Union of India v. Gurnam Singh

_PATHAK, J. This petition for special leave to appeal by the P11iop of ln4ia is directe<! ~gilin~t t!)e judgment ~nd or(jer of the I;Iig~ Ccnm of Punjab an.<! Ifl1rY\l!ll\ )loJdiQg !b.e r&S,J?o~cjeJll~ a retirE.4 J\!d!!!' of t,be Hi~h f::qqrt, entitled tq f.l\e p,a.yme11t of the fash , ec19iv~lent ofle~ye salary )n respect J>f the pe,rio(j pf citrqed le\IVc at

bi~ Cfe,4it O~ tb.e (j~t~ qf bjs retirement,

The respondent1 Sbr.i Gurnal)I ~in~b, was a member of the Superior Judicial Service in the State of Haryana. Qn February 24, )972 be was appointed a Judge of the High Court of Punj~b, aiid ' • - •. - • .,. • -· ' . ' ... 'i_ Haryapa 11ndh rdetiredf oq. M!frcb lb8, 1980 o~ attaihnind~ tbeb~ge ofd6'2 years. 0 _n t e ate o ret1rem_ent t. e ~esponuent a to _ .ts ere .. ti earned leav~ lfhi~h h:i4 n~t bee~ ayailed of by hjm. :He cJairq~d \~a! be Wl\S entitl,eq ~o rece1v,e !he Ci!~h equiy!flep$ 9f )eave 8\1)1\rY in ~e~pept of th~ peripd pf lJDU!j/,ise,d ea.med leave. ~e ;i)so c!~iP),~d dearpess all<;>wapce f()r .the period before retir~,ment, :Che claim ~~im: d,~.ni~1 fhe r~~p.oodent ,i!ppJie!! ~9 th~ iji~b fou.ri of Punjab aruj Har~j!Qa Io' rFli~f 11n\ler 4rlic~e 226 of ~e Coq1titutiou. T/le 7~ . SUPREME, cou)l.T REPORTS' [1982) 3 s.c.11. • writ petition was allowed by the High Court by its Judgment and order dated September 5, 1980 and a direction was issued to the Union of India to pay the amount claimed. During the course of the hearing the Union of India conceded the claim to dearness allowance in view of the order dated July 3, 1S80 of the Government that the Judges of the High Conrt were entitled to draw dearness allowance from December 1, 1979. As to the remaining claim, the High Court held the respondent entitled to the cash equivalent of the· leave salary for the period of unutilised earned leave by giving him the benefit of rule 20-B, AIL India Services (Leave) Rules, 1955 by virtue of rule 2 of the High Court Judges Rules, 1956. The order of the High Court is assailed before us.

In our opinion, the High Court is plainly right. Article 221 of the Constitution· provides for the payment of salaries .and allow-ances ·10 a Judge of a High Court. 'clause (2) of Article 221 declares :

"(2) Every Judge shall be entitled to . such allowances and fo 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 and, nntil so determined, to such ·allowances and rights as are specified in the Second Schedule :

"

The rights in respect of leave of absence to which a Judge is entitled may be determined by or under law made by Parliament. Parlia-ment enacted the High Court Judges (Conditions of Service) Act, 1954, and sections 3 to 13 of that Act classify the kinds of leave admissible to a Judge, and provide for the maintenance of a leave account, the aggregate amount of leave which may be granted, the commutation of leave on half allowance into leave on full allowance, the grant of leave not due, special disability leave, extraordinary leave, the rate of leave allowances, allowance for joining time, for combining leave with vacation and the consequences of overstaying ]eave or vacation, It also. specifies the authority competent to grant leave. The Union of India says that these several provisions cons-titute a Gomplete code and exhaustively set. forth all the benefits relating to leave ·to which a Judge of a High Court is entitled, and that it is not permissible to proceed beyond those provisions to discover any further right 'in favour of a Judge. T.bat submission is inadmissible. S11b-s. (1) of s. Z4 of the'same Act empowers of Central Government to make rules to carry out· the purpose of the Act. And clause (a) of Sub-s. (2) of s. 24 specifically contemplates rules providing for "leave of absence of a Judge". In other words, it is open to the Central Government to adcf to the existing _statutory provisions by making rules in relation to leave of absence. Sub-s. (2) of s. 24 in fact enables the Central Government to make rules in respect of several other matters, such as the pension payable to a Judge, travelling allowances, use of official residence, facilities for medical treatment and other conditio~s of serv'ice and "any other matter which has to be, or may be prescribed". Now the Govern· mept of India enacted the High Court Judges Rules, 1956 and rule 2 comprehensively declares :

"2. The con?itions of services of a Judge of a High Court for which no express provision has been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules ·for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat ' of the High Court is situat~.

Provided that, in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab and Haryana the conditions of service·shall be determined by the rules for the time being applicable to a member of the Indian Administrative Service on deputation to the Govern-ment of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi.

Provided further that, in respect of facilities for medical treatment and accommodation in hospitals the provisions of.the All India Service (Yledical Attendance) Rules, 1954, in their application to a Judge, shall be deemed to have taken effect from the 26th January, 1950.

Provided also that where at the request of the President, any Judge undertakes to discharge any function outside his normal duties in any locality away from of his head-quarters, the President may, having regard to th~ nature of such function and locality, determine the facilities toat may be afforded to such judge including accommodation, transport aJ)d telephonQ so long as IJe Qontiques to 4i'·

704 SUPREME COURT ( 1982] 3

REPORT~ S.~.R.,

charge such function, either without any payment or at a concessional rate."

