Madhya Pradesh High Court

Chandresh Bhushan vs The State Of Madhya Pradesh on 6 May, 2025

WP-7248-2017 & WP-8399-2017

IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA
&
HON'BLE SHRI JUSTICE VINAY SARAF
WRIT PETITION No. 7248 of 2017

P.P. NAOLEKAR AND OTHERS

Versus

THE STATE OF MADHYA PRADESH AND OTHERS
WITH
WRIT PETITION No. 8399 of 2017

CHANDRESH BHUSHAN AND OTHERS

Versus

THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:
Shri Kishore Shrivastava, Senior Advocate with Shri Raman Choubey,
Advocate for the Petitioners in W.P. No. 7248 of 2017.

Shri Sanjayram Tamrakar, Senior Advocate with Shri Ankit Chopra,
Advocate for the Petitioners in W.P. No. 8399 of 2017.

Shri Vivek Sharma, Deputy Advocate General for the Respondent/State.

Pronounced on: 06.05.2025
WP-7248-2017 & WP-8399-2017

ORDER

Per: Justice Sanjeev Sachdeva

W.P. No. 7248/2017

1. Petitioner No. 1 in W.P.No.7248/2017 retired as a judge of the
Supreme Court of India on 28.06.2008. Thereafter on 29.06.2009, he was
appointed as the Lokayukt in the State of Madhya Pradesh, from where he
retired on 28.06.2016.

2. In the Pension Payment Order (PPO for short) issued post the
retirement of the Petitioner No. 1, there was no provision made for
payment of family pension to his wife (Petitioner No. 2) and further he
was not granted any cash equivalent to the unutilized leave.

3. Petitioners thus filed this petition inter alia seeking a direction to
the Respondents to fix the family pension for Petitioner No. 2 (the wife of
Petitioner No.1) and for a direction to the Respondents to make payment
of cash equivalent to unutilized leaveon full allowances to the Petitioner
No. 1.as aLokayukt of the State of Madhya Pradesh alongwith interest for
delayed payment.

W.P. No. 8399/2017

4. Original Petitioner No. 1 in W.P.No.8399/2017 (now deceased),
retired as a judge of the High Court of Madhya Pradesh on 02.11.2005.
Thereafter he was appointed as Up-Lokayukt on 01.02.2008 of the State
of Madhya Pradesh, from where he retired on 01.01.2014.
WP-7248-2017 & WP-8399-2017

5. As in the case of the Petitioner in W.P. 7248 of 2017, in this case
also, in the Pension Payment Order (PPO for short) there was no
provision made for grant of family pension to the wife of Petitioner No. 1
and payment of Cash equivalent to the unutilized leave.

6. Petitioners thus filed this petition inter alia seeking a direction to
the Respondents to fix the family pension for Petitioner No. 2 (the wife of
Petitioner No. 1) and for a direction to the Respondents to make payment
of cash equivalent to unutilized leave on full allowances to the Petitioner
No. 1.as Up-Lokayukt of the State of Madhya Pradesh alongwith interest
for delayed payment.

7. During pendency of the petition, Petitioner no.1 expired on
22.08.2018.

8.
In both the Writ Petitions, reliance is placed on the case W.P. No.
13294 of 2007(S) titled
Shyamsunder Chawla versus State of Madhya
Pradesh
wherein by order dated 03.09.2014, a single judge of this court
rejected the plea that as the rules were silent so the wife, Respondent No.
2 would not be entitled to family pension. The Writ Appeal (W.A. 896 of
2014) impugning
the said decision
was dismissed on 09.12.2014, holding
that as Shri Justice Shyamsunder Chawla was getting additional pension
as he worked as Deputy Lokayukt and therefore, in the absence of rules
his widow could not be deprived of family pension in that regard.
Subsequently the Special Leave Petition (S.L.P. (Civil) No. 5796 of 2016)
against the order dated 09.12.2014 was dismissed by the Supreme Court
of India on 15.02.2016 on the ground of delay, however leaving the
question of law open. Thereafter, the Respondents by order dated
WP-7248-2017 & WP-8399-2017
24.02.2016 fixed the family pension of the wife of Shri Justice
Shyamsunder Chawla.

9. In the present case, the appointment of the respective
PetitionersNo.1,in both the petitions, to the post of Lokayuktand Up-
Lokayuktrespectively was under the provisions of M.P. Lokayukt Evam
Up-Lokayukt Adhiniyam, 1981 (herein after referred to as 'the Act').

10. No separate Return was filed by the Respondents in W.P. No.
8399/2017. They simply adopted the Return filed in W.P. No. 7284 of
2017. The stand taken by the Respondents is that the family pension for
respective PetitionerNo.2 was not fixed because in the Madhya Pradesh
Lokayukt and Up-lokayukt (Conditions of Service) Rules,
1982(hereinafter referred to as the "Rules") there is no mention of grant
of family pension to the dependent of the Lokayukt or Up-Lokayukt in the
State of Madhya Pradesh and for the benefit to be extended there has to
be an explicit and express provision under the rules and in absence
thereof such relief cannot be granted.

11. With respect to payment of cash equivalent to unutilised leave, the
stand of the Respondents is that asPetitioners have already availed the
benefit of leave encashment of 300 days in their capacity as Judges, in
view of Rule 6 of the Rules, they are not entitled for any benefit of leave
encashment for the services rendered as Lokayukt and Up-lokayukt.
Reliance is also placed on the judgment of the Supreme Court of India in
V.S. Mallimathversus Union of India & another (2001) 4 SCC 31.
WP-7248-2017 & WP-8399-2017

12. As per the Respondents, during the pendency of these
petitions,Rules were amended with effect from 25.01.2022 and provision
for family pension was inserted in the Rules. A statement was made by
the Deputy Advocate General appearing for the State on 05.02.2025 that
family pension had already been fixed and was being paid to
PetitionerNo.2 of W.P. No.8399/2017 (wife of the Late Petitioner No. 1
who expired on 22.08.2018), from the date of amendment i.e. 25.01.2022
of the Rules. It was further stated that family pension would be payable to
the PetitionerNo. 2 of W.P. No.7248/2017 as and when the cause so arises.

13. In view of the statement made on behalf of the State, the grievance
of the Petitioners of W.P. No.7248/2017 in respect of family pension has
been resolved. In so far as PetitionerNo. 2 of W.P. No.8399/2017 is
concerned, the issue still survives as the family pension has only been
paid to her from the date of amendment of the Rules on 25.01.2022 and
not from the date of death of PetitionerNo.1 i.e. 22.08.2018.

14. In so far as the payment of cash equivalent to unutilized leave is
concerned, said issue survives in both the petitions.

15. The questions that arise for determination in these petitions are:

i. Whether family pension is payable to the dependent
family member of the Lokayukt and Up-lokayukt from the
date of death of the Lokayukt or Up-Lokayukt or from the
date a specific provision was made in the Madhya
Pradesh Lokayukt and Up-lokayukt (Conditions of
Service) Rules, 1982?

ii. Whether the Lokayukt and Up-lokayukt appointed under
the M.P. Lokayukt Evam Up-Lokayukt Adhiniyam, 1981
are entitled to cash equivalent to unutilized leave, even if
WP-7248-2017 & WP-8399-2017
they have already availed the benefit of leave encashment
of 300 days in their capacity as Judges prior to their
appointment as Lokayukt and Up-lokayukt?

16. To answer the questions that arise for determination in these
petitions, we need to examine the Act.

17. Appointment of Lokayukt and Up-Lokayukt is in terms of Section 3
of the Act. Section 3(2) of the Act reads as under:

"3. Appointment of Lokayukt and Up-Lokayukt -

(1) *****

(2) A person shall not be qualified for appointment as,-

(a) Lokayukt unless he has been a Judge of the
Supreme Court or Chief Justice or Judge of any High
Court in India.

(b) Up-Lokayukt, unless he is or has been a Judge of
any High Court in India or has held the Office of the
Secretary to Government of India or has held any other
post under Central or a State Government carrying a
scale of pay which is not less than that of a Additional
Secretary to Government of India.

(3) ******"

18. Originally, when the Act was enacted in 1981, Section 3(2)(a) of
the Act provided that a person shall not be qualified for appointment as
Lokayukt unless he has been a "Judge of the Supreme Court of the Chief
Justice of any High Court in India." In 2003 the Act was amended by the
MP Amendment Act 24 of 2003, to read "a Judge of the Supreme Court
or Chief Justice or Judge of any High Court in India."
WP-7248-2017 & WP-8399-2017

19. The Term of office and other conditions of service of Lokayukt and
Up-Lokayukt are governed by Section 5 of the Act. Section 5 (4) and (5)
of the Act deals with salaries, allowances and pension payable to and
other conditions of service of Lokayukt and Up-Lokayukt.

20. For answering the questions that have arisen in these petitions it
would be expedient to examine the legislative history of the said
provisions.

21. When the Act was enacted in 1981, said sub sections read as under:

"5. Term of office and other conditions of Service of
Lokayukt and Up-Lokayukt.-

(1) *****

***** *****
(4) There shall be paid to Lokayukt and Up-Lokayukt such
salaries as are specified in the Second Schedule.

(5) The allowances and pension payable to, and other
conditions of service of, Lokayukt or Up-Lokayukt shall be such
as may be prescribed:

Provided that,-

(a) in prescribing the allowances and pension payable
to and other conditions of service of, Lokayukt, regard shall
be had to the allowances and pension payable to, one other
conditions of service of, Judge of the Supreme Court or Chief
Justice of a High Court;

(b) in prescribing the allowances, and pension payable
to, and other conditions of service of Up-Lokayukt regard
shall be had to the allowances and pension payable to, and
other conditions of service of, a Judge of a High Court or
Secretary to the Government of India or the Chief Secretary to
a State Government:
WP-7248-2017 & WP-8399-2017
Provided further that, the allowances and pension payable to,
and other conditions of service of, Lokayukt or Up-Lokayukt shall
not be varied to his disadvantage after his appointment.

