STATE OF UTTARAKHAND THR. CHIEF SECRETARY AND OTHERS v. M.C. BHANDARI AND ANOTHER

2026 INSC 1194 REPORTABLE 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

JUDGMENT

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

Signature Not Verified Court of Uttarakhand1 in Writ Petition No.182 (SB) of 2008, 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

Commission (Conditions of Service) Regulations, 20042 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

Service Commission3.

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

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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 Page 3 of 29

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.

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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

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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

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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 Page 8 of 29

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.”

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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 Page 10 of 29

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 Page 11 of 29

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 Page 12 of 29

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 Page 13 of 29

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 Page 14 of 29

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 Page 15 of 29

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 Page 16 of 29

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 Page 17 of 29

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 Page 18 of 29

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

Bishnoi vs. State of Haryana and Others4 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

Civil Appeal Nos. 1614-1615 of 2011 Page 19 of 29

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 regulations, every person, who, on or after the 1st day of November, 1966, ceases to hold the office of the Chairman or the Member, shall, with effect from the 1st 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 be, rendered after the 31st 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 Page 20 of 29

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 Page 21 of 29

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 Page 22 of 29

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 Page 23 of 29

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 Page 24 of 29

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

Civil Appeal Nos. 1614-1615 of 2011 Page 26 of 29

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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