HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - A No. - 7340 of 2018 Court No. - 7 HON'BLE MANISH MATHUR, J. 1. Heard Mr. Ram Kumar Singh, learned counsel for petitioner and learned State counsel for opposite parties. 2. Petition has been filed seeking a direction to concerned authority to count ad hoc services rendered by petitioner prior to his regularization in service for purposes of counting as qualifying service for pensionary benefits. 3. It has been submitted that earlier petitioner was appointed on the post as Medical Officer on ad hoc basis vide order dated 07.09.1990 which was subject to regular selection being made by Services Selection Commission. The services were thereafter regularized by means of order dated 01.08.2014 with effect from the initial date i.e. 04.10.1990. 4. It is submitted that once petitioner stood regularized with effect from the initial date of engagement in service, he would be entitled for service benefits including pensionary benefits in terms of Regulation 56 of the Financial Handbook Part II to IV. Versus Counsel for Petitioner(s) : Ram Kumar Singh Counsel for Respondent(s) : C.S.C. Bharat Prasad Singh .....Petitioner(s) State Of Up Thru Prin Secy Deptt Of Med And Health Ser And 3 Ors .....Respondent(s) 5. He has also drawn attention to the penultimate paragraph of the regularization order dated 01.08.2014 to indicate that petitioner has been granted all service benefits with effect from the date of initial engagement in service on 04.10.1990 and therefore said services rendered as ad hoc are required to be calculated for pensionary benefits. 6. He has also drawn attention to the fact that in similar circumstances one Dr. Amrendra Narain Srivastava had filed Writ A No.61974 of 2011 which was allowed by means of judgment and order dated 01.03.2012 which had attained finality. 7. Learned State counsel on the basis of counter affidavit dated 26.07.2018 has refuted submissions advanced by learned counsel for petitioner with the submission that petitioner had been appointed as a Medical Officer but only an ad hoc capacity vide order dated 07.09.1990 and since his services were regularized only on 04.01.2005 and subsequently superannuated on 30.06.2011, he has not rendered 10 years of requisite service as required for grant of pensionary benefits. It is also submitted that in terms of the regularization order, he has been granted admissible gratuity. 8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is evident that although petitioner had initially been appointed on ad hoc basis vide order dated 07.09.1990 but in the regularization order dated 01.08.2014, he has been granted all service benefits with effect from the initial date of joining on 04.10.1990. Effectively the regularization has been made retrospective with effect from 04.10.1990. WRIA No. 7340 of 2018 2 9. It is thus evident and admitted by opposite parties that petitioner was engaged in service in the year 1990 and has subsequently superannuated on 30.06.2011 and has therefore rendered more than 20 years of service. It is not the case of opposite parties that the duties and functions which were performed by petitioner were in any manner different from that which were performed by substantively appointed Medical Officers in the Department. The said aspect has already been adjudicated upon by Supreme Court in the recent judgment of Hon’ble the Supreme Court in the case of Jaggo versus Union of India & Ors.[2024 SCC OnLine SC 3826] in the following manner: “10. Having given careful consideration to the 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; instead, it was recurrent, regular, and akin to the responsibilities typically WRIA No. 7340 of 2018 3 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 performed by the appellants was perennial and 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 tasks to private agencies after 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. 14. The abrupt termination of the appellants' services, following dismissal of their Original Application 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 WRIA No. 7340 of 2018 4 opportunity to be heard, nor were they provided any reasons for their dismissal, which followed nearly two decades of dedicated service. 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. 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 functions of the State or its instrumentalities. The said judgment sought to prevent backdoor entries and illegal appointments that circumvent constitutional requirements. However, where appointments were not illegal but possibly "irregular," and where employees had served continuously against the backdrop of sanctioned functions for a considerable period, the need for a fair and humane resolution becomes paramount. Prolonged, continuous, and unblemished service performing tasks inherently required on a regular basis can, over the time, transform what was initially ad-hoc or temporary into a scenario demanding fair regularization. In a recent WRIA No. 7340 of 2018 5 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: "6. The application of the judgment in Uma Devi (supra) by the High Court does not fit squarely with the facts at hand, given 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 through continuous service. Their 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). 7. The judgement in the case Uma Devi (supra) also distinguished between "irregular" and "illegal" WRIA No. 7340 of 2018 6 appointments underscoring the 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 to 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: WRIA No. 7340 of 2018 7 . 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, despite their contributions being equally significant. . Using Outsourcing as a Shield: Institutions increasingly resort to WRIA No. 7340 of 2018 8 outsourcing roles 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. . Denial of Basic Rights and Benefits: Temporary employees are often 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, especially in cases of illness, retirement, or unforeseen circumstances. 