JUDGMENT AND ORDER : Michael Zothankhuma, J. 1. Heard Mrs. Dinari T. Azyu, counsel for the petitioner. Also heard Mr. A.K. Rokhum, Addl. Advocate General. 2. The petitioner, who was the Chief Election Commissioner of the Mizoram State Election Commission has filed this present case challenging the vires of Rule 10(1) of the Mizoram State Election Commission (Conditions of Service) Rules, 2011 (herein after referred to as the 2011 Rules) on the ground that the service rendered by him as State Election Commissioner has not been counted as qualifying service for the purpose of calculating his pension after he left the office of the State Election Commissioner. 3. The petitioner had filed WP(C) No. 38/2014 earlier, which was disposed of vide Order dated 20.11.2015 by this Court with a direction to the State respondents to examine the representation submitted by the petitioner on 19.09.2013. Thereafter, in compliance with the Order dated 20.11.2015 passed in WP(C) No. 38/2014, the letter dated 24.02.2016 was issued by the Under Secretary to the Government of Mizoram, Finance Department (APF) which states as follows:- "Subject: Pension payable to Pu C. Ropianga, IAS (rtd) for his services as the State Election Commissioner of Mizoram. In inviting a reference to the subject above, I am directed to inform you that the Council of Ministers had approved payment of Special Additional pension of Rs. 8,000/- per annum for each completed year of service plus Dearness Relief to Pu C. Ropianga, IAS (rtd) for his services as the State election Commissioner. In this regard, Pu C. Ropianga, IAS (rtd) had completed 5 years of services as the State Election Commissioner, and the monthly Special Additional Pension is calculated at Rs. 3,333/- per month plus Dearness Relief. You are requested to issue necessary orders and make arrangement for payment of the Special Additional Pension in this regard at the earliest as the State was given notice of 3 weeks from 8.2.2016 for contempt of court order." 4. The petitioner's counsel submits that the letter dated 24.02.2016 issued by the Under Secretary to the Government of Mizoram, Finance Department (APF) does not make any reference to the grievances of the petitioner with regard to his service period in the Mizoram State Election Commission being counted as qualifying service for calculating his pension. 5. The petitioner's counsel submits that the letter dated 24.02.2016 issued by the Under Secretary to the Government of Mizoram, Finance Department (APF) does not make any reference to the grievances of the petitioner with regard to his service period in the Mizoram State Election Commission being counted as qualifying service for calculating his pension. 5. The petitioner's counsel submits that the petitioner was appointed as State Election Commissioner on 02.09.2008 and demitted his office on 14.10.2013. The petitioner's counsel submits that as per the proviso to Rule 5 of the Mizoram (Condition of State Election Commission) Rules, 2008 (herein after referred to as the 2008 Rules), the conditions of service of the Chairman of the Mizoram Public Service Commission (MPSC) was made applicable to the State Election Commissioner. The appointment order of the petitioner, vide Notification dated 02.09.2008, also states that the other conditions of service which are applicable to the Chairman of the Mizoram Public Service Commission will also be applicable to the State Election Commissioner. 6. The petitioner's counsel however submits that vide the newly promulgated 2011 Rules, the service conditions that had been made applicable to the State Election Commissioner as were applicable to the Chairman of the Mizoram Public Service Commission still remains intact in the proviso to Rule 5 of the 2011 Rules. However, Rule 10(1) of the 2011 Rules states that the service of the State Election Commissioner shall not count as qualifying service for the purpose of re-calculating the pension of the State Election Commissioner. 7. The petitioner's counsel also submits that the proviso to Article 243(k) read with proviso to Rule 5 of the 2011 Rules does not allow for changing the conditions of service of the State Election Commissioner to his disadvantage after his appointment. The petitioner's counsel thus submits that Rule 10(1) is not in consonance with Article 14 of the Constitution and the same has to be set aside, as it is ultra vires. 8. The petitioner's counsel also submits that leave encashment of Rs. 6,48,000/- had been given to the petitioner. However, the said amount had been returned to the State Government, as the leave encashment paid to the petitioner was made on a wrong calculation of his service period. The petitioner's service period was from 16.09.2008 to 14.10.2013, while the leave encashment paid to the petitioner, counted his service period w.e.f 16.09.2008 to 30.09.2013. However, the said amount had been returned to the State Government, as the leave encashment paid to the petitioner was made on a wrong calculation of his service period. The petitioner's service period was from 16.09.2008 to 14.10.2013, while the leave encashment paid to the petitioner, counted his service period w.e.f 16.09.2008 to 30.09.2013. The petitioner's counsel submits that the correct calculation of the petitioner's leave encashment has not been done till date by the State respondents and accordingly, a direction could be given to the respondents so that the correct leave encashment amount could be paid to the petitioner. 9. Mr. A.K. Rokhum, learned Addl. Advocate General, on the other hand, submits that Article 243 (K) of the Constitution is subject to the proviso of any law made by the Legislature of the State. As such, Article 243 (K) cannot over-ride the laws laid down by the Legislature of the State. 10. The Addl. Advocate General also submits that as per Rule 10(2) of the 2011 Rules, the State Election Commissioner is eligible for pension for his period of service in the Commission, in addition to pension received by him in respect of any previous service under the Government of India or the State Government. He submits that in this respect, the monthly special additional pension payable to the petitioner had been calculated at Rs. 3,333/- per month plus Dearness Allowances and the petitioner has been receiving the same in addition to his normal pension. 11. The Addl. Advocate General also submits that the conditions of service of the State Election Commissioner has not been varied to his disadvantage, after his appointment, as his conditions of service was notified for the first time in the Mizoram Gazetted vide the 2011 Rules. He submits that there was no condition of service of the State Election Commissioner before the 2011 Rules and as such, the petitioner cannot claim the said benefit as given to the Chairman of the MPSC, with regard to the MPSC Chairman being allowed to count his service in the MPSC as qualifying service for the purpose of pension. 12. The sum and substance of the Addl. 12. The sum and substance of the Addl. Advocate General's submission is that the State has accordingly decided the quantum of additional pension payable to the petitioner as per the Rule 10 (2) of the 2011 Rules and there is no question of counting the petitioner's service as State Election Commissioner for the purpose of pension, as Rule 10(1) of the 2011 Rules regarding the petitioner's service condition was made for the first time. 13. We have heard the learned counsels for the parties. 14. Rule 5 of the 2008 Rules is as follows:- "5. Remuneration/allowances of The State Election Commissioner:- The State Election Commissioner will be entitled to such salary and allowances as may be fixed by the State Government; Provided that if the State Election Commissioner, at the time of his appointment as such, is in the receipt of any pension other than a disability or wound pension in connection with any previous service under the Central Government or any State Government, his salary to be drawn in the capacity of the State Election Commissioner shall be reduced by the amount of that pension including any portion of the pension which was commuted, and other forms of retirement benefits excluding the retirement gratuity. Provided further that the conditions of service relating to travelling allowances, rent free accommodation and conveyance facilities and other conditions of services as are, for the time being, applicable to Chairman, Mizoram Public Service Commission shall be applicable to the State Election Commissioner." 15. Rule 5 of the 2011 Rules is as follows:- "5. The State Election Commissioner shall hold office for a term of five years from the date on which he enters upon his office or until he attains the age of 65 years, whichever is earlier: Provided that the State Election Commissioner shall not be removed from his office except in the manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. Provided further that where no appointment is made on the expiry of the State Election Commissioner, the incumbent would continue in office for a period of upto six months thereafter or till the new incumbent is appointed whichever is earlier." 16. Rule 10(1) & (2) of the 2011 Rules state as follows:- "Pension 10. (1). Provided further that where no appointment is made on the expiry of the State Election Commissioner, the incumbent would continue in office for a period of upto six months thereafter or till the new incumbent is appointed whichever is earlier." 16. Rule 10(1) & (2) of the 2011 Rules state as follows:- "Pension 10. (1). The State Election Commissioner, who, at the date of his appointment, was in the service of the Government of India or of a State, a local body, or any other body wholly or substantially owned or controlled by the Government his services as State Election Commissioner shall not count as qualifying services for the purpose of re-calculating his pension at the expiry of his office as State Election Commissioner." (2). The State Election Commissioner, who at the date of his appointment was in receipt of Pension from the Government of India or a State Government, a local body, or any other body wholly or substantially owned or controlled by the Government shall draw pay prescribed in Part-II of these Rules and on the expiry of his tenure in the Commission, shall be eligible for pension for the service in the Commission in addition to pension received by him in respect of any previous service under the Government of India or a State Government as may be determined by the State Government from time to time. Provided that no such pension shall be payable during any period for which such State Election Commissioner may, after his retirement as such, hold public office, save as provided under sub-rule (4) of rule 3 of these Rules. Provided further that no such pension shall be payable if the State Election Commissioner is removed from his office before completion of his tenure in like manner and on the like grounds as a Judge of the High Court as provided under Article 243K of the Constitution of India." 17. The notification dated 04.09.2008 appointing the petitioner as Commissioner of the State Election Commissioner states as follows:- "No.B. 13017/1/2008-P & AR (GSW), the 2nd September, 2008. In the interest of public service and in exercise of the powers conferred under Article 243-K of the Constitution of India read with sub-section 1 of section 345 of the Mizoram Municipalities Act, 2007 the Governor of Mizoram is pleased to appoint Pu C. Ropianga, IAS, Commissioner & Secretary to the Govt. In the interest of public service and in exercise of the powers conferred under Article 243-K of the Constitution of India read with sub-section 1 of section 345 of the Mizoram Municipalities Act, 2007 the Governor of Mizoram is pleased to appoint Pu C. Ropianga, IAS, Commissioner & Secretary to the Govt. of Mizoram as State Election Commissioner in the pay scale of Rs. 24,500/- p.m (Fixed) and other allowances at such rates as admissible from time to time with immediate effect. The terms and conditions of service of the Commissioner will be governed by the Mizoram Constitution of State Election Commission Rules, 2008. The Commissioner shall hold office for a term of 3 years from the date of which he enters upon his office or till he attains the age of 65 years, whichever is earlier. Leave benefits, Travelling Allowances and Daily Allowances, Leave Travel Concession, Rent free accommodation and conveyance facilities, medical benefits and other conditions of service as are, for the time being applicable to Chairman, Mizoram Public Service Commission will also be applicable to the State Election Commission. In terms of Rule 4 of the Mizoram Constitution of State Election Commission Rules, 2008, Pu C. Ropianga, IAS on his appointment as State Election Commissioner, shall be deemed to have retired from Commissioner & Secretary to the Government of Mizoram with effect from the date on which he assumes the office of the State Election Commissioner." 18. The Amended Regulation 9(A) of the Mizoram Public Service Commission (Conditions of Service) (Sixth Amendment) Regulations, 2006 (hereinafter referred to as the 2006 MPSC Regulations), states as follows:- "The Chairman or the Member of the Mizoram Public Service Commission who, at the date of his appointment as such, was in the service of the Government of Mizoram or of any State Government as an all India Service Officers or State Service Officers may be permitted to elect to draw his pension and other retirement benefits admissible to him under the All India Service (Death-Cum-Retirement Benefits) Rules, 1958 or CCS (Pension) Rules, 1972 or elect to count his service in the Commission as Qualifying Service for the purpose of Pension under all India Service (Death-Cum-Retirement Benefits) Rules, 1958 or CCS (Pension) Rules, 1972, as the case may be. Provided that if the Chairman or Member has opted to count his service in the Commission as Qualifying Service for the purpose of pension under CCS (Pension) Rules, 1972 his pension will be calculated based on the last pay drawn by him as the Chairman or Member of the Commission as the case may be." 19. The facts of the case is that the petitioner was in the All India Service posted with the State Government on 02.09.2008, when he was appointed as Chairman of the Mizoram State Election Commission. The petitioner took voluntary retirement from the IAS on 16.09.2008 to enable him to join the State Election Commission. The above fact clearly goes to show that the petitioner was in the service of the State Government as an All India Service Officer. In view of the fact that the amended regulation 9(A) of the 2006 MPSC Regulations provides for the Chairman of the MPSC to opt for counting his service in the MPSC as qualifying service for the purpose of pension, the petitioner should have also been given the same benefit and option in view of the proviso to Rule 5 of the 2008 Rules and the first proviso to Rule 5 of the 2011 Rules. 20. The petitioner having been appointed as Chairman, Commissioner of the State Election Commission during the time the 2008 Rules and the 2006 MPSC Regulations were in force, the petitioner had a vested right to be given the same conditions of service that were applicable to the Chairman of the MPSC. Further, the first proviso to Rule 5 of the 2011 Rules states that the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. In that view of the matter, the provisions of Rule 10(1) cannot be applied in the case of the petitioner, as his vested right cannot be taken away. Further, there is no retrospective operation/application given to Rule 10(1) of the 2011 Rules. Though the State Government has the power to make Rules for the first time or amend the Rules in force, it cannot take away to the employees disadvantage, the vested right already given to the existing incumbent, which was provided for by the old Rules. Further, there is no retrospective operation/application given to Rule 10(1) of the 2011 Rules. Though the State Government has the power to make Rules for the first time or amend the Rules in force, it cannot take away to the employees disadvantage, the vested right already given to the existing incumbent, which was provided for by the old Rules. In the case of Union of India v. Tushar Ranjan Mohanty reported in 1994 (5) SCC 450 , the Apex Court has held that vested right cannot be taken away by amending Rules with retrospective effect. In this case, there has been no amendment of the Rules but the promulgation of a new Rule made under Clause-II of Article 243(K) and Article 243 ZA of the Constitution of India read with Section 345(1) of the Mizoram Municipal Act, 2007. Further, the 2011 Rules has not been given retrospective effect. Pension being a condition of service, the rights that have accrued to the petitioner as per the earlier Rules cannot be taken away by the 2011 Rules. Further Article 243 K(2) of the Constitution states as follows:- Article 243 K(2) "Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment." 21. The petitioners submission that Rule 10(1) of the 2011 Rules is ultra vires the Constitution is only on the ground that the same has taken away the vested/accrued rights of the petitioner. This, to our understanding does not make Rule 10(1) of the 2011 Rules ultra vires. There is nothing to show that the respondents do not have the competence to enact the Rule or that it is in violation of the Constitution. Though we find that Rule 10(1) of the 2011 Rules is not ultra vires the Constitution, due to the reasons stated above, the said Rule cannot be made applicable to the petitioner's case as certain rights have accrued to the petitioner as per the 2008 Rules and the 2006 MPSC Regulations. Though we find that Rule 10(1) of the 2011 Rules is not ultra vires the Constitution, due to the reasons stated above, the said Rule cannot be made applicable to the petitioner's case as certain rights have accrued to the petitioner as per the 2008 Rules and the 2006 MPSC Regulations. In that view of the mater, we hold that Rule 10(1) of the 2011 Rules cannot be made applicable to the petitioner. The petitioner would have to be given the same benefits/conditions of service, as was provided to the Chairman of the MPSC and as was applicable at the time of the petitioners' appointment. This Court therefore directs the State respondents to give to the petitioner the same benefits as provided for in the amended regulation 9(A) of the 2006 MPSC Regulations and apply the same as per the option to be given by the petitioner (if not already given), within a period of three months from the date of receipt of a certified copy of this order. 22. The writ petition is accordingly disposed of.