IMPORTANT POINT
Accrued rights cannot be taken away by retrospective application of rules.

ORDER :

Order on Delay Condonation Application

1. Heard Sri Amit Manohar, learned counsel for the appellants and Sri Raghvendra Prasad Mishra, learned counsel for the respondents.

2. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal.

Order on Special Appeal

1. Respondent was appointed as a doctor on adhoc basis by the State Government on 18.06.1988 in the Ayush Department. His services came to be regularized on 16.03.2005. The regularization order has attained finality. The respondent-petitioner has also superannuated on 28.02.2019.

2. A claim was raised before the authorities for inclusion of his services rendered as adhoc doctor relying upon Rule 3(8) of the U.P. Retirement Benefit Rules, 1961, which is reproduced hereinafter:

"Rule 3(8)- " Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations:

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

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

(ii) periods of service in a work-changed establishment, and

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

Note- If service rendered in a non-pensionable establishment, work-charged establishment or in post paid form contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."

3. The claim was not considered and a writ petition accordingly came to be filed stating that respondent-petitioner is entitled to full pension and its denial by the authorities vide order dated 26.06.2019 was arbitrary. It is this writ petition which has been allowed by the learned Single Judge relying upon the provisions contained in Rule 3(8) of the Rules of 1961 as well as series of orders passed by this Court in similar matters.

4. Learned counsel for the State submits that the respondent petitioner was not appointed strictly in accordance with the rules of recruitment and, therefore, the previous adhoc services rendered by him ought not to be added towards qualifying service in view of U.P. Act No.1 of 2021.

5. It is admitted that U.P. Act No.1 of 2021 has come into existence on 05.03.2021. An ordinance prior to it was issued on similar lines on 21.10.2020 providing that adhoc appointment offered contrary to recruitment rules was not liable to be counted towards qualifying service.

6. So far as the U.P. Act No.1 of 2021 as well as ordinance issued prior thereto on 21.10.2020 are concerned, though these provisions would apply retrospectively from the date of introduction of the U.P. Retirement Benefit Rules, 1961, but the amended provisions cannot be pressed into service in respect of such retired employees in whose favour entitlement had already stood crystallised prior to the incorporation of amending provisions vide ordinance or U.P. Act No.1 of 2021. The issue in that regard has been settled by a Constitution Bench in Chairman Railway Board versus C.R. Rangadhamaiah, AIR (SC) 1997 0 3828. The Constitution Bench judgment has been relied upon by the Supreme Court in Punjab State Cooperative Agricultural Development Bank Ltd versus Registrar, Cooperative Societies, AIR (SC) 2022 0 1349. In Para 44, the Supreme Court has referred to the Constitution Bench judgment in Chairman Railway Board (supra) and expounded the law in para 47 to 50 of the judgment which are reproduced hereinafter:

"47. The exposition of the legal principles culled out is that an amendment having retrospective operation whi