Others v. State Of U.P. Thru. Prin. Secy. Irrigation Deptt. U.P. Lko. And

Sri Ram and 15 others Versus State of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Govt. of U.P.,Irrgation Deptt. Lko. and 2 others

28. Writ - A No. 2228 of 2024: Ram Bhadur Singh and 3 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag Lko. and 3 others

29. Writ - A No. 2234 of 2024: Ram Prasad and 6 others Versus

30. State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others Writ - A No. 2451 of 2024: Satypal Singh and 6 others Versus State of U.P. Thru. Addl. Chief Secy./ Prin. Secy., Irrigation Deptt. WRIA No. 810 of 2024 4 Lko. and 3 others

31. Writ - A No. 2775 of 2024: Dharamkishor and another Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation, Lko. and others

32. Writ - A No. 2789 of 2024: Jagjeevan Ram and others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and others

33. Writ - A No. 2793 of 2024: Ramaraj Yadav and others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and others

34. Writ - A No. 3167 of 2024: Arun Kumar Singh and others Versus State of U.P, Thru. its Addl. Chief Secy. Irrigation Deptt. Civil Secrt. Lko. and others

35. Writ - A No. 3473 of 2024: Nirpati Ram and another Versus State of U.P. Thru. Prin., Secy., Irrigation Deptt., Lucknow and others

36. Writ - A No. 3993 of 2024: Ramnarayan Verma Versus State of U.P. Thru. Prin. Secy. Deptt. Irrigation Lko and 2 others

37. Writ - A No. 3999 of 2024: Parmanand Ram @ Parma Nand Ram and others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 2 others

38. Writ - A No. 4008 of 2024: Brij Bihari Chaube and another Versus State of U.P. Thru. Prin. Secy. Deptt. Irrigation Lko. and 3 others

39. Writ - A No. 4036 of 2024: Veer Raj Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and 2 others

40. Writ - A No. 4292 of 2024: Pawan Singh State of U.P. Thru. Prin. Secy. Irrigation Lko. and 3 others Versus

41. Writ - A No. 4299 of 2024: Mohd. Javed Anwar Khan and 4 others Versus

42. State of U.P. Thru. Secy. (Irrigation) Lko. and 3 others Writ - A No. 4394 of 2024: Radhey Shyam and 4 others 5 WRIA No. 810 of 2024 Versus State of U.P. Thru. its Addl. Chief Secy., Irrigation Deptt., Lko. and 2 others

43. Writ - A No. 4532 of 2024: Surendra Nath Tiwari and others Versus State of U.P. Thru. its Prin. Secy. Irrigation Deptt. Lko and 2 others

44. Writ - A No. 4547 of 2024: Shahana Begum State of U.P. Thru. Prin. Secy. Irrigation, Lko. and 2 others Versus

45. Writ - A No. 4581 of 2024: Rameshwar Prasad Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. and 2 others

46. Writ - A No. 4648 of 2024: Brahma Deo and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lucknow and 2 others

47. Writ - A No. 4649 of 2024: Praveen Kumar Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others

48. Writ - A No. 5245 of 2024: Shyam Sunder and 4 others Versus State of U.P. Thru. Prin. Secy. Irrigation and Water Resources Deptt. Lko. and 2 others

49. Writ - A No. 5567 of 2024: Mahendra Prakash Awasthi and 12 others Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

50. Writ - A No. 5580 of 2024: Arjun Singh and 21 others Versus State of U.P. Thru. Secy. Irrigation Deptt. U.P. Lko. and 3 others

51. Writ - A No. 5581 of 2024: Ram Sahare and 9 others State of U.P. Thru. Secy. Irrigation Deptt. Govt. Lko. and 3 others Versus

52. Writ - A No. 5772 of 2024: Lalji Pandey Versus State of U.P. Thru. Prin. Secy. Irrigation U.P. Lko. and another

53. Writ - A No. 5871 of 2024: Daya Sagar Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others Writ - A No. 5878 of 2024:

54. 6 WRIA No. 810 of 2024 Vinod Kumar Shukla and 4 others Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

55. Writ - A No. 6066 of 2024: Balkar Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and 3 others

56. Writ - A No. 6122 of 2024: Satya Deo Tiwari Versus State of U.P. Thru. Prin. Secy. , Sinchai Vibhag Lko. and 2 others

57. Writ - A No. 6246 of 2024: Shiv Ram Singh and others State of U.P. Thru. Secy. Irrigation Deptt. Lko and 4 others Versus

58. Writ - A No. 6261 of 2024: Shiv Bahadur Singh Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others

59. Writ - A No. 6286 of 2024: Shailendra Kumar Singh Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

60. Writ - A No. 7346 of 2024: Suresh Chandra Verma Versus State of U.P. Thru. Prin. Secy., Sinchai Vibhag, Lko. and 2 others

61. Writ - A No. 7417 of 2024: Sanovar Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 3 others

62. Writ - A No. 8029 of 2024: Ram Devi Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt., Lucknow and others

63. Writ - A No. 8522 of 2024: Rajesh Pratap Singh Versus State of U.P. Thur. Prin. Secy Irrigation Lko. and 3 others

64. Writ - A No. 9613 of 2024: Ramkumar Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko and 3 others

65. Writ - A No. 10163 of 2024: Lal Babu Dwivedi and 10 others Versus State of U.P. Thru. Addl. Chief Secy. Deptt. of Irri. Lko and 3 others WRIA No. 810 of 2024

66. Writ - A No. 10419 of 2024: Ashok Kumar and 11 others 7 Versus State of U.P. Thru Addl. Chief Secy. Prin. Secy. Govt. Irrigation Deptt. Lko. and 2 others 67. Writ - A No. 12479 of 2024: Shiv Narayan Awasthi and 4 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. U.P. Lko. and 2 others

68. Writ - A No. 12722 of 2024: Gyan Prakash and 2 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 2 others

69. Writ - A No. 260 of 2025: Surendra Kumar Mishra and another Versus State of U.P. Thru. its Addl. Chief Secy. Irrigation Deptt. and 2 others

70. Writ - A No. 502 of 2025: Kamlesh Kumar Mishra and 14 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation and Water Resources Deptt. and 2 others

71. Writ - A No. 995 of 2025: Karan Singh Baghel and 2 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. U.P. Lko. and 2 others

72. Writ - A No. 1442 of 2025: Suresh Nath and 15 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. U.P. Lko. and 2 others

73. Writ - A No. 2482 of 2025: Rakesh Kumar Tiwari State of U.P. Thru. Prin. Secy. Lko and 2 others Versus

74. Writ - A No. 2511 of 2025: Rajesh Kumar Tripathi and 8 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others

75. Writ - A No. 2520 of 2025: Om Prakash Mishra Versus Stateof U.P. Thru. Prin. Secy. Irrigation Deptt. Govt of U.P. Lko. and 3 others Writ - A No. 2700 of 2025: Satya Prakash Sonkar and another

76. WRIA No. 810 of 2024 8 Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. and 3 others

77. Writ - A No. 2792 of 2025: Vijay Pratap Singh and 12 others State of U.P. Thru. Prin. Secy. Lko. and 2 others Versus

78. Writ - A No. 5017 of 2025: Omkant Mishra and 16 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others

79. Writ - A No. 5065 of 2025: Suresh Babu and 5 others Versus State of U.P. Thru. its Prin. Secy. Sinchai Vibhag Lko. and 2 others

80. Writ - A No. 5083 of 2025: Dukha Haran Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag Lko. and 2 others

81. Writ - A No. 6036 of 2025: Shiv Narayan Lal Versus The State of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Irrigation Deptt. Lko. and 2 others 82. Writ - A No. 6080 of 2025: Ashok Kumar Versus State of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Irrigation Deptt. Lko and 2 others

83. Writ - A No. 8053 of 2025: Deepak Kumar Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

84. Writ - A No. 10148 of 2025: Raj Kumar Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others RESERVED Court No. - 7 HON'BLE MANISH MATHUR, J.

1. Heard Mr. Y. K. Misra, Mr. R. C. Tewari, Mr. K. B. Pandey and Mr. Subhash Chandra Pandey, learned counsel for petitioners and Mr. V. K. Shahi, learned Additional Advocate General, assisted by Mr. Tushar 9 WRIA No. 810 of 2024 Verma & Mr. Sandeep Sharma, learned State counsel for opposite parties.

2. This bunch of petitions has been filed challenging orders as well as seeking a Mandamus with regard to rejection and therefore allowing their claim of pensionary benefits by counting their services rendered as Part Time their regularization, Tube-well Operators prior purposes of qualifying service for pensionary benefits.

3. Learned counsel for petitioners submit that petitioners have been engaged as Part Time Tube-well Operators for the past more than 20 to 30 years and were subsequently regularized and superannuated but pension and such benefits are being denied to them on the ground that they have not rendered adequate service for purposes of qualifying service for pensionary benefits.

4. It has been submitted that initially the State Government had framed Irrigation Department Tube-well Operator Service Rules 1953, which however did not contemplate any position of Part Time Tube-well Operator. They submit that subsequently by means of Government Order dated 22.12.1981, 2300 posts of full time Tube-well Operators- cum-Mechanics and 2147 posts of Part Time Tube-well Operators were created by the State Government. Subsequently, the Office Memorandum dated 18.02.1982 for selection and appointment as well as appointment of Part Time Tube-well Operators. It is submitted that subsequently Office Memorandum dated 19.04.1983 was the earlier Office issued amending Memorandum and by the New Office Memorandum the nomenclature of Tube-well Operators was changed along with other changes also being made. issued containing guidelines indicating qualifications 10 WRIA No. 810 of 2024

5. It is also submitted that eight Part Time Tube-well Operators thereafter approached Labour Court seeking relief of being treated as regular Part Time Tube-well Operators and for admissibility of benefits as available to regular Part Time Tube-well Operators. The said Claim Petition was allowed by means of award dated 15.07.1989.

6. Subsequently, thereafter by means of another Government Order dated 20.02.1992, the nomenclature of Part Time Tube-well Operators were changed to Tube-well Assistants and changes in service conditions were again notified. The said Government Order was challenged in a Bunch of Writ Petitions with leading Writ Petition being of Suresh Chandra Tewari & Ors. versus State of U. P. & Ors. Writ Petition No.3558 (SS) of 1992. The State Government also filed Writ Petition No.1502 (SS) of 1992 challenging the award of Labour Court. Both writ petitions were connected and heard together and by means of judgment and order dated 18.05.1994, the petitions preferred by the Part Time Tube-well Operators was allowed while that of State Government was dismissed. It is submitted that a categorical finding was recorded by learned Single Judge of this Court that for all the practical purposes, the Part Time Tube-well Operators were performing the same nature of duties as were being performed by the regular full time Tube-well Operators. The said judgment and order was thereafter challenged before Supreme Court in Special Leave Petition No.16219 of 1994 and was dismissed vide judgment and order dated 22.03.1995. Review Petitions No.1894-1897 of 1995 were also dismissed vide order dated 18.10.1995 and in the Government Order dated compliance 27.10.1995 was issued for providing same benefits and pay-scales to Part Time Tube-well Operators as was thereof, 11 WRIA No. 810 of 2024 available to the regular Tube-well Operators. By means of another Government Order dated 10.11.1995, remaining service benefits were also granted to the Part Time Tube- well Operators.

7. It is submitted that subsequently the U.P. Irrigation Department Part Time Tube-well Operators Regularization Rules, 1996 were issued indicating the cut off date as 01.10.1986. The notification also provided that those Part Time Tube-well Operators who were found ineligible for such regularization would stand terminated from services. The said Rule 7 was challenged in Writ Petition No.1 (SS) of 1997 in which interim protection was granted.

8. Subsequently by means of Government Order dated 17.12.1996, the State Government abolished the Cadre of Part Time Tube-well Operators/ Assistant Tube-well Operators and initiated process of appointment/ regularization in terms of Rules of 1996. It is submitted that in view of interim protection granted, those Part Time Tube-well Operators who were found to be unqualified under the Rules also continued in service. It is also submitted that in view of contempt proceedings initiated in Criminal Case No.1059 (C) of 1997, Government Orders dated 03.03.1998, 05.03.1998 and 01.07.1999 were issued granting benefits of annual increment, bonus, village house allowance etc to Part Time Tube-well Operators and their services were transferred as Village Development Officers in the Gram Panchayat Department where they were engaged till 2005 with their salary being paid by the Irrigation Department.

9. Attention has been drawn to the fact that subsequently the Writ Petition No.1 (SS) of 1997 was disposed of having been rendered infructuous by means of order dated 01.08.2000 in view of the fact that all Part Time Tube-well 12 WRIA No. 810 of 2024 Operators whether engaged in service prior to 01.10.1996 or thereafter were merged in the Village Panchayat Department. It is submitted that between 1997 to 2002, a number of Part Time Tube-well Operators were thereafter regularized in service and by means of Government Order dated 19.07.2005, their services were transferred back to the Irrigation Department. The remaining Part Time Tube- well Operators who could not be regularized in service in terms of Rules of 1996 were thereafter sought to be the Part Time Tube-well Operators regularized by Regularization (Ist Amendment) Rules 2008 with the cut off date being amended to 30.06.1998. It is submitted that remaining Part Time Tube-well Operators were thereafter regularized in service in terms of the Rules of 2008.

10. It is therefore submitted that in terms of aforesaid facts as well as the subsequent judgment rendered by Hon'ble the Supreme Court in the case of Prem Singh versus State of U.P. & Ors.; (2019)10 SCC 516 as well as the recent judgment rendered in the case of Jaggo v. Union of India & Ors. [2024SCC OnLine SC 3826], petitioners are entitled to relief.

11. He has also placed reliance on judgment rendered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra).

12. Learned State Counsel has refuted submissions advanced by learned counsel for petitioners with the submission that judgment rendered in the case of Prem Singh (supra) would be inapplicable in the present facts and circumstances since petitioners who were engaged only as Part Time Tube-well Operators did not come within definition of either substantive or regular appointees or even temporary Government Servants and therefore no benefit thereof can be granted to them. It is submitted that 13 WRIA No. 810 of 2024 the appellant in the case of Prem Singh (supra) was regularized in the year 2002 which was prior to the New Contributory Pension Scheme which came into effect from 01.04.2005 and in view of such Part Time Tube-well Operators who were regularized subsequent to the said cut off date, their services cannot be counted for purposes of qualifying service for pensionary benefits since there is no such provision under the New Contributory Pension Scheme. the aspect of New Contributory Pension Scheme has not been considered in the case of Prem Singh (supra). It has also been submitted Article 352 of Civil Service Regulations has also not been considered in the case of Prem Singh (supra). is submitted It

13. Learned State Counsel has also referred to the aspect that subsequent to judgment rendered in the case of Prem Singh (supra), the State of U.P. has notified the U. P. qualifying Service of Pension and Validation Ordinance 2020 and the subsequent Act of 2021 as well as the U. P. Entitlement to Pension and Validation Ordinance, 2025. It is therefore submitted that in view of such subsequent events, judgment rendered in the case of Prem Singh (supra) would be inapplicable as well as the fact that services rendered by such Part Time Tube-well Operators cannot be treated towards a regular post and therefore it cannot be considered within the criteria for accessing qualifying service for purposes of pension and other retirement benefits. He has placed special emphasis in the recent judgment of Coordinate Bench in the case of Sajeevan Lal & Ors. versus State of U.P. & Ors. Writ A No.22586 of 2019.

14. While referring to judgment rendered in the case of Jaggo (supra), it has been submitted that the said judgment has been passed in the peculiar facts and 14 WRIA No. 810 of 2024 circumstances of that case since persons junior to the appellant therein had been regularized ignoring their claim. So far as judgment rendered in the case of Suresh Chandra Tewari (supra) is concerned, it is submitted that the aforesaid circumstances of that case and has been considered subsequently by another Division Bench of this Court in the case of State of U. P. Versus Dukh Haran Singh; Special Appeal No.240 of 2009 whereby a similar claim of another Part Time Tube-well Operators was dismissed. judgment was also passed

15. Apart from the case of Dukh Haran Singh (supra), learned counsel has also placed reliance on judgments rendered in the case of Ashok Tewari vs. State of U.P. and Others, Writ-A No.23244 of 2016, Brahmanand Singh v. State of U.P. and others [2017(11)ADJ 49 (LB) Allahabad] and Namo Narayan Rai & Ors. vs State of U.P. Writ Petition No.13626 (SS) of 2017 to buttress his submissions.

16. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the questions requiring an answer would be as follows: (a) Whether petitioners are would be covered by judgment rendered in the case of Prem Singh (supra)? (b) Whether any benefit can be granted to petitioners in the light of said judgment of Prem Singh (supra) in view of subsequent events such as promulgation of the Ordinance of 2020, Act of 2021 and the Ordinance of 2025? (c) Whether petitioners' cases would be covered by the New Pension Scheme, the cut off date for entry into service for purposes of pension and such benefits is prior to 01.04.2005? (d) Whether relief to petitioners is admissible in view of judgment rendered in the case of Sajeevan Lal (supra) ? 15 WRIA No. 810 of 2024 Regarding Question (a)

17. It is admitted between learned counsel for parties that prior to promulgation and notification of Act of 2021 and Ordinance of 2025, dispute in question was given a quietus by Supreme Court in the case of Prem Singh (supra) whereunder the entitlement of work-charge employees and similarly situated persons was held to be within the aspect of qualifying service for purposes of judgment after considering pensionary benefits. The provisions of Rule 3(8) of U.P. Retirement Benefit Rules, 1961, Regulation 370 of Civil Service Regulations as well as Paragraph - 669 of Financial Handbook, Volume - VI, held that in view of Note appended to Rule 3(8) of Rules, 1961, provisions were required to be read down and provisions of Regulations 370 of Civil Service Regulations and instructions contained in Paragraph - 669 of the Financial Handbook Volume - VI were required to be struck down. It was therefore held that services rendered by temporary employees on work-charge basis or even paid out of contingency fund would be included for purposes of pensionary benefits. It was also held that period of in non- temporary or officiating services pensionable establishment would also count for said benefits.

18. A perusal of aforesaid judgment indicates that prior to judgment rendered in the case of Prem Singh (supra). a similar issue with regard to State of Punjab in the case of Kesar Chand v. State of Punjab [AIR 1988 Punjab and Haryana 265] was considered by Supreme Court and provisions pari materia to the provisions applicable in the State of U.P., were struck down. The judgment of Kesar Chand (supra), in fact, forms the basis of judgment rendered in the case of Prem Singh (supra). 16 WRIA No. 810 of 2024

19. A perusal of judgment rendered in the case of Prem Singh (supra) indicates that the learned Advocate General appearing for State of U.P. made his submissions that there was considerable difference in the Rules and Regulations applicable in the States of Uttar Pradesh and Punjab. It had also been submitted that in Punjab, there was deemed regularization, whereas in the State of U.P., services were regularized with effect from a particular date, with such date being the date of entry into service and therefore services rendered prior to the date of regularization would be inapplicable for purposes of qualifying service for pensionary benefits. It had also been submitted that there was a conceptual difference between regular and work-charge employees since work-charge employees were not appointed by following procedure as that of regular employees.

