JUDGMENT

B. P. DAS, J. The petitioner, a retired Judge of this Court, was appointed as the Chairman of the State Finance Commission and functioned as such from 1.12.1996 to 31.5.1998. He has filed this writ application with the following prayers :

“........ to admit this Writ Application, call for the records from the Opposite Parties and after hearing the parties allow the same with cost and issue a writ/writs in the nature of mandamus/certiorari and/or any other or further writ quashing Annexure-1 and directing;

(a) payment of salary @ Rs. 26,000/- per month along with sump¬tuary allowance and house rent allowance admissible to sitting Judges during the period 1.12.1996 to 31.5.1998.

(b) reimbursement of office expenses incurred by the petitioner during the aforesaid period.

(c) payment of penal interest on the claimed amount and exem¬plary costs for the inordinate delay, discriminatory attitude of Government to a retired High Court Judge.”

So far as the prayer for payment of salary @ Rs. 26,000/- per month is concerned, the same has already been allowed to the petitioner during the pendency of the writ application as would appear from the letter of the State Government in Finance Department vide Annexure-A to the counter affidavit filed by the O.Ps. So far as it relates to payment of sumptuary allowance and house rent allowance admissible to sitting Judges during the period 1.12.1996 to 31.5.1998, the same have not been paid.

2. A counter affidavit has been filed by the O.Ps. indi¬cating therein that the petitioner has already been paid the salary @ Rs. 26,000/- per month during his incumbency as the Chairman of State Finance Commission but he is not entitled to get any further amount as claimed because the House Rent Allow¬ance, which has been given to the petitioner @ 12½%, is as per the notification in Annexure-5 series and so far as sumptuary allowance is concerned, there is no provision for payment of the same.

3. In this regard, let us have a look to Annexure-4. Annexure-4 shows that in pursuance of Article 243-I of the Con¬stitution of India read with Sections 3 and 8 of the Orissa Finance Commission (Miscellaneous Provision) Act, 1993, the Governor of Orissa constituted a Finance Commission consisting of Shri Justice S.K.Mohanty as the Chairman and four others as members. The terms of appointment of the petitioner, i.e, Annexure-3, shows that the petitioner was appointed in exercise of the powers conferred by Section 11 of the Orissa Finance Commission (Miscellaneous Provisions) Act, 1993 (Orissa Act 28 of 1993). Section 4 of the aforesaid Act provides that the Chairman of the Commission shall be a serving or a retired Judge of the High Court. Section 11 of the Act 28 provides :

“11. Conditions of service and salaries and allowances of members - There shall be paid to members of the Commission in¬cluding the Chairman and the Member-Secretary such fees or salaries and such allowances as the State Government may, by Notification, determine.

4. The Act is not clear as to whether the Chairman of the Commission shall be paid salary, allowances etc. as admissible to a retired High Court Judge. But subsequently the Government at its own volition fixed the salary of the present petitioner at Rs. 26,000/-. Similar situation arose in case of Justice Prafulla Kishore Mohanti and this Court while disposing of the writ application being O.J.C.No. 6207 of 1997 (Prafulla Kishore Mohanti v. State of Orissa and others), held in paragraphs-9 and 11 as follows :

“9. Undisputedly the petitioner was not allowed all the allowances and benefits of a sitting High Court Judge. It appears that he was not allowed free accommodation, free electricity, house rent allowance at the rate admissible to a High Court Judge, enhanced sumptuary allowance and interim reliefs allowed to the High Court Judges pending the revision of pay and allowances. The State Government in its counter affidavit affirmed by the Deputy Secretary of Welfare Department has