, was
sought to be displaced. Sawant, J.,
speaking
for
the
Constitution
Bench held that the said provisions
were unconstitutional and ultra
vires. In paragraph 76 of the Report
the following observations were
made: (SCC p. 142)
"The
principle
which
emerges from these authorities is
that the legislature can change the
basis on which a decision is given
by the Court and thus change the
law in general, which will affect a
class of persons and events at large.
It cannot, however, set aside an
individual decision inter partes and
affect their rights and liabilities
alone. Such an act on the part of the
legislature amounts to exercising
the judicial power of the State and
to functioning as an appellate court
or tribunal."
In
the
case
of
G.C.
Kanungo v. State of Orissa [(1995)
5 SCC 96 : JT (1995) 4 SC 589] a
Division Bench of this Court
speaking through Venkatachala, J.,
had to consider the validity of
Arbitration
(Orissa
Second
Amendment) Act, 1991 which
sought to nullify the awards made
by the Special Arbitration Tribunals
constituted
under
the
1984
Amendment Act, in exercise of the
power conferred upon them by the
Act itself. Striking down the
provisions as ultra vires and illegal
3 All. Ompal Singh Irrigation Supervisor Vs. State of U.P. & Ors.
545
Venkatachala,
J.,
made
the
following
observations
in
paragraph 28 of the Report: (SCC
p. 114)
"Thus, the impugned 1991
Amendment Act seeks to nullify
the awards made by the Special
Arbitration Tribunals constituted
under the 1984 Amendment Act, in
exercise of the power conferred
upon them by that Act itself. When
the awards made under the 1984
Amendment Act by the Special
Arbitration Tribunals in exercise of
the State's judicial power conferred
upon
them
which
cannot
be
regarded as those merged in Rules
of Court or judgments and decrees
of courts, are sought to be nullified
by the 1991 Amendment Act, it
admits of no doubt that legislative
power of the State Legislature is
used by enacting impugned 1991
Amendment Act to nullify or
abrogate the awards of the Special
Arbitration Tribunals by arrogating
to itself, a judicial power. (See
Cauvery Water Disputes Tribunal,
Re [1993 Supp (1) SCC 96 (2) :
1991 Supp (2) SCR 497] .) From
this, it follows that the State
Legislature by enacting the 1991
Amendment Act has encroached
upon the judicial power entrusted
to judicial authority resulting in
infringement of a basic feature of
the Constitution - the Rule of
Law.
Thus,
when
the
1991
Amendment
Act
nullifies
the
awards of the Special Arbitration
Tribunals, made in exercise of the
judicial power conferred upon them
under the 1984 Amendment Act, by
encroaching
upon
the
judicial
power of the State, we have no
option
but
to
declare
it
as
unconstitutional having regard to
the well-settled and undisputed
legal position that a legislature has
no legislative power to render
ineffective
the
earlier
judicial
decisions by making a law which
simply declares the earlier judicial
decisions
as
invalid
and
not
binding,
for
such
powers,
if
exercised, would not be legislative
power exercised by it, but judicial
power exercised by it encroaching
upon the judicial power of the State
vested in a judicial tribunal as the
Special Arbitration Tribunal under
the
1984
Amendment
Act.
Moreover,
where
the
arbitral
awards sought to be nullified under
the 1991 Amendment Act are those
made
by
Special
Arbitration
Tribunals constituted by the State
itself under the 1984 Amendment
Act to decide arbitral disputes to
which State was a party, it cannot
be permitted to undo such arbitral
awards which have gone against it,
by having recourse to its legislative
power for grant of such permission
as could result in allowing the
State, if nothing else, abuse of its
power of legislation."
15. We may note at the
very outset that in the present case
the High Court had not struck down
any legislation which was sought to
be re-enacted after removing any
defect
retrospectively
by
the
impugned provisions. This is a case
where on interpretation of existing
law, the High Court had given
certain benefits to the petitioners.
That order of mandamus was
sought to be nullified by the
enactment
of
the
impugned
546 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions in a new statute. This in
our
view
would
be
clearly
impermissible legislative exercise.
17. We may recapitulate at
this stage that the petitioners have
mounted a limited attack on the
impugned provisions of the Act
insofar as they deprive them of the
monetary benefits flowing from the
deemed promotion to be given to
them pursuant to the orders of the
Division Bench of the High Court
which have become final between
the parties. We have extracted the
aforesaid section with its relevant
sub-sections wherein the impugned
provisions of the clauses concerned
have been indicated by underlining
them.
Petitioners
contend
that
underlined portions of sub-sections
(2), (3) and (8) of Section 4 clearly
fall within the teeth of binding
decision of the Division Bench of
the High Court and they are in clear
conflict with the said binding
decision. As we are not concerned
with other provisions of the Act
except Section 11(2) we may
straightaway turn to Section 11.
The said provision deals with
overriding effect of the Act. It reads
as under: