Holding

The benefit under Rule 20B is not subject to the five‑month ceiling of s.5(3) and must be calculated according to s.9(1), giving the petitioner entitlement to cash equivalent of six months' salary.

Summary

Retired Chief Justice Shiv Dayal Shrivastava filed a writ petition under Article 32 seeking the cash equivalent of his unutilised earned leave. The Supreme Court had earlier held in Union of India v. Gurnam Singh that judges are entitled to such payment under Rule 20B of the All India Services (Leave) Rules, 1955. The petition raised two questions: (1) whether the ceiling of five months (150 days) under s.5(3) of the High Court Judges (Conditions of Service) Act, 1954 applies, or the six‑month (180 days) limit in Rule 20B; and (2) whether the calculation method in s.9(1) of the Act is applicable. The Court held that Rule 20B is not governed by Chapter II of the Act, so the five‑month ceiling does not apply and the six‑month limit prevails. It also held that the rate of leave allowance under s.9(1) must be used, entitling the petitioner to cash equivalent of six months' salary (Rs 24,000). Having already received Rs 15,990, he was awarded the balance of Rs 8,010 by a writ of mandamus. The judgment extended the principle to all retired High Court judges.

Issues considered

Whether the ceiling of five months under s.5(3) of the High Court Judges (Conditions of Service) Act, 1954 limits the cash equivalent of leave salary payable under Rule 20B.
Whether the calculation of the cash equivalent of leave salary must follow the provisions of s.9(1) of the Act.

Legislation cited

All India Services (Leave) Rules, 1955s. Rule 20B
High Court Judges (Conditions of Service) Act, 1954s. 5(3), s. 9(1)

Subjects

cash equivalent of leave salaryHigh Court Judges (Conditions of Service) ActRule 20Bleave entitlementmandamusArticle 32retirement benefits

Judgment

853

A

SHIV· DAYAL SHRIVASTAVA

v. B

UNION OF INDIA

February 7, 1984

[S. MURTAZA FAz,L ALI, A. VARADARAJAN AND c
RANOANATH MISRA, JJ.]

High Court Judges (Conditions of Service) Act, J9S4-S•. 5 (3) and 9 (I)
read with Rule 20B of All India Services (Leave) Rules J9SS-Interpretatlon of.
For calculating cash 'equivalent of leave salary admissible to a Judge under Rule
208, Ss. 5 (3) and 9 (1) of the Act would not apply.
In Union of lndid v. Gurnam Singh [1982] 3 S.C.R. 7c0, this. Court deci- D
ded that under the High Court Judges (Conditions of Service) Act, 1954 Judges
were entitled to cash equivalent of leave salary in respect of the period or earned
leave at their credit on the date of retirement' as provided under rule ZOB of the
AlJ India Service (Leave) Rules, 1955. The two question which arose for consi-
deration in this pe!ilion under Art. 32 filed by a retired Chief Justice of Madhya
Pradesh High Court were (I) whether in view oftbe provisions of s. 5(3) of tho
Act, the limit has to be confined to five months equal to 150 days and not 180 E
days as in Rule 20B ; and (2) whether for calculating the equivalent of leave
.
salary admissible to a Judge the. provisions of s. 9 (I) of the Act would apply?
Allowing the petition and answering the questioris in ~he negative.
HBLD : Tho ratio of Gurnam Slngh's case has not been disputed.
It would necessarily mean acceptance of the position that the Act did not make
provision for payment of the retirement beriefit contemplated under rule 20B ; F
otherwise rule 20B could not have been applied. For calculating the benefits
under rule 20B, s. S (3) of the A<"t is not not relevant and in case in the leave
account maintained ~nder s. 4 of the Act leave is due1 the benefit under rule
20B has to be worked out subject to the upper limit of 180 days, equal to six
months [857 B-C]

· Once it is held that the benefit under rule 20B is not controtied by
Chapter II of the Act, the, manner of calculatipn indicated in s. 9 (I) of the G
Act would also not apply. [857 ll]

Tho pri~c!ples governing the cash equivalent of leave would apply not
on~y to the petitioner but also to Judges who have already retired or who may
retue hereafter, from the date from which this -facility was made aVaitable to
the members of the Central Services holding the- rank of Secretary to the
Govornm~nt of India or its equivalent. [857 E-G)
H
854 SUPREME COURT REPORTS [1984] 2 s.c.R.
A ORIGINAL JURISDICTION : Writ Petition No. 8991 of 1983.

(Under Article 32 of the Constitution of India.)

Petitioner in person alongwith Mukul mudgal

K. Parasraµ, Attorney General, K.G. Bhagat Addi. Solicitor
General, R.N. Poddar for the Respondent.

The Judgment Of the Court was delivered by
, RANGANATH MISRA, J. Shri Shiv Dayal Shrivastava, the peti-
c tioner before us in this application under Article 32 of the Consti-
tution praying for a writ of mandamus to the Union of India,
retired as Chief Justice of the Madhya Pradesh High Court with
effect from February 28, 1978. At the time of retirement he was
drawing salary of Rs. 4,000 per month as provided under Consti-
tution. This Court in the case of Union of India v. Gurnam Singh('>
D decided that under the High Court Judges (Conditions of Service)
Act; 1954 ('Act' ' for short), Judges were entitled to cash equivalent
of leave salary in respect of the period of earned leave at their credit
on the date of retirement as provided in Rule 20B of the All India
Services (Leave) Rules, 1955 ('Leave Rules' for short). The Accoun-
tant General of Madhya Pradesh authorised-the petitioner to draw
E cash equivalent of leave salary amounting to Rs. 15,240 by his
communication dated July 17, 1982. The peti_tioner informed the
Accountant General that he was drawing the amount as indicated
in the communication without prejudice to his . right to claim
]ls: 24,000 to which sum under the law he was entitled. On July
19, 1982, the petitioner was authorised to draw a further sum of
F Rs. 750 thus in all Rs. 15;990 only. On February 2, 1983, the
Union of India in the Ministry of Law, Justice & Company Affairs
indicated to the several authorities including the Registrars of all
the High Courts that while in view of the decision of this Court
referred to above, the Central Government were advised that Judges
of the High Courts were entitled to payment of cash equivalent of
G leave salary in respect of the period of earned leave at their credit,

the expression 'earned leave' does not occur in the Act. On the
analogy of the Leave Rules the cash equivalent of leave salary to be
paid would be the cash equivalent of the unutilised leave due on

a · · Ol [19821 3 s.e-R. 'oo,
S.D. SHRIVASTAVA v. UNION (Ranganath Misra, J.) 855

full allowances as defined in ss. 3 and 9 (I) of the Act. In making A
calculations of the cash equivalent of the leave salary the ceiling of
five months mentioned· in s. 5. (3) of the Act would be applicable.
Relving on the aforesaid letter of the Central Government, the
Accountant General of Madhya Pradesh on March 25, 1983, mti-
mated the. petitioner that he \Vas entitled to payment of cash equi-
valent of unutilised earned leave subject to the celling of five months;
leave and, therefore, he had been paid an excess sum of Rs:' 2,220
-+ w!iich should be refunded. That has led the petitioner to move
this Court.
~-·-
'
Rule nisi was issued to the Union of India and this Court
directed separate notice ·to the Attorney-General. A return .bas C·
been· made to the rule by the Union of India. No dispute has been
raiseg to payability of the cash equivalent on the basis of Rule 20B
of the Leave Rules. Reliance has been placed.on the provisions of
the Act to justify the circular letter of February 18, 1983. Learned
Attorney-Gerieral has been heard and he has furnished written
submissions also.

The decision of this Court in Gurnam Singh's case has been
-~ accepted by the Union of India and steps have been taken to imple-
ment the same. In that case this Court held :
E
" ... it must be regarded as a provision absorbed by
rule 2 of the High Court Judges Rules, 1956, into !lie statu-
tory 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, js 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 condttion of service" ..

