JUDGMENT

ORDER:— The petitioner was a sitting Judge of the Patna High Court when he became the Chairman of the Andhra Pradesh Administrative Tribunal at Hyderabad. He attained the age of 62 on 1-2-80 and ceased to be a Judge of the High Court but continued to be the Chairman of the said Tribunal until 30-11-81, when on grounds of health, he resigned. Under the High Court Judges (Conditions of Service) Act, 1954, as amended in 1976, the petitioner was found entitled to gratuity of Rs. 18,666.67 and after adjusting certain loans to be recovered, he was actually paid a sum of Rs. 7,302.02 as retirement gratuity, calculated on the basis of S. 17A(3)(i) of the said Act. On 14-12-78, the Government of India in the Ministry of Home Affairs laid down the terms and conditions of service of the Chairman and the members of the Andhra Pradesh Administrative Tribunal. Annexure B to the counter-affidavit filed in this Court indicates those terms so far as the Chairman is concerned. The prescription therein was to the following effect :

"In partial modifications of the terms and conditions of service of the Chairman and Members of the Andhra Pradesh Administrative Tribunal as contained in para 2 of this Ministrys letter ..............dated the 6th July, 1976 the Central Government hereby determine under para 3(6) of the Andhra Pradesh Administrative Tribunal (sic), 1976 the following terms and conditions of service for the Chairman and Members of the Tribunal as from 3rd August 1978 :

Chairman - The same remuneration / allowances and conditions of service as admissible to a High Court Judge provided that on retirement as a Judge, the pay plus pension and pension equivalent of other retirement benefits, if any, shall not exceed Rs. 3,500/-."

2. On retirement from the High Court, the petitioners pension was fixed at Rs. 1067/-per month and he was to be paid, while working. as Chairman, salary on the basis of the difference between Rs. 3,500/- and the pension. The petitioner was, however, paid monthly salary at the rate of Rs. 2263/- and a sum of Rs. 170/- was withheld from the salary. The petitioner maintained that he was entitled to be paid Rs. 3,500/- and, therefore, the difference between that sum and the amount fixed as pension would be the salary to which he would be entitled. When no need was paid to his demand, he was obliged to approach this Court for a writ of mandamus or appropriate direction.

3. Two counter-affidavits have been filed by the Director of Audits and Accounts to justify the claim for deduction of Rs. 170/- per month on the basis of pension equivalent of gratuity.

4. At the hearing Mr. Sen appearing for the respondents has not been able to lay his hands on any statutory provision which would authorise such a deduction as pointed out earlier. The gratuity is payable under S. 17A of the High Court Judges (Conditions of Service) Act, 1954, as amended by Act No. 35 of 1976. It is conceded by Mr. Sen that in case the petitioner was not re-employed after 1-2-80, when he retired as a Judge, no recovery was to be made from his pension. The petitioner continued to be Chairman of the Tribunal till he retired on the basis of re-employment and re-employment was covered by the terms indicated in annexure B which we have extracted above. It is conceded by Mr. Sen that the re-employment was contractual and the terms of the contract indicated that the petitioner was entitled to a salary not exceeding Rs. 3,500/-. The petitioner has not claimed anything beyond Rs. 3,500/- including the pension and according to him after deducting the pension of Rs. 1,067/- per month he is entitled to the balance sum of Rs. 2,433/- and out of that the sum of Rs. 170/- as pension equivalent of gratuity is not deductible every month. Mr. Sen drew inspiration for the action taken in recovering Rs. 170/- per month by laying his hands on the provisions contained in Clause 9(1)(c) of Part D of Schedule II of the Constitution. That provision relates to the Judges of