http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: GURNAM SINGH

DATE OF JUDGMENT03/05/1982

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. VENKATARAMIAH, E.S. (J)

CITATION:  1982 AIR 1265            1982 SCR  (3) 700  1982 SCC  (2) 314        1982 SCALE  (1)453  CITATOR INFO :  F          1984 SC 465  (1,3,6)

ACT:      High Court  Judges’ (Conditions  of Service)  Act 1954- Section and rules made thereunder-Rule 2-Scope of-A Judge on retirement-Whether entitled  to  cash  equivalent  of  leave salary.

HEADNOTE:      On his  retirement as  Judge of  the Punjab and Haryana High Court  the respondent  claimed cash equivalent of leave salary in respect of the unutilised earned leave standing to his credit. His claim was rejected by the Government.      Allowing  his   petition  under   Article  226  of  the Constitution the  High Court  directed the Government to pay the leave salary claimed by him.      In  its   petition  for  grant  of  special  leave  the appellant contended  that the High Court Judges’ (Conditions of Service)  Act 1954  being a  complete code  governing the conditions of  service of  High Court Judges it would not be permissible to  proceed beyond  those provisions to discover any further  rights in  favour of  the Judges  of  the  High Court.      Dismissing the petition, ^      HELD :  The High  Court  was  right  in  upholding  the respondent’s claim  for payment  of the  cash equivalent  of leave salary  in respect  of the period of unutilised earned leave at  the credit  of  the  Judge  on  the  date  of  his retirement in  accordance with the provisions of rule 20B of the All  India Services  (Leave) Rules 1955 read with rule 2 of the High Court Judges Rules 1956. [706 B-C]      Section 24(2)(a)  of the  1954 Act  enables the Central Government to  make rules  in respect of, among others, "any other matter  which has  to be or could be prescribed." [703 B]      The second  proviso to rule 2 of the High Court Judges’ Rules, 1956  provides that,  in the  case of  a Judge of the High Court  of Punjab  and Haryana, if no provision had been expressly made  in the 1954 Act, as to the conditions of his service, they shall be determined by the rules applicable to a member of the Indian Administrative Service of the rank of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

Joint Secretary  to the Government of India stationed at New Delhi. Rule  20B of  All India  Services (Leave) Rules 1955, which is  the rule  applicable to  a member  of  the  Indian Administrative Service of the rank of Joint Secretary to the Government of  India stationed at New Delhi, entitles him on retirement from  service to  the cash  equivalent  of  leave salary in  respect of  the period of unutilised earned leave subject to a maximum of 180 days. By virtue of rule 2 of the High Court Judges Rules 1956 this 701 benefit must  be read as a condition of service enjoyed by a Judge of the High Court. [704 B-C, 705 A-B]      The concept  of "earned  leave" is embedded in the 1954 Act  under   which  the  time  spent  by  a  Judge  on  duty constitutes the primary ingredient in the concept of "actual service" which  is the  reason for  crediting leave  in  the leave account  of a  Judge. Although  the expression "earned leave" is  not employed  in the  1954  Act  the  fundamental premise for  grant of leave to a Judge is that he has earned it. That  a Judge  earns the  leave which is credited to his leave account  is borne  out by  the proviso  to s. 6 of the 1954 Act. The concept on which rule 20B proceeds is familiar to and  underlies the  statutory scheme  relating  to  leave formulated in  the Act.  It bears  a logical  and reasonable relationship to  the essential  content of  that scheme.  On that 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 the High Court. [705 C-H, 706A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition No. 416 of 1981.      From the  judgment and  order dated  the 5th September, 1980 of  the Punjab  and Haryana  High Court  in Civil  Writ Petition No. 1515 of 1980.      L.N. Sinha,  Attorney General,  K.S. Gurumoorthy & R.N. Poddar for the Petitioner.      The Order of the Court was delivered by      PATHAK, J. This petition for special leave to appeal by the Union  of India  is directed  against the  judgment  and order of  the High  Court of  Punjab and Haryana holding the respondent, a  retired Judge  of the High Court, entitled to the payment  of the  cash  equivalent  of  leave  salary  in respect of  the period  of earned leave at his credit on the date of his retirement.      The respondent,  Shri Gurnam Singh, was a member of the Superior Judicial  Service  in  the  State  of  Haryana.  On February 24, 1972 he was appointed a Judge of the High Court of Punjab  and Haryana  and retired  on March  18,  1980  on attaining the age of 62 years. On the date of retirement the respondent had to his credit earned leave which had not been availed of  by him.  He claimed  that  he  was  entitled  to receive the  cash equivalent  of leave  salary in respect of the period  of unutilised  earned  leave.  He  also  claimed dearness allowance  for the  period before  retirement.  The claim being denied, the respondent applied to the High Court of Punjab  and Haryana  for relief  under Article 226 of the Constitution. The 702 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