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 WRIA No. 7340 of 2018 9 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 regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This 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 employee morale. By ensuring fair employment 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 WRIA No. 7340 of 2018 10 betterment of labour practices in the country." 10. The said aspect has also been considered by Division Bench of this Court in the case of Dr. Amrendra Narain Srivastava (supra) in the following manner: “...........It is submitted by Shri Ashok Khare, that under the Uttar Pradesh Retirement Benefits Rules, 1961, the qualifying service, defined in Rule 3 (8), means service, which qualifies for pension in accordance with the provisions of Article 368 of the Civil Services Regulations. Rule 3 (8) is quoted as below:- "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-charged 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- WRIA No. 7340 of 2018 11 pensionable establishment, work-charged establishment or in a 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 pensionble establishment, it will not constitute an interruption of service." Regulation 368 of the Civil Services Regulations, provides that service does not qualify, unless the officer holds a substantive office in a permanent establishment. Regulations 368 and 369 provides as follows:- "368. Service does not qualify unless the officer holds a substantive office on a permanent establishment. 369. An establishment, the duties of which are not continuous but are limited to certain fixed periods in each year, is not a temporary establishment. Service in such an establishment, including the period during which the establishment is not employed qualifies but the concession of counting as service the period during while the establishment is not employed does not apply to an officer who was not on actual duty when the establishment was discharged, after completion of its work, or to an officer who was not on actual duty on the first day on which the establishment was again re- employed." The petitioner was appointed in temporary capacity in Zila Parishad on 21.3.1983. The WRIA No. 7340 of 2018 12 non-government medical hospitals of Zila Parishad were provincialised on 8.11.1990. The petitioner's option for absorption in the State Ayurvedic and Unani Medical Services was accepted, and that he was taken as a Medical Officer, Ayurvedic and Unani on adhoc basis. There is no denial, that he held a substantive office in a permanent establishment. His services ultimately came to be regularized on 16.3.2005 without any break. At no point of time the petitioner, after his absorption, was not in substantive office, which was not in permanent establishment. His services, therefore, have to be counted with effect from the date of his absorption and the joining in the State Government. The qualifying service, as defined in sub-rule (8) of Rule 3, includes the service, which qualifies for pension in accordance with the provisions of Section 368 of Civil Services Regulation. The petitioner does not fall in any of the exceptions inasmuch as the period of his temporary service was not in a non- pensionable establishment after he was regularized in the State Government. For the aforesaid reasons, we find that the petitioner has rendered qualifying pensionary service with effect from the date of his joining in the State Government on his option, and which shall be treated as service qualifying for pension and for which under the Government Orders, by which the hospitals were provincialised, the contribution of his pension has been deposited by the Zila Parishad. WRIA No. 7340 of 2018 13 The objection, that the contribution of pension, has not been deposited in the relevant account head, is too technical to be accepted. The amount has been credited to the account of the State Government in the Treasury. It is for the Treasury Officer to appropriate the amount in the correct account head. An error in depositing the amount in the wrong account head cannot be treated to have taken away the right of petitioner to pension based upon his continuance in the State Government beginning from 1991. The writ petition is allowed. The impugned order dated 20.9.2011 is quashed. The petitioner shall be entitled to pension with effect from 01.2.1991, the date on which he joined in the State Government. The State Government will calculate his pension and issue the pension payment order within two months. The entire arrears of pension shall be paid over to him within a period of three months.” 11. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is thus evident that petitioner has rendered more than 10 years of service even as an ad hoc and regularized employee of the Department. In terms of Rule 56 of the Financial Hand Book as well as Regulation 368 of the Civil Service Regulations and Rule 3(8) of the U. P. Retiral Benefit Rules 1961, petitioner has definitively ensured more than 10 years of active and substantive service with opposite parties. WRIA No. 7340 of 2018 14 12. In view of aforesaid, writ in the nature of mandamus is issued commanding the opposite parties to count ad hoc services rendered by petitioner with effect from 04.10.1990 till date of superannuation for purposes of qualifying service for pensionary benefits. Appropriate orders with regard to same and actual payment of pensionary benefits shall be ensured to petitioner within a period of two months from the date a certificate copy of this order is served upon concerned authority. 13. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs. November 27, 2025 Subodh/- WRIA No. 7340 of 2018 15 (Manish Mathur,J.) Digitally signed by :- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench