K. N. Singh, J. - (1.) BY means of this petition under Article 226 of the Constitution the petitioner has claimed relief for the issue of a writ of certiorari quashing the order of the State Government dated 19th January, 1984, refusing the petitioner's request for the grant of gratuity and also for the issue of a writ of mandamus directing the State of Uttar Pradesh to fix and pay the gratuity and cash equivalent of the leave at the credit of the petitioner.
(2.) THE petitioner was appointed a Judge of this Court on 6th May, 1957, and after serving as Judge for twelve years in this Court, he was appointed Chief Justice of the Madhya Pradesh High Court on 19th March, 1969 and retired from there on 13th September, 1972. After his retirement the petitioner was appointed Lokayukta of Uttar Pradesh on 14th September, 1977, and after working for a full term of five years, he retired on 13th September, 1982. THE State of Uttar Pradesh fixed the petitioner's pension by the Government Order dated 17th July, 1983; but, the petitioner's claim for the grant of gratuity and leave encashment was kept under consideration. By a letter dated January 19, 1984, the State Government informed the petitioner that his claim for gratuity could not be accepted as there was no provision for gratuity in the U.P. Lokayukta (Conditions of Service) Rules, 1981. Agggieved, the petitioner has approached this Court by means of this petition claiming the relief as noted earlier. Before admission of the writ petition, counter and rejoinder affidavit were exchanged and with the consent of the counsel for the parties and in accordance with the rules of this Court, we are disposing of the Writ Petition finally at the admission stage after hearing both the parties' counsel. Sri S. P. Gupta, learned counsel for the petitioner, urged that the petitioner is entitled to gratuity for the period he rendered service as Lokayukta of the State of Uttar Pradesh. As the Rules regulating the conditions of service of Lokayukta do not contain any provision for gratuity, petitioner's claim for gratuity and encashment of leave would be governed by the Rules applicable to the Chief Justice of High Court. On behalf of the State Government it was submitted that the petitioner is neither entitled to gratuity nor to the encashment of leave, in view of specific provision contained in the U. P. Lokayukta (Condition of Service) Rules, 1981, that any leave to the credit of the Lokayukta shall lapse on the date, he vacates the office.
(3.) THE U. P. Lokayukta & Up- Lokayuktas Act, 1975; was enacted to make provision for the appointment and functions of Lokayukta. Section 3 of the Act confers power on the Governor to appoint Lokayukta after consultation with the Chief Justice of the High Court and the leader of the Opposition in the Legislative Assembly. Section 5 prescribes a term of five years from the date on which he enters upon his office as Lokayukta. It, further, lays down conditions of service of Lokayukta. Sub-section (5) lays down that the allowances and pension, if any payable to, and other conditions of service, of the Lokayukta shall be such as may be prescribed. Proviso to this section lays down that in prescribing the allowances and pension payable to, and other conditions of service of Lokayukta, regard shall be had to the allowances and pension payable to and other conditions of service, of the Chief Justice of the High Court and the allowances and pension, if any, payable to and other conditions of service of the Lokayukta shall not be varied to his disadvantage after his appointment. Section 21 (2) (b) of the Act confers power on the Governor to frame rules which may provide for the allowances and pension, if any, payable to and other conditions of service of the Lokayukta and Up- Lokayuktas. THE State Government in exercise of its powers under sub section (2) read with clause (b) of section 21 of the U. P. Lokayukta and Up-Lokayuktas Act, 1975, framed rules regulating the service of Lokayukta and Up-Lokayuktas. Rules were published in the Gazette dated September 5, 1981 which is known as "THE Uttar Pradesh Lokayukta (Conditions of Services) Rules, 1981". THEse rules expressly provide that Lokayukta shall be entitled to rent free official residence, conveyance, facilities for medical treatment, travelling allowance, general provident fund, leave and pension. Rule 10 lays down that other allowances (including the dearness allowance) and conditions of service of the Lokayukta, provisions where for have not expressly been made in the Act or the rules, shall be the same (as far as may be) for the time being as applicable to the Chief Justice of the High Court. THE rules contain provisions for other allowances and pension; but, they do not contain any provision for gratuity. Since there is no provision for gratuity in the rules the same would be governed by the Rules which may be applicable to the Chief Justice of the High Court. This