Supreme Court of India
UNION OF INDIAversusGURNAM SINGH
- Citation
- 1982 INSC 50
- Decided
- 3 May 1982
- Disposal
- Dismissed
- Bench
- R S PATHAK
Holding
A retiring High Court judge is entitled to the cash equivalent of leave salary for unutilised earned leave, as provided by Rule 20‑B of the All India Services (Leave) Rules, 1955 read with Rule 2 of the High Court Judges Rules, 1956.
Summary
Gauram Singh, a retiring Judge of the Punjab and Haryana High Court, claimed the cash equivalent of his unutilised earned leave salary. The Government rejected the claim, but the Punjab and Haryana High Court ordered payment under Rule 20‑B of the All India Services (Leave) Rules, 1955, read with Rule 2 of the High Court Judges Rules, 1956. The Union appealed, arguing that the High Court Judges (Conditions of Service) Act, 1954 was a complete code and barred any further rights. The Supreme Court held that the Act does not preclude the application of the aforementioned rules and that the judge is entitled to the cash equivalent of leave salary on retirement. The Court dismissed the Special Leave Petition, affirming the High Court's decision.
Issues considered
- Whether a retiring High Court judge is entitled to cash equivalent of leave salary for unutilised earned leave under the statutory scheme.
- Whether the High Court Judges (Conditions of Service) Act, 1954 constitutes a complete code that bars the application of All India Services (Leave) Rules, 1955.
- Whether Rule 20‑B of the All India Services (Leave) Rules, 1955 can be read into the conditions of service of a High Court judge via Rule 2 of the High Court Judges Rules, 1956.
- Interpretation of Article 221(2) of the Constitution in relation to leave allowances for judges.
Legislation cited
- All India Services (Leave) Rules, 1955s. 20-B
- Constitution of Indias. Article 221(2)
- High Court Judges (Conditions of Service) Act, 1954s. 24(2)(a), s. 6
- High Court Judges Rules, 1956s. 2
Subjects
Leave salaryCash equivalentEarned leaveRetirement benefitsHigh Court Judges (Conditions of Service) ActAll India Services (Leave) RulesRule 2Rule 20-BArticle 221Special Leave Petition
Judgment
700
UNtON OF INfiIA
Ii.
I
GU~NAM SINGH
B
May 3,I~i
r&.s. P>.mAt ANo Its. 'VsNx:>.tARAr.i•Au, iJ .1
· High Court Judges' (Conditions of Strvlct) -ict 1954-Section and rules
tt11JiJHTIHl!rtlldtr~Rlll• 2-Scop• of-A Judg< on'retirem<nt-Wheth<rentitleilid
c cash equiralent of leave salary.
On his retirement as Judge of the Punjab and Haryana High Court the re•·
pondent claimed cash equivalent 'of leave salary in respect of the unutilised
earned leave standing to his ~redit. His clai'm was rejeCted by the Government.
Allowing his petition under Article 226 of the Constitution the High Court
l) directed the Government to pay the leave salary claimed by him.
In its petition for grant of special le&Ye the ap~ellant contended that the
High Court Judges' (Conditions of Service) Act 1954 being a complete code
govemiDg the conditions of service of High Court Judges it would not be per·
missible to proceed beyond those provisions. to discover any further rights ia
favour of the Judges of tho High Court.
E Dismissing the petition, ·
HELD~ The High Court was right .in upholding tho respondent's claim tor
payment of the cash equivalent of le~ve salary in respect of the period of unuti·
lised earned leave at the credit of the Judge on -the date of his retirement in
accordance with the provisions of rule 208 of the All India Services (Leave)
Rules 1955 read with rule 2 of the High Court Judges R_ulos 1956. [706 Ji.CJ
Section 24(2)(a) of the 1954 Act enables the Central GoV.mment to make
rules in respect or, among others, "any otbei' matter which has to be or could be
prescribed." [703 Bl
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 oC Punjab and Haryan, if no pro..
G vision had been expressly made in the 1954 Act~ as to the conditions of his
service, they shall be determined by the r~les applicable to a member of the
Indian Administrative Service of thC rank of Joint Secretary to, the Government
o! India stationed at New Delhi. Rule 20B of All India Services (Leave) Rules
1955, whiCh is the rule applicable lo 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 maxi·
mum of 180 days. By virtue of rule 2 of the High Court Judges Rules 1956 this
...