20. It was submitted that work pressure and accountability also differ as also service benefits including benefits of Assured Career Progression Scheme. It had been submitted that treating them similarly would like giving similar treatment to unequal classes which would be against the Right to Equality provided under Article 14 of the Constitution of India since work-charged employees form a separate and distinct class and could not be treated at par with regular, temporary or ad hoc employees.

21. Hon'ble Supreme Court thereafter examined provisions of 'qualifying service' in terms of Rules of 1961, Civil Service Regulations and Financial Handbook, Volume - VI and reached a conclusion that very concept of work- charged employment has been misused by offering employment on exploitative terms for work which is regular and perennial in nature. It also held that in view of Note appended to Rule 3(8) of Rules, 1961, there was a 17 WRIA No. 810 of 2024 provision to count service spent on work-charge, contingencies or non-pensionable service for purposes of for pensionary being counted as qualifying service benefits.

22. It was also held that a classification as was being sought and made by the State was impermissible. The Supreme Court also observed that employees who had not been regularized despite having rendered services for 30 or 40 or more years ought to have been regularized under government terms of directions issued by Supreme Court in the case of State of Karnataka v. Uma Devi (3) [(2006) 4 SCC 1]. It was also held that it would be improper to relegate such persons for consideration of regularization and it was directed that their services should be treated as regular service. instructions as also

23. For purposes of examination of applicability of the aforesaid judgment, relevant provisions required to be considered are as follows:-

24. Rule 3(8) of the Rules, 1961 is as follows:- "Rule 3. In these rules, unless is anything repugnant in the subject or context- (1) – (7) (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. 18 WRIA No. 810 of 2024 (ii) periods of service in a work-charged establishment and (iii) periods of service in a post paid from contingencies shall also count as qualifying service. If service rendered in a non-pensionable Note:- establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service it will not constitute an interruption of service." (emphasis supplied) in a pensionable establishment,

25. Regulations 361, 368 and 370 of Uttar Pradesh Civil Service Regulations are as follows:- "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. These three conditions are fully explained in the following Section.

368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

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 work charged establishment; and (iii) periods of service in a post paid from contingencies."

26. Provisions of paragraphs 667, 668 and 669 of Financial 19 WRIA No. 810 of 2024 Handbook Volume - VI are as follows:- include such "667. Work-charged establishment will establishment as is employed upon the actual execution, as distinct from the general supervision, of a specific work or subworks of a specific project or upon the subordinate supervision of departmental labour, stores, and machinery in connection with such work or sub-works. When employees borne on the temporary establishment are employed on work of this nature their pay should, for the time being, be charged direct to the work. Notes : (1) Persons who actually do the work with their hands, such as, beldars, masons, carpenters, fitters, mechanics, drivers, etc., should be engaged only when works are carried out departmentally, and charged to works. In cases in which it is considered necessary, as a safeguard against damage to the Government Tools and Plant, such as road-rollers, concretemixture, pumping-sets, and other machinery, mechanics, drivers, etc., may be engaged by the Department or alternatively, if engaged by the contractor must be subject to approval by the department, whether the work is done departmentally or by contract. in all (2) Mistries and work agent should, circumstances, whether they are employed on works executed departmentally or on contract, be charged to "works". to 667 being observed, (3) Subject to the general principles stated in Paras 665 the classes of establishment not covered by these definitions may be classified as "work-charged, or temporary", as the case may be, and the rule which prescribes that workcharged establishment must be employed upon a 20 WRIA No. 810 of 2024 specific work waived, with the previous sanction of the Government and concurrence of the Accountant General. In such cases, the Government shall also determine the Accountant General, the proportions in which the cost of such establishment shall be allocated between the works concerned. in consultation with

668. In all the cases previous sanction of the competent authority as laid down in Vol. I of the Handbook or in the departmental manuals of orders is necessary, which should specify in respect of each appointment (1) consolidated rate of pay, (2) the period of sanction, and (3) the full name (as given in the estimate) of the work and the nature of the duties on which the person engaged would be employed.

669. Members of the work-charged establishment are not entitled to any pension or to leave salary or allowances except in the following cases: (a) Wound and other extraordinary pensions and gratuities are in certain cases admissible in accordance with the rules in Part VI of the Civil Service Regulations. (b) Travelling and daily allowance may be journeys allowed by divisional officers performed within the State in the interest of work on which the persons are employed on the following conditions: (i) The journey should be sanctioned by the sub- the divisional officer or engineer officer/assistant divisional 21 WRIA No. 810 of 2024 specifically authorized for the purpose by the divisional officer; (ii) concerned officer while sanctioning the journey should also is actually certify necessary and unavoidable interest of the work on which the person is employed: journey (iii) for the journeys so performed the work-charged employee may be allowed travelling and daily allowance at the same rates and on the same conditions regular as are applicable government servant of equivalent status. to a facilities and to workmen of

4. All admissible registered under 1948, are also admissible employees of Workshops and Factories." concessions factories the Factories Act, registered State

27. The aforesaid provisions were examined by Supreme Court in the case of Prem Singh (supra) and upon such examination, it was held as follows:- "29. The submission has been urged on behalf of the State of Uttar Pradesh to differentiate the case between work- charged employees and regular employees on the ground that due procedure is not followed for appointment of work charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, workcharged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged 22 WRIA No. 810 of 2024 employees with the regular service and vice versa, if a work-charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.

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 from regular employees? No qualitatively different 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) 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 23 WRIA No. 810 of 2024 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 theemployees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the workcharged 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 work-charged 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 by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in workcharged 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 work charged, 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 that once service regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, legal and proper. We 24 WRIA No. 810 of 2024 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 work-charged 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 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 work- charged 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. 25 WRIA No. 810 of 2024

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 Service Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

36. There are some of the employees who have not been regularized in spite of having rendered the services for 30- 40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service superannuation. They shall be entitled to receive the pension as the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. they have retired regularly attaining before

37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for 26 WRIA No. 810 of 2024 grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."

28. It is therefore evident that for purposes of counting services rendered prior to regularization for purposes of qualifying service of pension and such benefits, the aspect laid down in the the case of Prem Singh (supra) is that the nature of work being performed by such temporary or Part is being Time employees should be performed by the regular and substantively appointed employees on the same posts. It is also evident that the engagement in service should not be dehors the Service Rules which are applicable upon regular employees inasmuch as the services of such temporary or part time employees cannot be illegal though it may be irregular. the same as temporary appointments

29. In the case of Prem Singh (supra), it has also been held that in view of note appended to Rule 3(8) of the 1961 Rules, there is provision to count services spent on work service charge, contingencies or non-pensionable between periods of pensionable establishment and such service can be counted as qualifying service for pension in the aforesaid exigencies as indicated in the said Rule. The judgment also held that it would be highly discriminatory and irrational because of the rider contained in note to Rule 3(8) of the Rules of 1961 not to count such service since there is no rhyme or reason not to count the service of such persons in case it has been rendered before regularization. It was also held that it would amount to an impermissible classification and would be highly unjust and irrational to deny such employees the benefit of 27 WRIA No. 810 of 2024 qualifying service when the services rendered were same for all the employees and once it is to be counted as qualifying service for one class, it has to be counted for all to prevent discrimination. Hon'ble the Supreme Court also held that such classification cannot be done on an irrational basis. Upon examination of provisions of Rules 3(8) of the Rules of 1961 and other Service Regulations and the note appended to Rule 3(8), resulted with provisions contained in Regulation 370 of the Civil Service Regulations and those contained in Paragraph 669 of the Financial Hand Book being struck down.

30. The primary reason for allowing the appeal in the case of Prem Singh (supra) was that services rendered by such temporary or work charge employees were the same as were being performed by the regular and substantively appointed employees of the Department. It was therefore held that not counting such services rendered prior to regularization only on the pretext that these were not regular services with regard to those performed by persons who were not appointed under the State would amount to exploitation of labour particularly once such services have been rendered for at least 20 to 30 years at a stretch which clearly indicates perennial nature of employment and services rendered for such a long tenure being deemed to be in the nature of regular services.

31. The aforesaid aspects pertaining to nature of duties of petitioners as Part Time Tube-well Operators has already been considered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra) in the following manner: " One thing which has undisputedly emerged from the averments made in the counter affidavit referred to above is that tube wells are required to be operated beyond the 28 WRIA No. 810 of 2024 fixed hours also, it is not understandable why the keys would be available with the farmers and how they would be permitted to operate the tubewells. If the tubewells can be operated by the farmers independently, why there must be part time tubewell operators for two and a half hours only. In this context, the case of the petitioners and their averments cannot be doubted when it is said that they operate tubewells beyond the fixed hours of duty whenever electricity is available. It is for this purpose that they are supposed to be always available there in the village, where they work. As a matter of fact, the finding which has been recorded on the basis of record and the oral evidence adduced before the labour court has been challenged. Those seems to be no escape from the finding that part time tubewell operators work, which more than two and half hours which are on paper fixed as their duty hours, one of the ground taken in the writ petition is that merely because they were required to be available within the command area it was incorrecily. infarred by the labour Court that they worked for the full time In this connection it may be observed that this is not the only ground to hold that they worked for the full time. This observation of the labour court is also in the Background of other facts and evidence placed on record No interference can be made in the award of the labour court on the ground that part time tubewell operators do not perform their duties more than two and a half hours. All the above fact and circumstances including the documents and the order of the Prescribed Authority under the payment of Minimum Wages Act as well as the award of the labour court leave no room for doubt the fixed duty hours from 9.30 to 12 noon as one of the conditions of service for appointment of part time tubewell operators, is condition on paper alone which is neither adhered to nor is 29 WRIA No. 810 of 2024 it practically to adhere with. Tubewells are required to be operated beyond these fixed hours on the own showing of the opposite parties. To say that the farmers who have the key of the tubewells do it themselves does not stand to reason. Admittedly the tubewell operators need some training. It also includes the job of firing up different documents and registers etc. and to issue receipts to the farmers. Therefore, there seems to be hardly any substance in the plea taken that the formers themselves operate tubwells beyond the duty hours of part time tubewell operators, more so in the teeth of the condition that they would normally be available near the tubewell or in any case with in the command area.

32. Challenge was raised to the aforesaid judgment before Supreme Court in Special Leave Petition No.16219 of 1994 and was dismissed vide order dated 22.03.1995, Review Petition No.1894-1897 of 1995 was also dismissed vide order dated 22.03.1995.

33. In view thereof, the finding recorded by Coordinate Bench of this Court with regard to nature of duties of Part Time Tube-well Operators being identical to that of regularly appointed Tube-well Operators stood established upto Hon'ble the Supreme Court.

34. Considering aforesaid, there is no occasion for this Court to take a contrary view. It is thus evident that the nature of duties performed by Part Time Tube-well Operators was identical to that of substantively appointed regular Tube-well Operators.

35. Learned State counsel has laid much emphasis on the the Supreme Court while order passed by Hon'ble rejecting observations therein clearly indicate that the issue in the Review Application to submit 30 WRIA No. 810 of 2024 question before not only the Coordinate Bench of this Court but also Hon'ble the Supreme Court pertained only to the aspect of equal pay for equal work and did not cover any such consideration with to providing pensionary benefits by counting their services rendered as Part Time Tube-well Operators. regard

36. So far as aforesaid aspect is concerned, it is evident that although in the case of Suresh Chandra Tewari (supra), challenge raised was with regard to service benefits and not pensionary benefits but the said aspect is required to be seen in the context by juxtaposing the judgment of Suresh Chandra Tewari (supra) with that of Prem Singh (supra).

37. In such circumstances, once it has already held in the case of Suresh Chandra Tewari (supra) that services rendered by Part Time Tube-well Operators were identical to those being performed by the substantively appointed regular Tube-well Operators, the distinction between work performed by the two stands obliterated. The said aspect is important in view of the finding recorded in the case of Prem Singh (supra) for purposes of counting qualifying service rendered by persons who were not substantively appointed, the work performed by them should be similar or identical to that being performed by the regular employees.

38. In order to distinguish judgment rendered in the case of Suresh Chandra Tewari (supra), learned State Counsel has extensively relied upon the case of Dukh Haran Singh (supra) to submit that the subsequent Division Bench judgment of this Court has passed the said judgment denying the claim of counting pensionary benefits in cases of Part Time Tube-well Operators. It is submitted that the aforesaid judgment of Dukh Haran 31 WRIA No. 810 of 2024 Singh (supra) was also challenged before Hon'ble the Supreme Court in Special Leave to Appeal No.27713 of 2009 and was dismissed by means of judgment and order dated 25.09.2013. It has therefore been submitted that the subsequent judgment of Dukh Haran Singh (supra) has clearly denied such benefits with regard to pensionary benefits to the Part Time Tube-well Operators.

39. So far as the aforesaid judgment is concerned, it is evident, from a perusal thereof that while judgment rendered in the case of Suresh Chandra Tewari (supra) has been noticed therein but the findings recorded pertaining to the nature of duties performed by Part Time Tube-well Operators has not been adverted to at all nor has such finding as recorded in the case Suresh Chandra Tewari (supra) been interfered with in the case of Dukh Haran Singh (supra). The claim for pensionary benefits in fact has been denied only on the ground that services to his rendered by regularization would not qualify for grant of pension in terms of Regulations 361 and 370 of the Civil Service Regulations. the writ petitioner therein prior

40. It is thus evident that only aspect rejecting the claim of writ petitioners therein for counting their services rendered prior to regularization for purposes of pensionary benefits has not been on the ground that they did not perform the same nature of function and duties as regular employees.

41. It is also evident from a perusal of judgment rendered in the subsequent case of Prem Singh (supra) that the said aspect of Regulations 361 and 370 of the Civil Service Regulations has already been adjudicated upon by Hon'ble the Supreme Court while striking down the relevant provision of Regulation 370 of Civil Service Regulations and reading down provisions of Rule 3(8) of 32 WRIA No. 810 of 2024 the Rules of 1961.

42. Thus, in the considered opinion of this Court, the judgment rendered in the case of Dukh Haran Singh (supra) would now be over shadowed by judgment rendered by Hon'ble the Supreme Court in the case of Prem Singh (supra).

43. So far as the second aspect for providing such benefits is concerned that the nature of engagement in service of petitioners should not be dehors the Service Regulations, it is noticeable that substantively appointed Tube-well Operators were engaged in service in terms of Tubewell Operator Service Rules 1953. The said Rules were framed in consonance of powers exercised by the proviso to Article 309 of the Constitution of India. Admittedly, the said Rules did not have any provision for engagement of Part Time Tube-well Operators and it is only by means of issuance of the Government Order dated 22.12.1981 that 2147 posts of Part Time Tube-well Operators were sanctioned by honorarium/ wage of Rs.150/-per month. It is also evident and admitted that subsequently by means of Office Memorandum dated 18.02.1982 issued by the Office of Chief Engineer, Irrigation Department, conditions of service and for recruitment were notified. the State Government on a

44. It is therefore evident that the Part Time Tube-well Operators can be said to have been engaged in service with sanction by the State Government and not at the whims and fancies of officers concerned. The orders pertaining to creation of such posts, may not be statutory in nature but has evidently been issued by the State Government itself exercising powers available under Article 162 read with Article 166 of the Constitution of India. It is also evident that the Office Memorandum dated 33 WRIA No. 810 of 2024

18.02.1992 has been issued as a consequence of such posts being created by the State Government. the Executive Engineer being

45. A perusal of the Rules of 1953, particularly Rule 3 (Kha) indicates that the substantively appointed Tube-well Operators were required to be selected by a Selection Committee with convener and other Executive Engineers being Members of the Committee. Rule 5 of the Rules 1953 indicate the appointing authority to be the Executive Engineer with source of recruitment being direct in nature. Educational qualifications required for the said posts was junior High School or equivalent or 8th pass from a Higher Secondary School. Rule 13 appointment to the effect that the Selection Committee was required to choose from the applicants for the said posts with convener of the Committee forwarding names of selected candidates to the Superintending Engineer where they were required to be posted. The selectees were thereafter granted the status of apprentice and were required to qualify a practical examination prior to their appointment under Rule 16 of the Rules of 1953. indicated procedure thereof

46. So far as the procedure for engagement in service of Part Time Tube-well Operators is concerned, a perusal of the Office Memorandum dated 18.02.1982 reveals that in the appendix thereto, it has been indicated that selection shall be made by a Selection Committee comprising one Executive Engineer and one Assistant Engineer of the block with one Assistant Engineer of another block but of the same division. Paragraphs 1, 2 & 3 of the said notification indicates that the applicant should be of the same village with an educational qualification of High School qualified or its equivalent. It was also indicated that applications should be invited after due advertisement by 34 WRIA No. 810 of 2024 beat of drum. Paragraph 4 thereof indicates that minimum age for entering into service shall be the same as with regard to Government Employees.

47. Upon comparison for the Rules of 1953 with the Office Memorandum of 18.02.1982, it is thus evident that the nature of selection of Part Time Tube-well Operators and those who was substantively appointed are virtually the same. It is not as if the Rules of 1953 provided for selection after any written examinations or by some other procedure. The qualifications required for appointment of the Part Time Tube-well Operator in fact are higher than that was required for a regular Tube-well Operator. It is only the aspect of a regular Tube-well Operator requiring to qualify a practical examination, which appears to be the only difference. Here again, it is evident that such practical examination was required to be cleared subsequent to selection and appointment and not prior thereto.

48. In the considered opinion of this Court, once the Part Time Tube-well Operators were engaged in service by the same selection procedure and having virtually rendered at least 20 to 30 years continuous service with opposite parties, the importance of clearing such a practical examination becomes non-existent.

49. In view of discussion made here-in-above, in the considered opinion of this Court, it is thus established that the nature of duties and functions performed by the Part Time Tube-well Operators were similar/ identical to those being performed by the regular Tube-well Operators and secondly the mode and procedure for appointment on the said posts were in terms of directions issued by the State Government and are virtually similar.

50. The aforesaid two aspects therefore clearly bring the 35 WRIA No. 810 of 2024 Part Time Tube-well Operator within conditions indicated in Prem Singh (supra). the scope of

51. Learned State counsel has adverted to a plethora of Division Bench and Coordinate Bench Judgments of this Court to indicate that relief as is being sought in the present Bunch of writ petitions has already been adjudicated upon in such numerous decisions which have clearly declined such relief.

52. With regard to such judgments as have been indicated by learned State counsel, suffice to indicate that all these judgments were rendered prior to judgment in the case of Prem Singh (supra) and would therefore now be over shadowed by the said subsequent judgment of Prem Singh (supra).

