HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW SPECIAL APPEAL DEFECTIVE No. - 357 of 2025 Court No. - 1 HON'BLE RAJAN ROY, J. HON'BLE PRASHANT KUMAR, J. (C. M. Application No. 1 of 2025) 1. This is an application for condonation of delay in filing special appeal supported with affidavit. 2. Heard Shri Shailendra Kumar Singh, learned Chief Standing Counsel for the State and Shri Suneel Kumar Singh Kalhans, learned counsel for the respondent. 3. Learned counsel for the respondent has no objection to the application for condonation of delay. 4. Cause shown in the affidavit filed in support of the application for condonation of delay in filing special appeal is sufficient. 5. Accordingly, the application for condonation of delay is allowed and the delay is condoned. Order on Special Appeal 6. By means of this special appeal the State has challenged a judgment and order dated 27.03.2025 passed by the learned Single Judge in Writ - A No. 19225 of 2021; Dinesh Kumar singh Vs. State of U.P. and Ors. 7. After hearing learned counsel for the parties what comes out is that while passing the impugned judgment dated 27.03.2025 it appears that a Versus Counsel for Appellant(s) : C.S.C. Counsel for Respondent(s) : Suneel Kumar Singh Kalhans State Of U.P. Thru. Prin. Secy. Revenue Deptt. And 3 Others .....Appellant(s) Dinesh Kumar Singh .....Respondent(s) Division Bench judgment rendered on 15.12.2023 in Writ - A No. 23244 of 2016; Ashok Tewari Vs. State of U.P. and Ors. was not placed and was not considered by the learned Single Judge. Before the Division Bench in the aforesaid case the following questions were referred:- "1. Whether in the case of an employee whose services have been regularized on or after 1.4.2005, and in respect of whom the pensionary rules as applicable to State Government Servants, apply, the new pension scheme, which has come into force with effect from 1.4.2005, shall apply, or, in view of his initial appointment prior to 1.4.2005 which may be on daily-wages or of a purely temporary nature (not a regular appointment in accordance with Rules), the old pension scheme governed by the Rules 1961 and the provisions of Civil Services Regulations etc., would be applicable? 2. Whether, in view of Rule 2(3) of the Rules 1961, as amended vide notification dated 07.04.2005, making the provisions of the said Rules 1961 inapplicable to employees entering services and posts on or after April 1, 2005, thereby also making Rule 3(8) thereof pertaining to the qualifying service inapplicable, the services rendered by such employees prior to their regularization, whether on daily-wages or any other temporary basis and/or prior to 1.4.2005, are at all relevant and whether the same would have any relevance in the context of the New Pension Scheme, as, there is no concept of 'qualifying service' under the new Pension Scheme? 3. Whether the judgment rendered in Writ-A No. 5817 of 2020, Kaushal Kishore Chaubey & ors. V. State of U.P. & ors., on the aforesaid issues lays down the law correctly or it is the judgment rendered in Bramha Nand Singh's case (supra) and Namo SPLAD No. 357 of 2025 2 Narain Rai's case (supra) which lays down the law correctly. 8. The same were answered. As regards the decision of Kaushal Kishore Chaubey and Ors. Vs. State of U.P. and Ors.; Writ - A No. 5817 of 2020 relied upon by the learned Single Judge, the same was considered in the context of Question No. 3 and it was held to be not good law which is as under:- "45. Now coming to Question No. 3, so far as the judgment of the learned Single Judge in the case of Kaushal Kishor Chaubey and Ors Vs. State of U.P and Ors reported in 2021 (10) ADJ 628 is concerned, though the learned Single Judge has referred to the Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005 by which inter alia Rule 2(3) of 1961 Rules were amended to exclude the applicability of said Rules to appointees of 01.04.2005 or thereafter and which clarify that the persons appointed on or after 01.04.2005 are not covered by pension rules 1961 yet the Court did not even advert to the provisions of New Pension Scheme and to the method of regularization of the petitioners or the regularization rules which were applicable upon the petitioners of the said petition. Any judgment rendered without considering the provisions of the New Pension Scheme and directing for counting of the previous service despite the persons having been appointed/regularized on or after 01.04.2005 is per in curium and cannot be said to be good law more particularly when the new pension scheme itself does not provide for counting of previous service. This judgment is not good law in view of our answer to Questions No. 1 and 2. 9. We, therefore, set- aside the impugned judgment dated 27.03.2025 only on aforesaid ground. Consequently, the writ petition shall stand restored and shall be listed before the learned Single Judge on 15.10.2025. 10. All relevant pleas are open for being raised before the learned Single SPLAD No. 357 of 2025 3 Judge for his consideration. 11. The writ petition is, accordingly, disposed of. September 18, 2025 R.K.P. SPLAD No. 357 of 2025 4 (Prashant Kumar,J.) (Rajan Roy,J.) Digitally signed by :- RAJ KUMAR PATEL High Court of Judicature at Allahabad, Lucknow Bench