http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SHIV DAYAL SHRIVASTAVA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT07/02/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1984 AIR  465            1984 SCR  (2) 853  1984 SCC  (1) 724        1984 SCALE  (1)156

ACT:      High Court Judges (Conditions of Service) Act, 1954-Ss. 5 (3)  and 9  (1) read  with Rule  20B of All India Services (Leave) Rules  1955-Interpretation of.  For calculating cash equivalent of  leave salary admissible to a Judge under Rule 20B, Ss. 5 (3) and 9 (1) of the Act would not apply.

HEADNOTE:      In Union  of India v. Gurnam Singh [1982] 3 S.C.R. 700, this  Court   decided  that  under  the  High  Court  Judges (Conditions of  Service) Act,  1954 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  Art. 32  filed by  a retired  Chief Justice of  Madhya Pradesh  High Court  were (1)  whether in view of  the provisions of s. 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 s. 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,  s.  5  (3)  of  the  Act  is  not relevant and  in case  in the leave account maintained under s. 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 s. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition 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, R.N. 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. 4,000 per month as provided  under Constitution.  This Court  in the case of Union of  India v.  Gurnam Singh(1)  decided that  under the High Court  Judges (Conditions  of Service) Act, 1954 (’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. 15,240  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. 24,000 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. 15,990 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 ss. 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 s. 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. 2,220 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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 s. 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 s. 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  s. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

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, s. 5 (3) of the Act is  not relevant  and  in  case  in  the  leave  account maintained under s. 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 s.  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. 24,000. As  he has  been paid  a sum  of Rs.  15,990  he  is entitled to  Rs. 8,010.  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. H.S.K.                                     Petition allowed. 858