IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 182 (SB) of 2008 Lt. Gen. (Retd.) Dr. M.C. Bhandari. …… Petitioner. Versus State of Uttarakhand and others. .….Respondents. Mr. B.C. Pandey, Sr. Advocate with Mr. H.C. Pathak, learned counsel for the petitioner. Mr. P.C. Bisht, Advocate for respondent nos. 1, 2 and 4. Mr. B.D. Kandpal, Advocate for respondent no. 3. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The petitioner retired from the Indian Army on attaining the age of superannuation on 30.08.2006. At the time of his retirement, the petitioner was holding the rank of Lieutenant General. 2. After his retirement, the State of Uttarakhand appointed the petitioner as Chairman of the Uttarakhand Public Service Commission vide an order dated 3.11.2006. In furtherance of the aforesaid appointment, the petitioner assumed his duties as such on 24.11.2006. 3. The Governor of the State of Uttarakhand is competent to frame regulations to determine the condition of service of the Chairman, as also, Members of the Uttarakhand Public Service Commission. This power flows to the Governor under Article 318 of the Constitution of India. Article 318 of the Constitution of India is being extracted hereunder: “318 Power to make regulations as to conditions of service of members and staff 2 of the Commission – In the case of the Union Commission or a Joint commission, the President and, in the case of a State Commission, the Governor of the State may by regulations – (a) determine the, number of members of the Commission and their conditions of service; and (b) make provision with respect to the number of members of the staff of the Commission and their conditions of service: Provided that the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment.” In exercise of the power conferred under Article 318 of the Constitution of India, the Governor of State of Uttarakhand framed the Uttaranchal Public Service Commission (Conditions of Service) Regulations, 2004 (hereinafter referred to as the 2004 Regulations). The 2004 Regulations were notified on 16.12.2004. In so far as the present controversy is concerned, Regulation 7 of the 2004 Regulations is relevant. The same is accordingly being extracted hereunder: “7. (1) There shall be paid to the Chairman a salary of Rs. 26,000 (Twenty Six Thousan) per mensem and to each of the other members a salary of Rs. 22,500 (Twenty Two Five Hundred) per month. (2) If a Chairman or a Member at the time of his 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 par; or in the alternative, whether the pay fixed by his 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.” 3 4. At the time of induction of the petitioner as Chairman of the Uttarakhand Public Service Commission, he was undisputedly paid salary at the rate of Rs. 26,000/- per mensem. This was in consonance with Regulation 7 (1) of the 2004 Regulations. Subsequently, however, vide a Government Order dated 16.9.2008, exercising power vested in the Governor under Regulation 7 (2) of the 2004 Regulations, the salary payable to the petitioner was reduced by a sum equivalent to the monthly pension drawn by him for the service rendered by him in the Indian Army. It is the instant order dated 16.9.2008, which is sought to be impugned by the petitioner through the instant writ petition. Simultaneously, the petitioner has also assailed the constitutional validity of Regulation 7 (2) of the 2004 Regulations. 5. The first contention advanced by the learned counsel for the petitioner is based on the proviso in clause (b) of Article 318 of the Constitution of India. In this behalf, it is the submission of the learned counsel for the petitioner that the conditions of service of a member of the Uttarakhand Public Service Commission, determined at the time of his appointment, cannot be varied to his disadvantage after his appointment. In this behalf, it is submitted by the learned counsel for the petitioner, that at the time of his appointment as Chairman of the Uttarakhand Public Service Commission on 3.11.2006, his monthly salary was determined at the rate of Rs. 26,000/-. Thereafter i.e. after 3.11.2006, it was not open to the authorities to vary the monthly salary payable to him to his disadvantage. 4 The contention of the learned counsel for the petitioner is, that the Government Order dated 16.9.2008, has the effect of reducing the monthly salary of the petitioner determined at the time of his appointment. 6. We have considered the first contention advanced by the learned counsel for the petitioner. In order to determine the instant submission, it is essential to make a reference of Article 316 of the Constitution of India. Article 316 is accordingly being extracted hereunder: “316. Appointment and term of office of members.