TMI Blog1994 (1) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... f the following: (i) the full amount of gratuity due to him was not released; (ii) while computing the cash equivalent of leave due to him at the date of his retirement, the cash equivalent of the various allowances drawn by him just before his retirement had not been included; (iii) he was not paid the amount payable to him under Section 22B of the High Court Judges (Conditions of Service) Act, 1954; and (iv) his claim for reimbursement of medical charges had not been cleared. The High Court notices that during the pendency of the Writ Petition in the High Court, the authorities had substantially satisfied his grievances at (i) and (iv) except for some marginal matters which the High Court has dealt with towards the end of its judgment. The grievances stated at (ii) and (iii) above were, however, contested by the authorities as inadmissible. The precise case put forth by the original petitioner in regard to his grievance set out at (ii) and (iii) above was that in computing the cash equivalent of leave due to him at the date of his retirement the authorities were bound to include the (i) sumptuary allowance of ₹ 500 per month (ii) compensatory allowance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in respect of the earned leave that was refused to him in public interest and was carried forward to the period of extension plus earned leave due to him during the period of extension reduced by the amount of earned leave availed of during such period, subject to a maximum of 180 days. 20B(2). The cash equivalent of leave salary payable to a member of the Service under Sub-rule (1) above shall also include dearness allowance admissible to him on the leave salary at the rates in force on the date of retirement, and it shall be paid in one lump sum, as a one-time settlement. 20B(3). The city compensatory allowance and the house rent allowance shall not be included in calculating the cash equivalent of leave salary under this rule. 20B(4). *** *** *** 20B(5). *** *** *** Rule 2 of the 1956 Rules next provides as follows: 2. Conditions of service in certain cases - The Conditions of service of a Judge of a High Court for which no express provision has been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 500 per month, (ii) compensatory allowance of ₹ 900 per month admissible under Article 222(2), and (iii) conveyance charges at the rate of ₹ 3500 per month were includible in computing the cash equivalent of leave due to the original petitioner at the date of his retirement. The High Court also accepted the claim of the original petitioner for the failure of the State of Bihar in providing a staff car to him as admissible under Section 22B of the 1954 Act at the same rate of ₹ 3500 per month. The marginal claims under (i) and (iv) were finalised by the High Court by ordering grant of interest at 12% per annum on the balance gratuity amount of ₹ 51,000 which was paid in July 1988 i.e. approximately one year after his retirement. So also the High Court allowed him interest on the difference payable to him on his claims under (ii) and (iii) having been partly allowed. So far as his claim under (iv) is concerned, the State of Punjab, which discharged the liability in respect of medical reimbursement of the original petitioner as a special case, contended that since the latter had settled in Panchkula outside the State of Punjab, though in the vicinity of Chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The contention of the original petitioner, there fore, is that the Court should clarify this position so that the benefit of this Court's pronouncement may be available to all the judges of the High Court. We will bear this in mind while passing the final orders. 4. The salary and allowances payable to a High Court Judge are ascertained by Article 221 of the Constitution which is in two parts. Clause (1) thereof posits that judges of each High Court shall be paid such salaries as may be determined by Parliament by law and, until so determined, such salaries as are specified in the Second Schedule. Clause (2) which is relevant for our purpose reads as under : 221(2). Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule. Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment. Part D of the Second Schedule makes provision as to the salarie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid pension which shall not exceed ₹ 54,000 per annum in the case of a Chief Justice and ₹ 48,000 in the case of a Judge of the High Court. Section 17 deals with extraordinary pension; Section 17A with pension, Section 19 with commutation of pension, Section 20 with provident fund, Section 20A with deposit-linked insurance scheme and Section 21 prescribes the authority competent to grant pension. Chapter IV deals with miscellaneous matters which include Sections 22A, 22B and 22C extracted earlier. Section 23 provides for medical treatment facilities and Section 24 empowers the Central Government to make rules inter alia relating to leave of absence of a Judge, pension, use of official residence, medical facilities, etc. In pursuance of the said power the Central Government made the 1956 Rules by which certain additional benefits, e.g. free (furnished) official residential accommodation, free water and electricity benefits, etc. were conferred. Rule 2 which we have extracted earlier, provides that the condition of service of a judge of the High Court, where not expressly provided for in the 1954 Act, must be determined by the rules governing a member of the I.A.S. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, the 1954 Act, the 1955 and 1956 Rules and reading Rule 20B of the 1955 Rules with Rule 2 of the 1956 Rules, concluded in paragraph 7 as under: It is not disputed that Rule 20B applies to a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi. The rule entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maximum of 180 days, inclusive of dearness allowance. It is apparent that by virtue of Rule 2 of the High Court Judges Rules, 1956 this benefit must be read as a condition of service enjoyed by a Judge of the High Court. It may be observed that although Rule 20B of the All India Services (Leave) Rules, 1955 is a provision of a scheme applicable to members of the All India Services, there is nothing in its nature and content which makes it inapplicable mutatis mutandis to the statutory scheme pertaining to leave enacted in the High Court Judges (Conditions of Service) Act, 1954. There is also nothing in the constitutional position of a Judge of a High Court which precludes Rule 20B from inclusion in that sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1956 Rules. This was on the premise that even though the expression 'earned leave' employed in Rule 20B was not used by the 1954 Act and the 1956 Rules, the principle on which that concept was rooted could be discovered as embedded in the concept of 'actual service' in Section 2(1)(c) read with Section 4 of the 1954 Act. It was, therefore, held that the concept on which Rule 20B was founded was familiar to the 1954 Act. On this line of reasoning the benefit recognised by Rule 20B of the 1955 Rules was extended to High Court Judges. 6. Under the judgment impugned in these appeals, the High Court, placing emphasis on the proviso to Article 221(2) of the Constitution, held that since the original petitioner had served as a Judge/Chief Justice of the High Court of Punjab Haryana for over 15 years before his transfer as Chief Justice of the High Court of Patna, he had earned the right to full pension and other ancillary benefits which could not be denied to him merely on account of his fortuitous transfer to Patna. Therefore, notwithstanding the fact of his transfer and subsequent retirement from Patna, he was, by virtue of the proviso to Article 221(2), entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand the Union of India contends that in view of this Court's decision in Gurnam Singh's case, the High Court ought not to have held the other allowances as includible in calculating the cash value of leave salary. 7. It is clear, on a plain reading of Section 4 read with the definition of 'actual service' in Section 2(c) of the 1954 Act, that the leave to be credited in the leave account of a Judge has relation to the 'actual service' put in by him and, therefore, the concept of 'earned leave' is very much embedded therein. This was made clear in no uncertain terms by this Court in Gurnam Singh's case. Although the original petitioner retired as Chief Justice of the High Court of Patna, both sides seem to have proceeded on the basis that Rule 20B of the 1955 Rules applicable to a Joint Secretary to the Government of India was attracted to the original petitioner's case and no dispute was raised in that behalf before us. This is presumably because the rule applicable to a Secretary to the Government of Bihar is not beneficial. We must, therefore, proceed on the basis that the said rule is beneficial to the original petitioner. Now Rule 20B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Accordingly, urged counsel, the rule for grant of cash equivalent came to be introduced. We would proceed to examine the claim of the original petitioner assuming this to be the historical background for the introduction of the rule for grant of cash equivalent of leave salary. But as pointed out earlier there is no express provision in this behalf in the 1954 Act. Section 3(1) indicates the kinds of leave admissible to a Judge and Section 4 provides for keeping of a leave account for each Judge. Section 9 sets out the monthly rate of leave allowances payable to a Chief Justice or a Judge at a certain percentage of his salary. Counsel submits that the underlying concept and purpose of the rule providing for grant of cash equivalent being that the retiring official gets the exact financial equivalent of salary and allowances, the expression 'salary' must be understood in the wider sense of salary and allowances. Since High Court Judges are entitled to a variety of allowances, e.g., rent free furnished official residence, sumptuary allowance, allowance under Article 222(2) of the Constitution, staff car and 150 litres of petrol, etc., these allowances ought to be held incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of expensiveness which was not covered by the uniformly applicable dearness allowance formula. Once a government servant retires he is not obliged to reside in that station and, therefore, there can be no question of including the benefit of this allowance in calculating the cash equivalent of earned leave. The rule, therefore, specifically provides that the said allowance shall be excluded in calculating the cash equivalent of earned leave. On the same principle it must be excluded in calculating the cash equivalent admissible to a retired Judge. The High Court was, therefore, entirely right in excluding the same. 10. We have already pointed out that the 1954 Act does not carry any provision for the grant of cash equivalent for unutilised accumulated earned leave and hence the claim in that behalf must be rested on Rule 20B of the 1955 Rules read with Rule 2 of the 1956 Rules. That is why earlier the claim was not entertained till the position was clarified by this Court in Gurnam Singh's case. It will be apparent from the observations made in that case, which we have extracted in extenso in the earlier part of this judgment, that the provision of Rule 20B was made applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e burden that he is required to bear is heavier than what was assumed when the pay structure was constructed, he has to be compensated for the extra burden falling on him by grant of HRA. This, briefly put, is the logic on which the system of grant of HRA appears to have been introduced. Under the 1955 Rules, therefore, HRA is not includible for computing cash equivalent of leave salary. Sub- rule (6) of Rule 20B which provides the formula for working out the cash equivalent leaves no room for doubt that only pay plus DA has to be taken into account and no other allowance. To leave nothing to doubt it is specifically provided that city compensatory allowance and HRA shall not be included. This much is clear on a plain reading of Rule 20B as also 20C of the 1955 Rules. 13. It may at this stage be mentioned that even under the 1954 Act, Section 9, the monthly rate of leave allowances payable to a Judge is a given percentage of the monthly rate of his salary and does not speak of inclusion of allowances. Article 221 clearly draws a distinction between salary and allowances and when Section 9 speaks of salary the intention seems to omit allowances. But in the case of High Court Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the Judge is allowed this facility is no indication that the intention was to extend the benefit of all allowances converted into cash. The facility of use of residence for one month after retirement is merely to facilitate vacating of official residence and setting up of a home elsewhere. We, therefore, see no substance in this contention. 15. Sumptuary allowance is allowed to meet the expenditure required to be met for entertaining official visitors, etc., and there can be no question of incurring such expenditure after retirement. Similarly allowance is granted under Article 222(2) of the Constitution on account of the extra expenditure a transferred Chief Justice or Judge has to incur on transfer. There would be no question of getting these benefits directly or indirectly after retirement. And where it was intended to extend the benefit to post-retirement period also it was specifically provided for as in the case of residential accommodation. So also the provision for grant of conveyance facility, staff car and petrol, cannot be extended for the period post-retirement as the said facility is provided to a Judge while in office. Where the legislative intention wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng vacation a Judge proceeds to his home town where he cannot take his staff car because of long distance. Is he to be denied his petrol entitlement merely because he has not brought his staff car along with him? If two views are reasonably possible we would lean in favour of the view which would be favourable to the subject i.e. the Judge concerned. We are, therefore, in agreement with the view of the High Court that the failure on the part of the government to provide the original petitioner with a staff car as mandated by Section 22B of the 1954 Act was clearly an act in breach of the express provision of the service condition enshrined in the statute for which the original petitioner was entitled to be compensated. The measure of compensation has been determined on the basis of what the neighbouring State paid to its Judges who were not provided with a car and we see no reason to doubt the correctness of the High Court's approach in this behalf. We uphold this part if the impugned order. 17. Before parting we must clarify that we should not be understood to be approving the action of the State of Bihar as well as the State of West Bengal in not providing staff cars to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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