53. Learned State counsel has also placed reliance on Article 352 of the Civil Service Regulations which is as follow:- “3[352. In the following cases no claim to pension is admitted- (a) When an officer is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty; but a month's notice of discharge should be given to such a person and his wages must be paid for any period by which such notice falls short of a month. (c) When a person's whole time is not retained for the public service, but he is merely paid for work done for the state. 1-This clause applies, among other, to the following officers. 36 WRIA No. 810 of 2024 Advocate General, solicitor to Government; Government pleaders and Law Officers not debarred form private practice..… (d) When a public servant holds some other pensionable office he earns no pension in respect of an office of the kind mentioned in clause (c) or in respect of duties paid for by a Local allowance. (e) When an officer serves under a covenant which contains no stipulation regarding pension, unless the State Government specially authorises an officer to count such service towards pension.”

54. From a perusal of the aforesaid provision, it is quite evident that none of the provision indicated in Article 352 of the Regulations is applicable in the present facts and circumstances of the case particularly since the petitioners have superannuated after rendering almost 20-30 years of service and therefore it cannot be said that they were appointed for limited time period only or for a specified duty, on completion of which they were discharged. It is also evident that petitioners were retained for their whole time in public service and did not hold any other pensionable office under the Government.

55. In view of discussion made here-in-above, it is evident that petitioners as Part Time Tube-well Operator would clearly be governed by judgment rendered in the case of Prem Singh (supra).

56. In view thereof, answer to question no.(a) is in favour of petitioners. Regarding Question (b).

57. Subsequent to judgment rendered in the case of Prem Singh (supra), State of U.P. initially promulgated U.P. 37 WRIA No. 810 of 2024 Qualifying Service for Pension and Validation Ordinance, 2020 which was replaced by U.P. Qualifying Service for Pension and Validation Act, 2021. It is this Validation Act of 2021 which has been heavily relied upon by learned in view of changed State counsel circumstances, judgment of Prem Singh (supra) would now be inapplicable and benefit of judgment cannot be granted to petitioners. to submit

58. So far as the aspect of subsequent promulgation of the Ordinance of 2020, Act of 2021 and the Ordinance of 2005 is concerned, an examination of the aforesaid provisions would be conducive. The provisions are as follows:

69. Provisions of Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 are as follows:- "No. 386 (2)/LXXIX-V-1-21-1-ka-39-20 Dated Lucknow, March 5,2021 IN pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Seva Tatha Vidhimanyakaran Adhiniyam, 2021 (Uttar Pradesh Adhiniyam Sankhya 1 of 2021) as passed by the Uttar Pradesh Legislature and assented to by the Governor on March 4, 2021. The Vitt (Samanya) Anubhag-3 administratively concerned with the said Adhiniyam. THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ACT, 2021 (U.P. Act no. 1 of 2021) (As passed by the Uttar Pradesh Legislature) AN WRIA No. 810 of 2024 38 ACT to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto. IT IS HEREBY enacted in the Seventy-second Year of the Republic of India as follows:-

1. (1) This Act may be called the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021. (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. (Short title, extent and commencement) in any rule, 2. Notwithstanding anything contained 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 Government for the post. (Qualifying Service for Pension) the service rules prescribed by

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

4. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent 39 WRIA No. 810 of 2024 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 Act. (Overriding effect) U.P. Ordinance no. 19 of 2020

5. (1) The Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 is hereby repealed. (Repeal and saving) (2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times. STATEMENT OF OBJECTS AND REASONS Pension and gratuity admissible to a retired Government servant are determined in relation to the length of qualifying service of the Government servant. Although the term "Qualifying Service is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interprétation which leads to administrative difficulties. It has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961. Since the State Legislature was not in session and immediate legislative action was necessary to implement 40 WRIA No. 810 of 2024 the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance No.19 of 2020) was promulgated by the Governor on October 21, 2020. This Bill is introduced to replace the aforesaid Ordinance. By order, ATUL SRIVASTAVA, Pramukh Sachiv"

59. Section 2 of the aforesaid Act of 2021 therefore commences with a non-obstante clause and prescribes that 'qualifying service' would mean services rendered by an officer appointed on a temporary or permanent post in accordance with provisions of Service Rules prescribed by Government on the said post.

60. Section 3 again commences with non-obstante clause and prescribes that anything done or purporting to have been done and any action taken or purporting to have been taken in terms of Rule 3(8) of the Rules, 1961 prior to commencement of the Act would be validated.

61. Section 2 of the Act of 2021 therefore clearly prescribes three conditions as sine qua non for grant of pensionary benefits. It is relevant that Section 2 of the Act of 2021 pertains to 'service rendered' by an officer 'appointed' on a 'temporary' or 'permanent' post. Thus Section 2 of the Act of 2021 does not make any distinction in the nature of service rendered by a person appointed on a temporary or permanent post. The distinction, in fact, is only with regard to nature of post. It can therefore be construed that services rendered by a person appointed on a temporary or permanent post may be substantive or 'appointed' has not been defined in Act of 2021 but finds including work-charge. The temporary 41 WRIA No. 810 of 2024 its relation to engagement of service in accordance with provisions of Service Rules prescribed.

62. It is not the case of opposite parties that petitioners at the time of their superannuation were not appointed or confirmed/regularized in terms of provisions of Service Rules.

63. Even assuming that aforesaid provision would be required to be seen for purpose of counting qualifying service rendered by petitioners as temporary or work- charged employees, it is evident that it is not the case of opposite parties that their initial engagement in service was de hors the provisions of Service Rules prescribed or that petitioners were unqualified to hold the posts on which they had been initially engaged as temporary or work- charged employees. In view thereof, in the considered opinion of this Court, services rendered by petitioners as temporary or work-charged employees would come within purview of Section 2 of Act of 2021. to refer it would also be conducive 64. Here engagement of services which is 'illegal' on one hand and ‘irregular’ on the other hand. An illegal engagement would be one which is de hors Service Regulations particularly in case of engagement of a person who is unqualified or otherwise disqualified to hold the said post, whereas in case of engagement of a person in government service without following due procedure, it would merely be an irregularity and not illegality as has already been held in the case of Uma Devi (supra).

65. In such circumstances as well, provisions of Section 2 of the Act of 2021 cannot exclude such persons who have been appointed/engaged in service with an irregularity but not illegality. 42 WRIA No. 810 of 2024

66. Subsequent to promulgation of the Act of 2021 and since benefit of same was being taken by the State, various petitions were filed before this Court seeking benefit of judgment rendered in the case of Prem Singh (supra). A number of such petitions were clubbed with Writ-A No. 8968 of 2022, Dr. Shyam Kumar v. State of U.P. and another and were decided vide judgment and order dated 17.02.2023. The Co-ordinate Bench of this Court took into account judgment rendered by Supreme Court in the case of Prem Singh (supra) as well as Act of 2021 and came to a conclusion that Act of 2021 was not in accordance with law settled by Supreme Court in case of Indian Aluminum Co. and others v. State of Kerala and others [(1996) 7 SCC 637] since the Act of 2021 did not remove vices pointed out by Supreme Court and invalidity was not cured complying with legal and constitutional requirements. Relevant portion of judgment is as follows:- "8. The law long settled is that the Legislature can render judicial decision ineffective by enacting valid law on the topic within its legislative field by fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid.

9. Therefore, the question now before this Court is whether by bringing Act of 2021, the State Government has done away with the vice pointed out by the Supreme Court in case of Prem Singh (supra). In the said judgment, the Supreme Court found that the State Government has adopted exploitative labour practice by taking work of regular employees from work charge employees on long term basis without any rationale classification while refusing them benefits available to regular employees. 43 WRIA No. 810 of 2024 Supreme Court specifically held that the State Government can not get involved in corrupt labour practices. On the aforesaid grounds, the Supreme Court read down the provisions of Rule 3(8) of the Rules of 1961 and struck down Regulation 370 of Civil Service Regulations and Para 669 of the Financial Handbook.

10. It is the duty of State to create new temporary or permanent posts as per its needs and make appointments on the same. Law also permits State to appoint daily wagers or work charge employees, but only when the work is for short period or is in a work charge establishment for fixed duration. Law does not permit the State to take work for long period, extending even for the entire working life of a person, on temporary or work charge basis. In such cases, it is the duty of State to create new posts and make appointments, giving all benefits of regular employees. Otherwise, State would be to be adopting exploitative labour practice. This is the vice pointed out by the Supreme Court in Prem Singh's case (supra), and instead of removing the same, the State by Section 2 of the Act of 2021 has extended the sphere of its illegality. By Section 2 of the Act of 2021, it desires to take benefit of its own failure of creating posts in time and making appointments on the same, by not counting the said period of such service for pensionary benefits. State still fails to explain the rationale on the basis of which it has created this new classification and the manner in which, by the amended provision, it has removed the irrationality."

67. The issue was again examined by another co-ordinate Bench of this Court in the case of Awadhesh Kumar Srivastava v. State of U.P. and others [2023 SCC OnLine All 360] and the learned Single Judge came to the same conclusion as was indicated in the case of Dr. Shyam Kumar (supra). Relevant portion of the judgment 44 WRIA No. 810 of 2024 is as follows:- "43. This Court is of the view that the action of the State in excluding the service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the reason that the Apex Court has held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal. Further, there is no rationale in excluding the service of an employee as work-charged or daily-wager from regular service for determining the qualifying service for pension whereas the period of service rendered by an employee as temporary or permanent post is liable to be counted for the purpose of qualifying service when the nature of duties performed by a person appointed as daily wager or on work-charged establishment or temporary or permanent post are similar and identical.

44. The other reason to conclude that Section 2 of the U.P.Act No.1 of 2021 is hit by Article 14 of the Constitution of India is that the State cannot by its arbitrary action put the employee working on work charge establishment or daily wager to disadvantage by taking work of perpetual nature from such employee on low wages for years and excluding the period of service rendered by such employee under work charge establishment or as daily-wager from regular service for counting qualifying service for pension when the nature of duties performed by such employees are akin and similar to the nature of duties performed by the employee appointed on a accordance with the provisions of service rules framed by the State Government and their services are liable to be counted for determining qualifying service. temporary and permanent post 45 WRIA No. 810 of 2024

45. It is settled in law that the accrued or vested right cannot be taken away by an amendment. The law on the point that the pension is not a bounty and is earned by the employee by the dint of his long service is no more res integra. The right of work charge employee or daily wager to include their service rendered under work charge establishment or daily-wager with regular sevice for determining qualifying service for pension has been recognized by the Apex Court in Prem Singh's case, therefore, such a right of an employee cannot be taken away by enacting a law which is hit by Article 14 of the Constitution of India.

46. In such view of the fact, this Court finds that U.P. Act No.1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra)."

68. It is also evident that provisions of the Ordinance of 2020 and Validation Act of 2021 are pari materia and during existence of Ordinance of 2020, same was also examined by various Division Benches of this Court in State of U.P. and others v. Dinesh Rai, Special Appeal No. 230 of 2024 and other connected appeals and Brahmananad Singh and others v. State of U.P. and others, Special Appeal No. 438 of 2017 as in the case of State of U.P. and others v. Bhanu Pratap [2021 SCC OnLine All 1113] in the following manner:- "8. 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, reveals that "Qualifying Service" has been defined to mean the services rendered by 46 WRIA No. 810 of 2024 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.

9. Admittedly, the petitioner was appointed on 10.05.1989 as work charge employee at Azamgarh. His services were however regularised on 15.6.2011. The regularisation of service was against the permanent post and it is not that his initial appointment was not in accordance to service Rules.

10. In light of the aforesaid, period spent in service may be on temporary basis while working as a work-charge employee, proceeded with regularization, benefit of past services cannot be denied."

69. The aforesaid judgment upheld judgment and order passed by learned Single Judge in Writ-A No. 35301 of 2017 whereby a direction was issued for giving benefit of Old Pension Scheme to petitioner by counting services rendered by him as work-charge employee towards qualifying service for grant of pension. The judgment rendered by Division Bench of this Court was challenged in Special Leave to Appeal No. 10381 of 2022 which was dismissed vide order dated 11.07.2022 by prescribing a time-limit of eight weeks to comply with order passed by the High Court.

70. Another Division Bench judgment rendered on the same aspect with the same conclusion has been passed subsequently as in the case of State of U.P. and others v. Mahendra Singh, Special Appeal Defective No. 1003 of 2020. It is therefore evident that aspect of including temporary rendered by work-charge or services employees prior to their regularization and even after advent of the Ordinance of 2020 and Act of 2021 have 47 WRIA No. 810 of 2024 been taken into account towards qualifying service for purposes of pension.

71. As noticed here-in-above, in the case of Bhanu Pratap (supra), judgment has been affirmed by Hon'ble Supreme Court.

72. Recently, in another judgment rendered by Supreme Court in the case of Jaggo v. Union of India and others [2024 SCC OnLine SC 3826], the issue was again raised by the State that since the nature of engagement was purely on part-time, contractual basis and was never intended to be permanent or full-time and keeping in view judgment rendered in Uma Devi (supra), such persons were not entitled for pensionary benefits, was considered and after examination of relevant aspects keeping in line with fundamental rights indicated in the Constitution of India, Hon'ble Supreme Court held as follows:- "10. Having given careful consideration submissions advanced and the material on record, we find that the appellants' long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route.

12. Despite being labelled as "part-time workers," the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; 48 WRIA No. 810 of 2024 instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants' tenure, underscoring the indispensable nature of their work.

13. The claim by the respondents that these were not regular posts lacks merit, as the nature of the work the appellants was perennial and performed by fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same the appellants' termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional. to private agencies after

14. The abrupt termination of the appellants' services, their Original Application following dismissal of before the Tribunal, was arbitrary and devoid of any justification. The termination letters, issued without prior notice or explanation, violated fundamental principles of natural justice. It is a settled principle of law that even contractual employees are entitled to a fair hearing before any adverse action is taken against them, particularly when their service records are unblemished. In this case, the appellants were given no opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service. 49 WRIA No. 810 of 2024

19. It is evident from the foregoing that the appellants' roles were not only essential but also indistinguishable from those of regular employees. Their sustained contributions over extended periods, coupled with absence of any adverse record, warrant equitable treatment and regularization of their services. Denial of this benefit, followed by their arbitrary termination, amounts to manifest injustice and must be rectified. humane resolution functions of the State or illegal appointments

20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary instrumentalities. The said judgment sought to prevent backdoor entries and circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served the backdrop of sanctioned continuously against functions for a considerable period, the need for a fair paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc regularization. In a recent judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it was held that held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgement have been reproduced below: into a scenario demanding temporary becomes "6. The application of the judgment in Uma Devi 50 WRIA No. 810 of 2024 facts at hand, given (supra) by the High Court does not fit squarely the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period service. Their continuous promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). through underscoring appointments

7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case."

21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary 51 WRIA No. 810 of 2024 principles of fairness and equity.

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade longterm obligations owed to employees. These practices manifest in several ways: - Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. - Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. - Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, equally despite significant. contributions being 52 WRIA No. 810 of 2024 resort outsourcing - Using Outsourcing as a Shield: Institutions increasingly performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. employees - Denial of Basic Rights and Benefits: Temporary denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, illness, cases of retirement, or unforeseen circumstances. especially

26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to 53 WRIA No. 810 of 2024 exists temporary regularization employees, overlooking the judgment's explicit acknowledgment of is appropriate. This cases where regularization selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.

27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines fair employment employee morale. By ensuring practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."

73. The aforesaid judgment has thereafter been followed with approval by Supreme Court in the subsequent case of Shripal and another v. Nagar Nigam, Ghaziabad [2025 SCC OnLine SC 221].

74. It is therefore evident from a perusal of judgment rendered by Supreme Court in the case of Jaggo (supra) that long and uninterrupted service of periods extending well beyond ten years, cannot be brushed aside merely by initial appointments as part-time or labelling 54 WRIA No. 810 of 2024 intend and with contractual appointment. It was held that since such engagement was not sporadic but recurrent, and akin to typically associated with responsibilities and work sanctioned posts, such services were in fact regular in performed the work nature indistinguishable from those of regular employees. It was also held that decision rendered in the case of Uma Devi (supra) did not to penalize employees who rendered long years of service fulfilling on-going and necessary functions of the State or its instrumentalities. It was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment, though termed temporary but performed same duties as being performed by regular employees for considerable period. It was also held that the judgment 'irregular' appointments with a categorical enunciation employees whose appointments did not follow procedure laid down in Service Rules was merely irregular and not illegal and were therefore required to be considered for regularization as one time measure. to distinguish between 'illegal' and

75. The judgment also noticed that laudable intent of the judgment rendered in the case of Uma Devi (supra) was being subverted by institutions to indiscriminately reject claims of employees on untenable grounds. Hon'ble Supreme Court has therefore issued a direction that it is imperative for Government Departments to lead example for providing fair and stable employment.

76. However, it is also pertinent that in the judgment of Jaggo (supra), provisions of neither Ordinance 2020 nor Act of 2021 was under consideration. Nonetheless, in the considered opinion of this Court, the aforesaid judgment would be equally binding in the present case since it 55 WRIA No. 810 of 2024 pertains to fundamental rights accrued to petitioners in terms of Part - III of the Constitution of India.

77. It is also relevant that subsequently, Ordinance of 2025 has been promulgated with the term 'substantive appointee' being defined under Section 2(d) thereof. The said Ordinance is as follows:- "THE UTTAR PRADESH ENTITLEMENT TO PENSION AND VALIDATION ORDINANCE, 2025 (U.P. Ordinance no. 9 of 2025) [Promulgated by the Governor in the Seventy-sixth Year of the Republic of India] AN ORDINANCE to provide for entitlement to pension and validate certain actions taken in this behalf and for mattes connected therewith incidental thereto. WHEREAS the State Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-

1. (1) This Ordinance may be called the Uttar Pradesh Entitlement to Pension and Validation Ordinance, 2025. (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. For purposes of this Ordinance, unless the context otherwise 56 WRIA No. 810 of 2024 requires, – (a) "Government" shall mean the Government of Uttar Pradesh; (b) "regulations" shall mean any regulations in exercise of any power conferred by any enactment by the State of Uttar Pradesh and shall include the Civil Service Regulations as adopted for application in Uttar Pradesh and any other regulations made by the Governor of Uttar Pradesh; (c) "rules" shall mean any rules made in exercise of any power conferred by any enactment by the State of Uttar Pradesh and shall include the Uttar Pradesh Retirement Benefit Rules, 1961 and any other rules made by the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution; (d) "substantive appointee" shall mean any person who has been appointed in accordance with the procedure prescribed in the applicable rules or regulations to any temporary or in a permanent post duly created by permanent establishment of the Government. the Government

3. Notwithstanding anything contained in any rules, regulations or Government orders, no person who, – (a) is not a substantive appointee in any department or in any organization under any department of the Government; and (b) is or has been a subscriber to any Contributory Provident Fund or the Employees' Provident Fund; shall be entitled to pension under any rules, regulations or Government orders relating to the grant of pension.

