BY THE COURT—These are five petitions by five civil servants challenging their orders of retirement under rule 244(2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules). 2. The petitions have been contested on behalf of the State. 3. When the impugned orders were passed the relevant part of rule 244 stood as follows:— "244...................................................... (2) Government retains an absolute right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with further service of a Government servant. NOTES 1. The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the intention to use this rule as financial weapon, that is to say, the provisions should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. 2. Compulsory retirement under this rule does not attract the provisions of clause (2) of Art. 311 of the Constitution because such retirement is not conceived as a penalty but as the exercise of a right reserved to Government of retiring a Government servant after he has served for a certain length of time. Accordingly, the procedure laid down in the Rajasthan Civil Service (Classification, Control and Appeal) Rules for formal proceedings against Government servants before removing them from service is not meant to apply to such cases. 3. This Rule is also applicable to Government servants who are members of a Contributory Provident Fund. In their cases, the term "qualifying service" shall mean service commencing on the day a Government servant started subscribing towards Contributory Provident Fund." 4. The first contention on behalf of the petitioners is that rule 244(2) of the Rules contravenes Art.311 (2) of the Constitution. In their cases, the term "qualifying service" shall mean service commencing on the day a Government servant started subscribing towards Contributory Provident Fund." 4. The first contention on behalf of the petitioners is that rule 244(2) of the Rules contravenes Art.311 (2) of the Constitution. The reasoning in support of it is that a civil servant has a right to continue on his substantive post till he attains the age of superannuation and if his services are terminated before such age Art.311 (2) of the Constitution is attracted. This was the reasoning adopted by Subba Rao J. in Motiram Deka vs. North East Frontier Railway (1). This reasoning was, however, not accepted by the majority of the learned Judges of the Supreme Court. Gajendragadkar J. (as he then was) speaking for them observed that in Parshotam Lal Dhingra vs. Union of India (2)— "In regard to permanent servants the learned Chief Justice has made some observations which it is now necessary to consider very carefully, "The appointment of a Government servant to a permanent post," observed the learned C.J., "may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post." On the same subject, the learned C.J. has later added that "in the absence of any special contract, the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service, or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him." Reading these two observations together, there can be no doubt that with the exception of appointments held under special contract, the Court took the view that wherever a civil servant was appointed to a permanent post substantively, he had a right to hold that post until he reached the age of superannuation or was compulsorily retired, or the post was abolished. In all other cases, if the services of the said servant were terminated, they would have to be in conformity with the provisions of Art.311 (2), because termination in such cases amounts to removal." 5. It will thus be seen that the majority took the view that the civil servants right to hold his substantive post only continues till the date when he completes the qualifying service prescribed under the rule of compulsory retirement. An express reservation was made that in case a rule of compulsory retirement permitted the authority to retire a permanent servant at a very early stage of his career, the question as to whether such a rule would be valid may have to be considered on a proper occasion. 6. The rule enabling the Government to compulsorily retire a civil servant on completion of 25 years qualifying service was held to be valid by their Lordships in a number of decisions beginning from Shyam Lal vs. The State of U.P. and the Union of India (3). These decisions were referred by Gajendragadkar J. in the majority judgment in Moti Ram vs. N.E. Frontier Railway (1) and it was observed: "At this stage, we ought to make it clear that in the present appeals, we are not called upon to consider whether a rule of compulsory retirement would be valid, if, having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. We have referred to the decisions dealing with cases of compulsory retirement only for the purpose of ascertaining the effect of the obiter observations made in some of those decisions in relation to the question with which we are directly concerned. The question raised by the orders of compulsory retirement so far as it is covered by the said decisions must be deemed to be concluded." Their Lordships of the Supreme Court again affirmed the validity of the rule providing for compulsory retirement on completion of 25 years qualifying service in S. Gurdev Singh Sidhu vs. The State of Punjab (4). 7. Rule 244(2) cannot, therefore, be held to be invalid on the ground that it contravenes Art.311 (2) of the Constitution. 8. The next contention on behalf of the petitioners is that the rule is hit by Arts.14 and 16 of the Constitution. 7. Rule 244(2) cannot, therefore, be held to be invalid on the ground that it contravenes Art.311 (2) of the Constitution. 8. The next contention on behalf of the petitioners is that the rule is hit by Arts.14 and 16 of the Constitution. Reliance was placed on a decision of a learned Single Judge of the Allahabad High Court in Shri Madan Mohan Nagar vs. The State of U.P. (Civil Miscellaneous Writ No. 2164 of 1960 decided on 27th, April, 1962). The question came up for consideration before their Lordships of the Supreme Court in Writ Petitions No. 184 to 195 of 1963, decided on 13th March, 1964. Their Lordships were considering the validity of a similar rule of compulsory retirement under note 1 to rule 285 of the Mysore Civil Services Rules, 1958. It was held that the rule is not hit by Arts.14 or 16 of the Constitution. 9. On behalf of the petitioners it was sought to distinguish the above decision on the ground that the Rajasthan rule does not provide for giving three months notice to the civil servant before retiring him as is provided under the Mysore rule. In our opinion, the provision about giving of a notice makes no difference to the principle underlying the decision. As their Lordships of the Supreme Court held, the rule is applicable to all Government servants and as such, it is not open to challenge under Arts.14 or 16 of the Constitution. 10. The next contention on behalf of the petitioners is that the order of retirement in their cases operated as punishment as they were not granted leave on half average pay which was due to them. Fatehlal petitioner complained that leave on average pay was due to him for 120 days but he was allowed such leave only for 109 days. With regard to this petitioner, the learned Advocate General stated that there was no intention on the part of the Government to deprive him of any leave due to him under the Rules and that if he has not been granted all the leave due to him Government are willing to give leave salary for the balance of the period. 