is in consonance with the proviso to section 5 (5) of the Act which lays down that while prescribing pension and other allowances payable to Lokayukta, regard shall be had to the allowances, and pension payable to the Chief Justice of the High Court. THE legislative intent is thus clear that unless expressly provided for, the allowances and pension of Lokayukta shall be similar as payable to the Chief Justice of High Court. THE legislature having regard to the high office of Lokayukta intended that he should be entitled to the same pensionary benefits to which the Chief Justice is entitled. Article 221 of the Constitution provides for payment of salary to the Judges of the High Court. Clause (2) of the Article lays down that 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. The Parliament has enacted the High Court Judges (Conditions of Services)-Act 1954, providing for the grant of leave, pension and other allowances to a Judge of High Court. Section 2 (g) of the Act defines the expression "Judge" which means a Judge of a High Court, including the Chief Justice, an acting Chief Justice, an additional Judge and an acting Judge of the High Court. Section 2 (gg) of the High Court Judges (Conditions of Service) Act, 1954 defines "pension" which means pension of any kind whatsoever payable to or in respect of a Judge, and includes any gratuity or other sum or sums so payable by way of death or retirement benefits. Defination of "pension" is, thus, wide enough to include gratuity also. Chapter III of the 1954 Act deals with pension payable to a Judge. Section 17-A occurring in Chapter III of the Act makes provision for -family pensions and gratuities. Sub-section (3) of section 17 A provides that the rules, notifications and orders for the time being in force with respect to the grant of death-cum-retirment gratuity benefit to or in relation to an officer of the Central Civil Services Class I shall apply to or in relation to the grant 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 17 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 twenty days' salary for each completed year of service as a Judge ; and (iii) the maximum amount of gratuity payable shall be thirty thousand rupees. These provisions make it amply clear that a Judge including the Chief Justice of a High Court is entitled to gratuity on his completing the qualifying service of two years and six months at the rate prescribed in section 17 A (3). The Act further provides ceiling on the maximum which may be paid to a Judge as gratuity to the extent of thirty thousand rupees. Since the Chief Justice of the High Court is entitled to gratuity on his retirement in accordance with section 17 A of the High Court Judges (Conditions of Service) Act, 1954, the Lokayukta is also entitled to gratuity in the same manner and at the same rate and with the same limitations as are prescribed by the 1954 Act. The Rules, Notifications and Orders regulating the death-cum-retirement gratuity benefit to an officer of the Central Civil Services Class I, would apply to Lokayukta with the modifications as contained in sub-section (3) of section 17-A of the 1954 Act. We, therefore, hold that the petitioner is entitled to gratuity in accordance with rules, notifications and orders which may be in force for the time being applicable to an officer of the Central Civil Services Class I, subject to the modifications contained in sub-section (3) of section 17-A of the Act. The State Government was wholly unjustified in refusing to grant gratuity to the petitioner. 6-a. The question then arises as to whether the petitioner is entitled to the payment of cash equivalent to leave which was to his credit on the date of his retirement. Neither the 1975 Act nor the 1981 Rules contain any provision for the payment of cash in lieu of leave to the Lokayukta. Rule 8 of 1981 Rules lays down that the Lokayukta shall be entitled to the various kinds of leave as are given in Appendix 2, and the Governor shall be the competent authority to grant such leave to the Lokayukta. Appendix 2 contains three clauses (a) leave on leave salary equivalent to full pay, (b) leave on medical grounds on half pay, and (c) extra ordinary leave which may be granted without salary upto a maximum of three months during the whole term of office. The three sub clauses, thus, prescribe three kinds of leave which may be granted to Lokayukta i. e. leave on full salary, leave on medical ground equivalent to half pay and extraordinary leave without salary. Two notes are appended to the Schedule. Note-1 provides that all or any two of the above kinds of leave may be granted in combination at one time. Note 2 provides that leave at the credit of the Lokayukta shall lapse on the date on which he shall vacate office. The Rules, therefore, do not contain any provision for the payment of the cash equivalent to leave which may be to the credit of the Lokayukta on the date of his retirement.;