Two questions require decision, viz., (I) whether in view of
the provisions of s. 5 (3) of the Act, the limit has to be confined to. G
five months equal to 150 days and not 180 days as in Rule 20B; ahd
(2) whether for calculating the equivalent of leave salary admissible
to a Judge the provision.s of s. 9 (I) of the Act would apply? I

We may now refer to rule 20B of the Leave Rules as also to
the two provisions of the Act : ff
856 SUPREME COURT REPOFTS (1984] 2 S.C.R
A "20B-Payment of cash equivalent of leave salary-The
Government shall suo motu 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
B of leave salary in respect of the period of earned leave at
his credit on the date ef his retirement subject to a maxi-
mum of 180 days."

Section 5 (3) of the Act reads :

C "5 (3). Subject to the provisions of sub-section (2) of
s. SA, the maximum period of leave which may be granted
at one time shall be, in the case of leave'on fulllallowances,
five months and in the case of leave with allowances of any
kind, sixteen nionths."

D Section 9 (1) provides :

"9 (1). The monthly rate of leave allowances payable
to a Judge while on leave on full allowances shall be for
the first forty five days of such leave, a rate equal to the
monthly rate of his salary, and thereafter two thousand
E two hundred and twenty rupees.

Provided that where leave on full allowances is granted
to a Judge on medical certificate the monthly rate of leave
allowances shall, for the first one hundred and twenty days,
of such leave, be a rate equal to the monthly rate of his
F salary."

Chapter II of the Act deals with leave. Section 3 pro_vides
the kinds of leave admissible to a Judge. .Section 4 makes provision
for a leave account to be maintained. Section 5 deals with aggre-
gate amount of leave which may be granted; Section SA makes
G provision for commutation of leave on half allowances into leave on
full allowances while sections 6, 7 and 8 deal with grant of leave of
specific kinds. . These provisions in the Act deal with leave which
has to be asked for and taken during the tenure of working as a
Judge. Leave necassarily implies authorised absence from duty or
employment (see Webster's Third New International Dictionary).
Rule 20B makes provision for payment of <;ash equiva1ent of leave
"
S.o. SHRIVASTAVA v. UNION (Ranganath Misra J.) 851
due under the appropriate provisions but subject to a maximum of A
180 days. We have already indicated that the ratio of Gurnam
Singh's case has not been disputed. It would necessarily mean
acceptance of the position that the Act did not make provision for
payment of the retirement benefit contemplated. under rule 20B;
otherwise rule 20B could not have been applied. The scheme in
rule 20B is that the payment would be made suo motu and without B
any application for it. Leave referred to under the AC! is one which
has to be asked for and is i.ntended to meet· a different situation.
For calculating the benefits under rule 20B, s. 5 (3) of the Act is not
·relevant and in case. in the leave account maintained under s. 4 of
Act leave is due, the benefit under rule 20B has to be worked out
subject to the upper limit of 180 days, equal to six months.. lfhe c
claim made by the petitioner that he was entitled to the benefit of
six months is, therefore, justified subject, of course, to admissibility
of leave to the extent of 180 days in the leave account. No dispute
was raised before us that as a fact petitioner had to his credit more
than 180 days of leave.
D
Once we hold that the benefit under rule 20B is not controlled
by Chapter II of the Act, the manner of calculation indicated in
s. 9 (1) of the Act would also apply. The petitioner would thus
become entitled to cash equivalent of six months' salary which would·
work out at Rs. 24,000. As he has been paid a sum of Rs. 15,990
he is entitled to Rs. 8,010. A .writ in the nature. of mandamus be
issued to the Union of India to pay him the said amount within one E
month from today. Parties are left to bear their own costs
before us.
We would like to add that it is manifest that in view of the
enunciation of law by us in th's judgment, the principles governing
the cash equivalent of leave would apply not only to the petitioner F
but also to Judg"s who have already retired or who may 'retire here-
after, from the date from which this facility· was made available to
the members of the Central Services holding the rank of Secretary
to the Government of India or its .equivalent.

G
•
H.S.K. Petition allowed.

I

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