JUDGMENT

RANGANATH MISRA, J. :— Shri Shiv Dayal Shrivastava, the petitioner before us in this application under Article 32 of the Constitution praying for a writ of mandamus to the Union of India, retired as Chief Justice of the Madhya Pradesh High Court with effect from Feb. 28, 1978. At the time of retirement he was drawing salary of Rs. 4,000/- per month as provided under the Constitution. This Court in the case of Union of India v. Gurnam Singh, (1982) 3 SCR 700, 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 20-B of the All India Services (Leave) Rules, 1955 (Leave Rules for short). The Accountant General of Madhya Pradesh authorised the petitioner to draw cash equivalent of leave salary amounting to Rs. 15,240/- by his communication dated July 17, 1982. The petitioner informed the Accountant-General that he was drawing the amount as indicated in the communication without prejudice to his right to claim Rs. 24,000/- to which sum under the law he was entitled. On July 19, 1982, the petitioner was authorised to draw a further sum or Rs. 750/-; thus in all Rs. 15,990/- only. On Feb. 2, 1983, the Union of India in the Ministry of Law, Justice and 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 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 full allowances as defined in Ss. 3 and 9 (1) of the Act. In making 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. Relying on the aforesaid letter of the Central Government, the Accountant-General of Madhya Pradesh on March 25, 1983, intimated to the petitioner that he was entitled to payment of cash equivalent of unutilised earned leave subject to the ceiling of five months leave and, therefore, he had been paid an excess sum of Rs. 2,220/- which should be refunded. That has led the petitioner to move this Court.

2. Rule nisi was issued to the Union of India and this Court directed separate notice to the Attorney-General. A return has been made to the Rule by the Union of India. No dispute has been raised to payability of the cash equivalent on the basis of R. 20-B of the Leave Rules. Reliance has been placed on the provisions of the Act to justify the Circular Letter of Feb. 18, 1983. Learned Attorney-General has been heard and he has furnished written submissions also.

3. The decision of this Court in Gurnam Singhs case (AIR 1982 SC 1265) has been accepted by the Union of India and steps have been taken to implement the same. In that case this Court held (para 7) :

"...............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."

4. Two questions require decision, viz, (1) whether in view of the provisions of Section 5 (3) of the Act, the limit has to be confined to five months equal to 150 days and not 180 days as in R. 20-B; and (2) whether for calculating the equivalent of leave salary admissible to a Judge the provisions