—(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor [***] of the State: Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included. [(1A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some persons appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, he performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose.] (2) A member of a Public Service Commission shall hold office for a term of six years from the 5 date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of [sixty-two years], whichever is earlier: Provided that— (a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor [***] of the State, resign his office; (b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of article 317. (3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for re- appointment to that office.” A perusal of Article 316 reveals, that members of the Public Service Commission can be recruited from two sources. Firstly, members of the Public Service Commission may be appointed from the open market. And secondly, members of the Public Service Commission may be appointed from amongst government employees, who have rendered ten years service. The proviso to clause (b) of Article 318 of the Constitution of India, (upon which reliance has been placed by the learned counsel for the petitioner to advance the first contention) refers to the conditions of service of a member, who was in government service prior to his induction into the Public Service Commission. For such a person, who has been picked up out of government service, the proviso stipulates that the conditions of service shall not be varied to his disadvantage after his appointment. Proviso in clause (b) of Article 318, in our view, is aimed at protecting the conditions of service enjoyed by such a person prior to his appointment as a 6 member of the Public Service Commission. In view of the above, we are satisfied that the proviso to clause (b) of Article 318 of the Constitution of India, has been wrongly interpreted by the learned counsel for the petitioner, as applicable to conditions of service of a member appointed to the Public Service Commission, at the time of his appointment, which under the aforesaid proviso cannot be varied to his disadvantage thereafter. In view of the above, we find no merit in the first submission advanced by the learned counsel for the petitioner. 7. The second submission advanced by the learned counsel for the petitioner is that Regulation 7(2) of the 2004 Regulations framed by the Governor of State of Uttarakhand under Article 318 of the Constitution of India is ultra vires Article 14 read with Article 39 (d) of the Constitution of India. In this behalf, the submission of the learned counsel for the petitioner is, that pension earned by the petitioner is with reference to service rendered by him with the Indian Army, the same has no concern with the duties and responsibilities shouldered by him as Chairman with the Uttarakhand Public Service Commission. As such, according to learned counsel, it would be arbitrary, if pensionery benefits earned by the petitioner, as a consequence of service rendered by him while in the service of the Indian Army, are ordered to be deducted from the emoluments payable to him as Chairman of the Public Service Commission (determined under Regulation 7 (1) of the 2004 Regulations). It is also the contention of the learned counsel for the petitioner, that the petitioner has been discharging 7 all duties vested in the Chairman of the Uttarakhand Public Service Commission, ever since he assumed his duties as such i.e. with effect from 24.11.2006. As such, it is submitted, that deduction of any amount therefrom, on the basis of factors unrelated or unconnected with his employment as Chairman of the Uttarakhand Public Service Commission, would be violative of the principle enshrined in Article 39 (d) of the Constitution of India. 8. In order to support his aforesaid contention, learned counsel for the petitioner has placed reliance on a judgment rendered by a learned Single Judge of the Punjab and Haryana High Court in Ram Phal Singh Vs. State of Haryana and others (Civil Writ Petition No. 15159 of 1996) decided on 8.9.2004. Pointed attention of this Court has been drawn to the following observations recorded therein:- “…In this behalf it would be pertinent to mention that while calculating the emoluments payable to the petitioner, deduction of pension payable to him (on account of service rendered by him under the government) as well as deduction of pension equivalent to Death-cum- Retirement gratuity paid to him (for service rendered by him under the Government) are being made from the stipulated remuneration of Rs. 6000/- under Regulation 6 (1) of the 1973 Regulations. The aforesaid deductions comprising of pension, as well as pension equivalent to Death-cum-Retirement, Gratuity, constitute earnings of the petitioner in lieu of the service rendered by him under the government. The action of making the instant deductions amounts to depriving the petitioner of his existing rights, prior to his appointment as a member of the Public Service Commission. The aforesaid earnings are not relatable to the duties and responsibilities which a member of the Public Service Commission discharge as a member of the Public Service Commission. It is 8 wholly unreasonable to make the aforesaid deductions from remuneration of the