4. Notwithstanding any judgment, decree or order of any Court, Tribunal or Authority, all actions taken, things done or Government orders issued or purporting to have been taken, done or issued, by which pension has been denied to any persons 57 WRIA No. 810 of 2024 or class of persons who are not substantive appointees and who are or have been subscribers to any Contributory Provident Fund or the Employees' Provident Fund, shall be deemed to be and always to have been validly taken, done or issued 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.

5. 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. ... "

78. A perusal of Section 2(d) of the Ordinance, 2025 indicates that it is applicable only in those cases where an employee has been appointed in accordance with prescribed procedure in applicable rules.

79. Here again, there is no distinction drawn between nature of service provided by a person engaged by the State Government. However, a person who has not been appointed in accordance with procedure prescribed, has 'substantive been excluded appointee' and Section - 3 thereafter disentitles a person who is not a substantive employee, from pension. Section 4 of the Act thereof confers non-obstante clause to the aforesaid Act and proceedings taken in lieu of Acts and Rules indicated therein. the definition of

80. In view of judgment rendered by Co-ordinate Bench of this Court in the case of Dr. Shyam Kumar (supra), which in turn places reliance on judgment rendered by Supreme Court in the case of Indian Aluminum Company and others (supra), it is again evident that the State while 58 WRIA No. 810 of 2024 promulgating aforesaid Ordinance of 2025 has not at all bothered to remove the vice pointed out by Supreme Court nor it has removed invalidity indicated in the case of Prem Singh (supra). The Ordinance also does not indicate any changed or altered conditions to such an extent that the decision rendered in Prem Singh (supra) and conditions indicated therein do not now exist. It is therefore evident that the Ordinance of 2025 seeks to overrule a decision of the Supreme Court which otherwise is binding upon it, without indicating any features for exercising legislative power to overrule the aforesaid decision.

81. In the considered opinion of this Court, therefore, the Ordinance of 2025 is not only against the dictum of Supreme Court in the case of Prem Singh (supra) but also against the judgment rendered in the case of Uma Devi (supra) in the light of judgment rendered in the case of Indian Aluminum Company and others (supra) which has held as follows:- "56. From a resume of the above decisions the following principles would emerge: [1] The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transaction and require the court to give effect to them; [2] The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary, [3] In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion Articles read with the entries in the respective Lists in the Seventh Schedule to make the 59 WRIA No. 810 of 2024 law which includes power to amend the law. [4] Courts in their concern and endeavor to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always maintained; [5] In its anxiety to safeguard judicial power, it is unnecessary to be overjealous and conjure up incursion into the judicial preserve invalidating the valid law competently made; [6] The Court, therefore, need to carefully scan the law to find out: (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution. [7] The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof. [8] In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can 60 WRIA No. 810 of 2024 render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof. ineffectual. It is competent the State [9] The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."

82. Apart from said proposition, provisions of Ordinance of 2020, Act of 2021 and Ordinance of 2025, as noticed here-in-above, confer benefit of pension to part time tube- well operators such as petitioners.

83. Learned State Counsel has laid much emphasis on judgment rendered in the case of Ashok Tewari (supra). 61 WRIA No. 810 of 2024 A perusal of the judgment makes it evident that the Division Bench was concerned primarily with regard to applicability of pensionary benefit on persons whose services had been regularized on or after 1st April, 2005 in terms of amendment incorporated in the Rules of 1961. It was held that since under the New Pension Scheme, there was no concept of a qualifying service, therefore services rendered prior to regularization could not be considered as service qualifying for pensionary benefits.

84. In the considered opinion of this Court, aforesaid judgment is clearly inapplicable and distinguishable in the facts of this case since the present case does not deal with the aspect of benefits under the New Pension Scheme as also the aspect that the judgment has been passed without considering various Division Bench judgments reading down the Ordinance of 2020 and the Act of 2021.

85. The Division Bench has noticed the judgment of Prem Singh (supra) in paragraph - 33, but has not relied upon same in view of amendment incorporated in Rule 3 (8) of Rules, 1961 vide amendment dated 5th March, 2021. The judgment of Prem Singh (supra) was also not followed only for the reason that under the New Pension Scheme, there is no concept of qualifying service and therefore there is no question of adding any past service. It is also evident that the judgment has placed reliance on a single bench judgment in the case of Brahmanand Singh (supra) but apparently it was not brought to the notice of Division Bench that said judgment of Brahmanand Singh (supra) was already set aside in Special Appeal No. 438 of 2017 vide judgment and order dated 23.10.2019.

86. The Division Bench has also not considered the aspect that Ordinance of 2020 was held not to be applicable in 62 WRIA No. 810 of 2024 such circumstances as the present case in the case of Bhanu Pratap (supra) with judgment rendered by Division Bench of this Court as indicated here-in-above being upheld by Supreme Court.

87. With regard to the aforesaid aspects, it is observed that judgment rendered in the case of Ashok Tewari (supra) has failed to consider various Division Bench Judgments on the aforesaid aspect and would therefore come within the concept of per incuriam as indicated in the Full Bench decision of this Court in Rana Pratap Singh v. State of U.P. [(1995) 1 ACJ 200] and Namo Narayan Rai and others (supra).

88. Learned State Counsel has also referred to judgment rendered by Full Bench of this Court in the case of Namo Narayan Rai (supra). However, from perusal of the aforesaid judgment, it is evident that the same does not consider any law pertaining to the Ordinance of 2020 or Act of 2021 or the Ordinance of 2025. The judgment also has not adverted to the case of Prem Singh (supra). In view thereof, the aforesaid judgment is inapplicable in the present the question involved before the Full Bench even otherwise does not pertain to the issue in question and involves only the aspect of payment of GPF. facts and circumstances since

89. It is thus evident that judgments relied upon by learned State Counsel are either per incuriam or have already been set aside in appeal.

90. In the considered opinion of this Court, neither of the two judgments would be applicable in the present facts and circumstances of the case.

91. It is also relevant that opposite parties do not deny the 63 WRIA No. 810 of 2024 fact that petitioners otherwise were fully qualified and eligible for regular appointment on the posts on which they were engaged initially either on temporary or work-charge basis. The only ground taken is that petitioners were engaged without following procedure prescribed according to Service Rules. As has already been noticed here-in- above, same would only render such engagements to be irregular and not illegal and therefore would come within purview of law enunciated by Supreme Court in the case of Uma Devi (supra) as well as Jaggo (supra).

92. Apart from the aforesaid aspects, Section 2 of the Act of 2021 clearly indicates qualifying service to mean service rendered by an officer appointed on a temporary or permanent post in accordance with provisions of Service Rule prescribed by the Government for the said post.

93. In consequence thereof, Section 2(b) of the Ordinance of 2025 has defined a substantive appointee as any person who has been appointed in accordance with procedure prescribed in the applicable rules or regulations to any temporary or permanent post duly created by the Government Government. in a permanent established of

94. Considering the discussion made with regard to Question (a) herein-in-above, this Court has already determined that engagement in service of Part Time Tube- well Operator was in accordance with provisions of the Government Order, which therefore would come within the meaning of provisions of Service Rule prescribed by the Government for the said posts. In view thereof, in terms of Section 2(d) of the Ordinance of 2025, Part Time Tube- well Operators, would be covered within definition thereof services regularization also would be required to be counted to their rendered prior therefore 64 WRIA No. 810 of 2024 qualifying service in terms of Section 2 of the Act of 2021.

95. In view of the discussion made here-in-above and the law noticed, it is evident that petitioners would have a right for benefits of pension and such benefits, irrespective of the Ordinance of 2020 as replaced by the Act of 2021 and the Ordinance of 2025.

96. The answer to Question (b) is therefore in favour of petitioners. Regarding Question (c)

97. In view of discussion and answer to question (a) holding petitioners eligible for pensionary benefits with counting of their services rendered as temporary or work- charge being eligible as qualifying service of pensionary benefits, the aspect of their regularization subsequent to 1st April, 2005 is rendered irrelevant. that services rendered prior

98. It is also evident from a perusal of judgment rendered in the case of Prem Singh (supra) that the learned Advocate General for State of U.P. has specifically raised this plea to date of regularization would be inapplicable since such persons were born into the cadre only upon regularization. It is also evident from perusal of the aforesaid judgment and in the case of Prem Singh (supra) that the said submission has been impliedly rejected particularly in view of findings recorded therein. Even otherwise, the aspect is no longer relevant in view of subsequent judgment of Supreme Court in the case of Jaggo (supra).

99. In view thereof, it is held that petitioners irrespective of their regularization in service post 01.04.2005 would be eligible for pension and such benefits. 65 WRIA No. 810 of 2024

100. The answer to Question (c) therefore in favour of petitioners. Regarding Question (d)

101. Learned State counsel has laid much emphasis on judgment rendered by Coordinate Bench of this Court in the case of Sajeevan Lal (supra) to submit that a Bunch of writ petitions involving same question has already been judgment and order dated dismissed by means of 23.01.2023 in which all the relevant aspects and case laws have been considered.

102. The judgment also holds that such benefit cannot be granted to the petitioners therein since their entry into service itself was from the date of regularization and not prior thereto.

103. So far as, the said aspect is concerned, as has been observed here-in-above, such a plea was specifically taken by the State before Supreme Court in the case of Prem Singh (supra) and has been impliedly rejected. Even otherwise, the said aspect would now no longer be relevant in view of subsequent judgment of Hon'ble the Supreme Court in the case of Jaggo (supra). It is also seen that Sajeevan Lal (supra) places reliance on judgment rendered in the case of Dukh Haran Singh (supra) but as has been observed here-in-above, judgment of Dukh Haran Singh, does not distinguish the earlier judgment of Suresh Chandra Tewari (supra) in any manner. The judgment rendered in the case of Sajeevan Lal the ratio of Supreme Court in the case of Prem Singh and is also now required to be seen in the light of subsequent judgment of Jaggo (supra). therefore clearly ignores 66 WRIA No. 810 of 2024

104. Upon examination of the aforesaid judgment, it transpires that judgment rendered in the case of Prem Singh (supra) has been distinguished primarily on the ground that same would be inapplicable after advent of the New Pension Scheme with effect from 01.04.2005 since the said aspect was not under consideration before Hon'ble the Supreme Court in Prem Singh (supra).

105. The aspect of New Pension Scheme has not been considered in the light of various Division Bench and Coordinate Bench judgments of this Court subsequent to Prem Singh (supra) whereby such benefit has already been granted despite the said fact. The judgment therefore is clearly per incuriam with regard to the aforesaid aspect.

106. Judgment in the case of Sajeevan Lal (supra) has also declined relief on the ground that the appointment of Part Time Tube-well Operators was a stop gap arrangement made by virtue of Government Order without following due procedure prescribed under 1953 Rules. The relevant paragraph is as follows: "41. Therefore, it is required to be noted that the writ tube well petitioners were working as "Part operators" (working for less than three hours a day). The appointment was for a stop-gap arrangement. They were not appointed on any substantive post. Further, it is not in dispute and cannot be disputed that they were not appointed in any sanctioned posts of tube well operators regular or temporary. Even it is not the case on behalf of the writ petitioners that their appointment was done after following due procedure of selection. Neither any documents nor any submission have been made by the parties contradicting the aforesaid analogy drawn by this court. Thus, there appointment remained always irregular. " 67 WRIA No. 810 of 2024

107. From the discussion made here-in-above in earlier portion of this judgment, this Court has already examined and compared the Rules of 1953 with those of the Government Order dated 22.12.1981 and the Office Memorandum of 18.02.1982 and it has already been established that the Part Time Tube-well Operators were in fact appointed on posts which were duly sanctioned by the State Government and such appointments were in terms of procedure prescribed in the Office Memorandum.

108. From a perusal of judgment rendered in the case of Sajeevan Lal (supra), it is evident that relief has been declined only on the ground that Part Time Tube-well Operators were appointed without following due procedure prescribed under the Rule of 1953. Judgment does not at all advert to the fact that Part Time Tube-well Operators were appointed in terms of procedure indicated in the Office Memorandum dated 18.02.1982.

109. Judgment of Sajeevan Lal (supra) has also noticed the judgment rendered in the case of Suresh Chandra Tewari (supra), the same has been distinguished only on the ground that dispute therein pertained to equal pay for equal work and not for pensionary benefits. Judgment also refers to the aspect that in the review application, it has been clarified that the issue pertained only to pay parity which does not enure benefits of regular Tube-well Operators to Part Time Tube-well Operators. It was also held that Hon'ble the Supreme Court while deciding review petition clarified that the issue decided related only to pay parity and not regularization etc.

110. However a perusal of the order dated 18.10.1995 passed in Review Petition reveals that there is no such observation that the judgment would not be applicable with regard to regularization of pensionary benefits. The order 68 WRIA No. 810 of 2024 dated 18.10.1995 is as follows:- the question for examination related "Review has been prayed mainly on the ground that there are two sets or conflicting orders. This, is, however, not so, as in Writ Petition No.9/88, which was disposed of on 28.02.95, regularisation of the part-time tubewell operators, so that petition was disposed of to act in accordance with the decision of this Court in Piara Singh's case. The Special Leave Petitions, with which these review petitions are concerned, were, however, on the question of grant of pay to the part-time tubewell operators equal to the regular operators on the principal of "equal Pay for equal work" Other grounds do no make out a case for review for review petitions are, therefore, dismissed."

111. Apart from aforesaid, it is quite evident and admitted that the judgment rendered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra) was upheld in not only by dismissing the Special Leave Petition but Review itself was also dismissed and therefore in such circumstances, findings recorded in the case of Suresh Chandra Tewari (supra) would be binding upon this Court.

112. It is also observed that Sajeevan Lal (supra) does not make any distinction between an illegal and irregular appointment although such distinction has clearly been indicated by Supreme Court in the case of Uma Devi (supra) as well as Jaggo (supra).

113. The judgment in the case of Sajeevan Lal (supra) also refers to judgment rendered by Hon'ble the Supreme Court in the case of direct recruits Class II Engineering Officers Association versus State of Maharashtra AIR 1990 Supreme Court 1607 but in the considered opinion 69 WRIA No. 810 of 2024 of this Court, the said judgment was clearly inapplicable in the facts and circumstances of the case since the said judgment pertains to the aspect of seniority and not for purposes of pensionary benefits.

114. In view of discussion made here-in-above, it is evident that judgment of Sajeevan Lal (supra) no longer holds the field in view of subsequent judgment of Hon'ble the Supreme Court in the case of Jaggo (supra) as well as being per incuriam for not noticing various Division Bench judgments and the aspect of creation of post of Part Time Tube-well Operators as well as engagement vide Office Memorandum dated 18.02.1982. service as notified the procedure

115. As has already been held here-in-above, the aspect of the subsequent Validation Act would be irrelevant for purposes of applicability of Prem Singh (supra) particularly since the Ordinance of 2020, Act of 2021 and Ordinance of 2025 do not pass muster with regard to conditions of a validating act after judgment being rendered on that subject by Hon'ble the Supreme Court of India. Even otherwise this Court finds that services of Part Time Tube-well Operators would come within meaning of Section 2(d) Ordinance of 2025 and therefore also under Section 2 of the Act of 2021.

116. Before parting with this case, it is also relevant that aspect of a Welfare State is not an abstract concept incorporated in the Constitution of India only for the sake of posterity. It is in fact an embodiment of aspirations of not only the founding fathers but also the people of India that the State would keep welfare of the people of this country paramount. Even in cases where there is an apparent conflict between the interest of the State and its people, though hard to imagine, it is the interest of people 70 WRIA No. 810 of 2024 of a country which would supersede those of a State because ultimately the State is a creation of and functions under the Constitution of India which has been given to us by the people of India.

117. In view of answers to four questions, as indicated here-in-above, petitions, succeed and are allowed. Various orders impugned in the writ petitions denying benefit of pensionary benefits are hereby quashed by issuance of a writ in the nature of Certiorari. A writ in the nature of Mandamus is issued to opposite parties to count services rendered by petitioners as part time tube-well operators as service qualifying for pensionary benefits. Calculation and payment thereof shall be ensured within a period of four months from the date certified copy of this order is served upon the concerned authority.

