2003 Supreme(SC) 221

2003(2) Supreme 530
SUPREME COURT OF INDIA
(From Allahabad High Court)
Chief Justice of India and S.B. Sinha, A.R. Lakshmanan, JJ.
Union of India -Appellant
versus
Justice (Retd.) S.N. Saxena & Ors. -Respondents
Civil Appeal Nos. 2664 of 1999
With
W.P. (C) No. 480 of 2000, C.A.Nos. 6583-6584 of 1999, C.A.No. 7133 of 2001, C.A.No. 1924 of 2002 and C.A.No. 8322 of 2002
Decided on 20-2-2003
Counsel for the Parties :
For the Appearing Parties : T.L.V. Iyer, S.B. Sanyal, Ms. Shobha Dixit, Sr. Advocates, Manoj Swarup, Ms. Nidhi Agarwal, B.K. Prasad, S.N. Terdol, Pradyot Kumar Chakravarty, Shrish Kumar Misra, Anish Kumar Gupta, Tara Chandra Sharma, V.B. Joshi, Advocate (NP), Sushil Kumar Jain, Advocate (NP), G.S. Chatterjee, Advocate (NP), Goodwill Indeevar, Advocate (NP), Ashok K. Shrivastava, Advocates.

IMPORTANT POINT
The respondent who had already received leave encashment as member of Higher Judicial Service before elevation as High Court Judge is still entitled to the amount by way of difference of leave encashment when he retries as a High Court Judge.

Headnote:Constitution of India-Article 221(2)-Employment of Judges-High Court Judges (Conditions of Service) Rules, 1956-Rule 2 read with Rule 20B of All India Services (Leave) Rules, 1955-Encashment of unavailed leave-Respondent as District Judge got his retiral benefits including leave encashment-He was elevated as High Court Judge on 7.7.92 before retiring as DJ on 15.7.92-Retired as High Court Judge on 15.7.96-Claimed balance of the amount by way of difference of leave encashment-Denied by appellant on the ground that the amount of earlier leave encashment having been withdrawn as "one time settlement" engrafted in Rule 20B of All India Services (Leave) Rules, 1955, he is not entitled to any further amount-High Court rejected it in writ-Appeal to Supreme Court-Whether High Court was right? (Yes).

       Held : Having regard to the constitutional scheme as also the decisions of this Court, there cannot be any doubt whatsoever that the cash equivalent in lieu of unavailed leave would be payable at the time of retirement of the Judge of the High Court and not prior thereto. A member of the Higher Judicial Service cannot anticipate the date by which his elevation to High Court would come through. So is the State Government. Pursuant to or in furtherance of the statutory rules applicable to the case of the members of the Higher Judicial Service, the respective State Governments had deposited the amount of pension and other retiral benefits credited in the account of the officer concerned, which, in our opinion, would not mean that on his elevation as a High Court Judge he would be deprived of the benefits of a retired High Court Judge to which he is otherwise entitled to not only under the statutory, rules but also under the Constitution. The crucial expression employed in Rule 20B of the All India Services (Leave) Rules is "A member of the service who retires from the service". Therefore, retirement is sine qua non for payment of leave encashment. It is not in dispute that elevation of a Member of a Higher Judicial Service to the post of a Judge of High Court would not amount to his retirement or cessation of service. On his elevation Judicial Officer carries with him all the benefits accrued to him during his past service. The services rendered by the writ petitioners as judicial officers as also a High Court Judge would be a continuing one. It is, therefore axiomatic that a High Court Judge on attaining the age of superannuation would be entitled to all the retiral benefits in terms of the High Court Judges (Conditions of Service) Act and the Rules framed thereunder. (Paras 14 and 15)

       There cannot thus be any doubt whatsoever that the writ petitioners would be entitled to the reliefs claimed for by them in their respective writ petitions. We are in agreement with the views expressed by the High Court. So far as the Writ Petition under Article 32 of the Constitution of India filed by retired Judges of the Calcutta High Court is concerned, we may further point out that request made by three other Judges of the said High Court for revised payment had been sanctioned and despite the fact that the case of the writ petitioners stand on the same footing and they are similarly circumstanced, no such order of sanction has been passed in their case despite requests on the ground that the Union of India had filed application for special leave before this Court against the judgment of the Allahabad High Court. The action on the part of the Union of India is thus clearly discriminatory in nature. For the foregoing reasons, we are of the opinion that the stand taken by the Union of India cannot be accepted. Accordingly, Civil Appeals are dismissed and the Writ Petition is allowed. In the facts and circumstances of this case, however, the parties shall pay and bear their own costs. (Paras 18 to 21)