Supreme Court Upholds Rule On Pension Deduction From Salary Of Retired Govt Servants Appointed To Uttarakhand PSC

The Supreme Court has upheld the constitutional validity of a regulation permitting the deduction of service pension from the salary payable to retired government servants appointed as Chairman or Members of the Uttarakhand Public Service Commission (UKPSC), holding that the pension is merely kept in abeyance during their tenure and is restored thereafter.

A bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria set aside the Uttarakhand High Court's 2010 judgment which had declared Regulation 7(2) of the Uttarakhand Public Service Commission (Conditions of Service) Regulations, 2004, unconstitutional for violating Article 14 read with Article 39(d) of the Constitution.

The High Court had held that deducting pension earned from previous government service from the salary payable for the constitutional post violated the principle of “equal pay for equal work.”

Disagreeing with the High Court, the Supreme Court held that the deduction did not amount to a withdrawal of the pensionary benefit, but only its temporary withholding during the period of service as Chairman or Member of the Commission.

“The question of breach of doctrine of equal pay for equal work does not arise,” the Court observed, adding that the High Court had misdirected itself in holding the regulation unconstitutional.

Government Employee Cannot Resile From Service Conditions After Accepting Post: Supreme Court

The Court also held that a Government servant cannot turn around to question the conditions after accepting them.

“…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.”, observed the bench.

The Respondent, having been superannuated from the Indian Army from the post of Lt. General in 2006, was appointed as Chairman of the State PSC. Regulation 7(2) of the Uttarakhand Public Service Commission (Conditions of Service) Regulations, 2004 (“Regulation”), which was in force when the Respondent joined as Chairman, determines salary by applying the principle of “pay minus pension”. This means the pension, which was entitled to be received by the Respondent upon retirement from the Indian Army, would be kept in abeyance till his current role as Chairman, and the salary for the Chairman post would exclude the pension amount.

In essence, upon appointment after retirement, the principle of “pay minus pension” was applied in determining the amount of salary.

A writ petition was filed before the High Court by the Respondent challenging the Regulation as ultra vires and unconstitutional. The High Court allowed the plea, whereby the govt. order to deduct the pension from the salary of the Respondent, came to be set aside.

Challenging the High Court's decision, an appeal before the Supreme Court was preferred by the State govt.

Setting aside the impugned order, the judgment authored by Justice Anjaria observed that the Respondent cannot disclaim knowledge about the service conditions after accepting the post.

“The original petitioners (Respondent) 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.”, the Court said, stressing that “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…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 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.”, the Court observed.

Even otherwise, the Court said that “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.”, reasoning that “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.”

Equal Pay For Equal Work Principle Not Applicable

The Supreme Court rejected the High Court's reasoning that the deduction violated the principle of equal pay for equal work under Article 14 read with Article 39(d) of the Constitution.

It observed that the pension received by the appointees was attributable to their previous government service, while the salary payable to them as Chairman or Member of the Public Service Commission was governed by the applicable service regulations.

The Court held that the doctrine of equal pay for equal work had no relevance to the issue of withholding pension during the tenure of the new constitutional office.

The bench also relied on its earlier decision in Gurmesh Prakash Bishnoi v. State of Haryana, wherein it had considered a similar restriction on the payment of pension to a person who had served as a Member and subsequently as Chairman of the Haryana Public Service Commission.

In that case, the Supreme Court had held that the embargo on receiving pension during the tenure of the subsequent office would cease once the person demitted office, restoring the entitlement to the pension earned during the earlier service.

In terms of the aforesaid, the appeal was allowed, holding that 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.

Appearance:

For Appellant(s) Dr. Abhishek Atrey, AOR(argued by) Ms. Rachna Gandhi, Adv. Ms. Ambika Atrey, Adv. Mr. Navneet Gupta, Adv.

For Respondent(s) Dr. Harshvir Pratap Sharma, Sr. Adv.(argued by) Mr. Rohan Thawani, Adv.(argued by) Ms. Vandana Sharma Bhandari, AOR Mr. Akul Krishnan, Adv. Mr. A K Srivastava, Adv. Mr. Karunakar Mahalik, AOR Mr. Sarbendra Kumar, Adv. Mr. Raju Sonkar, Adv. Mrs. Saloni Sharan, Adv. Mrs. Monika, Adv.