118. Since a different issue is involved in Writ-A No.8029 of 2024; Ram Devi versus State of U.P. & Others, let it be de-linked from the instant Bunch and list it separately in the next week. December 3, 2025 Subodh/- (Manish Mathur,J.) SUBODH KUMAR SINGH SUBODH KUMAR SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Sri Ram and 15 others Versus State of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Govt. of U.P.,Irrgation Deptt. Lko. and 2 others

28. Writ - A No. 2228 of 2024: Ram Bhadur Singh and 3 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag Lko. and 3 others

29. Writ - A No. 2234 of 2024: Ram Prasad and 6 others Versus

30. State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others Writ - A No. 2451 of 2024: Satypal Singh and 6 others Versus State of U.P. Thru. Addl. Chief Secy./ Prin. Secy., Irrigation Deptt. WRIA No. 810 of 2024 4 Lko. and 3 others

31. Writ - A No. 2775 of 2024: Dharamkishor and another Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation, Lko. and others

32. Writ - A No. 2789 of 2024: Jagjeevan Ram and others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and others

33. Writ - A No. 2793 of 2024: Ramaraj Yadav and others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and others

34. Writ - A No. 3167 of 2024: Arun Kumar Singh and others Versus State of U.P, Thru. its Addl. Chief Secy. Irrigation Deptt. Civil Secrt. Lko. and others

35. Writ - A No. 3473 of 2024: Nirpati Ram and another Versus State of U.P. Thru. Prin., Secy., Irrigation Deptt., Lucknow and others

36. Writ - A No. 3993 of 2024: Ramnarayan Verma Versus State of U.P. Thru. Prin. Secy. Deptt. Irrigation Lko and 2 others

37. Writ - A No. 3999 of 2024: Parmanand Ram @ Parma Nand Ram and others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 2 others

38. Writ - A No. 4008 of 2024: Brij Bihari Chaube and another Versus State of U.P. Thru. Prin. Secy. Deptt. Irrigation Lko. and 3 others

39. Writ - A No. 4036 of 2024: Veer Raj Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and 2 others

40. Writ - A No. 4292 of 2024: Pawan Singh State of U.P. Thru. Prin. Secy. Irrigation Lko. and 3 others Versus

41. Writ - A No. 4299 of 2024: Mohd. Javed Anwar Khan and 4 others Versus

42. State of U.P. Thru. Secy. (Irrigation) Lko. and 3 others Writ - A No. 4394 of 2024: Radhey Shyam and 4 others 5 WRIA No. 810 of 2024 Versus State of U.P. Thru. its Addl. Chief Secy., Irrigation Deptt., Lko. and 2 others

43. Writ - A No. 4532 of 2024: Surendra Nath Tiwari and others Versus State of U.P. Thru. its Prin. Secy. Irrigation Deptt. Lko and 2 others

44. Writ - A No. 4547 of 2024: Shahana Begum State of U.P. Thru. Prin. Secy. Irrigation, Lko. and 2 others Versus

45. Writ - A No. 4581 of 2024: Rameshwar Prasad Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. and 2 others

46. Writ - A No. 4648 of 2024: Brahma Deo and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lucknow and 2 others

47. Writ - A No. 4649 of 2024: Praveen Kumar Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others

48. Writ - A No. 5245 of 2024: Shyam Sunder and 4 others Versus State of U.P. Thru. Prin. Secy. Irrigation and Water Resources Deptt. Lko. and 2 others

49. Writ - A No. 5567 of 2024: Mahendra Prakash Awasthi and 12 others Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

50. Writ - A No. 5580 of 2024: Arjun Singh and 21 others Versus State of U.P. Thru. Secy. Irrigation Deptt. U.P. Lko. and 3 others

51. Writ - A No. 5581 of 2024: Ram Sahare and 9 others State of U.P. Thru. Secy. Irrigation Deptt. Govt. Lko. and 3 others Versus

52. Writ - A No. 5772 of 2024: Lalji Pandey Versus State of U.P. Thru. Prin. Secy. Irrigation U.P. Lko. and another

53. Writ - A No. 5871 of 2024: Daya Sagar Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others Writ - A No. 5878 of 2024:

54. 6 WRIA No. 810 of 2024 Vinod Kumar Shukla and 4 others Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

55. Writ - A No. 6066 of 2024: Balkar Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Deptt. of Irrigation Lko. and 3 others

56. Writ - A No. 6122 of 2024: Satya Deo Tiwari Versus State of U.P. Thru. Prin. Secy. , Sinchai Vibhag Lko. and 2 others

57. Writ - A No. 6246 of 2024: Shiv Ram Singh and others State of U.P. Thru. Secy. Irrigation Deptt. Lko and 4 others Versus

58. Writ - A No. 6261 of 2024: Shiv Bahadur Singh Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others

59. Writ - A No. 6286 of 2024: Shailendra Kumar Singh Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

60. Writ - A No. 7346 of 2024: Suresh Chandra Verma Versus State of U.P. Thru. Prin. Secy., Sinchai Vibhag, Lko. and 2 others

61. Writ - A No. 7417 of 2024: Sanovar Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 3 others

62. Writ - A No. 8029 of 2024: Ram Devi Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt., Lucknow and others

63. Writ - A No. 8522 of 2024: Rajesh Pratap Singh Versus State of U.P. Thur. Prin. Secy Irrigation Lko. and 3 others

64. Writ - A No. 9613 of 2024: Ramkumar Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko and 3 others

65. Writ - A No. 10163 of 2024: Lal Babu Dwivedi and 10 others Versus State of U.P. Thru. Addl. Chief Secy. Deptt. of Irri. Lko and 3 others WRIA No. 810 of 2024

66. Writ - A No. 10419 of 2024: Ashok Kumar and 11 others 7 Versus State of U.P. Thru Addl. Chief Secy. Prin. Secy. Govt. Irrigation Deptt. Lko. and 2 others 67. Writ - A No. 12479 of 2024: Shiv Narayan Awasthi and 4 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. U.P. Lko. and 2 others

68. Writ - A No. 12722 of 2024: Gyan Prakash and 2 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. Lko. and 2 others

69. Writ - A No. 260 of 2025: Surendra Kumar Mishra and another Versus State of U.P. Thru. its Addl. Chief Secy. Irrigation Deptt. and 2 others

70. Writ - A No. 502 of 2025: Kamlesh Kumar Mishra and 14 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation and Water Resources Deptt. and 2 others

71. Writ - A No. 995 of 2025: Karan Singh Baghel and 2 others Versus State of U.P. Thru. Addl. Chief Secy. Irrigation Deptt. U.P. Lko. and 2 others

72. Writ - A No. 1442 of 2025: Suresh Nath and 15 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. U.P. Lko. and 2 others

73. Writ - A No. 2482 of 2025: Rakesh Kumar Tiwari State of U.P. Thru. Prin. Secy. Lko and 2 others Versus

74. Writ - A No. 2511 of 2025: Rajesh Kumar Tripathi and 8 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others

75. Writ - A No. 2520 of 2025: Om Prakash Mishra Versus Stateof U.P. Thru. Prin. Secy. Irrigation Deptt. Govt of U.P. Lko. and 3 others Writ - A No. 2700 of 2025: Satya Prakash Sonkar and another

76. WRIA No. 810 of 2024 8 Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. and 3 others

77. Writ - A No. 2792 of 2025: Vijay Pratap Singh and 12 others State of U.P. Thru. Prin. Secy. Lko. and 2 others Versus

78. Writ - A No. 5017 of 2025: Omkant Mishra and 16 others Versus State of U.P. Thru. Prin. Secy. Irrigation Deptt. Lko. and 2 others

79. Writ - A No. 5065 of 2025: Suresh Babu and 5 others Versus State of U.P. Thru. its Prin. Secy. Sinchai Vibhag Lko. and 2 others

80. Writ - A No. 5083 of 2025: Dukha Haran Singh and 2 others Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag Lko. and 2 others

81. Writ - A No. 6036 of 2025: Shiv Narayan Lal Versus The State of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Irrigation Deptt. Lko. and 2 others 82. Writ - A No. 6080 of 2025: Ashok Kumar Versus State of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Irrigation Deptt. Lko and 2 others

83. Writ - A No. 8053 of 2025: Deepak Kumar Versus State of U.P. Thru. Secy. Irrigation Deptt. Lko. and 3 others

84. Writ - A No. 10148 of 2025: Raj Kumar Versus State of U.P. Thru. Prin. Secy. Sinchai Vibhag U.P. Lko. and 2 others RESERVED Court No. - 7 HON'BLE MANISH MATHUR, J.

1. Heard Mr. Y. K. Misra, Mr. R. C. Tewari, Mr. K. B. Pandey and Mr. Subhash Chandra Pandey, learned counsel for petitioners and Mr. V. K. Shahi, learned Additional Advocate General, assisted by Mr. Tushar 9 WRIA No. 810 of 2024 Verma & Mr. Sandeep Sharma, learned State counsel for opposite parties.

2. This bunch of petitions has been filed challenging orders as well as seeking a Mandamus with regard to rejection and therefore allowing their claim of pensionary benefits by counting their services rendered as Part Time their regularization, Tube-well Operators prior purposes of qualifying service for pensionary benefits.

3. Learned counsel for petitioners submit that petitioners have been engaged as Part Time Tube-well Operators for the past more than 20 to 30 years and were subsequently regularized and superannuated but pension and such benefits are being denied to them on the ground that they have not rendered adequate service for purposes of qualifying service for pensionary benefits.

4. It has been submitted that initially the State Government had framed Irrigation Department Tube-well Operator Service Rules 1953, which however did not contemplate any position of Part Time Tube-well Operator. They submit that subsequently by means of Government Order dated 22.12.1981, 2300 posts of full time Tube-well Operators- cum-Mechanics and 2147 posts of Part Time Tube-well Operators were created by the State Government. Subsequently, the Office Memorandum dated 18.02.1982 for selection and appointment as well as appointment of Part Time Tube-well Operators. It is submitted that subsequently Office Memorandum dated 19.04.1983 was the earlier Office issued amending Memorandum and by the New Office Memorandum the nomenclature of Tube-well Operators was changed along with other changes also being made. issued containing guidelines indicating qualifications 10 WRIA No. 810 of 2024

5. It is also submitted that eight Part Time Tube-well Operators thereafter approached Labour Court seeking relief of being treated as regular Part Time Tube-well Operators and for admissibility of benefits as available to regular Part Time Tube-well Operators. The said Claim Petition was allowed by means of award dated 15.07.1989.

6. Subsequently, thereafter by means of another Government Order dated 20.02.1992, the nomenclature of Part Time Tube-well Operators were changed to Tube-well Assistants and changes in service conditions were again notified. The said Government Order was challenged in a Bunch of Writ Petitions with leading Writ Petition being of Suresh Chandra Tewari & Ors. versus State of U. P. & Ors. Writ Petition No.3558 (SS) of 1992. The State Government also filed Writ Petition No.1502 (SS) of 1992 challenging the award of Labour Court. Both writ petitions were connected and heard together and by means of judgment and order dated 18.05.1994, the petitions preferred by the Part Time Tube-well Operators was allowed while that of State Government was dismissed. It is submitted that a categorical finding was recorded by learned Single Judge of this Court that for all the practical purposes, the Part Time Tube-well Operators were performing the same nature of duties as were being performed by the regular full time Tube-well Operators. The said judgment and order was thereafter challenged before Supreme Court in Special Leave Petition No.16219 of 1994 and was dismissed vide judgment and order dated 22.03.1995. Review Petitions No.1894-1897 of 1995 were also dismissed vide order dated 18.10.1995 and in the Government Order dated compliance 27.10.1995 was issued for providing same benefits and pay-scales to Part Time Tube-well Operators as was thereof, 11 WRIA No. 810 of 2024 available to the regular Tube-well Operators. By means of another Government Order dated 10.11.1995, remaining service benefits were also granted to the Part Time Tube- well Operators.

7. It is submitted that subsequently the U.P. Irrigation Department Part Time Tube-well Operators Regularization Rules, 1996 were issued indicating the cut off date as 01.10.1986. The notification also provided that those Part Time Tube-well Operators who were found ineligible for such regularization would stand terminated from services. The said Rule 7 was challenged in Writ Petition No.1 (SS) of 1997 in which interim protection was granted.

8. Subsequently by means of Government Order dated 17.12.1996, the State Government abolished the Cadre of Part Time Tube-well Operators/ Assistant Tube-well Operators and initiated process of appointment/ regularization in terms of Rules of 1996. It is submitted that in view of interim protection granted, those Part Time Tube-well Operators who were found to be unqualified under the Rules also continued in service. It is also submitted that in view of contempt proceedings initiated in Criminal Case No.1059 (C) of 1997, Government Orders dated 03.03.1998, 05.03.1998 and 01.07.1999 were issued granting benefits of annual increment, bonus, village house allowance etc to Part Time Tube-well Operators and their services were transferred as Village Development Officers in the Gram Panchayat Department where they were engaged till 2005 with their salary being paid by the Irrigation Department.

9. Attention has been drawn to the fact that subsequently the Writ Petition No.1 (SS) of 1997 was disposed of having been rendered infructuous by means of order dated 01.08.2000 in view of the fact that all Part Time Tube-well 12 WRIA No. 810 of 2024 Operators whether engaged in service prior to 01.10.1996 or thereafter were merged in the Village Panchayat Department. It is submitted that between 1997 to 2002, a number of Part Time Tube-well Operators were thereafter regularized in service and by means of Government Order dated 19.07.2005, their services were transferred back to the Irrigation Department. The remaining Part Time Tube- well Operators who could not be regularized in service in terms of Rules of 1996 were thereafter sought to be the Part Time Tube-well Operators regularized by Regularization (Ist Amendment) Rules 2008 with the cut off date being amended to 30.06.1998. It is submitted that remaining Part Time Tube-well Operators were thereafter regularized in service in terms of the Rules of 2008.

10. It is therefore submitted that in terms of aforesaid facts as well as the subsequent judgment rendered by Hon'ble the Supreme Court in the case of Prem Singh versus State of U.P. & Ors.; (2019)10 SCC 516 as well as the recent judgment rendered in the case of Jaggo v. Union of India & Ors. [2024SCC OnLine SC 3826], petitioners are entitled to relief.

11. He has also placed reliance on judgment rendered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra).

12. Learned State Counsel has refuted submissions advanced by learned counsel for petitioners with the submission that judgment rendered in the case of Prem Singh (supra) would be inapplicable in the present facts and circumstances since petitioners who were engaged only as Part Time Tube-well Operators did not come within definition of either substantive or regular appointees or even temporary Government Servants and therefore no benefit thereof can be granted to them. It is submitted that 13 WRIA No. 810 of 2024 the appellant in the case of Prem Singh (supra) was regularized in the year 2002 which was prior to the New Contributory Pension Scheme which came into effect from 01.04.2005 and in view of such Part Time Tube-well Operators who were regularized subsequent to the said cut off date, their services cannot be counted for purposes of qualifying service for pensionary benefits since there is no such provision under the New Contributory Pension Scheme. the aspect of New Contributory Pension Scheme has not been considered in the case of Prem Singh (supra). It has also been submitted Article 352 of Civil Service Regulations has also not been considered in the case of Prem Singh (supra). is submitted It

13. Learned State Counsel has also referred to the aspect that subsequent to judgment rendered in the case of Prem Singh (supra), the State of U.P. has notified the U. P. qualifying Service of Pension and Validation Ordinance 2020 and the subsequent Act of 2021 as well as the U. P. Entitlement to Pension and Validation Ordinance, 2025. It is therefore submitted that in view of such subsequent events, judgment rendered in the case of Prem Singh (supra) would be inapplicable as well as the fact that services rendered by such Part Time Tube-well Operators cannot be treated towards a regular post and therefore it cannot be considered within the criteria for accessing qualifying service for purposes of pension and other retirement benefits. He has placed special emphasis in the recent judgment of Coordinate Bench in the case of Sajeevan Lal & Ors. versus State of U.P. & Ors. Writ A No.22586 of 2019.

14. While referring to judgment rendered in the case of Jaggo (supra), it has been submitted that the said judgment has been passed in the peculiar facts and 14 WRIA No. 810 of 2024 circumstances of that case since persons junior to the appellant therein had been regularized ignoring their claim. So far as judgment rendered in the case of Suresh Chandra Tewari (supra) is concerned, it is submitted that the aforesaid circumstances of that case and has been considered subsequently by another Division Bench of this Court in the case of State of U. P. Versus Dukh Haran Singh; Special Appeal No.240 of 2009 whereby a similar claim of another Part Time Tube-well Operators was dismissed. judgment was also passed

15. Apart from the case of Dukh Haran Singh (supra), learned counsel has also placed reliance on judgments rendered in the case of Ashok Tewari vs. State of U.P. and Others, Writ-A No.23244 of 2016, Brahmanand Singh v. State of U.P. and others [2017(11)ADJ 49 (LB) Allahabad] and Namo Narayan Rai & Ors. vs State of U.P. Writ Petition No.13626 (SS) of 2017 to buttress his submissions.

16. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the questions requiring an answer would be as follows: (a) Whether petitioners are would be covered by judgment rendered in the case of Prem Singh (supra)? (b) Whether any benefit can be granted to petitioners in the light of said judgment of Prem Singh (supra) in view of subsequent events such as promulgation of the Ordinance of 2020, Act of 2021 and the Ordinance of 2025? (c) Whether petitioners' cases would be covered by the New Pension Scheme, the cut off date for entry into service for purposes of pension and such benefits is prior to 01.04.2005? (d) Whether relief to petitioners is admissible in view of judgment rendered in the case of Sajeevan Lal (supra) ? 15 WRIA No. 810 of 2024 Regarding Question (a)

17. It is admitted between learned counsel for parties that prior to promulgation and notification of Act of 2021 and Ordinance of 2025, dispute in question was given a quietus by Supreme Court in the case of Prem Singh (supra) whereunder the entitlement of work-charge employees and similarly situated persons was held to be within the aspect of qualifying service for purposes of judgment after considering pensionary benefits. The provisions of Rule 3(8) of U.P. Retirement Benefit Rules, 1961, Regulation 370 of Civil Service Regulations as well as Paragraph - 669 of Financial Handbook, Volume - VI, held that in view of Note appended to Rule 3(8) of Rules, 1961, provisions were required to be read down and provisions of Regulations 370 of Civil Service Regulations and instructions contained in Paragraph - 669 of the Financial Handbook Volume - VI were required to be struck down. It was therefore held that services rendered by temporary employees on work-charge basis or even paid out of contingency fund would be included for purposes of pensionary benefits. It was also held that period of in non- temporary or officiating services pensionable establishment would also count for said benefits.

18. A perusal of aforesaid judgment indicates that prior to judgment rendered in the case of Prem Singh (supra). a similar issue with regard to State of Punjab in the case of Kesar Chand v. State of Punjab [AIR 1988 Punjab and Haryana 265] was considered by Supreme Court and provisions pari materia to the provisions applicable in the State of U.P., were struck down. The judgment of Kesar Chand (supra), in fact, forms the basis of judgment rendered in the case of Prem Singh (supra). 16 WRIA No. 810 of 2024

19. A perusal of judgment rendered in the case of Prem Singh (supra) indicates that the learned Advocate General appearing for State of U.P. made his submissions that there was considerable difference in the Rules and Regulations applicable in the States of Uttar Pradesh and Punjab. It had also been submitted that in Punjab, there was deemed regularization, whereas in the State of U.P., services were regularized with effect from a particular date, with such date being the date of entry into service and therefore services rendered prior to the date of regularization would be inapplicable for purposes of qualifying service for pensionary benefits. It had also been submitted that there was a conceptual difference between regular and work-charge employees since work-charge employees were not appointed by following procedure as that of regular employees.

20. It was submitted that work pressure and accountability also differ as also service benefits including benefits of Assured Career Progression Scheme. It had been submitted that treating them similarly would like giving similar treatment to unequal classes which would be against the Right to Equality provided under Article 14 of the Constitution of India since work-charged employees form a separate and distinct class and could not be treated at par with regular, temporary or ad hoc employees.

21. Hon'ble Supreme Court thereafter examined provisions of 'qualifying service' in terms of Rules of 1961, Civil Service Regulations and Financial Handbook, Volume - VI and reached a conclusion that very concept of work- charged employment has been misused by offering employment on exploitative terms for work which is regular and perennial in nature. It also held that in view of Note appended to Rule 3(8) of Rules, 1961, there was a 17 WRIA No. 810 of 2024 provision to count service spent on work-charge, contingencies or non-pensionable service for purposes of for pensionary being counted as qualifying service benefits.

22. It was also held that a classification as was being sought and made by the State was impermissible. The Supreme Court also observed that employees who had not been regularized despite having rendered services for 30 or 40 or more years ought to have been regularized under government terms of directions issued by Supreme Court in the case of State of Karnataka v. Uma Devi (3) [(2006) 4 SCC 1]. It was also held that it would be improper to relegate such persons for consideration of regularization and it was directed that their services should be treated as regular service. instructions as also

23. For purposes of examination of applicability of the aforesaid judgment, relevant provisions required to be considered are as follows:-

24. Rule 3(8) of the Rules, 1961 is as follows:- "Rule 3. In these rules, unless is anything repugnant in the subject or context- (1) – (7) (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. 18 WRIA No. 810 of 2024 (ii) periods of service in a work-charged establishment and (iii) periods of service in a post paid from contingencies shall also count as qualifying service. If service rendered in a non-pensionable Note:- establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service it will not constitute an interruption of service." (emphasis supplied) in a pensionable establishment,

25. Regulations 361, 368 and 370 of Uttar Pradesh Civil Service Regulations are as follows:- "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. These three conditions are fully explained in the following Section.

