SINGHVI, J. - (1.) THE petitioner joined the Rajasthan Judicial Service on 8. 9. 1956. He was promoted as District & Sessions Judge on May 7,1973. He was then elevated as Judge of the Rajasthan High Court w. e. f. 4. 4. 1983. Before elevation, the petitioner was holding the office of the Law Secretary, Government of Rajasthan and from that post, he had retired on March 31, 1983 on attaining the age of superannuation and his elevation as Judge of the Rajasthan High Court was after the said retirement. THE petitioner retired as Judge of the Rajasthan High Court on February 6, 1990. On his retirement as Law Secretary, Government of Rajasthan the petitioner was granted gratuity amounting to Rs. 32,000/ -. This was drawn by the petitioner on April 17, 1983. A pension payment order was also issued in favour of the petitioner, but he did not draw the pension in terms of the aforesaid pension payment order. Instead, he had applied for commutation of one third of pension. This commutation was sanctioned and the petitioner received a sum of Rs. 45, 634. 30 on July 8, 1983. THE Registrar, Rajasthan High Court wrote a letter dated 29. 08. 1983 to the Secretary to the Government of India, Ministry of Law & Justice seeking clarification in the matter of recovery of commutted pension and also as to whether the petitioner would be entitled to get salary after deduction of the pension and what would be its impact on pension at the time of retirement as Judge of the High Court. After exchange of correspondence between the ministry of Law & Justice, Government of India, the Director, Pension Rajasthan, Jaipur, and the Secretary Law Department, Government of Rajasthan, Jaipur, the Government of India vide its letter dated February 15, 1985 clarified that the petitioner's salary will be fixed after deducting from his salary the amount of pension and pension equivalent to gratuity. THE Director, Pension then wrote a letter dated April 23, 1983 to the Registrar, Rajasthan High Court indicating that the gross amount of pension payable to the petitioner would come to Rs. 1000/- and the amount of death cum retirement gratuity would come to Rs. 241. 70 per month. THE salary of the petitioner would be fixed after deducting the amount of Rs. 1241. 70. In pursuance of the subsequent order passed by the Registrar, Rajasthan High Court the petitioner's pay was fixed after deducting the aforesaid amount. However, the Hon'ble Chief Justice, Rajasthan High Court considered the case of the petitioner and expressed opinion that fixation of pay of a Judge of the High Court was not within the jurisdiction of the State Government or even the High Court itself and, therefore, he directed that the Treasury Officer, State Secretariat, Jaipur shall not deduct any amount from the salary of the petitioner. A lot of correspondence was again exchanged between the various functionaries and ultimately the petitioner on his own accord asked the Director, Pension, Rajasthan to advise him as to under what head the amount should be deposited by him. After receipt of reply, the petitioner deposited the amount of commutted pension in instalments between 4. 5. 1988 to 2. 9. 1988. THE gratuity amount was also deposited in instalments between 4. 10. 88 to 24. 7. 89. THE Pension Department pointed out that the petitioner was required to deposit a sum of Rs. 625/-and the same was deposited on September 21, 1989.
(2.) AFTER retirement of the petitioner as Judge of the Rajasthan High Court, the Central Government sanctioned a sum of Rs. 75,000/- as gratuity and Rs. 2,19,600/- as commutation of pension. Out of the said amount, a sum of Rs. 47,980. 30 has been deducted by the State Government by way of interest for the period for which the amount of gratuity and commutted pension remained with the petitioner. The Director, Pension Rajasthan, Jaipur referred the matter to the Central Government for sanctioning the gratuity amount of Rs. one lakh. But the Government sanctioned only Rs. 75,000/-vide order dated 9. 1. 1990. This was apparently done under Rule 257 A of the Rajasthan Service Rules, 1951. It has also been stated in the petition that the question of payment of cash equivalent to earned leave has not been finalised by the Government. At the time of retirement as Law Secretary, the petitioner was granted a sum of Rs. 13,815 on 13. 5. 1983 as the amount of encashment of leave due at his credit upto the date of his retirement as Secretary, Law Department, Government of Rajasthan. As a Judge of the High Court, the petitioner became entitled to encashment of leave upto 240 days. Registrar, Rajasthan High Court advised the State Government that 240 days leave was available to the credit of the petitioner and that he was entitled for encashment of the same, after deduction of the amount, which has already been paid to him, but the amount of leave encashment was not paid to the petitioner. According to the petitioner, the leave which he had encashed as a member of the Rajasthan Higher Judicial Service and the fact that he had drawn the amount of Rs. 13,815/-can have no relevance to the entitlement of the petitioner to encashment of leave upto 240 days as Judge of the High Court and that he was entitled to full encashment of the amount of Rs. 80,000/ -. Petitioner has then stated that he along with Shri S. S. Byas (another retired Judge of the High Court) made representation to the Chief Secretary, Govt. of Rajasthan on July 10, 1990 for payment of cash equivalent to earned leave and the balance amount of gratuity. A reference to the decision of the Hon'ble Supreme Court in Satish Chandra vs. Union of India (1) decided on July 30,1990. But no reply has been received by the petitioner. The petitioner has referred to a Circular dated May 2, 1988 issued by the Government of India, Ministry of Law & Justice indicating that if the concerned State Government has not adopted the provisions contained in the Department of Pension and Pensioners Welfare Office Memorandum dated 14. 4. 1987 or have yet not issued any independent orders for revising the pensionary benefits to the employees of that State including the members of the State Higher Judicial Service, then the pensionary benefits to the Judge belonging to Part III will not be revised. The petitioner on his part made a representation to the Government of India, Ministry of Law & Justice (Department of Justice) on May 15, 1990 and in reply to the same, the Government of India has intimated vide letter dated May 29, 1990 that since the Government of Rajasthan has not adopted the enhanced rate of death-cum retirement gratuity in respect of Part III Judges elevated from the State Higher Judicial Services, the petitioner is not entitled to receive the gratuity amount of Rs. 1 lakh. The petitioner has questioned the justification of discrimination between the High Court Judges in the matter of grant of death of (sic cum) retirement gratuity despite the decision of the Supreme Court in Satish Chandra's case. The constitutional validity of Rule 257-A of the Rajasthan Service Rules, 1951 has also been assailed. The petitioner has further prayed that deduction of sum of Rs. 47,980. 