(6) *****"

22. Section 5(4) of the Act refers to the Second Schedule. The Second
Schedule when enacted in 1981, read as under

"THE SECOND SCHEDULE
[See section 5(4)]

There shall be paid to the Lokayukt and the Up-Lokayukt in
respect of time spent on actual service, salary at the following
rates per mensem, that is to say:-

Lokayukt 4,000 rupees Plus such perquisites and
allowancesas were last available to the
incumbentduring his service.

Up-Lokayukt3,500 rupees Plus such perquisites and allowances
aswere last available to the incumbent duringhis
service:

Provided that, if the Lokayukt or an Up-Lokayukt at the time of
his appointment is in receipt of a pension (other than a disability
or wound pension) in respect of any previous service under the
Government of India or any of its predecessor Government or
under the Government of a State or any of its predecessor
Governments, his salary in respect of service as the Lokayukt or,
as the case may be, Up-Lokayukt shall be reduced-

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a
portion of the pension due to him in respect of such
previous service the commuted value thereof, by the
amount of that portion of the pension, and

(c) if he has, before such appointment, received a retirement
gratuity in respect of such previous service, by the pension
equivalent of that gratuity."
WP-7248-2017 & WP-8399-2017

23. In 1985 by the The Madhya Pradesh Lokayukt Evam Up-Lokayukt
(Sanshodhan) Adhiniyam, 1985, the Second Schedule was amended
retrospectively with effect from 14.02.1982 and after amendment it read
as under:

"THE SECOND SCHEDULE
[See section 5 (4)]

After appointment there shall be paid to the Lokayukt and Up-
Lokayukt in respect of time spent on actual service, salary at the
following rates per mensem, that is to say,-

Lokayukt - 4,000 rupees plus such perquisites and allowances
as are payable to-

(i) a Judge of the Supreme Court in case
Lokayukt is appointed from amongst the Judge of
the Supreme Court;

(ii) a Chief Justice of a High Court in case
Lokayukt is appointed from amongst Chief Justices
of High Courts in India.

Up-Lokayukt -3,500 rupees plus such perquisites and
allowances as are payable to-

(i) a Judge of any High Court in India in case
Up-Lokayukt is appointed from amongst the Judges
of any High Court;

(ii) a Secretary to the Government of India in
case Up-Lokayukt is appointed from amongst the
Secretaries to the Government of India;

(iii) a Chief Secretary to a State Government in
case Up-Lokayukt is appointed from amongst Chief
Secretaries of State Governments;

Provided that, if the Lokayukt or an Up-Lokayukt at time
of his appointment is in receipt of a pension (other than a
disability or wound pension) in respect of any previous
service under the Government of India or any of its
predecessor Government or under the Government of a
WP-7248-2017 & WP-8399-2017
State or any of its predecessor Governments, his salary in
respect of service as the Lokayukt or, as the case may be,
Up-Lokayukt, shall be reduced-

(a) by the amount of that pension; and

(b) if he has, before such appointment, received in lieu

of a portion of the pension due to him in respect of
such previous service the commuted value thereof,
by the amount of that portion of the pension; and

(c) if he has, before such appointment, received a
retirement gratuity in respect of such previous
service, by the pension equivalent of that gratuity."

24. By the The Madhya Pradesh Lokayukt Evam Up-Lokayukt
(Sanshodhan) Adhiniyam, 1988, theamounts "4,000 rupees and 3,500
rupees" were enhanced to "9,000 rupees and 8,000 rupees" respectively
with effect from 01.04.1986.

25. Subsequently by The Madhya Pradesh Lokayukt Evam Up-
Lokayukt (Sanshodhan) Adhiniyam, 2004, subsection (4) and (5) was
substituted, with effect from 01.01.1996, as under:

"(4) The salary, allowances, pension and other perquisites
payable to and other conditions of the service of Lokayukta shall
be same as are admissible to him before his appointment as
contained in the
Supreme Court Judges (Conditions of Service)
Act, 1958
(No.41 of 1958), or the
High Court Judges (Conditions
of Service) Act, 1954
(No.28 of 1954) and the rules made under
the aforesaid Acts as the case may be.

(5) The salary, allowances, pension and other perquisites payable
to and other conditions of the service of Up-Lokayukta shall be
same as are admissible to a sitting Judge of a High Court as
contained in the
High Court Judges (Conditions of Service) Act,
(No. 28 of 1954) and rules made there under.

Provided that, if the Lokayukt or an Up-Lokayukt at the time of
his appointment is in receipt of a pension (other than a disability
WP-7248-2017 & WP-8399-2017
or wound pension) in respect of any previous service, his salary
in respect of service as the Lokayukt or, as the case may be, Up-
Lokayukt shall be reduced-

(a) by the amount of that pension, and

(b) if he has, before such appointment, received in lieu of a
portion of the pension due to him in respect of such previous
service the commuted value thereof, by the amount of that portion
of the pension."

26. In both the petitions we are concerned with the provisions as
amended by the 2004
Amending Act
. In terms of the Act as amended by
the 2004
Amending Act
, the salary, allowances, pension and other
perquisites payable to and other conditions of the service of Lokayuktare
the same as admissible to him before his appointment as contained in the

Supreme Court Judges (Salaries and Conditions of Service) Act, 1958

(No. 41 of 1958), or the
High Court Judges (Salaries and Conditions of
Service) Act, 1954
(No.28 of 1954) and the rules made under the aforesaid
Acts, as the case may be.

