Civil Appeal No. 6798 of 2019 · Allahabad High Court · 2025

confirmed/regularized provisions of Service Rules. 5 WRIA No. 14993 of 2025

31. 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.

32. Here it would also be conducive to refer to 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).

33. 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. 6 WRIA No. 14993 of 2025

38. 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 services rendered by work-charge or temporary employees prior to their regularization and even after advent of the Ordinance of 2020 and Act of 2021 have been taken into account towards qualifying service for purposes of pension.

42. 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 labelling their initial appointments as part-time or contractual appointment. It was held that since such engagement was not sporadic but recurrent, and akin to responsibilities and work typically associated sanctioned posts, such services were in fact regular in nature and with the work being performed indistinguishable from those of regular employees. It was also held that decision rendered in the case of Uma Devi (supra) did not intend to penalize employees who rendered long years of service fulfilling on-going and necessary functions State instrumentalities. It was held that procedural formalities cannot be used to deny regularization of service to an 7 WRIA No. 14993 of 2025 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 aimed to distinguish between 'illegal' and 'irregular' appointments with a categorical enunciation that 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.

43. The judgment also noticed that laudable intent of the judgment rendered in the case of Uma Devi (supra) was being subverted institutions indiscriminately reject claims 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.

44. 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 pertains to fundamental rights accrued to petitioners in terms of Part - III of the Constitution of India.

46. A perusal of Section 2(d) of the 8 WRIA No. 14993 of 2025 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.

47. 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 appointed accordance procedure prescribed, has been excluded from the definition of 'substantive appointee' and Section - 3 thereafter disentitles a person who is not a substantive employee, 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.

48. 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 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 9 WRIA No. 14993 of 2025 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 overrule aforesaid decision.

49. 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). ...

58. It is also relevant that opposite parties do not deny the 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).

59. In view of discussions made here-in- above and the law noticed, it is evident that petitioners would have a right for benefits pension pensionary benefits irrespective of the Ordinance of 10 WRIA No. 14993 of 2025 2020 as replaced by the Act of 2021 and the Ordinance of 2025.

60. The answer to question (a) is therefore answered favour petitioners. Answer to question (b)

61. 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.

62. 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 that services rendered prior 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).

63. In view thereof, it is held that petitioners irrespective 11 WRIA No. 14993 of 2025 regularization in service post 01.04.2005 would be eligible for pension and such benefits.

64. The answer to question (b) is therefore answered favour petitioners. Answer to question (c)

65. As has been noticed here-in-above, particularly in the case of Prem Singh (supra) and Jaggo (supra), such employees who were initially engaged in service as temporary or on work-charge basis and superannuated after decades of such service without regularization, would also be entitled for pension and pensionary benefits irrespective of the Ordinance of 2020 as replaced by Act of 2021 and the Ordinance of 2025.

66. Question (c) is therefore answered in favourable terms to petitioners.

67. Before parting with this case, it is also relevant that aspect of a Welfare State 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 of a 12 WRIA No. 14993 of 2025 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.

68. In view of answers to three questions, as indicated here-in-above, petitions, except Writ-A No.9912 of 2023, 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."

9. A perusal of impugned order will make it evident that aforesaid benefits of counting services rendered by petitioners prior to their regularization qualifying services purposes of pensionary benefits have been rejected primarily due to advent of Validation Act of 2021 and Ordinance of 2025.

10. In view of law enunciated in the case of Jai Ram Sharma (supra), the aforesaid is no longer a good ground. In the considered opinion of this Court, judgment of Prem Singh (supra) is squarely applicable in the facts and circumstances of the case.

11.The impugned order has also referred to paragraphs 429, 430, 431, 462 and 463 of Financial Handbook Volume - VI to reject the claim of petitioners. However, a perusal of paragraphs 429, 430 and 431 of Financial Handbook Volume - VI indicates the procedure for maintaining muster roll with regard to payment to be made to labourers while paragraphs 462 & 463 13 WRIA No. 14993 of 2025 indicate modes of submitting Travelling Allowance and classification of charge pertaining to payment to work charge establishment.

12. In the considered opinion of this Court, aforesaid paragraphs would have absolutely no bearing whatsoever with regard to claim of petitioners for counting services rendered as work-charge employees towards qualifying service for pensionary benefits particularly since the aforesaid paragraphs of the Financial Handbook pertain only to the procedure of making payments to the muster roll/work-charge employees.

13. In view of the discussions made here-in- above, impugned order dated 25.03.2025 is hereby quashed by issuance of a Writ in the nature of Certiorari. A further Writ in the nature of Mandamus is issued commanding opposite parties to calculate the services rendered by petitioners from the date of their initial engagement till the date of their regularization as qualifying service for the purposes of pensionary benefits. Appropriate orders shall be passed expeditiously within a period of eight weeks from the date a certified copy of this order is served upon the said authority.