Rqle ~A ~s forth the rights of a Jµdge who avail' of an ol!icial residence anil Rule 2B proyi<;l~s . the ac.ale of its fr~e futnishing .

It i~ ~lear fr9,lJl ll11le fr oft.he J:ligh CR1,1ri Jud~e~ RJlle.s, !'?56, that the conditions •of ~rvice qf a !11dge Qf the High ~01!f! oT Pyp)ab ~11~ Hiiry11na, where qot c11pre~slY proyided l11 the High Coprt Judl!Ps ((;onditjoq5 of Service) A~, j !1?4 m11s,t bi; f!eter111ioe\I l)y the rllJes governing a member of the Indian . Ac!ipiqi~frative $~fvi~e Qf !lie ra~k of Joint Secretary to the Government of India •stationed at New Delhi.

The Al.I lndill ~rfi<;es (JM.v~) Rules, 1955 copt9in pfpv1s1on for I.eave in relatiop to m.embcrs <If the AU Jnc!i:i Services, iqcluding the Indian 4dmipi,s1rJ1tiv!' ~ervi~. Po fhe ~ate when .the r cspondent retir.ed tho~ r\lles joclude,d 11Jle.W·B :w)µch provioes :

"20-B •.. PaYI11ellt of cas~ equivalent pf 1~11yc sl!lary :- (I) The Government \hall suo-moto sanction to a member of the service )Yho retires from the serYice uuder sub-rule (!) of rule I~ of the All Jndia $ervices (J;>eath-cum-Retirement·BenefiM Rules, 19.58, having attained the age of 58 years · 011 Or 11fter tpe ~0th September, I ?77 the cash equivalent of leave salary in respect of the period of earned Jeaye at bis credit 0n the date of his retirement, subject to·a maxim11m of 180 <lays.

. (2) The cash equivalent of leave salary payable to a member of the Service under .sub-rule (I) above shall also include dearness allowance admiss.ible to him on .the leave salary at the rates in force on the date _of retirement, and i_t shall be paid in one lump sum, as a one-.time settlement.

(3) The city compensatory allowance and the house rent allowance<Shall not be included in calculating the cash eqtiival~nt of leave salary under this rule.

( 4) From the cash equivalent so worked out no deduction shall be made PD account of pension and pensionary equivalent of other retirement beneffl;s.

It is not disputed that Rule 20-B applies to a member. of .the Indian Administrative .S~rvice of the rank of Joint Secretary to the Government of India stationed at New Delhi. The rule en.titles him on retirement from service to the cash. equiv~lent of leave Ji&larY in respect of the period of unutilised earned leave subject to a.maximum of 180 days, inclusive of dearness allowance. It is. apparent that by virtue of Rule 2 of the High Court Judges R11les, 1956. \his benefit must be read as a condition of service enjoyed by a .Judge of the High Court. It may be observed that although rule 20-B of the All India Services (Leave) Rules, 1955 is a provision of a scheme applicable to members of the All India ·Services, there is nothing in its nature and content which makes it inapplicable mutatis mutan(iis ..<. to the statutory . scheme pertaining to leave enacted in the H.igh .C

. Court Judges (Conditions of Service) Act, 1954. There is also nothing in the constitutional position of a. Judge of a Iiigh Court which precludes Rule 20-B from inclusion in that scheme. It is true that Rule 20-B .revolves around· the concept of earned leave, and the expression "earned leave" has been specifically defined by clause (d) of rule 2 of the All India Services (Leave) Rules, 1955 as "leave earned under rule 10". But rule 10 merely lays down the rate arid amount of earned leave. The principle in which "earned leave" is rooted must be discovered from rule 4, which provides that "except as otherwise provided in these rules leave shall be earned by duty only". The performance of duty is the basis of l!l earning leave.' That concept is also embedded in the High Court Judges (Conditions of Service) Act, 1954. Under that Act, the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service",(') which is the' reason for crediting le11-ve in. the. leave account of a Judge.(') Although the expression t "earned leave" is not employed in the Act, the fundament;il premise

for the grant of leave to a Judge is that he has earned it. · He has \...._ earned it by virtue of the time spent by hi;n on actual service. That

'-a Judge earns the leave which is credited to his leave account is

borne out by the proviso to s. 6 of the Act, which declares that the grant under s. 6 of leave not du~ will not be mad "if the Judge is not expected to return to. duty at the end of such leave and earn the leare granted" (emphasis provided). The conc~pt then on which rule 20-B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act. It bears Ji logical and reasonable relationship. to the essential content of that scheme. On that, ii 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 rec~ive pension, although . accruing on retirement, is a condition• of service, so also the right to the paiment of the cash equivalent. of leave salary for the period of unutilised leave accruing on the date of retirement must be consi· dered as. a condition of service.

In our judgment, the High Court is !right in upholding the claim of the respondent to the payment of the cash equivalent of the leave salary in respect of tbe period of earned leave at his credit on the date of retirement in accordance with the provisions of rule 20,B of the All India Services (Leave) Rules, 1955 read with rule 2 of the High Court Judges Rules, 1956.

P.B.R. Petition ' dtsmi$sed,