Honble NAOLEKAR, J.–Brief facts relevant for adjudication of the question involved in the case are that the petitioner has retired on 30.9.1993 as a Judge of the High Court. He was appointed as Lokayukta on 6.7.1994 for a period of five years under Sec. 3 of the Rajasthan Lokayukta and Up-Lokayukta Act, 1973. The petitioner, after completing his tenure of five years, retired from the post of Lokayukta on 6.7.1999. Pension papers of the petitioner were submitted by the Secretary, Lokayukta Secretariat, to the Principal Secretary to the Government, Department of Personnel (Gr.A-III), Government of Rajasthan, in the month of April, 1999 i.e. much before the date of retirement. The pension papers submitted by the petitioner claimed pension for the services rendered as Lokayukta for Five years at the rate of Rs. 14630/- for every completed year of service aggregating to Rs. 73150/- per annum. The petitioner has also claimed recomputation of the amount of gratuity on the basis of pay with Dearness Allowance payable to him treating his service of Lokayukta separate for the purpose of calculating the amount of gratuity, and the right to have the family pension.

(2). The Government of Rajasthan did not decide the pension matter of the petitioner for a long period but vide its order dated 6.12.1999 it has been ordered that the petitioner, who superannuated on 6.7.1999 after completion of five years as Lokayukta be paid Rs. 34,864/- per annum pension with effect from 7.7.1999 in addition to the pension he was drawing as a retired Judge of the High Court. The order passed by the State Government is Annexure-2 to the petition. It appears that the State Government has clubbed the services rendered by the petitioner as Judge of the High Court and as a Lokayukta together for the purpose of calculation of his pension as Lokayukta and the pension has been fixed on the post of Lokayukta keeping the maximum pension payable to the retired Chief Justice of the High Court.

(3). The State has entered appearance and the alleged in its return that the petitioner is not entitled for computation of the pension as retired Lokayukta independent of the ceiling limit prescribed in respect of pension payable to the retired Chief Justice of the High Court treating services of the Lokayukta as Independent service and the petitioner being the retired High Court Judge is subject to the High Court Judge (Conditions of Service) Act, 1954.

(4). Admittedly, the petitioners pension shall be fixed in accordance with the Rajasthan Lokayukta and Up-Lokayukta Act, 1973 (hereinafter shall be referred to as `the Act of 1973), the High Court Judges (Conditions of Service) and, 1954 (for short `the Act of 1954;) and the Rajasthan Lokayukta and Up-Lokayukta (Conditions of Service) Rules, 1974 (for short `the Rules of 1974).

(5). It would be profitable to note the provisions of the Acts and the Rules at the threshold itself.

Sub-Section (4) of Sec. 5 of the Act of 1973.

``(4) The salary, allowances and pension, payable to and conditions of service of the Lokayukta or Up-Lokayukta shall respectively be the same as those of the Chief Justice or a Judge of the High Court of Rajasthan:

Provided that the allowances and pension payable to and other conditions of service of the Lokayukta or Up-Lokayukta shall not be varied to his disadvantage after his appointment:

Relevant provision of Sec. 21:

21. Power to make rules - (1) The Governor may, by notification in the Official Gazette, make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provisions, such rules may provide for-

(b) the allowances and pension payable to and other conditions of service of, the Lokayukta and Up-Lokayukta;

(e) any other matter which is to be or may be prescribed or in respect of which this Act makes no provision or makes insufficient provisions and provision is in the opinion of the Governor necessary for the proper impl

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