368. Service does not qualify unless the officer holds a substantive office on a permanent establishment.

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 work charged establishment; and (iii) periods of service in a post paid from contingencies."

26. Provisions of paragraphs 667, 668 and 669 of Financial 19 WRIA No. 810 of 2024 Handbook Volume - VI are as follows:- include such "667. Work-charged establishment will establishment as is employed upon the actual execution, as distinct from the general supervision, of a specific work or subworks of a specific project or upon the subordinate supervision of departmental labour, stores, and machinery in connection with such work or sub-works. When employees borne on the temporary establishment are employed on work of this nature their pay should, for the time being, be charged direct to the work. Notes : (1) Persons who actually do the work with their hands, such as, beldars, masons, carpenters, fitters, mechanics, drivers, etc., should be engaged only when works are carried out departmentally, and charged to works. In cases in which it is considered necessary, as a safeguard against damage to the Government Tools and Plant, such as road-rollers, concretemixture, pumping-sets, and other machinery, mechanics, drivers, etc., may be engaged by the Department or alternatively, if engaged by the contractor must be subject to approval by the department, whether the work is done departmentally or by contract. in all (2) Mistries and work agent should, circumstances, whether they are employed on works executed departmentally or on contract, be charged to "works". to 667 being observed, (3) Subject to the general principles stated in Paras 665 the classes of establishment not covered by these definitions may be classified as "work-charged, or temporary", as the case may be, and the rule which prescribes that workcharged establishment must be employed upon a 20 WRIA No. 810 of 2024 specific work waived, with the previous sanction of the Government and concurrence of the Accountant General. In such cases, the Government shall also determine the Accountant General, the proportions in which the cost of such establishment shall be allocated between the works concerned. in consultation with

668. In all the cases previous sanction of the competent authority as laid down in Vol. I of the Handbook or in the departmental manuals of orders is necessary, which should specify in respect of each appointment (1) consolidated rate of pay, (2) the period of sanction, and (3) the full name (as given in the estimate) of the work and the nature of the duties on which the person engaged would be employed.

669. Members of the work-charged establishment are not entitled to any pension or to leave salary or allowances except in the following cases: (a) Wound and other extraordinary pensions and gratuities are in certain cases admissible in accordance with the rules in Part VI of the Civil Service Regulations. (b) Travelling and daily allowance may be journeys allowed by divisional officers performed within the State in the interest of work on which the persons are employed on the following conditions: (i) The journey should be sanctioned by the sub- the divisional officer or engineer officer/assistant divisional 21 WRIA No. 810 of 2024 specifically authorized for the purpose by the divisional officer; (ii) concerned officer while sanctioning the journey should also is actually certify necessary and unavoidable interest of the work on which the person is employed: journey (iii) for the journeys so performed the work-charged employee may be allowed travelling and daily allowance at the same rates and on the same conditions regular as are applicable government servant of equivalent status. to a facilities and to workmen of

4. All admissible registered under 1948, are also admissible employees of Workshops and Factories." concessions factories the Factories Act, registered State

27. The aforesaid provisions were examined by Supreme Court in the case of Prem Singh (supra) and upon such examination, it was held as follows:- "29. The submission has been urged on behalf of the State of Uttar Pradesh to differentiate the case between work- charged employees and regular employees on the ground that due procedure is not followed for appointment of work charged employees, they do not have that much work pressure, they are unequal and cannot be treated equally, workcharged employees form a totally different class, their work is materially and qualitatively different, there cannot be any clubbing of the services of the work-charged 22 WRIA No. 810 of 2024 employees with the regular service and vice versa, if a work-charged employee is treated as in the regular service it will dilute the basic concept of giving incentive and reward to a permanent and responsible regular employee.

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 from regular employees? No qualitatively different 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) 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 23 WRIA No. 810 of 2024 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 theemployees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the workcharged 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 work-charged 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 by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in workcharged 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 work charged, 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 that once service regularization had been made on vacant posts, though the employee had not served prior to that on temporary basis, legal and proper. We 24 WRIA No. 810 of 2024 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 work-charged 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 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 work- charged 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. 25 WRIA No. 810 of 2024

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 Service Regulations has to be struck down as also the instructions contained in Para 669 of the Financial Handbook.

36. There are some of the employees who have not been regularized in spite of having rendered the services for 30- 40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service superannuation. They shall be entitled to receive the pension as the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension. they have retired regularly attaining before

37. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for 26 WRIA No. 810 of 2024 grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."

28. It is therefore evident that for purposes of counting services rendered prior to regularization for purposes of qualifying service of pension and such benefits, the aspect laid down in the the case of Prem Singh (supra) is that the nature of work being performed by such temporary or Part is being Time employees should be performed by the regular and substantively appointed employees on the same posts. It is also evident that the engagement in service should not be dehors the Service Rules which are applicable upon regular employees inasmuch as the services of such temporary or part time employees cannot be illegal though it may be irregular. the same as temporary appointments

29. In the case of Prem Singh (supra), it has also been held that in view of note appended to Rule 3(8) of the 1961 Rules, there is provision to count services spent on work service charge, contingencies or non-pensionable between periods of pensionable establishment and such service can be counted as qualifying service for pension in the aforesaid exigencies as indicated in the said Rule. The judgment also held that it would be highly discriminatory and irrational because of the rider contained in note to Rule 3(8) of the Rules of 1961 not to count such service since there is no rhyme or reason not to count the service of such persons in case it has been rendered before regularization. It was also held that it would amount to an impermissible classification and would be highly unjust and irrational to deny such employees the benefit of 27 WRIA No. 810 of 2024 qualifying service when the services rendered were same for all the employees and once it is to be counted as qualifying service for one class, it has to be counted for all to prevent discrimination. Hon'ble the Supreme Court also held that such classification cannot be done on an irrational basis. Upon examination of provisions of Rules 3(8) of the Rules of 1961 and other Service Regulations and the note appended to Rule 3(8), resulted with provisions contained in Regulation 370 of the Civil Service Regulations and those contained in Paragraph 669 of the Financial Hand Book being struck down.

30. The primary reason for allowing the appeal in the case of Prem Singh (supra) was that services rendered by such temporary or work charge employees were the same as were being performed by the regular and substantively appointed employees of the Department. It was therefore held that not counting such services rendered prior to regularization only on the pretext that these were not regular services with regard to those performed by persons who were not appointed under the State would amount to exploitation of labour particularly once such services have been rendered for at least 20 to 30 years at a stretch which clearly indicates perennial nature of employment and services rendered for such a long tenure being deemed to be in the nature of regular services.

31. The aforesaid aspects pertaining to nature of duties of petitioners as Part Time Tube-well Operators has already been considered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra) in the following manner: " One thing which has undisputedly emerged from the averments made in the counter affidavit referred to above is that tube wells are required to be operated beyond the 28 WRIA No. 810 of 2024 fixed hours also, it is not understandable why the keys would be available with the farmers and how they would be permitted to operate the tubewells. If the tubewells can be operated by the farmers independently, why there must be part time tubewell operators for two and a half hours only. In this context, the case of the petitioners and their averments cannot be doubted when it is said that they operate tubewells beyond the fixed hours of duty whenever electricity is available. It is for this purpose that they are supposed to be always available there in the village, where they work. As a matter of fact, the finding which has been recorded on the basis of record and the oral evidence adduced before the labour court has been challenged. Those seems to be no escape from the finding that part time tubewell operators work, which more than two and half hours which are on paper fixed as their duty hours, one of the ground taken in the writ petition is that merely because they were required to be available within the command area it was incorrecily. infarred by the labour Court that they worked for the full time In this connection it may be observed that this is not the only ground to hold that they worked for the full time. This observation of the labour court is also in the Background of other facts and evidence placed on record No interference can be made in the award of the labour court on the ground that part time tubewell operators do not perform their duties more than two and a half hours. All the above fact and circumstances including the documents and the order of the Prescribed Authority under the payment of Minimum Wages Act as well as the award of the labour court leave no room for doubt the fixed duty hours from 9.30 to 12 noon as one of the conditions of service for appointment of part time tubewell operators, is condition on paper alone which is neither adhered to nor is 29 WRIA No. 810 of 2024 it practically to adhere with. Tubewells are required to be operated beyond these fixed hours on the own showing of the opposite parties. To say that the farmers who have the key of the tubewells do it themselves does not stand to reason. Admittedly the tubewell operators need some training. It also includes the job of firing up different documents and registers etc. and to issue receipts to the farmers. Therefore, there seems to be hardly any substance in the plea taken that the formers themselves operate tubwells beyond the duty hours of part time tubewell operators, more so in the teeth of the condition that they would normally be available near the tubewell or in any case with in the command area.

32. Challenge was raised to the aforesaid judgment before Supreme Court in Special Leave Petition No.16219 of 1994 and was dismissed vide order dated 22.03.1995, Review Petition No.1894-1897 of 1995 was also dismissed vide order dated 22.03.1995.

33. In view thereof, the finding recorded by Coordinate Bench of this Court with regard to nature of duties of Part Time Tube-well Operators being identical to that of regularly appointed Tube-well Operators stood established upto Hon'ble the Supreme Court.

34. Considering aforesaid, there is no occasion for this Court to take a contrary view. It is thus evident that the nature of duties performed by Part Time Tube-well Operators was identical to that of substantively appointed regular Tube-well Operators.

35. Learned State counsel has laid much emphasis on the the Supreme Court while order passed by Hon'ble rejecting observations therein clearly indicate that the issue in the Review Application to submit 30 WRIA No. 810 of 2024 question before not only the Coordinate Bench of this Court but also Hon'ble the Supreme Court pertained only to the aspect of equal pay for equal work and did not cover any such consideration with to providing pensionary benefits by counting their services rendered as Part Time Tube-well Operators. regard

36. So far as aforesaid aspect is concerned, it is evident that although in the case of Suresh Chandra Tewari (supra), challenge raised was with regard to service benefits and not pensionary benefits but the said aspect is required to be seen in the context by juxtaposing the judgment of Suresh Chandra Tewari (supra) with that of Prem Singh (supra).

37. In such circumstances, once it has already held in the case of Suresh Chandra Tewari (supra) that services rendered by Part Time Tube-well Operators were identical to those being performed by the substantively appointed regular Tube-well Operators, the distinction between work performed by the two stands obliterated. The said aspect is important in view of the finding recorded in the case of Prem Singh (supra) for purposes of counting qualifying service rendered by persons who were not substantively appointed, the work performed by them should be similar or identical to that being performed by the regular employees.

38. In order to distinguish judgment rendered in the case of Suresh Chandra Tewari (supra), learned State Counsel has extensively relied upon the case of Dukh Haran Singh (supra) to submit that the subsequent Division Bench judgment of this Court has passed the said judgment denying the claim of counting pensionary benefits in cases of Part Time Tube-well Operators. It is submitted that the aforesaid judgment of Dukh Haran 31 WRIA No. 810 of 2024 Singh (supra) was also challenged before Hon'ble the Supreme Court in Special Leave to Appeal No.27713 of 2009 and was dismissed by means of judgment and order dated 25.09.2013. It has therefore been submitted that the subsequent judgment of Dukh Haran Singh (supra) has clearly denied such benefits with regard to pensionary benefits to the Part Time Tube-well Operators.

39. So far as the aforesaid judgment is concerned, it is evident, from a perusal thereof that while judgment rendered in the case of Suresh Chandra Tewari (supra) has been noticed therein but the findings recorded pertaining to the nature of duties performed by Part Time Tube-well Operators has not been adverted to at all nor has such finding as recorded in the case Suresh Chandra Tewari (supra) been interfered with in the case of Dukh Haran Singh (supra). The claim for pensionary benefits in fact has been denied only on the ground that services to his rendered by regularization would not qualify for grant of pension in terms of Regulations 361 and 370 of the Civil Service Regulations. the writ petitioner therein prior

40. It is thus evident that only aspect rejecting the claim of writ petitioners therein for counting their services rendered prior to regularization for purposes of pensionary benefits has not been on the ground that they did not perform the same nature of function and duties as regular employees.

41. It is also evident from a perusal of judgment rendered in the subsequent case of Prem Singh (supra) that the said aspect of Regulations 361 and 370 of the Civil Service Regulations has already been adjudicated upon by Hon'ble the Supreme Court while striking down the relevant provision of Regulation 370 of Civil Service Regulations and reading down provisions of Rule 3(8) of 32 WRIA No. 810 of 2024 the Rules of 1961.

42. Thus, in the considered opinion of this Court, the judgment rendered in the case of Dukh Haran Singh (supra) would now be over shadowed by judgment rendered by Hon'ble the Supreme Court in the case of Prem Singh (supra).

43. So far as the second aspect for providing such benefits is concerned that the nature of engagement in service of petitioners should not be dehors the Service Regulations, it is noticeable that substantively appointed Tube-well Operators were engaged in service in terms of Tubewell Operator Service Rules 1953. The said Rules were framed in consonance of powers exercised by the proviso to Article 309 of the Constitution of India. Admittedly, the said Rules did not have any provision for engagement of Part Time Tube-well Operators and it is only by means of issuance of the Government Order dated 22.12.1981 that 2147 posts of Part Time Tube-well Operators were sanctioned by honorarium/ wage of Rs.150/-per month. It is also evident and admitted that subsequently by means of Office Memorandum dated 18.02.1982 issued by the Office of Chief Engineer, Irrigation Department, conditions of service and for recruitment were notified. the State Government on a

44. It is therefore evident that the Part Time Tube-well Operators can be said to have been engaged in service with sanction by the State Government and not at the whims and fancies of officers concerned. The orders pertaining to creation of such posts, may not be statutory in nature but has evidently been issued by the State Government itself exercising powers available under Article 162 read with Article 166 of the Constitution of India. It is also evident that the Office Memorandum dated 33 WRIA No. 810 of 2024

18.02.1992 has been issued as a consequence of such posts being created by the State Government. the Executive Engineer being

45. A perusal of the Rules of 1953, particularly Rule 3 (Kha) indicates that the substantively appointed Tube-well Operators were required to be selected by a Selection Committee with convener and other Executive Engineers being Members of the Committee. Rule 5 of the Rules 1953 indicate the appointing authority to be the Executive Engineer with source of recruitment being direct in nature. Educational qualifications required for the said posts was junior High School or equivalent or 8th pass from a Higher Secondary School. Rule 13 appointment to the effect that the Selection Committee was required to choose from the applicants for the said posts with convener of the Committee forwarding names of selected candidates to the Superintending Engineer where they were required to be posted. The selectees were thereafter granted the status of apprentice and were required to qualify a practical examination prior to their appointment under Rule 16 of the Rules of 1953. indicated procedure thereof

46. So far as the procedure for engagement in service of Part Time Tube-well Operators is concerned, a perusal of the Office Memorandum dated 18.02.1982 reveals that in the appendix thereto, it has been indicated that selection shall be made by a Selection Committee comprising one Executive Engineer and one Assistant Engineer of the block with one Assistant Engineer of another block but of the same division. Paragraphs 1, 2 & 3 of the said notification indicates that the applicant should be of the same village with an educational qualification of High School qualified or its equivalent. It was also indicated that applications should be invited after due advertisement by 34 WRIA No. 810 of 2024 beat of drum. Paragraph 4 thereof indicates that minimum age for entering into service shall be the same as with regard to Government Employees.

47. Upon comparison for the Rules of 1953 with the Office Memorandum of 18.02.1982, it is thus evident that the nature of selection of Part Time Tube-well Operators and those who was substantively appointed are virtually the same. It is not as if the Rules of 1953 provided for selection after any written examinations or by some other procedure. The qualifications required for appointment of the Part Time Tube-well Operator in fact are higher than that was required for a regular Tube-well Operator. It is only the aspect of a regular Tube-well Operator requiring to qualify a practical examination, which appears to be the only difference. Here again, it is evident that such practical examination was required to be cleared subsequent to selection and appointment and not prior thereto.

48. In the considered opinion of this Court, once the Part Time Tube-well Operators were engaged in service by the same selection procedure and having virtually rendered at least 20 to 30 years continuous service with opposite parties, the importance of clearing such a practical examination becomes non-existent.

49. In view of discussion made here-in-above, in the considered opinion of this Court, it is thus established that the nature of duties and functions performed by the Part Time Tube-well Operators were similar/ identical to those being performed by the regular Tube-well Operators and secondly the mode and procedure for appointment on the said posts were in terms of directions issued by the State Government and are virtually similar.

50. The aforesaid two aspects therefore clearly bring the 35 WRIA No. 810 of 2024 Part Time Tube-well Operator within conditions indicated in Prem Singh (supra). the scope of

51. Learned State counsel has adverted to a plethora of Division Bench and Coordinate Bench Judgments of this Court to indicate that relief as is being sought in the present Bunch of writ petitions has already been adjudicated upon in such numerous decisions which have clearly declined such relief.

52. With regard to such judgments as have been indicated by learned State counsel, suffice to indicate that all these judgments were rendered prior to judgment in the case of Prem Singh (supra) and would therefore now be over shadowed by the said subsequent judgment of Prem Singh (supra).

53. Learned State counsel has also placed reliance on Article 352 of the Civil Service Regulations which is as follow:- “3[352. In the following cases no claim to pension is admitted- (a) When an officer is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily on monthly wages without specified limit of time or duty; but a month's notice of discharge should be given to such a person and his wages must be paid for any period by which such notice falls short of a month. (c) When a person's whole time is not retained for the public service, but he is merely paid for work done for the state. 1-This clause applies, among other, to the following officers. 36 WRIA No. 810 of 2024 Advocate General, solicitor to Government; Government pleaders and Law Officers not debarred form private practice..… (d) When a public servant holds some other pensionable office he earns no pension in respect of an office of the kind mentioned in clause (c) or in respect of duties paid for by a Local allowance. (e) When an officer serves under a covenant which contains no stipulation regarding pension, unless the State Government specially authorises an officer to count such service towards pension.”

54. From a perusal of the aforesaid provision, it is quite evident that none of the provision indicated in Article 352 of the Regulations is applicable in the present facts and circumstances of the case particularly since the petitioners have superannuated after rendering almost 20-30 years of service and therefore it cannot be said that they were appointed for limited time period only or for a specified duty, on completion of which they were discharged. It is also evident that petitioners were retained for their whole time in public service and did not hold any other pensionable office under the Government.

55. In view of discussion made here-in-above, it is evident that petitioners as Part Time Tube-well Operator would clearly be governed by judgment rendered in the case of Prem Singh (supra).

