ition No 8991 of 1983
Under Article 32 of the Constitution of India Petitioner in person alongwith Mukul mudgal K Parasran Attorney General K G Bhagat Addl
Solicitor General RN Poddar for the Respondent
The Judgment of the Court was delivered by RANGANATH MISRA J
Shri Shiv Dayal Shrivastava the petitioner before us in this application under Article 32 of the Constitution praying for a writ of mandamus to the Union of India retired as Chief Justice of the Madhya Pradesh High Court with effect from February 28 1978
At the time of retirement he was drawing salary of Rs 4000 per month as provided under Constitution
This Court in the case of Union of India vs Gurnam Singh1 decided that under the  Act  for short Judges were entitled to cash equivalent of leave salary in respect of the period of earned leave at their credit on the date of retirement as provided in Rule 20B of the All India Services Leave Rules 1955  Leave Rules  for short
The Accountant General of Madhya Pradesh authorised the petitioner to draw cash equivalent of leave salary amount as to Rs 15240 by his communication dated July 17 1982
The petitioner informed the Accountant General that he was drawing the amount as indicated in the communication without prejudice to his right to claim Rs 24000 to which sum under the law he was entitled
On July 19 1982 the petitioner was authorised to draw a further sum of Rs 750 thus in all Rs 15990 only
On February 2 1983 the Union of India in the Ministry of Law Justice  Company Affairs indicated to the several authorities including the Registrars of all the High Courts that while in view of the decision of this Court referred to above the Central Government were advised that Judges of the High Courts were entitled to payment of cash equivalent of leave salary in respect of the period of earned leave at their credit the expression earned leave  does not occur in the Act
On the analogy of the Leave Rules the cash equivalent of leave salary to be paid would be the cash equivalent of the unutilised leave due on 855 full allowances as defined in sections 3 and 9 1 of the Act
In making calculations of the cash equivalent of the leave salary the ceiling of five months mentioned in section 5 3 of the Act would be applicable
Relying on the aforesaid letter of the Central Government the Accountant General of Madhya Pradesh on March 25 1983 intimated the petitioner that he was entitled to payment of cash equivalent of unutilised earned leave subject to the ceiling of five months leave and therefore he had been paid an excess sum of Rs 2220 which should be refunded
That has led the petitioner to move this Court
Rule nisi was issued to the Union of India and this Court directed separate notice to the Attorney General
A return has been made to the rule by the Union of India
No dispute has been raised to payability of the cash equivalent on the basis of Rule 20B of the Leave Rules Reliance has been placed on the provisions of the Act to justify the circular letter of February 18 1983
Learned Attorney General has been heard and he has furnished written submissions also
The decision of this Court in Gurnam Singh s case has been accepted by the Union of India and steps have been taken to implement the same
In that case this Court held   it must be regarded as a provision absorbed by rule 2 of the High Court Judges Rules 1956 into the statutory structure defining the conditions of service of a Judge of a High Court
We may observe that even as a right to receive pension although accruing on retirement is a condition of service so also the right to the payment of the cash equivalent of leave salary for the period of unutilised leave accruing on the date of retirement must be considered as a condition of service
Two questions require decision viz 1 whether in view of the provisions of section 5 3 of the Act the limit has to be confined to five months equal to 150 days and not 180 days as in Rule 20B and 2 whether for calculating the equivalent of leave salary admissible to a Judge the provisions of section 9 1 of the Act would apply  We may now refer to rule 20B of the Leave Rules as also to the two provisions of the Act 856 20B Payment of cash equivalent of leave salary The Government shall suo motu sanction to a member of the service who retires from the service under sub rule 1 of rule 16 of the All India Services Death cum Retirement Benefits Rules 1958 having attained the age of 58 years on or after the 30th September 1977 the cash equivalent of leave salary in respect of the period of earned leave at his credit on the date of his retirement subject to a maximum of 180 days
 Section 5 3 of the Act reads 5 3
Subject to the provisions of sub section 2 of section 5A the maximum period of leave which may be granted at one time shall be in the case of leave on full allowances five months and in the case of leave with allowances of any kind sixteen months
 Section 9 1 provides 9 1
The monthly rate of leave allowances payable to a Judge while on leave on full allowances shall be for the first forty five days of such leave a rate equal to the monthly rate of his salary and thereafter two thousand two hundred and twenty rupees
Provided that where leave on full allowances is granted to a Judge on medical certificate the monthly rate of leave allowances shall for the first one hundred and twenty days of such leave be a rate equal to the monthly rate of his salary Chapter II of the Act deals with leave
Section 3 provides the kinds of leave admissible to a Judge
Section 4 makes provision for a leave account to be maintained
Section 5 deals with agree gate amount of leave which may be granted
Section 5A make provision for commutation of leave on half allowances into leave on full allowances while sections 6 7 and 8 deal with grant of leave of specific kinds
These provisions in the Act deal with leave which has to be asked for and taken during the tenure of working as a Judge
Leave necessarily implies authorised absence from duty or employment see Webster s Third New International Dictionary
Rule 20B makes provision for payment of cash equivalent of leave 857 due under the appropriate provisions but subject to a maximum of 180 days
We have already indicated that the ratio of Gurnam Singh s case has not been disputed
It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement benefit contemplated under rule 20B otherwise rule 20B could not have been applied
The scheme in rule 20B is that the payment would be made suo motu and without any application for it
Leave referred to under the Act is one which has to be asked for and is intended to meet a different situation
For calculating the benefits under rule 20B section 5 3 of the Act is not relevant and in case in the leave account maintained under section 4 of Act leave is due the benefit under rule 20B has to be worked out subject to the upper limit of 180 days equal to six months
The claim made by the petitioner that he was entitled to the benefit of six months is therefore justified subject of course to admissibility of leave to the extent of 180 days in the leave account
No dispute was raised before us that as a fact petitioner had to his credit more than 180 days of leave
Once we hold that the benefit under rule 20B is not controlled by Chapter II of the Act the manner of calculation indicated in section 9 1 of the Act would also apply
The petitioner would thus become entitled to cash equivalent of six months  salary which would work out at Rs 24000
As he has been paid a sum of Rs 15990 he is entitled to Rs 8010
A writ in the nature of mandamus be issued to the Union of India to pay him the said amount within one month from today
Parties are left to bear their own costs before us
We would like to add that it is manifest that in view of the enunciation of law by us in this judgment the principles governing the cash equivalent of leave would apply not only to the petitioner but also to Judges who have already retired or who may retire hereafter from the date from which this facility was made available to the members of the Central Services holding the rank of Secretary to the Government of India or its equivalent
HSK Petition allowed


Summary:
In Union of India vs Gurnam Singh   this Court decided that under the Judges were entitled to cash equivalent of leave salary in respect of the period of earned leave at their credit on the date of retirement as provided under rule 20B of the All India Service Leave Rules 1955
The two question which arose for consideration in this petition under article 32 filed by a retired Chief Justice of Madhya Pradesh High Court were 1 whether in view of the provisions of section 53 of the Act the limit has to be confined to five months equal to 150 days and not 180 days as in Rule 20B and 2 whether for calculating the equivalent of leave salary admissible to a Judge the provisions of section 9 1 of the Act would apply  Allowing the petition and answering the questions in the negative  HELD The ratio of Gurnam Singh s case has not been disputed
It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement benefit contemplated under rub 20B otherwise rule 20B could not have been applied
For calculating the benefits under rule 20B section 5 3 of the Act is not relevant and in case in the leave account maintained under section 4 of the Act leave is due the benefit under rule 20B has to be worked out subject to the upper limit of 180 days equal to six months 857 B C Once it is held that the benefit under rule 20B is not controlled by Chapter II of the Act the manner of calculation indicated in section 9 1 of the Act would also not apply
857 E The principles governing the cash equivalent of leave would apply not only to the petitioner but also to Judges who have already retired or who may retire hereafter from the date from which this facility was made available to the members of the Central Services holding the rank of Secretary to the Government of India or its equivalent
857 E G 854