ORDER

1. The writ petitioner who was serving as Special Officer (Hindi) in the Department of Revenue, Ministry of Finance of the Government of India gave notice of his intention to seek voluntary retirement under Rule 48 of the Central Civil Service Pension Rules, w.e.f. 5-10-1979 by his letter dated 6-9-1979. He requested that the requirement of three months notice may be waived and he may be allowed cash equivalent of the entire earned leave and half pay leave under Rule 39(6) of the Central Civil Service Leave Rules, 1972. This was followed by a letter dated 11-9-1979 wherein he emphasised that leave due and pension are two distinct things, they are in the nature of property and, therefore, while granting the cash equivalent of leave of both kinds no deduction can be made on account of the latter nor can half pay leave be made co-terminus with superannuation. On 3-10-1979 the petitioner was informed that while no deduction would be made from the earned leave component on account of pension 2nd pensionary equivalent, the half pay leave would be subject to such deductions. On receipt of this communication, the petitioner wrote a letter dated 6-10-1979, the petitioner resorted to casting doubts against two officers and threatened to carry the matter to court. On the department having refused to concede the petitioners demand, he filed the present writ petition challenging the vires of the provision entitling such deduction insofar as encashment of half pay leave is concerned. It may here be mentioned that since the Government had not waived the requirement of three months notice, the petitioner did not actually retire w.e.f. 5-10-1979 but retired on superannuation. It is, therefore, submitted on behalf of the department that since the petitioner did not voluntarily retire before the date of his superannuation, the letter dated 3-10-1979 which Was written on that premise was rendered irrelevant since half pay leave was coterminous with normal retirement. A government servant who retires or is retired prematurely is permitted encashment of half pay leave as he loses the chance to avail of the same on account of sudden and premature termination of his service. The reason for the deduction of pension and pension equivalent of other retirement benefits is that he would get this benefit during the post-retirement period when he would also be receiving pension.

2. Rule 39 of the Leave Rules is entitled Leave/cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service. Rule 39(1) provides that no leave shall be granted to a government servant beyond the date of his retirement or final cessation of duties, the date on which he retires or is retired by giving notice or the date of his resignation. Rule 39(2) provides for grant of cash equivalent of leave salary for earned leave at the credit of the government servant on superannuation. Rule 39(5) provides that where a government servant retires or is retired from service (premature voluntary/compulsory retirement) he may be granted leave salary in respect of earned leave to his credit and also in respect of half pay leave, subject of course to the prescribed maximum provided that the pension and pension equivalent of other retirement benefits shall be deducted from leave salary payable in respect of half pay leave. Rule 39(6)(a)(i) provides that where the services of a government servant are terminated by notice or by payment of salary, etc., in lieu of notice, he may be granted cash equivalent of earned leave at his credit on the date on which he ceases to be in service. Since the petitioner did not retire prematurely and since the notice period was not waived, he retired in due course and, therefore, the benefit of encashment of half pay leave could not be extended to him. Government servants who retire or are retired prematurely constitute a class distinct from the class of those who avail of the benefit of full service till the date of sup