11. 11. With regard to leave on half average pay, the contention on behalf of the State is that leave is admissible to any person after the date of his compulsory retirement only to the extent provided in rule 89. 12. In our opinion, leave can only be granted to a civil servant if he is entitled to it under the rules governing him. No leave is admissible to a servant under the general law of Master and Servant. Leave is only admissible under contract or statute. So far as the petitioners are concerned, the relevant rules in this connection are rules 57, 59 and 89. 13. Rule 57 lays down that leave is earned by duty only. Rule 59 makes it quite clear that leave cannot be claimed as of right and that discretion is reserved to the authority empowered to grant leave, to refuse or revoke leave at any time according to the exigencies of the public service. Rule 89 runs as follows:— "No leave shall be granted beyond the date on which a Government servant must compulsorily retire: Provided that if in sufficient time before the date of compulsory retirement an officer has been denied in whole or in part on account of exigencies of public service, any leave applied for and due as preparatory to retirement, then he may be granted, after the date of compulsory retirement, the amount of privilege leave which was due to him on the said date of compulsory retirement, subject to the maximum limit of 120 (or 180 days in case of person enjoying leave ex-India), as prescribed in R. 91 so long as the leave so granted, including the leave granted to him between the date from which the leave preparatory to retirement to commence and the date of compulsory retirement does not exceed the amount of leave preparatory to retirement actually denied, the half pay leave, if any, applied for by an officer preparatory to retirement and denied in the exigencies of public service being exchanged with privilege leave to the extent such leave was earned between the date from which the leave preparatory to retirement was to commence and the date of compulsory retirement." 14. The above rule is the only one allowing for grant of leave after retirement to a civil servant and persons who are retired under rule 244(2) are entitled to grant of leave under the above rule. It will thus be seen that the maximum leave which can be granted to a civil servant after the date of his retirement is leave on average pay for 120 days. Leave on half pay is to be converted into leave on average pay but the combined leave cannot exceed leave on average pay for 120 days. We accordingly find that none of the petitioners was entitled to more leave than that on average pay for 120 days. We have already mentioned above that if Fatehlal has not been granted the full leave on average pay due to him, that was due to inadvertence only and there was no intention on the part of the Government to punish him. He should now apply for the balance of the leave which was not granted to him and in accordance with the undertaking given by the learned Advocate General the same shall be granted to him, that is, he will be granted full salary for the period for which leave remains due to him. 15. On behalf of Gopal Mal petitioner it is contended that rule 244(2) is not applicable to him as he had opted for provident fund. Rule 244(2) occurs in Part VIII which deals with pension rules. Rules 168, which is the first rule in this part, formerly ran as follows:— "The rules in this Part shall apply to all Government servants other than those entitled to the benefit of a Contributory Provident Fund in lieu of pension. A Government servant serving under rules which provide, in lieu of pension, for a Government contribution to a Provident Fund subscribed by the Government servant may elect within six months of the date on which these rules are applied or if he is on leave on that date within six months of his return from leave to be governed by rules in this Part. On his so electing contribution by Government will cease and the contributions already credited together with interest if any, accrued thereon will lapse to Government." 16. The above rule was, however, amended with effect from 28-12-1961. On his so electing contribution by Government will cease and the contributions already credited together with interest if any, accrued thereon will lapse to Government." 16. The above rule was, however, amended with effect from 28-12-1961. The amended rule runs as follows:— "The rule in this part shall apply to all Government servants except that the rules relating to grant of service pensions will not be applicable to those entitled to the benefit of Contributory Provident Fund in lieu of pension. A Government servant under service rules which provide, in lieu of pension, for a Government contribution to a Provident Fund subscribed by the Government servant may elect within six months of the date on which these rules are applied or if he is on leave on that date within six months of his return from leave to be governed by rules in this part. On his so electing contribution by Government will cease and the contributions already credited together with interest if any, accrued thereon will lapse to Government." 17. Rule 244 has also been amended with effect from 28-12-1961 by the addition of the following note 3:— "This rule is also applicable to Government servants who are members of a Contributory Provident Fund. In their cases, the term qualifying service shall mean service commencing on the day a Government servant started subscribing towards Contributory Provident Fund." 18. The above amendments are clearly retrospective in their operation, for only the employees of integrating States were entitled to opt for provident fund. No civil servant who entered service after the Rules came into force in 1951 is entitled to opt for provident fund. The above amendments are clearly applicable only to those civil servants of the former integrating States who had already opted for provident fund. 19. Some allegations of mala fides were made by some of the petitioners in their writ petitions but they are vague and were not pressed at the time of the hearing. 20. Badri Prasad petitioner died during the pendency of his writ petition. His learned counsel, however, received information about his death only after the writ petition had been heard in part. An application for substitution was moved by his legal representatives after his death. This application was opposed by the learned Advocate General. 20. Badri Prasad petitioner died during the pendency of his writ petition. His learned counsel, however, received information about his death only after the writ petition had been heard in part. An application for substitution was moved by his legal representatives after his death. This application was opposed by the learned Advocate General. As the petition had already been heard in part, we allowed the names of his legal representatives to be substituted as an exceptional case. We would, however, like to observe that this should not be taken as a precedent for future. 21. For the reasons stated above, the writ petitions are dismissed. In the circumstances of the case, we direct that parties shall bear their own costs of these petitions.