course of  the hearing the Union of India conceded the claim to dearness  allowance in  view of  the order  dated July 3, 1980 of  the Government  that the  Judges of  the High Court 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,  All 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  allowances to  a Judge of a High Court. Clause (2) of Article 221 declares:           "(2)  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  and,      until 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.  Parliament   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  leave  or vacation, It also specifies the authority competent to grant leave. The Union of India says that these several provisions constitute a  complete 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.  That submission is inadmissible. Sub-s. (1) of s. 24 of the same Act empowers of 703 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 add  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  conditions  of service and  "any other  matter which  has to  be, or may be prescribed". Now  the Government  of India  enacted the High Court  Judges   Rules,  1956   and  rule  2  comprehensively declares:           "2. The  conditions 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    principal seat of the High Court is situated.           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 Government 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   (Medical      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 headquarters,  the President  may,  having      regard to  the nature  of such  function and  locality,      determine the  facilities that  may be afforded to such      judge including  accommodation, transport and telephone      so long as he continues to dis- 704      charge such  function, either without any payment or at      a concessional rate."      Rule 2A  sets forth the rights of a Judge who avails of an official  residence and Rule 2B provides the scale of its free furnishing.      It is clear from Rule 2 of the High Court Judges Rules, 1956, that  the conditions of service of a Judge of the High Court of Punjab and Haryana, where not expressly provided in the High Court Judges (Conditions of Service) Act, 1954 must be determined  by the rules governing a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi.      The All  India Services  (Leave)  Rules,  1955  contain provision for  leave in relation to members of the All India Services, including  the Indian  Administrative Service.  On the date  when the  respondent retired  those rules included rule 20-B which provides:           "20-B.  Payment   of  cash   equivalent  of  leave      salary:-           (1) The  Government shall  suo-moto 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.           (2) The cash equivalent of leave salary payable to      a member  of the Service under sub-rule (1) above shall      also include  dearness allowance  admissible to  him on      the leave  salary at  the rates in force on the date of      retirement, and  it 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 equivalent of leave salary under this rule.           (4) From  the cash  equivalent so  worked  out  no      deduction shall  be made  on  account  of  pension  and      pensionary equivalent of other retirement benefits. 705

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    It is  not disputed  that Rule 20-B applies to a member of the  Indian Administrative  Service of  the rank of Joint Secretary to the Government of India stationed at New Delhi. The rule entitles him on retirement from service to the cash equivalent of  leave salary  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 Rules, 1956 this 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  mutandis  to  the  statutory scheme pertaining  to leave enacted in the High Court Judges (Conditions of  Service) Act, 1954. There is also nothing in the constitutional position of a Judge of a High 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 and 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 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",(1) which is the reason for crediting leave in the leave account of a Judge.(2) Although the expression "earned leave" is not employed in  the Act,  the fundamental 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  him 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 due will not  be mad  "if the Judge is not expected to return to duty at  the end  of such  leave and earn the leave granted" (emphasis provided).  The concept  then on  which rule  20-B proceeds is  familiar to  and underlies the statutory scheme relating to  leave formulated in the Act. It bears a logical and reasonable relationship to the essential content of that scheme. On 706 that, 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.      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 the 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.      The Special Leave petition is dismissed. P.B.R.                                   Petition dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

707