I
UNION l/, GUIUIAM SINGH (Pathak, J,) 701
benefit "'°'t \JO read ·~a con<\itio11 of 110rvi!!O ollio~ by a Ju<!ae of tho High A
<;our1. [704 B-C, 7ps A·Bl
•
The concept of ''oarned loave" is ombodded in 'the 1954 Act under which
the time spent by SJudge on duty constitutes the primary ingredient in the COD•
cept of -"actual service" which ;, the reason .t!r crediting JolvC in· tl?ie leive
a1+ount of a Judge. AJl\l.ouih !hA llllPJ•iPl! ·'l~r~d !lllY~" iJ QOt ell!i!loYed
iij the !~54 A~t the fµnd.~qieµtal jl!emj~ f~! graql 9f le.ye I~ 8'J\l'I" is t~11-t be B
~as earned it. T~at a Judge CffD~ the !~•v• w,hic~ (~ ~f~~!te~ t~ 1!i! !~~ve ''copnt
is borne outby the proviso to s. 6 of jhe 1951 Ai;t. The CJ>ncept OQ which r,ule
· 2011 proceeds is familiar to and underlies the statutory sclienie relaiing io"ieave
formulat•d-in the Act. It !?ears a logicil and . reasonable relationship to the
•eptj~ cont~nt of that s.che~; (lg 11!41 · i! !!JU§t bi: r~g'lf~~ a.s a prnvi*on
absorbed by rule 2 of the High ~Qµrt li!dj!;!i' J}l!I~ l~S~ .iq!q t!Je fii!t~fpry
structure defining the conditions of service of a Judge of the High Court.
[70S CH, 706AJ
c
C1y1'< APJ'~LL~T~ ~ua1sp1cno1:1 : $p~ci~I ~~av,e Petitio!1 No.
416 of 1981.
I
. From the judgment and order dated t~e 5th S~ptember; 1980
of the Punjab 81\d Harya'll& High Court in Civil Writ Petition No. D
1515 of 1980. ·
~.l!J. ~i~flq, Attorney A~er-', ~:.S· (l1inm1apr,tJiy & JJ.N. Poddar
fqqb~ Peii.tjoqer. ·
The Order of the Court was delivered by E
_PATHAK, J. This petition for special leave to appeal by the
P11iop of ln4ia is directe<! ~gilin~t t!)e judgment ~nd or(jer of the
I;Iig~ Ccnm of Punjab an.<! Ifl1rY\l!ll\ )loJdiQg !b.e r&S,J?o~cjeJll~ a
" retirE.4 J\!d!!!' of t,be Hi~h f::qqrt, entitled tq f.l\e p,a.yme11t of the fash
, ec19iv~lent ofle~ye salary )n respect J>f the pe,rio(j pf citrqed le\IVc at
F
bi~ Cfe,4it O~ tb.e (j~t~ qf bjs retirement,
The respondent1 Sbr.i Gurnal)I ~in~b, was a member of the
Superior Judicial Service in the State of Haryana. Qn February 24,
)972
' •
be was appointed
- •. - •
a Judge
.,.
of •the High-·
Court
'
of. Punj~b,
' ...
aiid
'i_
Haryapa 11ndh rdetiredf oq. M!frcb lb8, 1980 o~ attaihnind~ tbeb~ge ofd6'2 G
years. 0 _n t e ate o ret1rem_ent t. e ~esponuent a to _.ts ere.. ti
earned leav~ lfhi~h h:i4 n~t bee~ ayailed of by hjm. :He cJairq~d
\~a! be Wl\S entitl,eq ~o rece1v,e !he Ci!~h equiy!flep$ 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 H
~~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. •
A 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
8 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.
c
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 :
D "(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 :
E
"
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-
F
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
G 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
H 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
UNION v. OURNAM SINGH (Pathak, I.) ?O~
Central Government to make rules to carry out· the purpose of the A
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 B
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 :
,.( c
"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 D
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.
F
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.
G
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 H
be afforded to such judge including accommodation,
transport aJ)d telephonQ so long as IJe Qontiques to 4i'·
;
704 SUPREME COURT REPORT~ ( 1982] 3 S.~.R.,
A 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
D 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
E 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.
F . (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
H
deduction shall be made PD account of pension and
pensionary equivalent of other retirement beneffl;s.
UNION v. OURNAM SINGH (Pathak, J.) 705
It is not disputed that Rule 20-B applies to a member. of .the A
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
earning leave.' That concept is also embedded in the High Court
l!l
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
"earned leave" is not employed in the Act, the fundament;il premise F
t 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 G
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
H
~~~ ·~~~~Q~'. sub-s. (!) of s. 2.
706 SUPREME COURT REPORTS (1982] 3 s.c.a.
A 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
B 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
c 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.
D
P.B.R. Petition 'dtsmi$sed,
-)
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