30 towards the so called interest is wholly arbitrary, unreasonable and unjustified. According to the petitioner, there is no provision under the Rules, by which the Government could claim interest on the amount of gratuity and commutted pension received by him as a member of the Rajasthan Higher Judicial Service on his retirement w. e. f. March 31, 1973 when he attained the age of superannuation. The petitioner had, infact been always ready and willing to deposit the amount of gratuity and commuted pension, but because of the correspondence and the directions given by the Hon'ble Chief Justice etc. the petitioner could not deposit the amount in time and he himself asked the authorities of the Department and on their advise, deposited the amount. The petitioner has also claimed that there is no justification for not giving him the benefit of earned leave of 240 days as Judge of the High Court to which he became entitled after his elevation w. e. f. April 4, 1983. According to the petitioner there was no provision for clubbing of the earned leave to which the petitioner was entitled as a member of the Rajasthan Higher Judicial Service and the earned leave to which the petitioner is entitled as Judge of the High Court. In reply to the writ petition, the respondent No, 1 has admitted that the petitioner was a member of the Rajasthan Higher Judicial Service at the time of his retirement on 31. 3. 1983 while holding the office of the Law Secretary. It has also admitted the factum of elevation of the petitioner as Judge of the High Court w. e. f. April 4, 1983 and that he retired as Judge of the High Court on February 6, 1990. The respondent No. 1 has also admitted that the petitioner had applied for commutation of pension and the petitioner was authorised to pension, gratuity and commutation of pension. The petitioner did not draw the monthly pension, but drew the communed value of monthly pension amounting to Rs. 45634. 30 and the amount of gratuity to the tune of Rs. 32,625/ -. The matter regarding fixation of pay of the petitioner as Judge of the High Court was decided by the Govt. of India, Ministry of Law and Justice (Department of Justice) and the same was communicated vide letter dated 18. 3. 1983. According to the said order, a sum of Rs. 1241. 70 was to be deducted from the monthly salary of the petitioner towards pension and pension equivalent to death-cum-retirement gratuity. The respondent No. 1 has stated that the Director, Pension is not competent authority to sanction pensionary benefits to the High Court Judges, they are sanctioned by the Government of India, Ministry of Law & Justice (Department of Justice) and the amount sanctioned in the case of the petitioner was only Rs. 75,000/ -. It has been stated that Rule 257-A of the Rajasthan Service Rules, 1951 does not apply to the Rajasthan High Court Judges. This statement has been made in para 9 of the reply. In para 10, it has been stated that the matter of the petitioner pertaining to the payment of leave encashment amount for 240 days after deducting the amount of 13,815/- already paid to him along with interest, is at the final stage of finalisation and issuance of order. The petitioner is however, not entitled to leave encashment for both the periods separately because his order as Law Secretary was withdrawn by the Government of Rajasthan in Law and Judicial Department vide order dated 30. 8. 89 in view of Government of India's letter dated 12. 9. 1988. The respondent No. 1 has then asserted that under Sec. 17-A (2) of the High Court Judges (Conditions of Service) Act, 1954 (hereinafter to be referred as 'the Act') only a sum of Rs. 75,000/- is payable to the petitioner as gratuity. The Government has deducted the amount from the pension payable to the petitioner towards interest because the petitioner had retained the said amount. The State Government has nothing to do in the matter of pension, gratuity and leave encashment of the Judges of the High Court because the conditions of service of High Court Judges are regulated by the provisions of the Act as amended from time to time and the orders are to be issued by the Department of Law & Justice, Government of India. The State Government has merely to implement the orders of the Government of India. The respondent No. l has stated that the directions given in the case of Satish Chandra are not applicable because Shri Satish Chandra was elevated as Judge of the High Court while he was practising Advocate whereas the petitioner was a member of the Higher Judicial Service. The Act has divided the High Court Judges in 3 categories on the basis of source of recruitment of the Judges and the Judges belong to these 3 different categories are entitled to different benefits. Therefore, there has been no violation of the provisions of Article 14 of the Constitution of India in the matter of payment of gratuity to the petitioner. In para 13 the respondent No. 1 has stated that the office memorandum dated 14. 4. 87 is not applicable to the case of the petitioner because the same is applicable to only the cases of those employees to whom the Central Civil Services Pension Rules, 1972 are applicable. The respondent No. 1 has justified its stand regarding the amount of gratuity payable to the petitioner by stating that as per the provisions of the Act, the Government of India has sanctioned only a sum of Rs. 75,000/ -. Rule 257 of 1951 Rules has no application to the case of the petitioner and the petitioner is not entitled to treatment at par with the Judges of the other High Courts. The amount of Rs. 47,980. 30 was withheld by the Government because the petitioner had drew the amount of gratuity and commuted value of the pension unauthorisedly and had retained the said amount. In fact, no direction was necessary. In case of irregular drawal of pensionary benefits by the State Government employees, Government instructions provide for recovery of interest at the rate of 15-% P. a. and in the case of petitioner only 12% interest has been charged in terms of Government of India Memo dated 30. 3. 1978.