27. The salary, allowances, pension and other perquisites payable to
and other conditions of the service of Up-Lokayuktare the same as are
admissible to a sitting Judge of a High Court as contained in the
High
Court Judges (Salaries and Conditions of Service) Act, 1954
(No. 28 of
1954) and rules made there under.

28. The contention on behalf of the State, to deny Family Pension, is
that the Madhya Pradesh Lokayukt and Up-lokayukt (Conditions of
Service) Rules, 1982, did not provide for grant of family pension and as
such, same did not fine mention in the PPO issued to the Petitioner No. 1
WP-7248-2017 & WP-8399-2017
in WP 8399 of 2017 and as the Rules were amended on 25.01.2022
specifically providing for Family Pension, same has been paid to
Petitioner No. 2 (wife of Late Petitioner No. 1).

29. The Proviso to
Section 5
of the Act prior to the amendment by the
Amending Act
, stipulated that in prescribing the allowances and
pension payable to and other conditions of service of Lokayukt and Up-
Lokayuktregard shall be had to the allowances and pension payable to,
and other conditions of service of, Judge of the Supreme Court or Chief
Justice of a High Court or a Judge of a High Court or Secretary to the
Government of India or the Chief Secretary to a State Government as the
case may be.

30.
Section 17
of the Act inter alia empowers the Governor to make
rules for the purposes of carrying into effect the provisions of the Act.
The Madhya Pradesh Lokayukt and Up-lokayukt (Conditions of Service)
Rules, 1982 states that "In exercise of the powers conferred by sub-
section (1) of
Section 17
read with sub-section (5) 5 of the Madhya
Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam 1981 (No. 37 of 1981)
the Government of Madhya Pradesh here by makes the following rules
regulating the allowances, pension and other conditions of service of
Lokayukt and Up-Lokayukt, namely:-......"

31. After the amendment by the 2004 Amendment Act,
Section 5(4)

and (5) of the Act provides that the salary, allowances, pension and other
perquisites payable to and other conditions of the service of Lokayuktshall
be same as are admissible to him before his appointment as contained in
the
Supreme Court Judges (Salaries and Conditions of Service) Act, 1958
WP-7248-2017 & WP-8399-2017
(No. 41 of 1958), or the
High Court Judges (Salaries and Conditions of
Service) Act, 1954
(No.28 of 1954) and the rules made under the aforesaid
Acts as the case may be and for Up-Lokayukt as are admissible to a
sitting Judge of a High Court as contained in the
High Court Judges
(Salaries and Conditions of Service) Act, 1954
(No. 28 of 1954) and rules
made there under.

32.
Section 5(4)
and (5) of the Act, prior to its amendment by the 2004

Amending Act
, provided that the allowances and pension payable to, and
other conditions of service shall be such as may be prescribed. Said
provision was amended and the power to prescribe has been deleted and
substituted by the
Supreme Court Judges (Salaries and Conditions of
Service) Act
, 1958and the
High Court Judges (Salaries and Conditions of
Service) Act, 1954
and the rules framed thereunder.

33. There is no merit in the contention on behalf of the State. There is a
clear legislative shift in 2004; from the power of the Governor to
prescribe the allowances and pension payable to, and other conditions of
service,; to being regulated entirely by the
Supreme Court Judges
(Salaries and Conditions of Service) Act, 1958
, or the
High Court Judges
(Salaries and Conditions of Service) Act, 1954
and the rules made under
the aforesaid Acts.

34. Chapter III (Sections 12 A to
Section 21
) of
The Supreme Court
Judges (Salaries and Conditions of Service) Act
, 1958provide for Salaries
and Pensions. Section 16A provides for Family Pension and gratuity and
reads as under:
WP-7248-2017 & WP-8399-2017
"16A. Family pension and gratuity.― (1) Where a Judge who,
being in service on or after the commencement of the
High Court
and Supreme Court Judges (Conditions of Service) Amendment
Act, 1986
(38 of 1986),―

(a) dies before retirement, family pension calculated at
the rate of fifty per cent. of his salaryon the date of his
death shall be payable to the person or persons entitled
thereto and the amount so payable shall be paid from the
day following the date of death of the Judge for a period of
seven years or for a period up to the date on which the
Judge would have attained the age of sixty-five years, had
he survived, whichever is earlier, and thereafter at the rate
of thirty per cent. of his salary; and

(b) dies after retirement on attaining the age of sixty-

five years, family pension shall be thirty per cent. of his
salaryand shall be payable to the person or persons
entitled thereto;

(c) dies after retirement after seeking premature
retirement and before attaining the age of sixty-five years,
family pension shall be calculated at the rates specified in
clause (a) shall be payable to the person or persons
entitled thereto.

Provided that in no case the amount of family pension calculated
under this sub-section shall exceed the pension payable to the
Judge under this Act.

Explanation.―For the purposes of determining the person or
persons entitled to family pension under this sub-section,―

(i) in relation to a Judge who elects or is eligible to
receive pension under Part I of the Schedule, the rules,
notifications and orders for the time being in force with
regard to the person or persons entitled to family pension
in relation to an officer of the Central Civil Services,
Group "A‟, shall apply;

(ii) in relation to a Judge who elects to receive pension
under Part III of the Schedule, the ordinary rules of his
service if he had not been appointed a Judge with respect
to the person or persons entitled to family pension shall
WP-7248-2017 & WP-8399-2017
apply and his service as a Judge being treated as service
therein.

(2) The rules, notifications and orders for the time being in
force with respect to the grant of death-cum-retirement gratuity
benefit to or in relation to an officer of the Central Civil Services,
Class I (including the provisions relating to deductions from
pension for the purpose) shall apply to or in relation to the grant
of death-cum-retirement gratuity benefit to or in relation to a
Judge who, being in service on or after the 1st day of October,
1974, retires, or dies in circumstances to which
section 16
does
not apply, subject to the modifications that―

(i) the minimum qualifying service for the purpose of
entitlement to the gratuity shall be two years and six
months;

(ii) the amount of gratuity shall be calculated on the
basis of ten days salary for each completed six months
period of service as a Judge;

Explanation.―In sub-section (2), the expression "Judge" has the
same meaning as in
section 13
."

35. Similarly, Chapter III (
Sections 13 A
to
Section 21
) of
The High
Court Judges (Salaries and Conditions of Service) Act, 1954
provide for
Salaries and Pensions.
Section 17A
provides for Family Pension and
gratuity and reads as under:

"17A. Family pensions and gratuities.-- (1) Where a Judge who,
being in service on or after the commencement of the
High Court
and Supreme Court Judges (Conditions of Service) Amendment
Act, 1986
(38 of 1986), dies, whether before or after retirement
in circumstances to which
section 17
does not apply, family
pension calculated at the rate of fifty per cent. of his salary on
the date of hisdeath shall be payable to the person or persons
entitled thereto and the amount so payable shall be paidfrom the
day following the date of death of the Judge for a period of seven
years or for a period up to thedate on which the Judge would
have attained the age of sixty-five years, had he survived,
WP-7248-2017 & WP-8399-2017
whichever isearlier, and thereafter at the rate of thirty per cent of
his salary.

Provided that in no case the amount of family pension calculated
under this sub-section shall exceedthe pension payable to the
Judge under this Act.

Explanation.--For the purposes of determining the person or
persons entitled to family pension underthis sub-section,--

(i) in relation to a Judge who elects or is eligible to
receive pension under Part I of the FirstSchedule, the
rules, notifications and orders for the time being in force
with regard to the person orpersons entitled to family
pension in relation to an officer of the Central Civil
Services, Group 'A',shall apply;

(ii) in relation to a Judge who elects to receive pension
under Part III of the First Schedule,the ordinary rules of
his service if he had not been appointed a Judge with
respect to the person orpersons entitled to family pension
shall apply and his service as a Judge being treated as
servicetherein.

(2) Where any Judge, who has elected to receive the pension
payable to him under Part III of theFirst Schedule, retires, or
dies in circumstances to which
section 17
does not apply, gratuity,
if any, shallbe payable to the person or persons entitled thereto
under the ordinary rules of his service if he had notbeen
appointed a Judge, his service as a Judge being treated as
service therein for the purpose of calculating that gratuity.

(3) The rules, notifications and orders for the time being in
force with respect to the grant of deathcumretirement gratuity
benefit to or in relation to an officer of the Central Civil Services,
Class I(including the provisions relating to deductions from
pension for the purpose) shall apply to or in relationto the grant
of death-cum-retirement gratuity benefit to or in relation to a
Judge who, being in service onor after the 1st day of October,
1974, retires, or dies in circumstances to which
section 17
does
not apply,subject to the modifications that--
WP-7248-2017 & WP-8399-2017

(i) the minimum qualifying service for the purpose of
entitlement to the gratuity shall be twoyears and six
months;

(ii) the amount of gratuity shall be calculated on the
basis of ten days' salary for eachcompleted six months
period of service as a Judge;

Explanation.--Insub-section (3), the expression "Judge" has the
same meaning as in
section 14
."

36. The contention on behalf of the State is clearly not acceptable.
Particularly after the amendment to the Act in 2004. Prior to the
amendment in 2004, the allowances and pension payable to, and other
conditions of service were to be as may be prescribed. However, by the
2004 amendment there is a shift from what could be prescribed to what is
stipulated in the Supreme CourtJudges (Salaries and Conditions of
Service) Act, 1958 and the High CourtJudges (Salaries and Conditions of
Service) Act, 1954 and the rules framed thereunder.

37. Thus the State cannot now rely upon the Rules to regulate the
allowances and pension payable to, and other conditions of Service of the
Lokayukt and Up-Lokayukt. The allowances and pension payable to, and
other conditions of Service of the Lokayukt and Up-Lokayukt are the
same as prescribed under the
Supreme Court Judges (Salaries and
Conditions of Service) Act, 1958
, or the
High Court Judges (Salaries and
Conditions of Service) Act, 1954
, as the case may be.

38. However, it is debatable as to whether prior to the 2004
amendment, the allowances and pension payable to Lokayukt and Up-
Lokayukt could be prescribed by the Madhya Pradesh Lokayukt and Up-
WP-7248-2017 & WP-8399-2017
lokayukt (Conditions of Service) Rules, 1982 lowerthan what was
stipulated by the Supreme CourtJudges (Salaries and Conditions of
Service) Act, 1958 and the High CourtJudges (Salaries and Conditions of
Service) Act, 1954because
Section 5 (4)
and
5 (5)
of the Act mandated
that regard shall be had to the allowances and pension payable to, and
other conditions of service of, Judge of the Supreme Court or Chief
Justice of a High Court or a Judge of a High Court.

39. Even if the Madhya Pradesh Lokayukt and Up-lokayukt
(Conditions of Service) Rules, 1982 did not contain a stipulation for
Family Pension, whether it could be denied,in view of the same being
specifically provided by the Supreme CourtJudges (Salaries and
Conditions of Service) Act, 1958 and the High CourtJudges (Salaries and
Conditions of Service) Act, 1954 is also debatable.However, in the
petitions at hand, said question does not arise for consideration as the
Petitioner No. 1 in both the Petitions were appointed respectively as
Lokayukt and Up-Lokayukt after the 2004 amendment.

40. Therefore, in respect of W.P. 8399 of 2017, in terms of the 2004
amendment, Family Pension would be payable to Petitioner No. 2, in
terms of Section 17A of the High CourtJudges (Salaries and Conditions
of Service) Act, 1954. Thus, it is held that Petitioner No. 2 is entitled to
Family Pension from the date of death of Petitioner No. 1 on 22.08.2018
and not from the date of amendment of the Rules on 25.01.2022.

41. In view of the above, in respect of question No. 1 "Whether family
pension is payable to the dependent family member of the Lokayukt and
Up-lokayukt from the date of death of the Lokayukt or Up-Lokayukt or
WP-7248-2017 & WP-8399-2017
from the date a specific provision was made in the Madhya Pradesh
Lokayukt and Up-lokayukt (Conditions of Service) Rules, 1982?", it is
held that after the 2004 amendment of the Act, Family Pension is payable
to the dependent family member of the Lokayukt and Up-Lokayukt from
the date of death of the Lokayukt or Up-Lokayukt, and not from the date
a specific provision was made in the Madhya Pradesh Lokayukt and Up-
lokayukt (Conditions of Service) Rules, 1982. The question as to what
would be the position prior to the 2004 amendment is left open.

42. Coming to the question of entitlement of cash equivalent to
unutilized leave.

43. Respondents have contended that as Petitioners have already
availed the benefit of leave encashment of 300 days in their capacity as
Judges they are not entitled for any benefit of leave encashment for the
services rendered as Lokayukt and Up-lokayukt. Reliance is placed on
Rule 6 of the Madhya Pradesh Lokayukt and Up-lokayukt (Conditions of
Service) Rules, 1982 to contend that proviso to the said rule stipulates:

"Provided that the earned leave encashed by the Lokayukt or Up-
Lokayukt under this sub-rule together with any amount of leave encashed
earlier during the tenure of his service shall not exceed the limit of 300
days."

44. Reliance had been placed by the learned counsel for the
Respondent on Rule 6 of the Rules as it was originally enacted in 1982.
However said rule has been amended inter aliain the years 1989 and 1995
and the period has been reduced to 240 days.
WP-7248-2017 & WP-8399-2017

45. The amended Rule 6 as it stood after the 1995 amendment and as
applicable to the present cases reads as under:

"6. Leave:

(1) The Lokayukt and the Up-Lokayukt shall he entitled to
earned leave on full allowance upto 1/11th of the period spent on
duty:

Provided that they shall cease to earn such leave when the
earned leave due amounts to [240 days:] [Substituted by
Notification No. F. 4(3) 89-XLIX-10, dated 20-7-1989.]

Provided further that the Up-Lokayukt, who at the time of his
appointment as Up-Lokayukt was in the service of the Central or
a State Government, the leave standing to his credit on the date
of his appointment as Up-Lokayukt shall be carried forward and
he may avail of such leave during his tenure as Up-Lokayukt.

(2) The maximum earned leave that may be granted at any
one time shall be [150 days] [Substituted by Notification No. F.
4(3) 89-XLIX-10, dated 20-7-1989.].

[(2-A) Lokayukt and Up-Lokayukt shall be entitled to
casual leave of fifteen days in a year.] [Inserted by Notification
No. F. 4(3) 89-XLIX-10, dated 20-7-1989.]

(3) In the matter of all other types of leave the Lokayukt and
the Up-Lokayukt shall be governed by the rules and practices
applicable to the Chief Justice and the other Judges of the High
Court.