14. Resultantly, the petition succeeds and is allowed at the admission stage itself. Parties to bear their own costs. December 19, 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

confirmed/regularized provisions of Service Rules. 5 WRIA No. 14993 of 2025

31. 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.

32. Here it would also be conducive to refer to 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).

33. 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. 6 WRIA No. 14993 of 2025

38. 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 services rendered by work-charge or temporary employees prior to their regularization and even after advent of the Ordinance of 2020 and Act of 2021 have been taken into account towards qualifying service for purposes of pension.

42. 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 labelling their initial appointments as part-time or contractual appointment. It was held that since such engagement was not sporadic but recurrent, and akin to responsibilities and work typically associated sanctioned posts, such services were in fact regular in nature and with the work being performed indistinguishable from those of regular employees. It was also held that decision rendered in the case of Uma Devi (supra) did not intend to penalize employees who rendered long years of service fulfilling on-going and necessary functions State instrumentalities. It was held that procedural formalities cannot be used to deny regularization of service to an 7 WRIA No. 14993 of 2025 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 aimed to distinguish between 'illegal' and 'irregular' appointments with a categorical enunciation that 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.

43. The judgment also noticed that laudable intent of the judgment rendered in the case of Uma Devi (supra) was being subverted institutions indiscriminately reject claims 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.

44. 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 pertains to fundamental rights accrued to petitioners in terms of Part - III of the Constitution of India.

46. A perusal of Section 2(d) of the 8 WRIA No. 14993 of 2025 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.

47. 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 appointed accordance procedure prescribed, has been excluded from the definition of 'substantive appointee' and Section - 3 thereafter disentitles a person who is not a substantive employee, 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.

48. 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 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 9 WRIA No. 14993 of 2025 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 overrule aforesaid decision.

49. 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). ...

58. It is also relevant that opposite parties do not deny the 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).

59. In view of discussions made here-in- above and the law noticed, it is evident that petitioners would have a right for benefits pension pensionary benefits irrespective of the Ordinance of 10 WRIA No. 14993 of 2025 2020 as replaced by the Act of 2021 and the Ordinance of 2025.

60. The answer to question (a) is therefore answered favour petitioners. Answer to question (b)

61. 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.

62. 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 that services rendered prior 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).

63. In view thereof, it is held that petitioners irrespective 11 WRIA No. 14993 of 2025 regularization in service post 01.04.2005 would be eligible for pension and such benefits.

64. The answer to question (b) is therefore answered favour petitioners. Answer to question (c)

65. As has been noticed here-in-above, particularly in the case of Prem Singh (supra) and Jaggo (supra), such employees who were initially engaged in service as temporary or on work-charge basis and superannuated after decades of such service without regularization, would also be entitled for pension and pensionary benefits irrespective of the Ordinance of 2020 as replaced by Act of 2021 and the Ordinance of 2025.

66. Question (c) is therefore answered in favourable terms to petitioners.

67. Before parting with this case, it is also relevant that aspect of a Welfare State 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 of a 12 WRIA No. 14993 of 2025 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.

68. In view of answers to three questions, as indicated here-in-above, petitions, except Writ-A No.9912 of 2023, 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."

9. A perusal of impugned order will make it evident that aforesaid benefits of counting services rendered by petitioners prior to their regularization qualifying services purposes of pensionary benefits have been rejected primarily due to advent of Validation Act of 2021 and Ordinance of 2025.

10. In view of law enunciated in the case of Jai Ram Sharma (supra), the aforesaid is no longer a good ground. In the considered opinion of this Court, judgment of Prem Singh (supra) is squarely applicable in the facts and circumstances of the case.

11.The impugned order has also referred to paragraphs 429, 430, 431, 462 and 463 of Financial Handbook Volume - VI to reject the claim of petitioners. However, a perusal of paragraphs 429, 430 and 431 of Financial Handbook Volume - VI indicates the procedure for maintaining muster roll with regard to payment to be made to labourers while paragraphs 462 & 463 13 WRIA No. 14993 of 2025 indicate modes of submitting Travelling Allowance and classification of charge pertaining to payment to work charge establishment.

12. In the considered opinion of this Court, aforesaid paragraphs would have absolutely no bearing whatsoever with regard to claim of petitioners for counting services rendered as work-charge employees towards qualifying service for pensionary benefits particularly since the aforesaid paragraphs of the Financial Handbook pertain only to the procedure of making payments to the muster roll/work-charge employees.

13. In view of the discussions made here-in- above, impugned order dated 25.03.2025 is hereby quashed by issuance of a Writ in the nature of Certiorari. A further Writ in the nature of Mandamus is issued commanding opposite parties to calculate the services rendered by petitioners from the date of their initial engagement till the date of their regularization as qualifying service for the purposes of pensionary benefits. Appropriate orders shall be passed expeditiously within a period of eight weeks from the date a certified copy of this order is served upon the said authority.

14. Resultantly, the petition succeeds and is allowed at the admission stage itself. Parties to bear their own costs. December 19, 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