petitioner because the aforesaid payments have no nexus to the duties and responsibilities of the petitioner as a member of the Public Service Commission. The only issue relevant for determining the emoluments payable to the members of the Public Service Commission is the duties and responsibilities discharged by them as members of the Public Service Commission. All the members of the Public Service Commission discharge the same duties collectively as a unified body and the duties and responsibilities of the members of the Public Service Commission are inter- changeable, there can, therefore, be no justification to pay them differently for the duties discharged by them. In view of the above, it is natural to conclude that the first proviso under Regulation 6 (2) of the 1973 Regulations which envisages a stipulation wherein a number of the Public Service Commission fixed under Regulation 6 (1) of the 19, 3 Regulations, is clearly ultra vires the provision of the Constitution of India and is therefore, liable to be set aside and is accordingly set aside. The petitioners and others, who were drawing wages under the government at a level less than the remuneration under the Regulation 6 (1) of the 1973 Regulations (prior to their appointment as members of the Public Service Commission) are hereby held to be entitled to the remuneration fixed under Regulation 6 (1) of the 1973 Regulations, without any deduction therefrom.” 9. In the case relied upon by the learned counsel for the petitioner Regulation 6 of the Haryana Public Service Commission (Conditions of Service) Regulations, 1973 was subject matter of challenge. Regulation 6 aforesaid is being extracted hereunder: “6. Pay (1) The Chairman shall receive a remuneration of seven thousand rupees in a month and each of the other members a remuneration of six thousand rupees a month. They shall also be entitled to such other allowance as may be admissible in future from 9 time to time to government employees drawing the same pay in addition to four hundred rupees a month as car allowance, provided a car is maintained. (2) Chairman of the Member, if at the time of his appointment as such, is a retired Government employees, he will be entitled to the remuneration in sub-regulation (1) in addition to the pension sanctioned to him. Provided that the amount of remuneration plus the gross amount of pension of the pension equivalent to other forms of retirement benefits does not exceed the pay last drawn by him before his retirement or the remuneration mentioned in sub-regulation (1) whichever is higher. Provided further that the total remuneration plus the gross of pension and the pension equivalent to other forms of retirement benefits, excluding the allowances shall in no case exceed eight thousand rupees per month. 3. The Chairman or the member who at the time of his appointment as such, is in the service of the central or State Government and does not exercise option under sub-regulation (1) of regulation 9 shall be paid the remuneration drawing by him immediately before his appointment as Chairman or member as the case may be or the remuneration mentioned in sub regulation (1) whichever is higher till the date of his retirement from Government service in the normal course and thereafter his remuneration shall be regulated as provided in sub regulation (2). 4. A member who in the absence of the Chairman on leave or otherwise is asked to perform the additional duties of the Chairman, shall be entitled to an additional remuneration at the rates of two thousand rupees a month. Provided that such additional duties are performed for a period of not less than fourteen days.” Although the Regulations set aside by the judgment rendered in Ram Phal’s case (supra) may not be in pari materia with Regulation 7 (2) of the 2004 Regulations, yet the effect of the two is basically the 10 same. The remuneration in the State of Haryana, payable to a Chairman/Member of the Public Service Commission, was to be in addition to the pension drawn by him. The remuneration payable to a Chairman, of the Haryana Public Service Commission, for the services rendered as Chairman could be different, from what his predecessor got, or what his successor would get, for doing the same work. If the Chairman had a hefty pension packet, his earnings as Chairman would be lesser, than another whose pension was a meager amount. The earnings for working as Chairman would be the maximum for a person who was not drawing any pension. It is, therefore, the contention of the learned counsel for the petitioner, that the judgment rendered in Ram Phal’s case (supra) squarely covers the controversy raised in the instant writ petition. 10. We have considered the second contention advanced by the learned counsel for the petitioner. 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. It is also not a matter of dispute, that while functioning as the Chairman of the Uttarakhand Public Service Commission, the petitioner has been rendering all the duties and responsibilities expected of a person holding that assignment. 