(4) [The Lokayukt and Up-Lokayukt shall be entitled to cash
equivalent of leave salary in respect of the period of earned leave
at their credit on the date of retirement subject to a maximum of
240 days :Provided that the earned leave encashed by the
Lokayukt or Up-Lokayukt under this sub-rule together with any
amount of leave encashed earlier during the tenure of his service
shall not exceed the limit of 240 days.] [Substituted by
Notification No. F-15-95-1-(10), dated 26-8-1995.]

(5) If in public interest or due to exigencies of public service,
the Lokayukt or Up-Lokayukt is refused leave preparatory to
retirement, he shall for the hardship caused by such refusal, be
WP-7248-2017 & WP-8399-2017
granted compensation for leave so refused up to maximum of 120
days of leave refused and such compensation determined in
manner
laid down in
sub-rule (6) shall be paid to the Lokayukt or
Up-Lokayukt as the case may be, in as nearly as possible, equal
monthly instalments, not exceeding four.

(6)(a) The compensation referred to in sub-rule (5) shall be
computed in the first place calculating separately:-

(i) amount of leave salary that the Lokayukt would
have drawn, if the leave had not been refused; and

(ii) the pension (inclusive of the pension equivalent of
gratuity) to which Lokayukt or as the case may be,
Up-Lokayukt is entitled from the date of vacation of
office, for a period equivalent to the period of leave
refused.

(b) The total amount of pension referred to in item (ii) of
clause (a) shall next he deducted from the total amount of
leave salary referred to in para (i) of clause (a) and the
balance shall be the amount of compensation payable to
under sub-rule (5) to the Lokayukt or to the Up-Lokayukt,
as the case may be."

46. Though, we are unable to accept the contention of learned Deputy
Advocate General for the State that the period eligible for leave
encashment would be restricted to 300 days by the Rules, however, for
different reasons as discussed hereinafter, we hold that the period would
be restricted to 300 days.

47. The judgment in the case of V.S. Mallimath (supra) relied upon by
learned Deputy Advocate General has no applicability to the facts of the
present case, in view of different statutory provisions applicable. In V.S.
Mallimath (supra) the Supreme Court was considering the
Protection of
Human Rights Act, 1993
and the National Human Rights Commission
WP-7248-2017 & WP-8399-2017
Chairperson and Members (Salaries Allowances and Other Conditions of
Service) Rules, 1993, which have different statutory provisions.

48. As has been held hereinabove, that after the amendment of the Act
in 2004, the allowances and pension payable to, and other conditions of
service would be entirely governed by what is stipulated in the Supreme
CourtJudges (Salaries and Conditions of Service) Act, 1958 and the High
CourtJudges (Salaries and Conditions of Service) Act, 1954 and the rules
framed thereunder.

49. Reference may be had to the
Supreme Court Judges (Salaries and
Conditions of Service) Act, 1958
, which in Rule 4A provides for leave
encashment and reads as under:

"4A. Leave encashment.―A Judge shall be entitled in his entire
service, including the period of service rendered either as a
Judge of a High Court or in a pensionable post under the Union
or a State or on re-employment, if any, to claim the cash
equivalent of leave salary on his retirement in respect of the
period of leave at his credit, calculated on full allowances basis,
to the extent of the maximum period prescribed for encashment of
such leave under the All India Service (Leave) Rules, 1955."

(underlining supplied)

50. The CorrespondingRule 4 A of the
High Court Judges (Salaries and
Conditions of Service) Act
, 1954reads as under:

"4A. Leave encashment.--A Judge shall be entitled in his entire
service, including the period of service rendered in a pensionable
post under the Union or State or on re-employment, if any, to
claim the cash equivalent of leave salary on his retirement in
respect of the period of leave at his credit, calculated on full
allowances basis, to the extent of the maximum period prescribed
for encashment of such leave under the All India Service (Leave)
Rules, 1955."

(underlining supplied)
WP-7248-2017 & WP-8399-2017

51. Both the Acts refer to the maximum period prescribed for
encashment of such leave under the All India Service (Leave) Rules, 1955.
The All India Service (Leave) Rules besides prescribing for various types
of rules that are admissible, in Rule 20A provides for Payment of cash
equivalent of leave salary in case of retirement or death. Said Rule reads
as under:

"20A. Payment of cash equivalent of leave salary in case of
retirement or death.--

(1) Where a member of the Service retires from the service,
whether on attaining the age of superannuation under sub-rule(1)
of rule 15 or sub-rule(2), (2A) or (3) of rule 16, of the All India
Services (Death-cum-Retirement Benefits) Rules, 1958 or dies,
the Government shall suo-motu sanction to him or his family, as
the case may be, cash equivalent of leave salary in respect of
both earned leave and half pay leave, if any, standing in his
credit on the date on which he ceases to be member of the Service
subject to a maximum of 300 days and pay the same in lumpsum
as a onetime settlement. The cash equivalent shall be equal to the
leave salary as admissible for earned leave and /or equal to the
leave salary as admissible for half pay leave plus dearness
allowance admissible on the leave salary for the first 300 days.

(2) The cash equivalent of leave salary payable to a member
of service, under sub-rule(1) shall also include dearness
allowance but shall not include any other allowances.

(3) The cash equivalent of leave salary for earned leave payable
under sub-rule(1) shall be calculated as follows:

Cash payment Pay admissible on the date of retirement/death Number of days
in lieu of Plus of unutilized
Earned leave Dearness Allowances admissible thereon earned leave at
component = x credit up to a
maximum of 300
30 days
WP-7248-2017 & WP-8399-2017
(4) The leave salary payable for the Half Pay Leave
component under sub-rule (1), shall be calculated as follows:-

Number of days
Cash payment Half pay leave salary admissible on the date of of half pay leave
in lieu of half retirement plus Dearness Allowance admissible at credit subject
to the total of
pay leave on that date
x earned leave and
component = ___________________________________ half pay leave at
credit not
30 exceeding 300
days.

Provided that to make up the shortfall in earned leave, no
commutation of half pay leave shall be permissible.

(a) A member of the Service who has been permitted by the
State Government to voluntarily retire from service while
under suspension or who is retired by the Central
Government in public interest while under suspension
shall be paid cash equivalent of leave salary under sub-
rule(1) in respect of the period of leave at his credit on the
date of his retirement from service provided that in the
opinion of the authority competent to order reinstatement
the member of the service has been fully exonerated and
the suspension was wholly unjustified."

52. Rule 20A of the All India Service (Leave) Rules provides for 300
days as the maximum limit for encashment. Both the Supreme
CourtJudges (Salaries and Conditions of Service) Act, 1958 and the High
CourtJudges (Salaries and Conditions of Service) Act, 1954 stipulate that
a Judge shall be entitled "in his entire service, including the period of
service rendered in a pensionable post under the Union or State or on re-
employment, if any," to claim the cash equivalent of leave salary to the
extent of the maximum period prescribed for encashment of such leave
under the All India Service (Leave) Rules, 1955.
WP-7248-2017 & WP-8399-2017

53. The legislative intent is apparent. The intention of the legislature is
that in the entire service of any nature to which the All India Service
(Leave) Rules, 1955apply, the maximum period prescribed in the said
rules would apply. The rules restrict the period for which cash equivalent
of leave salary can be claimed on retirement to 300 days.

54. In view of the above the second question Whether the Lokayukt and
Up-lokayukt appointed under the M.P. Lokayukt Evam Up-Lokayukt
Adhiniyam, 1981 are entitled to cash equivalent to unutilized leave, even
if they have already availed the benefit of leave encashment of 300 days
in their capacity as Judges prior to their appointment as Lokayukt and
Up-lokayuktis answered in favour of theState.The Lokayukt and Up-
Lokayukt appointed under the M.P. Lokayukt Evam Up-Lokayukt
Adhiniyam, 1981 are entitled to cash equivalent to unutilized leave
subject to a maximum of 300 days including the number of days of leave
encashment already availed in their capacity as Judges.

55. Admittedly, both the Petitioners No. 1 in the respective petitions
were given cash equivalent to unutilized leave of 300 days in their
capacity as Judges. Thus on this count they would not be entitled to any
further amount.

56. In view of the above, the petitions are thus disposed on holding and
directing that:

i. after the 2004 amendment of the M.P. Lokayukt Evam Up-Lokayukt
Adhiniyam, 1981, Family Pension is payable to the dependent
family member of the Lokayukt and Up-Lokayukt from the date of
death of the Lokayukt or Up-Lokayukt, and not from the date a
WP-7248-2017 & WP-8399-2017
specific provision was made in the Madhya Pradesh Lokayukt and
Up-lokayukt (Conditions of Service) Rules, 1982. The question as
to what would be the position prior to the 2004 amendment is left
open; and

ii. Respondents shall make the payment of family pension to Smt.
Madhu Bhushan (PetitionerNo.2, in W.P.No.8399 of 2017) from
the date of death of Shri Justice Chandresh Bhushan i.e. from
22.08.2018. The arrears shall be paid to Petitioner no. 2 within a
period of 90 days from today along with the interest @ 7% per
annum; and

iii. Respondents, shall issue a revised Pension Payment Order to
Petitioners of W.P. No. 7248/2017 incorporating the entitlement of
Petitioner No. 2 to family pension, in compliance of order dated
05.02.2025, within a period of one month from today, if not
already done; and

iv. The Lokayukt and Up-Lokayukt appointed under the M.P. Lokayukt
Evam Up-Lokayukt Adhiniyam, 1981 are entitled to cash
equivalent to unutilized leave subject to a maximum of 300 days,
including the number of days of leave encashment already availed
in their capacity as Judges.

57. The petitions are disposed of in the above terms, with no orders as
to costs.

(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE

RAVIKAN

Digitally signed by RAVIKANT KEWAT

DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=PRINCIPAL BENCH JABALPUR,

2.5.4.20=a8d9b14ac58cf947b7ed23741112684
b5277de5c828d98b25803bbc1b20fce6e,

T KEWAT
postalCode=482001, st=Madhya Pradesh,
serialNumber=B4ADF2781367121A8C6194CA0
D70E6499C424F691EB777334632E1B1713FB6
24, cn=RAVIKANT KEWAT
Date: 2025.05.08 13:50:41 +05'30'