56. In view thereof, answer to question no.(a) is in favour of petitioners. Regarding Question (b).

57. Subsequent to judgment rendered in the case of Prem Singh (supra), State of U.P. initially promulgated U.P. 37 WRIA No. 810 of 2024 Qualifying Service for Pension and Validation Ordinance, 2020 which was replaced by U.P. Qualifying Service for Pension and Validation Act, 2021. It is this Validation Act of 2021 which has been heavily relied upon by learned in view of changed State counsel circumstances, judgment of Prem Singh (supra) would now be inapplicable and benefit of judgment cannot be granted to petitioners. to submit

58. So far as the aspect of subsequent promulgation of the Ordinance of 2020, Act of 2021 and the Ordinance of 2005 is concerned, an examination of the aforesaid provisions would be conducive. The provisions are as follows:

69. Provisions of Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 are as follows:- "No. 386 (2)/LXXIX-V-1-21-1-ka-39-20 Dated Lucknow, March 5,2021 IN pursuance of the provisions of clause (3) of Article 348 of the Constitution of India, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Pension Hetu Aharkari Seva Tatha Vidhimanyakaran Adhiniyam, 2021 (Uttar Pradesh Adhiniyam Sankhya 1 of 2021) as passed by the Uttar Pradesh Legislature and assented to by the Governor on March 4, 2021. The Vitt (Samanya) Anubhag-3 administratively concerned with the said Adhiniyam. THE UTTAR PRADESH QUALIFYING SERVICE FOR PENSION AND VALIDATION ACT, 2021 (U.P. Act no. 1 of 2021) (As passed by the Uttar Pradesh Legislature) AN WRIA No. 810 of 2024 38 ACT to provide for qualifying service for pension and to validate certain actions taken in this behalf and for matters connected therewith or incidental thereto. IT IS HEREBY enacted in the Seventy-second Year of the Republic of India as follows:-

1. (1) This Act may be called the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021. (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. (Short title, extent and commencement) in any rule, 2. Notwithstanding anything contained 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 Government for the post. (Qualifying Service for Pension) the service rules prescribed by

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

4. Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent 39 WRIA No. 810 of 2024 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 Act. (Overriding effect) U.P. Ordinance no. 19 of 2020

5. (1) The Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 is hereby repealed. (Repeal and saving) (2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times. STATEMENT OF OBJECTS AND REASONS Pension and gratuity admissible to a retired Government servant are determined in relation to the length of qualifying service of the Government servant. Although the term "Qualifying Service is described in the Uttar Pradesh Civil Service Regulation and the Uttar Pradesh Retirement Benefit Rules, 1961, however the definition of the said term is open to subjective interprétation which leads to administrative difficulties. It has, therefore, been decided to make a law defining the term "Qualifying Service" and to validate such definition with effect from April 1, 1961 which is the date of commencement of the Uttar Pradesh Retirement Benefit Rules, 1961. Since the State Legislature was not in session and immediate legislative action was necessary to implement 40 WRIA No. 810 of 2024 the aforesaid decision, the Uttar Pradesh Qualifying Service for Pension and Validation Ordinance, 2020 (U.P. Ordinance No.19 of 2020) was promulgated by the Governor on October 21, 2020. This Bill is introduced to replace the aforesaid Ordinance. By order, ATUL SRIVASTAVA, Pramukh Sachiv"

59. Section 2 of the aforesaid Act of 2021 therefore commences with a non-obstante clause and prescribes that 'qualifying service' would mean services rendered by an officer appointed on a temporary or permanent post in accordance with provisions of Service Rules prescribed by Government on the said post.

60. Section 3 again commences with non-obstante clause and prescribes that anything done or purporting to have been done and any action taken or purporting to have been taken in terms of Rule 3(8) of the Rules, 1961 prior to commencement of the Act would be validated.

61. Section 2 of the Act of 2021 therefore clearly prescribes three conditions as sine qua non for grant of pensionary benefits. It is relevant that Section 2 of the Act of 2021 pertains to 'service rendered' by an officer 'appointed' on a 'temporary' or 'permanent' post. Thus Section 2 of the Act of 2021 does not make any distinction in the nature of service rendered by a person appointed on a temporary or permanent post. The distinction, in fact, is only with regard to nature of post. It can therefore be construed that services rendered by a person appointed on a temporary or permanent post may be substantive or 'appointed' has not been defined in Act of 2021 but finds including work-charge. The temporary 41 WRIA No. 810 of 2024 its relation to engagement of service in accordance with provisions of Service Rules prescribed.

62. It is not the case of opposite parties that petitioners at the time of their superannuation were not appointed or confirmed/regularized in terms of provisions of Service Rules.

63. Even assuming that aforesaid provision would be required to be seen for purpose of counting qualifying service rendered by petitioners as temporary or work- charged employees, it is evident that it is not the case of opposite parties that their initial engagement in service was de hors the provisions of Service Rules prescribed or that petitioners were unqualified to hold the posts on which they had been initially engaged as temporary or work- charged employees. In view thereof, in the considered opinion of this Court, services rendered by petitioners as temporary or work-charged employees would come within purview of Section 2 of Act of 2021. to refer it would also be conducive 64. Here engagement of services which is 'illegal' on one hand and ‘irregular’ on the other hand. An illegal engagement would be one which is de hors Service Regulations particularly in case of engagement of a person who is unqualified or otherwise disqualified to hold the said post, whereas in case of engagement of a person in government service without following due procedure, it would merely be an irregularity and not illegality as has already been held in the case of Uma Devi (supra).

65. In such circumstances as well, provisions of Section 2 of the Act of 2021 cannot exclude such persons who have been appointed/engaged in service with an irregularity but not illegality. 42 WRIA No. 810 of 2024

66. Subsequent to promulgation of the Act of 2021 and since benefit of same was being taken by the State, various petitions were filed before this Court seeking benefit of judgment rendered in the case of Prem Singh (supra). A number of such petitions were clubbed with Writ-A No. 8968 of 2022, Dr. Shyam Kumar v. State of U.P. and another and were decided vide judgment and order dated 17.02.2023. The Co-ordinate Bench of this Court took into account judgment rendered by Supreme Court in the case of Prem Singh (supra) as well as Act of 2021 and came to a conclusion that Act of 2021 was not in accordance with law settled by Supreme Court in case of Indian Aluminum Co. and others v. State of Kerala and others [(1996) 7 SCC 637] since the Act of 2021 did not remove vices pointed out by Supreme Court and invalidity was not cured complying with legal and constitutional requirements. Relevant portion of judgment is as follows:- "8. The law long settled is that the Legislature can render judicial decision ineffective by enacting valid law on the topic within its legislative field by fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid.

9. Therefore, the question now before this Court is whether by bringing Act of 2021, the State Government has done away with the vice pointed out by the Supreme Court in case of Prem Singh (supra). In the said judgment, the Supreme Court found that the State Government has adopted exploitative labour practice by taking work of regular employees from work charge employees on long term basis without any rationale classification while refusing them benefits available to regular employees. 43 WRIA No. 810 of 2024 Supreme Court specifically held that the State Government can not get involved in corrupt labour practices. On the aforesaid grounds, the Supreme Court read down the provisions of Rule 3(8) of the Rules of 1961 and struck down Regulation 370 of Civil Service Regulations and Para 669 of the Financial Handbook.

10. It is the duty of State to create new temporary or permanent posts as per its needs and make appointments on the same. Law also permits State to appoint daily wagers or work charge employees, but only when the work is for short period or is in a work charge establishment for fixed duration. Law does not permit the State to take work for long period, extending even for the entire working life of a person, on temporary or work charge basis. In such cases, it is the duty of State to create new posts and make appointments, giving all benefits of regular employees. Otherwise, State would be to be adopting exploitative labour practice. This is the vice pointed out by the Supreme Court in Prem Singh's case (supra), and instead of removing the same, the State by Section 2 of the Act of 2021 has extended the sphere of its illegality. By Section 2 of the Act of 2021, it desires to take benefit of its own failure of creating posts in time and making appointments on the same, by not counting the said period of such service for pensionary benefits. State still fails to explain the rationale on the basis of which it has created this new classification and the manner in which, by the amended provision, it has removed the irrationality."

67. The issue was again examined by another co-ordinate Bench of this Court in the case of Awadhesh Kumar Srivastava v. State of U.P. and others [2023 SCC OnLine All 360] and the learned Single Judge came to the same conclusion as was indicated in the case of Dr. Shyam Kumar (supra). Relevant portion of the judgment 44 WRIA No. 810 of 2024 is as follows:- "43. This Court is of the view that the action of the State in excluding the service rendered by an employee on the work-charged establishment or daily wager from Section 2 of the U.P. Act No.1 of 2021 is hit by Article 14 of the Constitution of India for the reason that the Apex Court has held that the exclusion of service rendered by an employee on the work-charged establishment from the regular service would amount to treating equals as unequal. Further, there is no rationale in excluding the service of an employee as work-charged or daily-wager from regular service for determining the qualifying service for pension whereas the period of service rendered by an employee as temporary or permanent post is liable to be counted for the purpose of qualifying service when the nature of duties performed by a person appointed as daily wager or on work-charged establishment or temporary or permanent post are similar and identical.

44. The other reason to conclude that Section 2 of the U.P.Act No.1 of 2021 is hit by Article 14 of the Constitution of India is that the State cannot by its arbitrary action put the employee working on work charge establishment or daily wager to disadvantage by taking work of perpetual nature from such employee on low wages for years and excluding the period of service rendered by such employee under work charge establishment or as daily-wager from regular service for counting qualifying service for pension when the nature of duties performed by such employees are akin and similar to the nature of duties performed by the employee appointed on a accordance with the provisions of service rules framed by the State Government and their services are liable to be counted for determining qualifying service. temporary and permanent post 45 WRIA No. 810 of 2024

45. It is settled in law that the accrued or vested right cannot be taken away by an amendment. The law on the point that the pension is not a bounty and is earned by the employee by the dint of his long service is no more res integra. The right of work charge employee or daily wager to include their service rendered under work charge establishment or daily-wager with regular sevice for determining qualifying service for pension has been recognized by the Apex Court in Prem Singh's case, therefore, such a right of an employee cannot be taken away by enacting a law which is hit by Article 14 of the Constitution of India.

46. In such view of the fact, this Court finds that U.P. Act No.1 of 2021 does not qualify the three tests laid down by the Apex Court in the judgements referred above to negate the benefit of the judgement of the Apex Court in Prem Singh's case (supra)."

68. It is also evident that provisions of the Ordinance of 2020 and Validation Act of 2021 are pari materia and during existence of Ordinance of 2020, same was also examined by various Division Benches of this Court in State of U.P. and others v. Dinesh Rai, Special Appeal No. 230 of 2024 and other connected appeals and Brahmananad Singh and others v. State of U.P. and others, Special Appeal No. 438 of 2017 as in the case of State of U.P. and others v. Bhanu Pratap [2021 SCC OnLine All 1113] in the following manner:- "8. 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, reveals that "Qualifying Service" has been defined to mean the services rendered by 46 WRIA No. 810 of 2024 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.

9. Admittedly, the petitioner was appointed on 10.05.1989 as work charge employee at Azamgarh. His services were however regularised on 15.6.2011. The regularisation of service was against the permanent post and it is not that his initial appointment was not in accordance to service Rules.

10. In light of the aforesaid, period spent in service may be on temporary basis while working as a work-charge employee, proceeded with regularization, benefit of past services cannot be denied."

69. The aforesaid judgment upheld judgment and order passed by learned Single Judge in Writ-A No. 35301 of 2017 whereby a direction was issued for giving benefit of Old Pension Scheme to petitioner by counting services rendered by him as work-charge employee towards qualifying service for grant of pension. The judgment rendered by Division Bench of this Court was challenged in Special Leave to Appeal No. 10381 of 2022 which was dismissed vide order dated 11.07.2022 by prescribing a time-limit of eight weeks to comply with order passed by the High Court.

70. Another Division Bench judgment rendered on the same aspect with the same conclusion has been passed subsequently as in the case of State of U.P. and others v. Mahendra Singh, Special Appeal Defective No. 1003 of 2020. It is therefore evident that aspect of including temporary rendered by work-charge or services employees prior to their regularization and even after advent of the Ordinance of 2020 and Act of 2021 have 47 WRIA No. 810 of 2024 been taken into account towards qualifying service for purposes of pension.

71. As noticed here-in-above, in the case of Bhanu Pratap (supra), judgment has been affirmed by Hon'ble Supreme Court.

72. Recently, in another judgment rendered by Supreme Court in the case of Jaggo v. Union of India and others [2024 SCC OnLine SC 3826], the issue was again raised by the State that since the nature of engagement was purely on part-time, contractual basis and was never intended to be permanent or full-time and keeping in view judgment rendered in Uma Devi (supra), such persons were not entitled for pensionary benefits, was considered and after examination of relevant aspects keeping in line with fundamental rights indicated in the Constitution of India, Hon'ble Supreme Court held as follows:- "10. Having given careful consideration submissions advanced and the material on record, we find that the appellants' long and uninterrupted service, for periods extending well beyond ten years, cannot be brushed aside merely by labelling their initial appointments as part-time or contractual. The essence of their employment must be considered in the light of their sustained contribution, the integral nature of their work, and the fact that no evidence suggests their entry was through any illegal or surreptitious route.

12. Despite being labelled as "part-time workers," the appellants performed these essential tasks on a daily and continuous basis over extensive periods, ranging from over a decade to nearly two decades. Their engagement was not sporadic or temporary in nature; 48 WRIA No. 810 of 2024 instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants' tenure, underscoring the indispensable nature of their work.

13. The claim by the respondents that these were not regular posts lacks merit, as the nature of the work the appellants was perennial and performed by fundamental to the functioning of the offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same the appellants' termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another, further underscores that the work in question was neither temporary nor occasional. to private agencies after

14. The abrupt termination of the appellants' services, their Original Application following dismissal of before the Tribunal, was arbitrary and devoid of any justification. The termination letters, issued without prior notice or explanation, violated fundamental principles of natural justice. It is a settled principle of law that even contractual employees are entitled to a fair hearing before any adverse action is taken against them, particularly when their service records are unblemished. In this case, the appellants were given no opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service. 49 WRIA No. 810 of 2024

19. It is evident from the foregoing that the appellants' roles were not only essential but also indistinguishable from those of regular employees. Their sustained contributions over extended periods, coupled with absence of any adverse record, warrant equitable treatment and regularization of their services. Denial of this benefit, followed by their arbitrary termination, amounts to manifest injustice and must be rectified. humane resolution functions of the State or illegal appointments

20. It is well established that the decision in Uma Devi (supra) does not intend to penalize employees who have rendered long years of service fulfilling ongoing and necessary instrumentalities. The said judgment sought to prevent backdoor entries and circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served the backdrop of sanctioned continuously against functions for a considerable period, the need for a fair paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc regularization. In a recent judgement of this Court in Vinod Kumar and Ors. Etc. Vs. Union of India & Ors.5, it was held that held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment was termed "temporary" but has performed the same duties as performed by the regular employee over a considerable period in the capacity of the regular employee. The relevant paras of this judgement have been reproduced below: into a scenario demanding temporary becomes "6. The application of the judgment in Uma Devi 50 WRIA No. 810 of 2024 facts at hand, given (supra) by the High Court does not fit squarely the specific circumstances under which the appellants were employed and have continued their service. The reliance on procedural formalities at the outset cannot be used to perpetually deny substantive rights that have accrued over a considerable period service. Their continuous promotion was based on a specific notification for vacancies and a subsequent circular, followed by a selection process involving written tests and interviews, which distinguishes their case from the appointments through back door entry as discussed in the case of Uma Devi (supra). through underscoring appointments

7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case."

21. The High Court placed undue emphasis on the initial label of the appellants' engagements and the outsourcing decision taken after their dismissal. Courts must look beyond the surface labels and consider the realities of employment: continuous, long-term service, indispensable duties, and absence of any mala fide or illegalities in their appointments. In that light, refusing regularization simply because their original terms did not explicitly state so, or because an outsourcing policy was belatedly introduced, would be contrary 51 WRIA No. 810 of 2024 principles of fairness and equity.

25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short-term or seasonal needs, they have increasingly become a mechanism to evade longterm obligations owed to employees. These practices manifest in several ways: - Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labeled as "temporary" or "contractual," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. - Arbitrary Termination: Temporary employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and subjects workers to a state of constant insecurity, regardless of the quality or duration of their service. - Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, equally despite significant. contributions being 52 WRIA No. 810 of 2024 resort outsourcing - Using Outsourcing as a Shield: Institutions increasingly performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. employees - Denial of Basic Rights and Benefits: Temporary denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans decades. This lack of social security subjects them and their families to undue hardship, illness, cases of retirement, or unforeseen circumstances. especially

26. While the judgment in Uma Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to 53 WRIA No. 810 of 2024 exists temporary regularization employees, overlooking the judgment's explicit acknowledgment of is appropriate. This cases where regularization selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.

27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines fair employment employee morale. By ensuring practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."

73. The aforesaid judgment has thereafter been followed with approval by Supreme Court in the subsequent case of Shripal and another v. Nagar Nigam, Ghaziabad [2025 SCC OnLine SC 221].

74. It is therefore evident from a perusal of judgment rendered by Supreme Court in the case of Jaggo (supra) that long and uninterrupted service of periods extending well beyond ten years, cannot be brushed aside merely by initial appointments as part-time or labelling 54 WRIA No. 810 of 2024 intend and with contractual appointment. It was held that since such engagement was not sporadic but recurrent, and akin to typically associated with responsibilities and work sanctioned posts, such services were in fact regular in performed the work nature indistinguishable from those of regular employees. It was also held that decision rendered in the case of Uma Devi (supra) did not to penalize employees who rendered long years of service fulfilling on-going and necessary functions of the State or its instrumentalities. It was held that procedural formalities cannot be used to deny regularization of service to an employee whose appointment, though termed temporary but performed same duties as being performed by regular employees for considerable period. It was also held that the judgment 'irregular' appointments with a categorical enunciation employees whose appointments did not follow procedure laid down in Service Rules was merely irregular and not illegal and were therefore required to be considered for regularization as one time measure. to distinguish between 'illegal' and

75. The judgment also noticed that laudable intent of the judgment rendered in the case of Uma Devi (supra) was being subverted by institutions to indiscriminately reject claims of employees on untenable grounds. Hon'ble Supreme Court has therefore issued a direction that it is imperative for Government Departments to lead example for providing fair and stable employment.

76. However, it is also pertinent that in the judgment of Jaggo (supra), provisions of neither Ordinance 2020 nor Act of 2021 was under consideration. Nonetheless, in the considered opinion of this Court, the aforesaid judgment would be equally binding in the present case since it 55 WRIA No. 810 of 2024 pertains to fundamental rights accrued to petitioners in terms of Part - III of the Constitution of India.

