( 1 ) THIS petition is filed by Mr. A. A. Dave a Retired Judge of this Court seeking certain reliefs enumerated at paras 8 (A) and 8 (B)

( 2 ) THE facts giving rise to this petition may be briefly stated as follows: the petitioner was a sitting Judge of this Court in the year 1974 He was appointed as Tribunal under the provisions of the Secondary Education Act 1912 vide Resolution dated 30-4-1974. On attaining the age of 62 the petitioner retired on 1-9-1974 But thereafter also he continued to be the Secondary Education Tribunal until 31-8-1977. The petitioner was then appointed as Tribunal under the Gujarat Affiliated Colleges Services Tribunal Act 1982 vide Government Order dated 1-5-1982 and he worked as Tribunal under the said Act from 29 to 28-5-1984. Copy of the order dated 30-4-1974 appointing the petitioner as Tribunal is produced by the petitioner with a list of documents. The relevant portion of the said order is as follows: (I) He shall draw his present salary of Rs. 3 500 per month till 1/09/1974 which happens to be the date of his superannution or attainment of the age of 62 years. (II) After reaching superannuation age of 62 gears with effect from 1/09/1974 he shall get a remuneration at the rate of Rs. 3 500 per month less pension admissible to him and also minus pension equivalent of gratuity.

( 3 ) IN view of the aforesaid clauses of the order dated 30-4-1974 pension equivalent of gratuity was deducted from the emoluments of the petitioner after he retired as a Judge of this Court. The grievance of the petitioner is that the deduction of the said amount of pension equivalent of gratuity is illegal and hence he is entitled to get back the said amount from the respondents which amount has been illegally deducted. That amount which is illegally and unauthorisedly deducted as per the say of the petitioner comes to Rs. 14 463 The petitioner has filed this petition for issuance of an appropriate writ directing the respondents to make payment of the said amount to the petitioner.

( 4 ) THE respondents have been served and Mr. G D. Bhatt learned distant Government Pleader has appeared on behalf of the respondents. No affidavit-in-reply has been filed in this petition. This petition was filed in this Court in the month of September 1987. Notice pending admission was issued returnable on 13-10-1987. No affidavit-in-reply was filed at that time and hence Rule was made returnable on 30 Thereafter also the matter was adjourned from time to time but even then no affidavit-in-reply has been filed on behalf of the respondents till today. The learned Addl. Government Pleader Mr. Anil R. Dave and the learned Assistant Government Pleader Mr. G. D. Bhatt stated that letters have been written to the respondents for filing the affidavit-in-reply in this matter but they have not heard anything from the respondents. This Court is therefore constrained to proceed further with the matter in absence of any affidavit-in-reply on the part of the respondents.

( 5 ) THE order dated 30-4-1974 clearly mentions that after reaching the superannuation age of 62 years with effect from 1/09/1974 he i. e. the petitioner shall get a remuneration at the rate of Rs. 3 500 per month less pension admissible to him and also minus pension equivalent of gratuity. In view of this specific mention in the order of appointment one might be prima facie included to say that the petitioner has case. But the petitioner has relied upon a decision of the Supreme Court reported in Shiveshwar Prasad Sinha v. Union of India and Others AIR 1986 SC 240 which clearly shows that the action of the respondents in deducting the amount or pension equivalent of gratuity has no foundation in law and therefore the petitioner is entitled to the reliefs claimed by him in this petition In the case before the Supreme Court it appears that the petitioner in that case was a sitting Judge of the Patna High Court and he was appointed as the Chairman of the Andhra Pradesh Ad