(3.) IN the additional pleas, the respondent No. 1 has asserted that the Rajasthan High Court has not been impleaded as a party, although it is a necessary party. During the course of hearing of writ petition, an amendment application was filed on behalf of the petitioner because the Government of Rajasthan (Law & Judicial Department) vide its letter dated October 30, 1990 addressed to the Registrar, Rajasthan High Court conyeyed the sanction to receive cash equivalent to the leave salary in respect of unutilised 240 days earned leave at his credit inclusive of dearness allowances on the date of retirement in view of the Supreme Court decision in Civil Writ Petition No. 764/87 Satish Chandra Vs. Union of India delivered on 30. 7. 1987 with the condition that the amount of Rs. 13,815/- alongwith the interest accrued thereon @ 12% per annum would be adjusted from the amount of encashment leave payable to the petitioner. The petitioner has assailed this letter on the ground that there is no justification for adjustment of Rs. 13,815/- along with interest @ 12% because the amount of Rs. 13,815/- was received by the petitioner for his service as member of the Rajasthan Higher Judicial Service upto 31. 3. 1983. Even if he had not been elevated as Judge of the High Court, he had a right to receive that amount. From the facts, which have come on record, it is evident that after joining Rajasthan Judicial Service on 8. 7. 1956, the petitioner received promotions, the last being one to the Rajasthan Higher Judicial Service. He retired on March 31, 1983 while he was holding the office of Law Secretary, Government of Rajasthan. He was elevated as Judge of the Rajasthan High Court on April 4, 1983. By a communication dated 12. 9. 1988 of the Government of India, Ministry of Law & Judicial (Department of Justice) addressed to the Chief Secretary, Government of Rajasthan, sanction of the President was conveyed under Sec. 16 of the Act of 1954 to the addition of 3 days i. e. 1. 4. 1983 to 3. 4 1983 to the service of the petitioner with a specific stipulation that this period shall be disregarded in calculating additional pension, if any, under Part I or Part II or Part III of the First Schedule to the Act. The petitioner had applied for commutation of pension before his retirement from Rajasthan Higher Judicial Service. The Government of Rajasthan sanctioned this commutation and thereafter, the petitioner received the amount of gratuity and commutted portion of the pension. A lot of correspondence was exchanged between the Govt. of Rajasthan and the Government of India and, thereafter it was decided that the petitioner will be entitled to salary as Judge, of the High Court after deduction of a sum of Rs. 1241. 70 in lieu of pension and pension equivalent to death-cum-retirement gratuity. The petitioner deposited the amount of commutted pension between 4. 6. 1988 to 2. 9. 88 and the amount of gratuity between 4. 10. 1988 to 24. 7. 1989. He had received a sum of Rs. 13815/- towards encashment of leave of 135 days, which was due to him at the time of retirement from the Rajasthan Higher Judicial Service on 31. 3. 1983. The petitioner was paid a sum of Rs. 75,000/- towards gratuity and from the pension payable to him on retirement of Judge of the High Court, a sum of Rs. 47,980. 30 has been deducted towards the so called interest @ 12% per annum on the amount of commutted pension and gratuity received by the petitioner after retirement of the petitioner from Rajasthan Higher Judicial Service. The benefit of leave encashment as Judge of the High Court was not given to the petitioner but during pendency of the writ petition by an order dated October 30, 1990, sanction was accorded for payment of cash equivalent to the leave salary in respect of unutilised 240 days earned leave after deduction of Rs. 13,815/- along with interest @ 12% per annum. ;