# Indu Bhushan Pandey v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 32
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-23
- **Case number:** Writ A No. 5813 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indu-bhushan-pandey-v-state-of-u-p-ors-51145
- **Pages:** 10

## Headnote

the Chairperson and Members) Rules,
2008, via First Amendment Rules, 2021, -
Challenge to amendment of Rule 15 of
U.P. Electricity Regulatory Commission
(Appointment and Condition of Service of
the Chairperson and Members) Rules,
2008, via First Amendment Rules, 2021 -
applying
National
Pension
Scheme
(NPS)
retrospectively to Chairperson and Members
appointed on or after 01.04.2005 - Amendment
ultra vires Section 89(2) of Electricity Act, 2003,
as it varies terms and conditions to petitioners'
disadvantage post-appointment - Cancellation of
pension
and
recovery
of
Rs.22,65,528/-
arbitrary, violating Articles 14 and 16 -
Impugned orders dated 31.07.2020, 02.06.2020,
11.11.2021,
and
04.04.2022
quashed
-
Petitioners
entitled
to
pension
as
per
unamended Rule 15, with recovered amounts to
be refunded within two months.

List of Cases cited:

## Text

32 INDIAN LAW REPORTS ALLAHABAD SERIES
to the appellant relying upon the aforesaid
Government
Orders
would
not
be
withdrawn and would remain personal to
the appellant concerned.

21. The order of D.I.O.S., Prayagraj
dated 14.05.2023 as well as the order
passed by learned Single Judge stands
modified in terms of the above directions.

22. Subject to the above observations
and submissions, the special appeal stands
disposed of.
----------
(2024) 1 ILRA 32
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 5813 of 2022

Indu Bhushan Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Chandra Bhushan Pandey, Asim Kumar
Singh

Counsel for the Respondents:
C.S.C., Sanjay Singh

U.P. Electricity Regulatory Commission
(Appointment and Condition of Service of
the Chairperson and Members) Rules,
2008, via First Amendment Rules, 2021, -
Challenge to amendment of Rule 15 of
U.P. Electricity Regulatory Commission
(Appointment and Condition of Service of
the Chairperson and Members) Rules,
2008, via First Amendment Rules, 2021 -
applying
National
Pension
Scheme
(NPS)
retrospectively to Chairperson and Members
appointed on or after 01.04.2005 - Amendment
ultra vires Section 89(2) of Electricity Act, 2003,
as it varies terms and conditions to petitioners'
disadvantage post-appointment - Cancellation of
pension
and
recovery
of
Rs.22,65,528/-
arbitrary, violating Articles 14 and 16 -
Impugned orders dated 31.07.2020, 02.06.2020,
11.11.2021,
and
04.04.2022
quashed
-
Petitioners
entitled
to
pension
as
per
unamended Rule 15, with recovered amounts to
be refunded within two months.

List of Cases cited:

1. Bank of Baroda & anr. Vs G. Palani & ors.,
(2002) 5 SCC 612

2. St. of Pun. Vs Kailash Nath, (1989) 1 SCC 321

3. Laghu Udyog Bharti Vs U.O.I., (1999) 6 SCC
418

4.
Punjab
State
Cooperative
Agriculture
Development Bank Vs Registrar Co-operative
Societies, (2022) 4 SCC 363

5. Arjan Singh & anr. Vs The St. of Punjab &
ors., 1970 AIR 703

6. St. of Punjab & ors. Vs Rafiq Masih (White
Washer) & ors., (2015) 4 SCC 334

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

(1) Herad Sri Chandra Bhushan
Pandey, Sri Paavan Awasthi and Sri
Apoorva
Tewari,
learned
Counsel
appearing for the petitioners in the
respective petitions, learned Sri V. P. Nag,
learned Additional Chief Standing Counsel
for the State-respondents and Sri Sanjay
Singh, learned Counsel appearing for the
Commission.

(2) In the aforesaid three writ
petitions, mainly challenge to Rule 15 of
The Uttar Pradesh Electricity Regulatory
Commission (Appointment and Condition
of
Service
of
the
Chairperson
and
1 All. Indu Bhushan Pandey Vs. State of U.P. & Ors.
33
Members) Rules, 2008 [in brief, it has been
referred to as 'Rules, 2008'] has been
made. Thus, they have been clubbed
together and decided by a common order.

(3) Apart from above, in Writ-A No.
5813 of 2022, Indu Bhushan Pandey v.
State of U.P. and two others, following
ancillary prayers have also been made:-

"(i) to issue a writ, order or
direction of or in the nature of certiorari to
quashing the order, dated 31.07.2020,
whereby respondent no.3 illegally and
arbitrarily
cancelled
the
petitioner's
pension, provided under Rule 15 of The
Uttar
Pradesh
Electricity
Regulatory
Commission (Appointment and Condition
of
Service
of
the
Chairperson
and
Members) Rules, 2008, as contained in
Annexure No.2 to this writ petition;

(ii) to issue a writ, order or
direction of or in the nature of certiorari to
quashing the order, dated 02.06.2020,
thereby, State Government/ Respondent
No.1 illegally and arbitrarily did not
sanction further pension to the petitioner, as
contained in Annexure No.3 to this writ
petition;

(iii) to issue a writ, order or
direction of or in the nature of mandamus
commanding the respondents to provide
pension including all the perks, allowances
and benefits as admissible with unamended Rule 15 of The Uttar Pradesh
Electricity
Regulatory
Commission
(Appointment and Condition of Service of
the Chairperson and Members) Rules, 2008
revisable from time to time in favour of the
petitioner,
commensurate
with
that
admissible to a retired Hon'ble Judge of the
High Court with all the consequential
benefits;

(iv) to issue a writ, order or
direction of or in the nature of mandamus
commanding the respondents to release the
withholding amount of pension including
12% interest, since, August 2021 to till
date.

(v) to issue a writ, order or
direction of or in the nature of mandamus
commanding the respondent to not to
recover Rs.22,65,528/- (Rupees Twenty
Two Lakhs Sixty Five Thousand Five
Hundred Twenty Eight only) from the
petitioner;

(vi) to issue any other order or
direction which this Hon'ble Court deems
fit
and
proper
in
the
facts
and
circumstances of the present case;

(vii) to allow this writ petition
with exemplary costs."

(4) The events leading to the filing of
this petition are recapitulated in brief as
under:

In the year 2003, the Parliament
enacted the Electricity Act, 2003 [herein-after
referred
to
as
'Act']
to
consolidate
the
laws
relating
to
generation,
transmission,
distribution,
trading and use of electricity and for
establishment of Regulatory Commission
and Appellate Tribunal. After receipt of
assent from the President on 26.05.2003,
it was published in the Gazette of India
on 02.06.2002.

(5) Section 82 of the Act provides
for the constitution of a Commission for
the
State
Electricity
Regulatory
Commission whereas Section 82 (2) of
the
Act
provides
that
the
State
Commission shall be a body corporate
having
perpetual
succession
and
a
common seal, with power to acquire, hold
and dispose of property, both movable
and immovable and to contract and shall,
by the said name, sue or be sued.
34 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) Section 82 (4) of the Act postulates
that the State Commission shall consist of
not more than three Members, including the
Chairperson. Section 82 (5) of the Act,
2003 provides that the Chairperson and
Members of the State Commission shall be
appointed by the State Government on the
recommendation of a Selection Committee
referred to in Section 85.

(7) Section 89 of the Act provides for
the term of office and conditions of service
of Members which reads as under:-

"89.
Term
of
office
and
conditions of service of Members. - (1)
The Chairperson or other Member shall
hold office for a term of five years from the
date he enters upon his office:

Provided that the Chairperson or
other Member in the Central Commission
or the State Commission shall not be
eligible for re-appointment in the same
capacity as the Chairperson or a Member in
that Commission in which he had earlier
held office as such:

Provided
further
that
no
Chairperson or Member shall hold office as
such after he has attained the age of sixtyfive years.

(2) The salary, allowances and
other terms and conditions of service of the
Chairperson and Members shall be such as
may be prescribed by the Appropriate
Government:

Provided
that
the
salary,
allowances and other terms and conditions
of service of the Members, shall not be
varied
to
their
disadvantage
after
appointment.

(3) Every Member shall, before
entering upon his office, make and
subscribe to an oath of office and secrecy in
such form and in such manner and before
such authority as may be prescribed.

(4)
Notwithstanding
anything
contained in sub-section (1), a Member
may -

(a) Relinquish his office by
giving in writing to the Appropriate
Government a notice of not less than three
months; or

(b) be removed from his office in
accordance with the provisions of Section
90.

(5) Any member ceasing to hold
office as such shall -

(a) not accept any commercial
employment for a period of two years from
the date he ceases to hold such office; and

(b) not represent any person
before the Central Commission or any State
Commission in any manner.

Explanation - For the purpose of
this sub-section "commercial employment"
means employment in any capacity in any
organization which has been a party to the
proceedings
before
the
Appropriate
Commission
or
employment
in
any
capacity under, or agency of, a person
engaged in trading, commercial, industrial
or financial business in electricity industry
and includes a director of a company or
partner of a firm or setting up practice
either independently or as partner of a firm
or as an advisor or a consultant."

(8) In pursuance of the Act, the State
Government
vide
Notification
dated
06.02.2004 had promulgated Uttar Pradesh
Electricity
Regulatory
Commission,
Lucknow, Regulations 2004 [in short, it is
referred to as 'Regulations'] whereby the
Uttar
Pradesh
Electricity
Regulatory
Commission was established in the State of
U.P.

(9) Section 180 (2)(d) of the Act
specifies
the
power
of
the
State
Government to frame Rules regarding the
1 All. Indu Bhushan Pandey Vs. State of U.P. & Ors.
35
salary, allowances and other terms and
conditions of service of the Chairperson
and Members of the State Commission
under 89 (2) of the Act. For ready
reference, relevant provisions of the Rule
are being reproduced as under:-

"Section 180. (Powers of State
Governments to make rules):--

(1) The State Government may,
by notification, make rules for carrying out
the provisions of this Act.

(2) In particular and without
prejudice to the generality of foregoing
power, such rules may provide for all or
any of the following matters, namely:-

....

(d) the salary, allowances and
other terms and conditions of service of the
Chairperson and Members of the State
Commission under sub-section (2) of
Section 89;"

(10) In exercise of powers conferred
under Section 180 (2)(d) of the Act, 2003
and Regulations, the State Government
notified the Rules, 2008 which came into
force on 01.01.2009. Rule 15 of Rules,
2008 which provides for payment of
pension to the Chairperson and the
Members of the Commission is reproduced
hereunder:-

"Rule 15. The Chairperson and
the members shall be entitled to pension
provided that no such pension shall be
payable

(i) if he has put in less than two
years of service; or

(ii) if he has been removed from
an office in the Commission as per the
provisions of the Act.

Provided
further
that
the
aggregate amount of the pension payable to
any person under this rule together with
amount
of
any
pension
(including
commuted portion of pension), if any,
admissible to him in respect of the service
rendered by him prior to his appointment in
the Commission as a Judge of the High
Court or a Government Servant shall not
exceed the maximum amount of pension
admissible to a Judge of the High Court or
a Secretary to the Government of India,
whichever is more."

(11) By virtue of the aforesaid Rule,
the persons appointed on the post of
Chairman or Member of the Commission is
entitled for payment of pension under the
Rules, 2008.

(12) Pursuant to the notification dated
24.09.2013, the petitioner/Indu Bhushan
Pandey had assumed the post of Member to
the Commission on 28.09.2013. It is
pertinent
to
mention
here
that
the
petitioner's service under the National
Thermal Power Corporation Limited was
non-pensionable service.

(13)

In
view
of
above,
the
petitioner/Indu Bhushan Pandey became
entitled
to
all
perks,
facilities
and
allowances admissible to a High Court
Judge
in
light
of
various
statutory
provisions and notifications issued from
time to time.

(14) It is pertinent to mention here
that at the time of his retirement from the
Commission, the petitioner/Indu Bhushan
Pandey was granted pension vide order
dated
19.08.2016
issued
by
the
Commission.

(15) In the meantime, the State
Government vide letter dated 02.06.2020
directed the Commission to take necessary
action on three points pertaining to the
pension of the Chairman/Members of the
36 INDIAN LAW REPORTS ALLAHABAD SERIES
Commission which are being reproduced as
under:-

"(1) dsUnzh; fo|qr fu;ked vk;ksx ,oa
vU; jkT;ksa ds fo|qr fu;ker vk;ksxksa esa ls fdlh esa
Hkh v/;{k dks pquko vk;qDr ds led{k isa'ku dh
vuqekU;rk ugha gS vfirq dbZ vk;ksxksa&dsUnzh; fo|qr
fu;ked vk;ksx] fnYyh fo|qr fu;ked vk;ksx] e/;
izns'k] rfeyyukMq]xqtjkr] jktLFkku rFkk egkjk"Vzq~
jkT;ksa ds fo|r fu;ked vk;ksxksa ds v/;{kksa dks muds
}kjk vk;ksx esa dh x;h lsok gsrq isa'ku vuqeU; gh ugh
gS A

(2) fnukad 01-04-2005 ls iqjkuh isa'ku
;kstuk jkT; ljdkj }kjk lekIr dj mlds LFkku ij
u;h ifjHkkf"kr va'knku isa'ku ;kstuk (jk"Vzh; isa'ku
iz.kkyh) ykxw dh x;h gS A fnukad 01-04-2005 ds
mijkUr fu;ked vk;ksx esa fu;qDr gksus okys v+/;{k
,o lnLfx.k dh vk;ksx dh lsok;sa jk"Vzh; isa'ku
iz.kkyh (,u0ih0,l0) ls vkPNkfnr gksxh A

(3) m0iz0 jkT; fo|qr fu;ked vk;ksx
fu;ekoyh] 2008 ds lqlaxr vuqPNsn esa fnukad
01]04]2005 dks vFkok mlds mijkUr fu;qDr
v/;{k@lnL; ,oa vU; dkfeZdksa dks jk"Vzh; isa'ku
iz.kkyh ls vkPNkfnr fd;s tkus gsrq laxr lsok fu;eksa
esa la'kksFku dk izLrko miyC?k djkus dk d"V djsa A

(16) In pursuance of the letter dated
02.06.2020,
the
Secretary
to
the
Commission has clarified vide letter dated
29.06.2020 as under:-

(1) In respect of point No.1, it is
stated that every State Government is
independent to regulate its own system
pertaining to provide pension to the
Chairperson
and
Members
of
the
Commission, therefore, it is not appropriate
to take any decision in context of other
States.

(2) In respect of point No.2, the
respondent No.2 has clarified that as per
the proviso of Section 89 (2) of the Act,
2003, the salary and allowances and
other terms and conditions of service of
the Members shall not be varied to their
disadvantage
after
appointment.
Significantly, Rules, 2008 were enacted
w.e.f. 01.01.2009 after enforcement of the
NPS on 01.04.2005 and moreover, any
amendment in Section 15 of the Rules
2008 cannot be given retrospective effect
in view of the proviso of Section 89 (2) of
the Act, 2003.

(3) However, the respondent No.2 in
response to the point No.3 sent a proposed
amendment with respect of Rule 15 of the
Rules, 2008 which is being reproduced as
under:-

Column - I
Column - II
Pension 15 The Chairperson and the
members shall be entitled to pension
provided that no such pension shall
payable.

(i) if he has put in less than two
years of service; or

(ii) if he has been removed from
an office in the Commission as per the
provisions of the Act:

Provided
further
that
the
aggregate amount of the pension
payable to any person under this rule
together with amount of any pension
(including
commuted
portion
of
pension), if any, admissible to him in
respect of the service rendered by him
prior admissible to him in respect of the
service rendered by him prior to his
appointment in the Commission as a
Judge of the High Court or a
Government Servant shall not exceed
the maximum amount of pension
admissible to a Judge of the High Court
or a Secretary to the Government of
India, whichever is more.
Pension 15.
The Chairman
and
Members
appointed
on
or
after
1st
April,
2005
shall
be
covered under
the
National
Pension
Scheme (N.P.S.)

(17) Thereafter, vide order dated
31.07.2020,
the
respondent
No.3/Secretary of the Commission has
cancelled
the
pension
of
the
petitioner/Indu Bhushan Pandey on the
ground that vide order dated 02.06.2020,
the State Government did not approve
further pension to the petitioner, in view
of the applicability of the National
Pension Scheme, 2005.
1 All. Indu Bhushan Pandey Vs. State of U.P. & Ors.
37

(18) Learned Counsel for the
petitioner has submitted that the pension of
the petitioner was revised according to the
amendment made in the High Court and
Supreme Court Judges (Salaries and
Conditions of Service) Amendment Act,
2016 and consequently, arrears on the
pension was released on 16.01.2019.
However, without informing the petitioner,
respondent No.2/the Commission has not
only stopped the pension with effect from
July, 2020 but also started recovery of
Rs.22,65,528/- from the servant allowance
of the petitioner.

(19) The next submission of the
learned Counsel for the petitioner is that the
amendment to Rule 15 of Rules, 2008 was
made, known as Uttar Pradesh Electricity
Regulatory Commission (Appointment and
Conditions of Service of the Chairperson
and Members) (First Amendment) Rules,
2021 vide notification dated 25.10.2021
whereby the Chairperson and Members
appointed on or after 1st April, 2005 shall
be covered under the National Pension
Scheme, 2005.

(20) Further submission of the learned
Counsel for the petitioner is that due to
pandemic of COVID - 19, everything was
kept in abeyance. Thereafter, in response to
the letter dated 03.06.2022 sent by the
respondent No.3, the State Government
vide letter dated 21.06.2022 informed that
after amendment and incorporation in Rule
15 of Rules, 2008, no review to the
aforesaid amendment could be considered.

(21) Further submission of the learned
Counsel for the petitioner is that the
aforesaid amendment was in violation to
the provisions of Section 182 of the Act
which prescribes that every Rule made by
the State Government and every Regulation
made by the State Commission shall be laid
before the State Legislature. In the present
case, no such procedure has been followed
by the respondents.

(22) In support of the aforesaid
submissions, learned counsel for the
petitioner has relied on a dictum of Hon'ble
Supreme Court rendered in the case of
Bank of Baroda and another v. G. Palani
and others [(2002) 5 SCC 612], wherein
the aforesaid aspect has been taken care of.
In the said case, it was categorically held
that the pension is not a bounty but a right
and cannot be arbitrarily dealt with and
accrued rights of pension cannot be taken
away with retrospective effect. In fact, no
government order, notification or circular
can substitute or amend statutory rules or
regulations framed under any authority of
law with retrospective effect to take away
accrued rights of pension.

(23) Next he has submitted that since
the amendment in the Rules cannot be
made with retrospective effect, it is beyond
comprehension as to how this amendment
was enacted despite the provision of the
Act being absolutely contrary to it.
According
to
him,
the
impugned
amendment is without jurisdiction and is
wholly unsustainable.

(24) It is next submitted that after
providing the pension to the petitioner for
such a long time, the vested right that had
accrued to him cannot be taken away
retrospectively, particularly in view of the
mandate of Section 89 (2) of the Act.

(25) Relying upon the citation of
State of Punjab v. Kailash Nath [(1989) 1
SCC 321],
learned
counsel
for
the
petitioner has submitted that pension falls
38 INDIAN LAW REPORTS ALLAHABAD SERIES
within the purview of the terms and
conditions of service.

(26) A rule which is in conflict with a
provision of the Statute is ultra vires as has
been held by the Apex Court in the case of
Laghu Udyog Bharti v. Union of India
[(1999) 6 SCC 418].

(27) In support of the submission that
an amendment of the rules which have the
effect of taking away the benefits already
availed by the employee under the existing
rules would divest an employee of an
accrued right and would violate Articles 14
and 21 of the Constitution of India, learned
Counsel for the petitioner has relied upon
the judgment of Apex Court in 'Punjab
State
Cooperative
Agriculture
Development Bank v. Registrar Cooperative Societies [(2022) 4 SCC 363].

(28) Thus, there is no justification for
fixing a retrospective date for providing
pension.
Therefore,
the
impugned
amendment in Rule 15 of Rules, 2008 is
illegal, invalid and arbitrary, therefore, it
deserves to be declared as such.

(29) On the other hand, precise
submission made by the learned counsel for
the opposite parties is that in view of the
abolition of pension scheme to the
personnel working in the government
offices on or after 01.04.2005 after
obtaining approval from the Council of
Ministers, Rule - 15 of Rules, 2008 was
amended on 25.10.2021. Accordingly, vide
order dated 11.11.2021, the Commission
paid the contributory amount to the
petitioner under National Pension Scheme.

(30) They have further submitted that
after due consideration at the Government
level, the Secretary of the Commission was
informed vide letter dated 21.06.2022 that
the system of National Pension Scheme has
been
implemented
in
the
State
by
notification
No.
3-379/10-2005-301(9)-
2003
dated
28.03.2003
read
with
notification No.0-16/ 2019/ Sa-3-322/ 102019-301(8)/
2015
dated
16.04.2019.
Lastly, their further submission is that all
the employees entering into the service in
the State on or after 01.04.2005 will
compulsorily be covered by the National
Pension Scheme and the amendment made
in the Rules, 2008 is not in violation of any
Rule.

(31)
 We
have
considered
the
submissions made by the learned Counsel
for the respective parties and perused the
material available on the aforesaid writ
petitions.

(32) The question involved in the
aforesaid three writ petition is, as to
whether the amendment made to Rule 15
of Rules, 2008 in the year 2021 is
applicable to the petitioners or not?

(33) Before giving answer to the
aforesaid question, it is necessary to look
into the necessary provisions of the Act and
Rules.

(34)

Legislation
cannot
be
implemented retrospectively to affect preexisting rights unless expressly stated
otherwise or by necessary implication.
Whether a law is applied in the future or in
the past depends entirely on the legislative
intent. If the terms of the statute are
unambiguous and it is obvious that the
legislature
intended
for
it
to
apply
retrospectively, then it must without a
doubt be interpreted as written. However, if
the terms of a statute do not by themselves
make the intention clear or certain, the
1 All. Indu Bhushan Pandey Vs. State of U.P. & Ors.
39
statute will be presumed to operate
prospectively, where it is in derogation of a
common law right or where it would
interfere with an existing contract, destroy
a vested right, create a new liability in
connection with a past transaction, or
invalidate a defense that was valid at the
time the statute was passed.

(35) While considering the question
of the statute's retrospective application, the
nature of the affected right must be
considered first. In cases where a vested
right exists, an amendment will be viewed
as prospective in order to protect the vested
right. Normally, there is no vested right if
the right is only procedural.

(36) In Arjan Singh and another v.
The State of Punjab and others [1970
AIR 703], it has been observed that it is a
well-established rule of construction that
no provision in a statute should be given
retrospective effect unless the Legislature
has made it retrospective by express
terms or by necessary implication, and
that where a provision has been made
retrospective, care should be taken not to
extend its retrospective effect beyond
what was intended.

(37) All the petitioners were
appointed in light of Rules, 2008 and as
per Section 89 of the Act, the Chairman
or Members shall hold office for a term
of five years from the date he/she enters
upon his/her office or till he/she attains
the age of sixty years whichever is
earlier. Further, as per Rule 15 of Rules,
2008, the Chairman and the Members of
the Commission shall be entitled for
pension on putting two years of service.
Method of drawing pension has also been
provided in the proviso to Rule 15 (ii) of
the Rules, 2008.

(38) Admittedly, Indu Bhushan
Pandey/petitioner of Writ-A No. 5813 of
2022 had assumed the post of Member on
28.09.2013,
whereas
Suresh
Kumar
Agarwal/petitioner of Writ-A No.6487 of
2022 had taken charge on the post of
Member of the Commission on 09.12.2015
and both these petitioners retired on
attaining the age of 65 years and were
drawing pension before amendment of Rule
15 of the Rules, 2008. In Writ-A No. 6486
of 2022, the petitioner/Kaushal Kishore
Sharma took oath as Member of the
Commission
on
02.04.2018
and
superannuated on 05.10.2022.

(39) In view of above, all the
petitioners on attaining the age of six five
years retired from the post of Member of
the Commission and as per Rules, they
were granted pension and the same has
been paid to them till amendment in Rule
15 of the Rules, 2008 has been carried out
in the year 2021. In the meantime, pension
of the petitioner of Writ-A No. 5813 of
2022 has also been revised in consonance
with the provisions of High Court and
Supreme Court Judges (Salaries and
Conditions of Service) Amendment Act,
2016 and consequently, arrears on the
pension was also released on 16.01.2019.

(40) Drawing attention of the Court to
the proviso appended to sub-section (2) of
Section 89 of the Act, learned counsel for
the
petitioner
has
argued
that
salary/allowances and other terms and
conditions of service of Members of the
Commission shall not be varied to their
disadvantage after appointment.

(41) It has been stated by the learned
Counsel for the petitioners that the
petitioners were appointed prior to 2020
and at that time unamended Rule 15 of
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2008 were in vogue. However, by
means of bringing the First Amendment by
a Notification dated 25.10.2021, Rule 15
has been amended to the detriment and
disadvantage of the petitioners, which is
impermissible in view of the provisions
contained in the proviso appended to subsection (2) of Section 89. Since First
Amendment Rules, 2021 have been applied
retrospectively, hence the same is ultra
vires to the provisions contained in the
proviso appended to Section 89 (2) of the
Act.

(42) Even when the State Government
directed the Commission to take action on
three points, the Commission clarified that
as per proviso to Section 89 (2) of the Act,
the salary, allowances and other terms and
conditions of service of the Chairman and
Members, shall not be varied to their
disadvantage after appointment. Further, it
has been clarified that significantly, Rules,
2008 were enacted on 01.01.2009, i.e., after
enforcement of the National Pension
Scheme
(NPS)
on
01.04.2005
and
moreover, amendment made in Rule 15 of
Rules 2008 cannot be given retrospective
effect in view of the proviso to Section 89
(2) of the Act.

(43) Rule 2 of Rules, 2021, existing
Rule of 15 of the Rules, 2008 has been
substituted which postulates that the
Chairman and Members of the Commission
appointed on and after 01.04.2005 shall be
covered
under
the
National
Pension
Scheme (NPS). Therefore, the aforesaid
amendment to Rule 15 made vide Rules,
2021 has retrospectively taken away the
entitlement of the former/retired Members
and Chairman of the Commission to draw
pension in most arbitrary and illegal
manner.
Further,
the
retrospective
application of the amended Rule 15 clearly
varies the terms and conditions of service
of the Members to their disadvantage after
their appointment which is in clear
violation and contradiction to the specific
mandate of Section 89 (2) of the Act. Thus,
the amendment to Rule 15 made vide
Rules, 2021 is ultra vires to Section 89 (2)
of the Act as it evidently varies the terms
and conditions of service of the Members
to their disadvantage after appointment.

(44) The denial of payment of pension
to the petitioner as per the un-amended
Rules, 2008 and application of National
Pension Scheme to the petitioners on
account of the retrospective application of
Rule 15 of the Rules, 2008 as amended
vide Rules, 2021 is absolutely arbitrary and
also in violation of Articles 14 and 16 of
the Constitution of India as well as in
violation of Section 89 (2) of the Act.

(45) As per Rules, 2008, on the date
of
appointment
of
petitioners
as
Chairman/Member of the Commission,
they were entitled for payment of
pension.

(46) In the case of State of Punjab
and others v. Rafiq Masih (White
Washer) and others [(2015) 4 SCC 334],
the Apex Court has held that while it is
not possible to postulate all situations of
hardship
where
payments
have
mistakenly been made by an employer, in
the following situations, a recovery by
the employer would be impermissible in
law:

"(i) Recovery from employees
belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D'
service).

(ii) Recovery from retired
employees, or employees who are due to
1 All. Vikram Singh Tomar Vs. State of U.P. & Ors.
41
retire within one year, of the order of
recovery.

(iii) Recovery from employees,
when the excess payment has been made
for a period in excess of five years, before
the order of recovery is issued.

(iv) Recovery in cases where an
employee has wrongfully been required to
discharge duties of a higher post, and has
been paid accordingly, even though he
should have rightfully been required to
work against an inferior post.

(v) In any other case, where the
Court arrives at the conclusion, that
recovery if made from the employee, would
be iniquitous or harsh or arbitrary to such
an extent, as would far outweigh the
equitable balance of the employer's right to
recover."

(47) In the case of Punjab State Cooperative Agriculture Development Bank
(supra), the Apex Court has held that the
exposition of the legal principles culled out is
that an amendment having retrospective
operation which has the effect of taking
away the benefit already available to the
employee under the existing rule indeed
would divest the employee from his vested
rights and that being so it would be held to
be violative of the rights guaranteed under
Article s 14 and 16 of the constitution.

(48) In view of what has been stated
above, all the three writ petitions are allowed
with the following directions:-

• Ignoring the First Amendment
made in 2021, only the petitioners of
aforesaid three petitions are entitled for
pension from the date of their retirement of
65 years.

• For the above purpose, the
impugned order dated 11.11.2021 passed in
Writ-A No. 6486 of 2022 and the impugned
order dated 04.04.2022 passed in Writ-A No.
6487 of 2022 are quashed.

• Since the pension has been
stopped to the petitioners, the respondents are
directed to pay pension as also other
allowances, as was drawing before the
amendment in Rule 15 of Rules, 2021. In this
regard, the order of cancellation of pension
issued by the respondents is quashed.

• Recovery, if any, issued in the
case of the petitioners has also been quashed
and the respondents are directed to pay the
recovered amount within a period of two
months from the date of receipt of a certified
copy of this order.

• It is made clear that in the
peculiar facts and circumstances of the case,
this order is applicable to the petitioners of
the aforesaid three petitions and shall not be
treated as a precedent.

(49) No order as to costs.
----------
(2024) 1 ILRA 41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ A No. 9035 of 2023

Vikram Singh Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Himanshu Singh, Sri
Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Promotion
-
U.P.Subordinate Education Clerical Cadre