Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

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

hereinaft