77. It is also relevant that subsequently, Ordinance of 2025 has been promulgated with the term 'substantive appointee' being defined under Section 2(d) thereof. The said Ordinance is as follows:- "THE UTTAR PRADESH ENTITLEMENT TO PENSION AND VALIDATION ORDINANCE, 2025 (U.P. Ordinance no. 9 of 2025) [Promulgated by the Governor in the Seventy-sixth Year of the Republic of India] AN ORDINANCE to provide for entitlement to pension and validate certain actions taken in this behalf and for mattes connected therewith incidental thereto. WHEREAS the State Legislature is not in session and the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action; NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor is pleased to promulgate the following Ordinance:-

1. (1) This Ordinance may be called the Uttar Pradesh Entitlement to Pension and Validation Ordinance, 2025. (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. For purposes of this Ordinance, unless the context otherwise 56 WRIA No. 810 of 2024 requires, – (a) "Government" shall mean the Government of Uttar Pradesh; (b) "regulations" shall mean any regulations in exercise of any power conferred by any enactment by the State of Uttar Pradesh and shall include the Civil Service Regulations as adopted for application in Uttar Pradesh and any other regulations made by the Governor of Uttar Pradesh; (c) "rules" shall mean any rules made in exercise of any power conferred by any enactment by the State of Uttar Pradesh and shall include the Uttar Pradesh Retirement Benefit Rules, 1961 and any other rules made by the Governor of Uttar Pradesh under the proviso to Article 309 of the Constitution; (d) "substantive appointee" shall mean any person who has been appointed in accordance with the procedure prescribed in the applicable rules or regulations to any temporary or in a permanent post duly created by permanent establishment of the Government. the Government

3. Notwithstanding anything contained in any rules, regulations or Government orders, no person who, – (a) is not a substantive appointee in any department or in any organization under any department of the Government; and (b) is or has been a subscriber to any Contributory Provident Fund or the Employees' Provident Fund; shall be entitled to pension under any rules, regulations or Government orders relating to the grant of pension.

4. Notwithstanding any judgment, decree or order of any Court, Tribunal or Authority, all actions taken, things done or Government orders issued or purporting to have been taken, done or issued, by which pension has been denied to any persons 57 WRIA No. 810 of 2024 or class of persons who are not substantive appointees and who are or have been subscribers to any Contributory Provident Fund or the Employees' Provident Fund, shall be deemed to be and always to have been validly taken, done or issued 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.

5. 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. ... "

78. A perusal of Section 2(d) of the Ordinance, 2025 indicates that it is applicable only in those cases where an employee has been appointed in accordance with prescribed procedure in applicable rules.

79. Here again, there is no distinction drawn between nature of service provided by a person engaged by the State Government. However, a person who has not been appointed in accordance with procedure prescribed, has 'substantive been excluded appointee' and Section - 3 thereafter disentitles a person who is not a substantive employee, from pension. Section 4 of the Act thereof confers non-obstante clause to the aforesaid Act and proceedings taken in lieu of Acts and Rules indicated therein. the definition of

80. In view of judgment rendered by Co-ordinate Bench of this Court in the case of Dr. Shyam Kumar (supra), which in turn places reliance on judgment rendered by Supreme Court in the case of Indian Aluminum Company and others (supra), it is again evident that the State while 58 WRIA No. 810 of 2024 promulgating aforesaid Ordinance of 2025 has not at all bothered to remove the vice pointed out by Supreme Court nor it has removed invalidity indicated in the case of Prem Singh (supra). The Ordinance also does not indicate any changed or altered conditions to such an extent that the decision rendered in Prem Singh (supra) and conditions indicated therein do not now exist. It is therefore evident that the Ordinance of 2025 seeks to overrule a decision of the Supreme Court which otherwise is binding upon it, without indicating any features for exercising legislative power to overrule the aforesaid decision.

81. In the considered opinion of this Court, therefore, the Ordinance of 2025 is not only against the dictum of Supreme Court in the case of Prem Singh (supra) but also against the judgment rendered in the case of Uma Devi (supra) in the light of judgment rendered in the case of Indian Aluminum Company and others (supra) which has held as follows:- "56. From a resume of the above decisions the following principles would emerge: [1] The adjudication of the rights of the parties is the essential judicial function. Legislature has to lay down the norms of conduct or rules which will govern the parties and the transaction and require the court to give effect to them; [2] The Constitution delineated delicate balance in the exercise of the sovereign power by the Legislature, Executive and Judiciary, [3] In a democracy governed by rule of law, the Legislature exercises the power under Articles 245 and 246 and other companion Articles read with the entries in the respective Lists in the Seventh Schedule to make the 59 WRIA No. 810 of 2024 law which includes power to amend the law. [4] Courts in their concern and endeavor to preserve judicial power equally must be guarded to maintain the delicate balance devised by the Constitution between the three sovereign functionaries. In order that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the respective sovereign functionaries need free-play in their joints so that the march of social progress and order remain unimpeded. The smooth balance built with delicacy must always maintained; [5] In its anxiety to safeguard judicial power, it is unnecessary to be overjealous and conjure up incursion into the judicial preserve invalidating the valid law competently made; [6] The Court, therefore, need to carefully scan the law to find out: (a) whether the vice pointed out by the Court and invalidity suffered by previous law is cured complying with the legal and constitutional requirements; (b) whether the Legislature has competence to validate the law; (c) whether such validation is consistent with the rights guaranteed in Part III of the Constitution. [7] The Court does not have the power to validate an invalid law or to legalise impost of tax illegally made enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the Court or the direction given for recovery thereof. [8] In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can 60 WRIA No. 810 of 2024 render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof. ineffectual. It is competent the State [9] The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent with the law of the Constitution and the legislature must have competence to do the same."

82. Apart from said proposition, provisions of Ordinance of 2020, Act of 2021 and Ordinance of 2025, as noticed here-in-above, confer benefit of pension to part time tube- well operators such as petitioners.

83. Learned State Counsel has laid much emphasis on judgment rendered in the case of Ashok Tewari (supra). 61 WRIA No. 810 of 2024 A perusal of the judgment makes it evident that the Division Bench was concerned primarily with regard to applicability of pensionary benefit on persons whose services had been regularized on or after 1st April, 2005 in terms of amendment incorporated in the Rules of 1961. It was held that since under the New Pension Scheme, there was no concept of a qualifying service, therefore services rendered prior to regularization could not be considered as service qualifying for pensionary benefits.

84. In the considered opinion of this Court, aforesaid judgment is clearly inapplicable and distinguishable in the facts of this case since the present case does not deal with the aspect of benefits under the New Pension Scheme as also the aspect that the judgment has been passed without considering various Division Bench judgments reading down the Ordinance of 2020 and the Act of 2021.

85. The Division Bench has noticed the judgment of Prem Singh (supra) in paragraph - 33, but has not relied upon same in view of amendment incorporated in Rule 3 (8) of Rules, 1961 vide amendment dated 5th March, 2021. The judgment of Prem Singh (supra) was also not followed only for the reason that under the New Pension Scheme, there is no concept of qualifying service and therefore there is no question of adding any past service. It is also evident that the judgment has placed reliance on a single bench judgment in the case of Brahmanand Singh (supra) but apparently it was not brought to the notice of Division Bench that said judgment of Brahmanand Singh (supra) was already set aside in Special Appeal No. 438 of 2017 vide judgment and order dated 23.10.2019.

86. The Division Bench has also not considered the aspect that Ordinance of 2020 was held not to be applicable in 62 WRIA No. 810 of 2024 such circumstances as the present case in the case of Bhanu Pratap (supra) with judgment rendered by Division Bench of this Court as indicated here-in-above being upheld by Supreme Court.

87. With regard to the aforesaid aspects, it is observed that judgment rendered in the case of Ashok Tewari (supra) has failed to consider various Division Bench Judgments on the aforesaid aspect and would therefore come within the concept of per incuriam as indicated in the Full Bench decision of this Court in Rana Pratap Singh v. State of U.P. [(1995) 1 ACJ 200] and Namo Narayan Rai and others (supra).

88. Learned State Counsel has also referred to judgment rendered by Full Bench of this Court in the case of Namo Narayan Rai (supra). However, from perusal of the aforesaid judgment, it is evident that the same does not consider any law pertaining to the Ordinance of 2020 or Act of 2021 or the Ordinance of 2025. The judgment also has not adverted to the case of Prem Singh (supra). In view thereof, the aforesaid judgment is inapplicable in the present the question involved before the Full Bench even otherwise does not pertain to the issue in question and involves only the aspect of payment of GPF. facts and circumstances since

89. It is thus evident that judgments relied upon by learned State Counsel are either per incuriam or have already been set aside in appeal.

90. In the considered opinion of this Court, neither of the two judgments would be applicable in the present facts and circumstances of the case.

91. It is also relevant that opposite parties do not deny the 63 WRIA No. 810 of 2024 fact that petitioners otherwise were fully qualified and eligible for regular appointment on the posts on which they were engaged initially either on temporary or work-charge basis. The only ground taken is that petitioners were engaged without following procedure prescribed according to Service Rules. As has already been noticed here-in- above, same would only render such engagements to be irregular and not illegal and therefore would come within purview of law enunciated by Supreme Court in the case of Uma Devi (supra) as well as Jaggo (supra).

92. Apart from the aforesaid aspects, Section 2 of the Act of 2021 clearly indicates qualifying service to mean service rendered by an officer appointed on a temporary or permanent post in accordance with provisions of Service Rule prescribed by the Government for the said post.

93. In consequence thereof, Section 2(b) of the Ordinance of 2025 has defined a substantive appointee as any person who has been appointed in accordance with procedure prescribed in the applicable rules or regulations to any temporary or permanent post duly created by the Government Government. in a permanent established of

94. Considering the discussion made with regard to Question (a) herein-in-above, this Court has already determined that engagement in service of Part Time Tube- well Operator was in accordance with provisions of the Government Order, which therefore would come within the meaning of provisions of Service Rule prescribed by the Government for the said posts. In view thereof, in terms of Section 2(d) of the Ordinance of 2025, Part Time Tube- well Operators, would be covered within definition thereof services regularization also would be required to be counted to their rendered prior therefore 64 WRIA No. 810 of 2024 qualifying service in terms of Section 2 of the Act of 2021.

95. In view of the discussion made here-in-above and the law noticed, it is evident that petitioners would have a right for benefits of pension and such benefits, irrespective of the Ordinance of 2020 as replaced by the Act of 2021 and the Ordinance of 2025.

96. The answer to Question (b) is therefore in favour of petitioners. Regarding Question (c)

97. In view of discussion and answer to question (a) holding petitioners eligible for pensionary benefits with counting of their services rendered as temporary or work- charge being eligible as qualifying service of pensionary benefits, the aspect of their regularization subsequent to 1st April, 2005 is rendered irrelevant. that services rendered prior

98. It is also evident from a perusal of judgment rendered in the case of Prem Singh (supra) that the learned Advocate General for State of U.P. has specifically raised this plea to date of regularization would be inapplicable since such persons were born into the cadre only upon regularization. It is also evident from perusal of the aforesaid judgment and in the case of Prem Singh (supra) that the said submission has been impliedly rejected particularly in view of findings recorded therein. Even otherwise, the aspect is no longer relevant in view of subsequent judgment of Supreme Court in the case of Jaggo (supra).

99. In view thereof, it is held that petitioners irrespective of their regularization in service post 01.04.2005 would be eligible for pension and such benefits. 65 WRIA No. 810 of 2024

100. The answer to Question (c) therefore in favour of petitioners. Regarding Question (d)

101. Learned State counsel has laid much emphasis on judgment rendered by Coordinate Bench of this Court in the case of Sajeevan Lal (supra) to submit that a Bunch of writ petitions involving same question has already been judgment and order dated dismissed by means of 23.01.2023 in which all the relevant aspects and case laws have been considered.

102. The judgment also holds that such benefit cannot be granted to the petitioners therein since their entry into service itself was from the date of regularization and not prior thereto.

103. So far as, the said aspect is concerned, as has been observed here-in-above, such a plea was specifically taken by the State before Supreme Court in the case of Prem Singh (supra) and has been impliedly rejected. Even otherwise, the said aspect would now no longer be relevant in view of subsequent judgment of Hon'ble the Supreme Court in the case of Jaggo (supra). It is also seen that Sajeevan Lal (supra) places reliance on judgment rendered in the case of Dukh Haran Singh (supra) but as has been observed here-in-above, judgment of Dukh Haran Singh, does not distinguish the earlier judgment of Suresh Chandra Tewari (supra) in any manner. The judgment rendered in the case of Sajeevan Lal the ratio of Supreme Court in the case of Prem Singh and is also now required to be seen in the light of subsequent judgment of Jaggo (supra). therefore clearly ignores 66 WRIA No. 810 of 2024

104. Upon examination of the aforesaid judgment, it transpires that judgment rendered in the case of Prem Singh (supra) has been distinguished primarily on the ground that same would be inapplicable after advent of the New Pension Scheme with effect from 01.04.2005 since the said aspect was not under consideration before Hon'ble the Supreme Court in Prem Singh (supra).

105. The aspect of New Pension Scheme has not been considered in the light of various Division Bench and Coordinate Bench judgments of this Court subsequent to Prem Singh (supra) whereby such benefit has already been granted despite the said fact. The judgment therefore is clearly per incuriam with regard to the aforesaid aspect.

106. Judgment in the case of Sajeevan Lal (supra) has also declined relief on the ground that the appointment of Part Time Tube-well Operators was a stop gap arrangement made by virtue of Government Order without following due procedure prescribed under 1953 Rules. The relevant paragraph is as follows: "41. Therefore, it is required to be noted that the writ tube well petitioners were working as "Part operators" (working for less than three hours a day). The appointment was for a stop-gap arrangement. They were not appointed on any substantive post. Further, it is not in dispute and cannot be disputed that they were not appointed in any sanctioned posts of tube well operators regular or temporary. Even it is not the case on behalf of the writ petitioners that their appointment was done after following due procedure of selection. Neither any documents nor any submission have been made by the parties contradicting the aforesaid analogy drawn by this court. Thus, there appointment remained always irregular. " 67 WRIA No. 810 of 2024

107. From the discussion made here-in-above in earlier portion of this judgment, this Court has already examined and compared the Rules of 1953 with those of the Government Order dated 22.12.1981 and the Office Memorandum of 18.02.1982 and it has already been established that the Part Time Tube-well Operators were in fact appointed on posts which were duly sanctioned by the State Government and such appointments were in terms of procedure prescribed in the Office Memorandum.

108. From a perusal of judgment rendered in the case of Sajeevan Lal (supra), it is evident that relief has been declined only on the ground that Part Time Tube-well Operators were appointed without following due procedure prescribed under the Rule of 1953. Judgment does not at all advert to the fact that Part Time Tube-well Operators were appointed in terms of procedure indicated in the Office Memorandum dated 18.02.1982.

109. Judgment of Sajeevan Lal (supra) has also noticed the judgment rendered in the case of Suresh Chandra Tewari (supra), the same has been distinguished only on the ground that dispute therein pertained to equal pay for equal work and not for pensionary benefits. Judgment also refers to the aspect that in the review application, it has been clarified that the issue pertained only to pay parity which does not enure benefits of regular Tube-well Operators to Part Time Tube-well Operators. It was also held that Hon'ble the Supreme Court while deciding review petition clarified that the issue decided related only to pay parity and not regularization etc.

110. However a perusal of the order dated 18.10.1995 passed in Review Petition reveals that there is no such observation that the judgment would not be applicable with regard to regularization of pensionary benefits. The order 68 WRIA No. 810 of 2024 dated 18.10.1995 is as follows:- the question for examination related "Review has been prayed mainly on the ground that there are two sets or conflicting orders. This, is, however, not so, as in Writ Petition No.9/88, which was disposed of on 28.02.95, regularisation of the part-time tubewell operators, so that petition was disposed of to act in accordance with the decision of this Court in Piara Singh's case. The Special Leave Petitions, with which these review petitions are concerned, were, however, on the question of grant of pay to the part-time tubewell operators equal to the regular operators on the principal of "equal Pay for equal work" Other grounds do no make out a case for review for review petitions are, therefore, dismissed."

111. Apart from aforesaid, it is quite evident and admitted that the judgment rendered by Coordinate Bench of this Court in the case of Suresh Chandra Tewari (supra) was upheld in not only by dismissing the Special Leave Petition but Review itself was also dismissed and therefore in such circumstances, findings recorded in the case of Suresh Chandra Tewari (supra) would be binding upon this Court.

112. It is also observed that Sajeevan Lal (supra) does not make any distinction between an illegal and irregular appointment although such distinction has clearly been indicated by Supreme Court in the case of Uma Devi (supra) as well as Jaggo (supra).

113. The judgment in the case of Sajeevan Lal (supra) also refers to judgment rendered by Hon'ble the Supreme Court in the case of direct recruits Class II Engineering Officers Association versus State of Maharashtra AIR 1990 Supreme Court 1607 but in the considered opinion 69 WRIA No. 810 of 2024 of this Court, the said judgment was clearly inapplicable in the facts and circumstances of the case since the said judgment pertains to the aspect of seniority and not for purposes of pensionary benefits.

114. In view of discussion made here-in-above, it is evident that judgment of Sajeevan Lal (supra) no longer holds the field in view of subsequent judgment of Hon'ble the Supreme Court in the case of Jaggo (supra) as well as being per incuriam for not noticing various Division Bench judgments and the aspect of creation of post of Part Time Tube-well Operators as well as engagement vide Office Memorandum dated 18.02.1982. service as notified the procedure

115. As has already been held here-in-above, the aspect of the subsequent Validation Act would be irrelevant for purposes of applicability of Prem Singh (supra) particularly since the Ordinance of 2020, Act of 2021 and Ordinance of 2025 do not pass muster with regard to conditions of a validating act after judgment being rendered on that subject by Hon'ble the Supreme Court of India. Even otherwise this Court finds that services of Part Time Tube-well Operators would come within meaning of Section 2(d) Ordinance of 2025 and therefore also under Section 2 of the Act of 2021.

116. Before parting with this case, it is also relevant that aspect of a Welfare State is not an abstract concept incorporated in the Constitution of India only for the sake of posterity. It is in fact an embodiment of aspirations of not only the founding fathers but also the people of India that the State would keep welfare of the people of this country paramount. Even in cases where there is an apparent conflict between the interest of the State and its people, though hard to imagine, it is the interest of people 70 WRIA No. 810 of 2024 of a country which would supersede those of a State because ultimately the State is a creation of and functions under the Constitution of India which has been given to us by the people of India.

117. In view of answers to four questions, as indicated here-in-above, petitions, succeed and are allowed. Various orders impugned in the writ petitions denying benefit of pensionary benefits are hereby quashed by issuance of a writ in the nature of Certiorari. A writ in the nature of Mandamus is issued to opposite parties to count services rendered by petitioners as part time tube-well operators as service qualifying for pensionary benefits. Calculation and payment thereof shall be ensured within a period of four months from the date certified copy of this order is served upon the concerned authority.

118. Since a different issue is involved in Writ-A No.8029 of 2024; Ram Devi versus State of U.P. & Others, let it be de-linked from the instant Bunch and list it separately in the next week. December 3, 2025 Subodh/- (Manish Mathur,J.) SUBODH KUMAR SINGH SUBODH KUMAR SINGH High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench