State Of Uttarkhand Thr. Chief Secretary vs M.C.Bhandari
- Court
- Supreme Court
REPORTABLE
2026 INSC 1194
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1614 OF 2011
STATE OF UTTARAKHAND
THR. CHIEF SECRETARY
AND OTHERS …APPELLANTS
VERSUS
M.C. BHANDARI AND ANOTHER …RESPONDENTS
WITH
CIVIL APPEAL NO. 1615 OF 2011
J U D G M E N T
N.V. ANJARIA, J.
Both these Appeals, preferred by the State of
Uttarakhand, involve similar facts and identical issues.
Therefore, they are treated simultaneously for disposal by
this common judgment.
2. Civil Appeal No.1614 of 2011 is directed against
judgment and order dated 15.04.2010 passed by the High
1
Court of Uttarakhand in Writ Petition No.182 (SB) of 2008,
Signature Not Verified
Digitally signed by
LOKESH ARORA
Date: 2026.11.04
17:18:49 IST
Reason:
1
Hereinafter, “High Court”
Civil Appeal Nos. 1614-1615 of 2011
Page 1 of 29
whereas the other Civil Appeal No.1615 of 2011 addresses
the challenge to the judgment and order of even date passed
in Writ Petition No. 181 (SB) of 2008.
2.1
Before the High Court, the original petitioners-
respondent No.1 herein in each case prayed to declare
Regulation 7(2) of the Uttarakhand Public Service
2
Commission (Conditions of Service) Regulations, 2004 as
unconstitutional and ultra vires Articles 14, 16 and 318 of
the Constitution. It was next prayed to set aside order
passed by the Finance Officer, Uttarakhand Government as
well as the consequential order passed by the Secretary,
Public Service Commission, by which the pension of the
original petitioners in both the cases was ordered to be
deducted from the admissible salary of Chairman and, as
the case may be, the Member, of the Uttarakhand Public
3
Service Commission .
2.2 The third prayer was to direct the respondents to
restore and fix the pay of the original petitioners without
deducting their pension from the date of their appointment
2
Hereinafter, “Uttarakhand Public Service Commission Regulations”
3
Hereinafter, “Uttarakhand PSC”
Civil Appeal Nos. 1614-1615 of 2011
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as the Chairman or, as the case may be, the Member of
Uttarakhand PSC in accordance with Regulation 7(1) of the
Uttarakhand Public Service Commission Regulations. It was
prayed for a direction against the respondents to pay the
amount of salary of the original petitioners.
2.3 The High Court, allowing the writ petitions, declared
Regulation 7(2) of the Uttarakhand Public Service
Commission Regulations to be ultra vires the provisions of
Article 14 read with Article 39(d) of the Constitution. Order
dated 16.09.2008 impugned before the High Court whereby
it was provided to deduct the pension from the salary of the
original petitioners, came to be set aside. It was further
directed that in case any deduction was made from the
emoluments payable to the original petitioners as Chairman
or, as the case may be, the Member of the Uttarakhand PSC
on the basis of the aforementioned communication dated
16.09.2008 under Regulation 7(2) of the Uttarakhand Public
Service Commission Regulations, the same shall be
reimbursed.
Civil Appeal Nos. 1614-1615 of 2011
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3. Tracing the relevant facts from Civil Appeal No.1614
of 2011 treating the same to be the lead appeal, respondent
No.1 herein – original petitioner Lieutenant General (Retired)
Mr. M.C. Bhandari, retired from the post of Lieutenant
General in the Indian Army with effect from 30.08.2006
upon attaining the age of superannuation. After retirement,
he came to be appointed by the appellant-State as Chairman
of the Uttarakhand PSC by order dated 03.11.2006. He
assumed his duties of the post of Chairman with effect from
24.11.2006.
3.1 The salary of the said petitioner came to be fixed for
the post of Chairman, Uttarakhand PSC at basic pay of
Rs.26,000/- together with admissible allowances. The order
of pay fixation contained a note that the pension payable to
him on account of his previous services as Lieutenant
General would be deducted from the salary payable for the
post of Chairman. By order dated 19.12.2006, the Finance
Controller, Uttarakhand PSC accordingly fixed the salary of
the said original petitioner as Chairman of the Uttarakhand
PSC after deducting Rs.17,627/-, the amount of pension
drawn by him.
Civil Appeal Nos. 1614-1615 of 2011
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3.1.1 The aggrieved petitioner submitted a representation
dated 13.06.2007 asking for redetermination of his
remuneration as Chairman of the Uttarakhand PSC,
contending that the pension earned by him for his previous
services in the armed forces constituted a vested right for
him and that it bore no nexus to the office of the Chairman
of the Uttarakhand PSC. It was his contention that the
amount of pension, therefore, could not have been deducted
from his salary payable for the post of Chairman. The
representation came to be turned down by the appellant-
State on 30.06.2007.
3.1.2 The said petitioner filed a writ petition before the
High Court challenging Regulation 7(2) of the Uttarakhand
Public Service Commission Regulations on the ground that
it was violative of Article 14 of the Constitution and that the
orders whereby the amount of pension was deducted from
salary for the post of Chairman, Uttarakhand PSC were
liable to be set aside as illegal.
3.2 In the other case, original petitioner Sohan Lal was
a Provincial Civil Service Officer and retired from the post of
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Additional Secretary, Government of Uttarakhand, with
effect from 20.07.2006 by accepting voluntary retirement.
Thereupon, the Government of Uttarakhand issued a letter
of appointment on the very day, appointing him as a Member
of the Uttarakhand PSC, of which post, he took charge on
22.07.2006. His salary was fixed at the Basic Pay of
Rs.22,500/-. At the time of his retirement, the pension fixed
was Rs.11,025/-, which came to be deducted to arrive at a
final amount of salary payable to him for the post of
Member. This original petitioner also filed a writ petition
with similar prayers and identical contentions.
3.3 The Government of Uttarakhand issued an Office
Memorandum dated 16.09.2008. By the said Office
Memorandum, it was clarified that in accordance with the
determination made by the Governor, when an officer of the
Central Government or the State Government assumes
office as a Chairman or a Member of the Uttarakhand PSC
after retirement, the pension payable immediately prior to
his assumption of office of the Chairman or Member, except
disability pension or injury pension, was liable to be
Civil Appeal Nos. 1614-1615 of 2011
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deducted from the basic pay admissible to the post of
Chairman or, as the case may be, the Member.
3.3.1 The petitioners were conveyed that salary payable to
them was correctly fixed after deducting the amount of
pension from his basic pay payable to them as Chairman or
Member, as the case may be, and that the Governor had
determined the same as per Regulation 7(2) of the
Uttarakhand Public Service Commission Regulations.
3.4 In the context of above common operative facts, the
central question arises to be addressed is, upon the
appointment of the original petitioners as the Chairman and
the Member respectively of the Uttarakhand PSC, whether
they are entitled to receive the salary added by the amount
of pension which was receivable by them in respect of the
post held before their retirement; whether the State of
Uttarakhand was justified in law in fixing the salary of the
said Government servants appointed on the above posts
after their retirement by withholding the amount of pension
during the tenure of the appointed posts, by applying
Civil Appeal Nos. 1614-1615 of 2011
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Regulation 7(1) read with Regulation 7(2) of the Uttarakhand
Public Service Commission Regulations?
3.5 The High Court, while allowing the writ petitions of
both the original petitioners, held that Regulation 7(2) of the
Uttarakhand Public Service Commission Regulations was
ultra vires Article 14 read with Article 39(d) of the
Constitution and granted relief as prayed for by them. In
pursuance, the State of Uttarakhand is before this Court by
way of the present civil appeals by special leave.
3.6 In allowing the writ petitions, the High Court rested
on the decision of the Punjab and Haryana High Court in
Ram Phal Singh vs. State of Haryana in Civil Writ
Petition No.15159 of 1996 , decided on 08.09.2004, in
which Regulation 6(2) of the Haryana Public Service
Commission (Conditions of Service) Regulations, 1973 was
under consideration. That Regulation also provided for the
deduction of pension payable to Government servant on
account of services rendered by him under the Government
before retirement, from the salary payable in respect of his
appointment post-retirement. The High Court took the view
Civil Appeal Nos. 1614-1615 of 2011
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that, though not pari materia to Regulation 7(2) of the
Regulations in the instant case, Regulation 6(2) in that case
was similar in this effect and operation as it contemplated
deduction of pension from the salary payable to the retired
government servant appointed after retirement to another
post.
3.7 The High Court in the impugned judgment did not
accept the contention of the original petitioners that the
salary fixed by deduction of pension amounted to variation
in the service conditions, in violation of Proviso to Article 318
of the Constitution. The High Court found favour with the
submission that Regulation 7(2) of the Uttarakhand Public
Service Commission Regulations operated in breach of the
principle of “equal pay for equal work”, thus was ultra vires
Article 14 of the Constitution,
3.7.1 In paragraph 9 of the impugned judgment, the
following reasons were supplied by the High Court,
“There can be no doubt whatsoever that pensionery
emoluments payable to the petitioner were in lieu
of the service rendered by him with the Indian
Army. The same is, therefore, unrelatable to the
service rendered by the petitioner as a Chairman of
the Uttarakhand Public Service Commission.”
Civil Appeal Nos. 1614-1615 of 2011
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3.7.2 In the same paragraph, the High Court further stated
that,
“As such, there being neither any reduction in
hours of service, nor the responsibilities vested in
him in the capacity of Chairman of the Public
Service Commission. His emoluments as Chairman
of the Public Service Commission were originally
determined under Regulation 7 (1) of the 2004
Regulations at Rs.26,000/- per mensem. Since the
petitioner was rendering all the duties and
responsibilities of the post of Chairman of the
Uttarakhand Public Service Commission, there
could have been no deduction in his emoluments.”
3.7.3 It was further observed,
“A deduction based on factors alien to the principle
of "equal pay for equal work" would be violative of
the provisions of Article 14 read with Article 39 (d)
of the Constitution of India. Deduction from the
salary of Rs. 26,000/-, of the amount of pensionery
emoluments earned by the petitioner, in lieu of
service rendered by him with the Indian Army, in
our view, has no nexus to the duties and
responsibilities vested in the petitioner, as
Chairman of the Public Service Commission, and as
such, must be deemed to be contrary to the
principle of "equal pay for equal work” and in
complete derogation thereof.”
4. Heard learned counsel Mr. Abhishek Atrey for the
appellants and learned Senior Counsel Mr. Harshvir Pratap
Sharma as well as learned counsel Mr. Rohan Thawani for
the respective respondents.
Civil Appeal Nos. 1614-1615 of 2011
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5. Article 318 of the Constitution empowers the
Governor of the State to frame regulations. It provides that
in the case of Union Commission or a Joint Commission, the
President and, in the case of a State Commission, the
Governor of the State may by regulations determine the
number of members of the Commission and conditions of
their service. The Governor of the State may by regulations
make provision in respect of the number of members of the
staff of the Commission and their conditions of service. The
proviso to Article says that the conditions of service of a
member of a Public Service Commission shall not be varied
to his disadvantage after his appointment.
5.1 In exercise of the powers conferred under Article 318
of the Constitution, the Uttarakhand Public Service
Commission Regulations are framed, which were notified on
16.12.2004. Regulation 7 of the said Regulations, which
govern the fixation of salary of the Chairman and Members
of the Uttarakhand PSC, reads as under,
“7(1) There shall be paid to the Chairman a
salary of Rs. 26,000 (Twenty Six Thousand) per
mensem and to each of the other members a salary
of Rs. 22,500 (Twenty Two Thousand Five Hundred)
per month.
Civil Appeal Nos. 1614-1615 of 2011
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7(2) If a Chairman or a Member at the time of
the appointment as such is retired Government
servant, the Governor shall determine, whether his
service pension shall be held in abeyance and if so
whether wholly or in part; or in the alternative,
whether the pay fixed by this regulation shall be
reduced by an amount not exceeding the amount of
such service pension, including such pension of it
as may have been commuted, if the service pension
is allowed to be drawn in full.”
5.2 Upon appointment of the original petitioners as
Chairman and Member respectively of the Uttarakhand
PSC, the Uttarakhand Public Service Commission
Regulations which were in force were applied. Under
Regulation 7(1), basic pay was fixed at Rs.26,000/- per
month and Rs.22,500/- per month respectively of the
petitioner-appointees for the post of Chairman and Member.
In terms of sub-regulation (2) of Regulation 7, the pension
amount to be withdrawn by them at the time of retirement
as government servants came to be deducted and ordered to
be kept in abeyance.
5.3 In other words, while fixing the salary upon
appointment after retirement, the principle of “pay minus
pension” was applied in determining the amount of salary.
It was stated on behalf of the appellant-State that the said
Civil Appeal Nos. 1614-1615 of 2011
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norm of “pay minus pension” has been consistently applied
in respect of the retired Government servants who are
appointed post-superannuation to the Constitutional posts,
including on the posts in the Uttarakhand PSC. The fixation
of salary in both cases was on the basis of “pay minus
pension” immediately on the appointment in terms of
Regulation 7(2) of the Regulations. It was suggestive of the
fact that the authorities clearly intended to apply such
norms in accordance with Regulation 7(2) prevalent and
applicable to the original petitioners.
6. It appears that as the representation dated
13.06.2007 came to be made by the original petitioners after
getting appointment in the year 2006, seeking refixation of
the salary without deduction of pension, the authorities
proceeded to undertake the exercise of obtaining special
orders of the Governor under Regulation 7(2), and to
consider as to whether the request for not deducting the
pension from the salary could be acceded to. In exercise of
powers vested under Regulation 7(2) of the Uttarakhand
Public Service Commission Regulations, Office
Memorandum dated 16.09.2008 came to be issued
Civil Appeal Nos. 1614-1615 of 2011
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clarifying that when a retired Central Government or a State
Government officer is appointed as a Chairman or a Member
of the Uttarakhand PSC, the basic pension shall be deducted
from the salary payable as the Chairman or, as the case may
be, the Member.
6.1 The said Office Memorandum, which came to be set
aside by the High Court, is extracted hereinbelow,
Government of Uttarakhand
Department of Personnel - 2
742/XXX(2)/2008
Dehradun dated 16/09/2008
OFFICE MEMORANDUM
In pursuance of Regulation 7(2) of Uttranchal
Public Service Commission (condition of service)
Regulations 2004, which provides that "If a
Chairman or a Member at the time of his
employment as such is retired public servant the
Governor will determine whether his service
pension shall be held in abeyance and if so whether
fully or in part ; or in alternative whether the pay
fix by this regulation shall be reduced by an
amount not exceeding the amount of such service
pension including such pension of it as may have
been commuted , if the service pension is allowed
to be drawn in full". The Governor is pleased to
determined that salary of Chairman or Member
shall be fixed in respect of such officers of
Government of India or of state government who
assumes the post of Chairman or Member in
Uttrakhand Public Service Commission consequent
upon their superannuation, the pension due to
them just before assuming charge (except pension
for injury and disability) shall be reduced from the
basic pay as payable to them as a Chairman or a
Civil Appeal Nos. 1614-1615 of 2011
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Member. . . . . . . . . . . . . . . . . The amount prior
to_______ salary shall be reduced but
Chairman/Member will have option for dearness
allowance on commuted salary of Public Service
Commission or dearness salary on pension of
previous service. If Chairman/Member opts for
dearness salary on the previous pension, in such
situation dearness allowance on the said salary, to
that extent should be reduced
2. The aforesaid order shall be treated to have been
enforced with effect from the date of issuance of the
notification dated 16/12/2004 in pursuance of
Regulation 7(2) of Uttranchal Public Service
Commission (condition of service) Regulations
2004, notified by virtue of notification
no.1947/XXX-2/2004 dated 16/12/2004.
3. This Order is being issued with the concurrence
of Finance Department vide their d.o. Letter
No.1117/XXVII(7)/2008 Dated 12/09/2008
Sd/
Chandra Shekhar Bhatt
742/XXX(2)/2008
Even Dated
Copy forwarded to following for information and
necessary action :-
1. Secretary PSC Haridwar
2. Accountant General Uttaranchal
3. Chief Account Officer Haridwar
4. Finance Officer IRLA Check Uttarakharid
5. All Principal Secretaries/ Secretaries Uttranchal
6. Secretary to his Excellency Governor
7. Secretary to Chief Minister
8. Concerned Guard File
By order
Chandra Shekhar Bhatt
(Additional Secretary)
Civil Appeal Nos. 1614-1615 of 2011
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6.2 The appellant-State further pointed out from the
extracts of the Civil Service Regulations, which were filed as
part of documents, that is, paragraph 526 which deals with
the situation where a person previously holding a military
post obtains an employment on a civil post after having been
granted military pension. It would be noticed that clause (b)
of paragraph 526 contemplates deduction of pay by the
amount of pension.
6.2.1 The said paragraph 526 reads as under,
526.
(a) when a person formerly in military service
obtains employment in the civil department after
having been granted a military pension he shall
continue to draw his military pension, but the
authority competent to fix the pay and allowance of
the post in which he is re-employed shall have in
fixing his pay and allowances in the post in which
he is re-employed, the power to take into account
the amount of pension, including such portion of it
as may have been commuted.
(b) A military officer, departmental officer, warrant
or non-commissioned officer or soldier who is
granted a pension under military rules while he is
in civil employ, shall draw such pension while he is
in civil employ, but the authority competent to fix
the pay and allowances of the post in civil employ,
may with effect from the date from which the
pension is granted, reduce such pay and
allowances with reference to such officer or soldier
by any amount not exceeding the amount of such
pension.
Civil Appeal Nos. 1614-1615 of 2011
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6.3 It is pertinent to mention that the Union Public
Service Commission (Members) Amendment Regulations,
2007, brought into effect by notification dated 01.05.2007
provide that while dealing with the aspect of pay in its
Proviso contemplated a similar provision as in Regulation
7(2) inter alia that if a person who, immediately before the
date of assuming office as the Chairman, or as the case may
be, the Member, was in receipt of, or, being eligible so to do,
had elected to draw, a pension other than a disability or
wound pension in respect of any previous service under the
Union of India or Government of a State, his salary in
respect of service as the Chairman or, as the case may be, a
Member shall be reduced, by the amount of that pension.
7. Adverting again to Regulation 7(2), which came to be
held ultra vires by the High Court, what is provided in
Regulation 7(2) in express terms is that the pension of a
Chairman or, as the case may be, a Member at the time of
retirement of the government servant shall be kept in
abeyance and that the Governor may determine accordingly.
What necessarily implies is that the amount of pension is
provided to be deducted to be withheld from the salary
Civil Appeal Nos. 1614-1615 of 2011
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payable for the post of Chairman or, as the case may be, the
Member.
7.1 While the deduction of pension by way of keeping it
abeyance does not amount to variation in the conditions of
service under the Proviso to Article 318 of the Constitution,
as rightly held by the High Court, it is to be noticed that the
deduction of the part of pension, which was receivable by
the original petitioners for their previously held posts as
Government servants would remain effective only during the
tenure of the Chairman or, as the case may be, of the
Member of the Uttarakhand PSC. The pension benefit to the
said extent is kept in abeyance and is deferred to be paid
after they leave their office as Chairman or Member, as the
case may be.
7.2 At the end of the tenure of the Chairman or, as the
case may be, the Member, the entitlement to pension which
was kept in abeyance would revive and the petitioners-
respondent No.1 herein would get the pension deducted
during the tenure of their chairmanship or membership of
the Uttarakhand PSC. In other words, there is no
Civil Appeal Nos. 1614-1615 of 2011
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withdrawing of the pension, it is only the withholding during
the period when the posts of the Chairman or, as the case
may be, the Member of the Uttarakhand PSC is held. There
was no withdrawing of the pension.
7.3 The concept of “equal pay for equal work” has no
pertinence or relevance to be applied on this score. The
question of breach of doctrine of equal pay for equal work
does not arise. The High Court wholly misdirected itself in
reasoning that the principle of “equal pay for equal work”
was violated and resultantly Regulation 7(2) was ultra vires
Articles 14 and 39(d) of the Constitution. In no way, thus,
the provision of Regulation 7(2), its application and
operation to the cases like that of the original petitioners
could be said to be ultra vires .
8. The decision of this Court in in Gurmesh Prakash
4
Bishnoi vs. State of Haryana and Others is an answer to
the issue. The facts in that case were akin to the case in
hand. The appellant in that case was appointed as a Member
of the Haryana Public Service Commission with effect from
4
(1998) 5 SCC 260
Civil Appeal Nos. 1614-1615 of 2011
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04.03.1980 and continued on the post till 28.08.1984, when
he was appointed as Chairman of the Commission. He
remained on the post of the Chairman for a period of 6 years,
up to 27.08.1990. He was granted pension at the rate of
Rs.1800/- per month for his services as Chairman of the
Haryan Public Service Commission.
8.1 The appellant contended that, in addition to the
aforesaid pension, he was also entitled to pension in respect
of his services as a Member of the Haryana Public Service
Commission for a period of 4 years 5 months and 24 days.
What was applicable was Regulation 9-A (1) of the Haryana
Public Service Commission (Conditions of Service)
Regulations, 1972, which reads as under,
“9-A (1) Subject to the provisions of these
st
regulations, every person, who, on or after the 1
day of November, 1966, ceases to hold the office of
the Chairman or the Member, shall, with effect from
st
the 1 December, 1973 or the date of his ceasing to
hold the office, whichever is later, be entitled to
pension for his life at the rate of two hundred
rupees per month for each completed year of service
as the Chairman or the Member, as the case may
st
be, rendered after the 31 day of October, 1966,
subject to a maximum of eight hundred and fifty
rupees and seven hundred and fifty rupees per
month respectively:
Provided further that no pension shall be payable
during the period for which … the Member may,
Civil Appeal Nos. 1614-1615 of 2011
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after his retirement as such hold office as … the
Chairman of HPSC or of any other State Public
Service Commission.”
8.1.1 This Court thus addressed the question as to
whether a person, who has acted both as a Member and
subsequently as a Chairman, will be entitled to pension only
on the basis of his services as a Chairman or he will also be
entitled to a separate pension on the basis of his services as
a Member of the Haryana Public Service Commission?
8.1.2 This Court observed that, in the Union Public Service
Commission (Members) Regulations, 1969, there existed an
express provision in Explanation (II) to Regulation 9
providing that when the total service for pension is rendered
by a person, partly as a Member and partly as a Chairman,
the pension admissible to such person shall be the aggregate
of the pension calculated separately for each such term as a
Member and as a Chairman. It was noted by the Court that
in the Haryana Public Services Commission (Regulations),
1972 there was no such provision.
Civil Appeal Nos. 1614-1615 of 2011
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8.1.3 Explaining the effect of Rule 9 of the Haryana Public
Services Commission 1972 Regulations, this Court
observed,
“However, the proviso to Rule 9-A throws some light
on the manner in which the pension is to be
calculated. Under the proviso, when a member of
the Haryana Public Service Commission retires as
a member, he would be entitled to a pension as a
member. However, it he thereafter holds office (inter
alia) as the Chairman of the Haryana Public Service
Commission, he will not get any pension during the
period for which he holds office as a Chairman.
There is an embargo on his receiving pension as a
member during the period he functions as a
Chairman. Once he ceases to function as a
Chairman the embargo is lifted and he would be
entitled to get pension as a member for the period
during which he served as a member of the
Haryana Public Service Commission. This of
course, will be subject to the ceiling prescribed
under Regulation 9-A. At the same time as the
Chairman of the Haryana Public Service
Commission, for the period of service rendered by
him as Chairman, he would also get pension at the
rate prescribed under Regulation 9-A subject to the
maximum.”
(Para 6)
8.1.4 Thus, this Court stated that embargo would operate
under Rule 9-A of the Regulations on receiving pension by
the appellant as a member during the period he functioned
as a Chairman, further clarifying that such embargo would
stand lifted and the entitlement to get pension as a member
Civil Appeal Nos. 1614-1615 of 2011
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for the period during which the appointee served as a
Member of the Commission, would arise.
9. A faint attempt was made on behalf of the original
petitioners that the determination of the Governor under
Regulation 7(2) that the pension would be liable to be
deducted from the salary to be paid for the post of Chairman
or, as the case may be, Member, was subsequent to their
appointment. It was sought to be submitted that when
Regulation 7(2) could not have been operated without
necessary orders or determination by the Governor and that
in any case since the Office Memorandum was issued on
16.09.2008 upon Governor’s determination, it could not
have been retrospectively applied.
9.1 The above contention has no legs to stand. When the
original petitioners appointed as Chairman and Member,
respectively, of the Uttarakhand PSC, admittedly, the
Uttarakhand Public Service Commission Regulations were
in force and Regulation 7 was applicable. The salary of the
original petitioners for the post of Chairman or Member, as
the case may be, of the Uttarakhand PSC, were determined
Civil Appeal Nos. 1614-1615 of 2011
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in accordance with the providence of Regulation 7(1) read
with Regulation 7(2) of the Uttarakhand Public Service
Commission Regulations. The respondent No.1-original
petitioners accepted the post.
9.2 An attentive reading of language of sub-regulation (2)
of Regulation 7 would manifest that the Governor has
empowered to determine the issue whether the service
pension of the Chairman or, as the case may be, the
Member, of the Uttarakhand PSC, shall be kept in abeyance
and whether the pay fixed by this Regulation shall be
reduced by the amount of such service pension. The
decision of the Governor determining that the pension would
be liable to be deducted to be kept in abeyance is taken in
consonance with the said sub-regulation (2) of Regulation 7.
There is nothing to suggest that such decision of the
Governor should be taken simultaneously upon
appointment of the Chairman or, as the case may be, the
Member, or that it should be before appointment. It is never
the suggestion in the Regulation that pay minus pension
could not be fixed pending the decision of the Governor.
Civil Appeal Nos. 1614-1615 of 2011
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9.3 In any view, the Office Memorandum dated
16.09.2008 came to be issued reflecting the decision of the
Government. The submission that the decision was
retrospectively applied is misconceived in law. In the
circumstances, it cannot be said that there is an element of
retrospectivity, at the best, the Office Memorandum
reflecting the decision operated retroactively.
9.4 If the cases of the original petitioners were to be
accepted and the salary could be determined by adding the
pension receivable by them at the time of their retirement
from the previous government service, it would have led to
absurd consequences. The total amount in such eventuality
would exceed the actual salary payable for the post and
perhaps would become more than the salary of the highest
post. Therefore, by no stretch of logic, it could have been
contended that in the amount of salary, the pension portion
was liable to be added, and the admissible salary was
required to be fixed accordingly.
10. In any case, since the contention was raised alleging
the irregularity in the determination by the Governor under
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Regulation 7(2) and the consequential issuance of Office
Memorandum dated 16.09.2008, the Court required the
appellant-State to produce the file noting reflecting the
process. The record of Notings reveal that the Joint
Secretary, Personnel Department forwarded a letter dated
29.05.2007 to the competent authority to the State
Government for considering the issue to arrive at a decision
regarding fixation of salary of the Chairman of the
Uttarakhand PSC and deduction of pension therefrom.
10.1 An opinion was expressed that such deduction was
in accordance with the applicable Regulations. The Finance
Department also expressed the view that the deduction of
pension apart from the salary was consistent with the
practice followed, finally advising that the Chairman’s pay
should be fixed by deducting his basic pension from the
prescribed salary. A proposal was routed for obtaining
approval of the Governor under Regulation 7(2) which finally
culminated into the decision reflected in the Office
Memorandum dated 16.09.2008. Therefore, the contention
on behalf of the original petitioners on this count is entirely
meritless. The decision was duly taken under Regulation
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7(2) and was legally applied in the case of the original
petitioners.
11. There is yet another aspect, of no least importance
in law. There is no gainsaying that when the original
petitioners came to be appointed on the post of Chairman or
Member, as the case may be, of the Uttarakhand PSC, the
Regulations were already notified, they operated and were
applicable to the case of the original petitioners. The original
petitioners could not disclaim the knowledge about the
applicability of these Regulations and the service conditions
attached to the post of Chairman or, as the case may be, the
Member, on which posts they have been appointed after
their retirement.
11.1 Both of them accepted the post with knowledge
about the currency and applicability of the said Regulations.
Having accepted the appointment to the respective posts
with open eyes and knowledge and having assumed the
office with consciousness that Uttarakhand Public Service
Commission Regulations were applicable, it was not
permissible for them to claim a different chord about the
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applicability of the Uttarakhand Public Service Commission
Regulations and cannot fall them in question about their
applicability. Both the original petitioners were estopped in
law from disputing the applicability of the said Regulations
and the fixation of their salary in accordance therewith.
12. One who participates in a game, cannot later
challenge the rules of the game. It is well-settled by several
judgments of this Court that a candidate, who participates
in the selection process or a student who undergoes the
examination is not entitled to subsequently question the
norms and rules regarding conduct of the process of
recruitment or the examination. Similarly, a Government
servant or an employee, who accepts the post cannot
afterwards be permitted to resile from or to agitate in respect
of the service conditions and the service regulations
attached to the post which he accepted.
12.1 The appointment of the original petitioners was
made in the year 2006. They enjoyed the benefits of the post
and consumed the tenure for a period of more than two
years. They raised challenge to the applicability of
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Regulation 7(2) only thereafter which was at the fag end of
the tenure. The principle of acquiescence would operate so
as not to permit the original petitioners to raise the
challenge.
13. For all the foregoing reasons and discussion, the
High Court committed a manifest error in declaring
Regulation 7(2) of the Uttarakhand Public Service
Commission Regulations ultra vires and granting relief to the
original petitioners. The impugned judgments and orders
dated 15.04.2010 passed in Writ Petition No.182 (SB) of
2008 and Writ Petition No.181 (SB) of 2008 are not
sustainable in law. They are set aside.
14. The present appeals are allowed.
Any interlocutory application, if pending, shall cease
to survive in view of the disposal of the appeal.
.………………………...J.
[S.V.N. BHATTI]
………………………….J.
[N.V. ANJARIA]
NEW DELHI;
NOVEMBER 04, 2026.
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