SINGH, J. - (1.) THE petitioner was a member of Rajasthan Judicial Service. He was compulsorily retired from service under Rule 244 (2) of the Rajasthan Service Rules, 1951 (in short the Rules) with effect from 2. 8. 1985. He had four months unutilised privilege leave at his credit.
(2.) AFTER his retirement, he made a request to the High Court through its Registrar for grant of cash equivalent to leave salary in respect for unutilised privilege leave. The Registrar vide his letter No. Estt. B-2/iv/13/77/b-7655, dated 5. 10. 1985 informed him that since the order of retirement was passed under Rule 244 (2) of the Rules, he was not entitled to get any amount in respect of the unutilised Privilege Leave as per Rule 91 (B) (1) of the Rules. The denial of the said benefits has been challenged on the ground of discrimination. He claims the same benefit which is being given to the government employees who retired under Rule 244 (1 ). In order to appreciate the controversy, the provisions of Rule 244 (1) and 244 (2) are to be examined and compared. Under this sub-rule (1) of Rule 244, a Government servant seeks his voluntary retirement. The government servant may, after giving at least three month's previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice. This option is exercised by him voluntarily. Under Rule 244 (2), the retirement of a Government servant is made by the Appointing Authority which has the absolute right to retire in public interest any Government servant by giving him at least three months' previous notice in writing, from service on the date on which he completed 25 years of qualifying service or on the date on which he attains the age of 50 years, whichever is earlier, or on any date thereafter.
(3.) IN view of the provisions of Rule 244 (2), the right is exercised by the Appointing Authority against a government servant whose efficiency is impaired but against him it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient. The provisions of this Rule are used only in the case of Government servant who is considered unfit for retention and has become a dead wood. The basic difference between sub-rules (1) and (2) of Rule 244 is that under sub-rule (1) the government servant exercises his own option of retirement on completion of 20 years of qualifying service or attains the age of 45 years, whereas under sub-rule (2) the order of compulsory retirement is passed by the Appointing Authority after completion of his 25 years of qualifying service or 50 years of age on the ground that he has lost his efficiency and his retention in service has become practically useless. Though, the order of compulsory retirement is not a punishment but the order is passed under sub-rule (2) after carefully examining the service record of that employee. Now, the question arises for cash payment in lieu of unutilised privilege leave on the date of retirement as contemplated by rule 91 (B) which was inserted in the Rules vide No. F. D. Memo No. F. l (49) F. D. (Gr. 2)/82, dated 22. 2. 1983. The relevant portion of Rule 91-B (1) runs as follows: - " (1) A "government servant on retirement from service on superannuation, invalied, compensation or retirement pension under rule 244 (1), shall be paid cash equivalent to leave salary in respect of the period of unutilised privilege leave not exceeding (240 days) at his credit at the time of retirement. " ;