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 11 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. By the impugned order dated 16.9.2008, his monthly remuneration was reduced by a sum equal to the monthly pension being drawn by him. It is this deduction from his remuneration, that is subject matter of challenge through the instant writ petition. Since the aforesaid deduction has been based on Regulation 7(2) of the 2004 Regulations, the petitioner has challenged the constitutional validity of the aforesaid regulation as well. 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. The decision rendered in Ram Phal’s case (supra) was also to this pointed effect. We accordingly express our approval to the ratio laid down, on the issue in hand, in Ram Phal’s case (supra). For the same reasons as had weighed in 12 Ram Phal’s case (supra), we are satisfied that Regulation 7 (2) of the 2004 Regulations is liable to be held as ultra vires Article 14 read with Article 39 (d) of the Constitution of India. Accordingly, Regulation 7(2) of the 2004 Regulation is hereby quashed, being ultra vires the provisions of the Constitution of India. 11. It would be unfair to the learned counsel for the State Government, if we do not take into consideration two submissions advanced by him while opposing the second submission advanced by the learned counsel for the petitioner. Firstly, it was contended by the learned counsel, that the instant writ petition came to be filed belatedly in the year, 2008, just a month before the petitioner was required to relinquish his duties as Chairman of the Uttarakhand Public Service Commission. Secondly, it is submitted that the 2004 Regulations were validly framed by the Governor of the State of Uttarakhand in exercise of powers conferred on him under Article 318 of the Constitution of India, and as such, there can be no justification whatsoever to treat the same as ultra vires of the provisions of the Constitution of India. 12. We have considered both the submissions advanced by the learned counsel for the State Government, as have been noticed in the foregoing paragraph. We have noticed hereinabove, while narrating the facts, that the petitioner came to be inducted as a Chairman of the Uttarakhand Public Service Commission, as a consequence of an order passed by the State Government on 3.11.2006. At the time of his appointment as Chairman of the 13 Public Service Commission, his emoluments were fixed in terms of Regulation 7 (1) of the 2004 Regulations. As such, the petitioner was not aggrieved with the determination of the emoluments payable to him. The grievance of the petitioner arose only when the emoluments payable to him under Regulation 7 (1) of the 2004 Regulations were reduced by a sum equal to the amount of pension received by him. This order was purportedly passed by the State Government on 16.9.2008, under Regulation 7(2) of the 2004 Regulations. It is, therefore, apparent that the cause of action arose to the petitioner for the first time on 16.9.2008 and as such, the present writ petition, which was filed by the petitioner in 2008 cannot be considered to be belated in any manner whatsoever. 13. Insofar as the second submission advanced by the learned counsel for the State is concerned, there can be no doubt, that the Regulations of 2004 were framed in exercise of the powers vested in the Governor under Article 318 of the Constitution of India. However, no regulations can be framed, which are violative of any other provision of the Constitution of India, more so the fundamental rights enshrined in Part-III of the Constitution of India. The principle of “equal pay for equal work” has been culled out by the Apex Court on the basis of Article 14 read with Article 39 (d) of the Constitution of India. This principle applies to every employee, who receives remuneration at the hands of the Government. The Chairman of Public Service Commission is entitled to the protection flowing out of the aforesaid principle. As such, Regulation 7(2) of 14 the 2004 Regulations, which has been held to be vioative of the aforesaid principle was liable to be set aside as the same was ultra vires the provision of the Constitution of India. As such, we find no merit even in the second submission advanced at the hands of the learned counsel for the State. 14. For the reasons recorded hereinabove, the impugned order dated 16.9.2008 is hereby set aside. Regulation 7(2)of the 2004 Regulations is also set aside, as being ultra vires the provisions of Article 14 read with Article 39 (d) of the Constitution of India. The instant writ petition is, accordingly, allowed in the aforesaid terms. 15. In case any deduction was made from the emoluments payable to the petitioner as Chairman of the Uttarakhand Public Service Commission on the basis of communication dated 16.9.2008 or under Regulation 7 (2) of the 2004 Regulations, the same shall be calculated and reimbursed to the petitioner within two months from the date of receipt of a certified copy of this order. (Sudhanshu Dhulia, J) (J.S. Khehar, C.J.) 15.4.2010 Rathour