JUDGMENT - S.M. DAUD, J.:---This petition under Article 226 is for recovery of arrears of special pay alleged to have been wrongfully withheld from petitioner and interest thereon. 2. Petitioner was in the subordinate judicial service of the State having been recruited thereto in the year 1949. Starting at the lowest rung, he rose to the position of a Selection Grade District and Sessions Judge. Well before reaching superannuation which event was to take place on 30th September 1976 petitioner applied for 120 days leave which he had earned. The same was refused in public interest. As a Government servant, petitioner's service was governed by the then in force Bombay Civil Service Rules (BCSR). Rule 753 thereof permitted and petitioner was allowed to avail of 'refused leave' as from the day succeeding the last day of his service. During the period of refused leave the individual concerned though not working draws salary and allowances as distinct from pension. He cannot take up other employment except with the sanction of the Government. The oratically, he can be recalled to work. But this stage is not an extension or re-employment vis-a-vis the servant. In fact Rule 161(d) says that it shall not be treated as sanctioning an extention of service, for the purposes of pensionary or contributory provident fund benefits or the retention of lien". Eligibility for pensionary benefits begins from the expiry of the refused leave-this is made clear in the remaining part of Rule 161(d). While on refused leave petitioner took over as Member, Industrial Court on 6-1-1977. District Judges while serving on ex-cadre posts member, Industrial Court as also Registrar to the Office of the Lok-Ayukta and Upa-Lok-Ayukta being such posts-were entitled amongst other monetary benefits to a special pay of Rs. 300/- p.m. This pay was given also to persons re-employed, provided the re-employment occurred immediately after the attainment of superannuation. Petitioner worked as Member from 6-1-1977 to 31-3-1980 and as Registrar from 1-4-1980 to 31-3-1985. Special pay claimed for the periods not having been granted, petitioner has filed the instant petition. Arrears for the period served as Member were claimed in the petition filed in 1983. Unpaid amounts relating to the period when petitioner worked as the Registrar were brought in by way of an amendment to the petition effected in 1989. The total amount if due-would come to Rs. 29,700/-. Arrears for the period served as Member were claimed in the petition filed in 1983. Unpaid amounts relating to the period when petitioner worked as the Registrar were brought in by way of an amendment to the petition effected in 1989. The total amount if due-would come to Rs. 29,700/-. Petitioner seeks the same with interest at rate 15% p.a. from due date until payment. 3. The claim is based on a two-fold basis. First, it is contended that petitioner having been appointed as Member while on refused leave must be deemed to have been drafted while in service. This coupled with immediate re-employment in the said post as also as Registrar entitled him to the rules and alternatively violative of the promise of equality enshrined in Article 14 of the Constitution. 4. The State Government in its return contends that when petitioner took charge on 6-1-1977 as a member he was not in service but a retire who had been re-employed. A person on refused leave was not in service irrespective of how his emoluments during that period were described. The special pay was an entitlement of only two categories viz. (i) draftees to ex-cadre posts while in service and (ii) those re-employed immediately after attaining superannuation while in the ex-cadre post. No special pay could be claimed by persons like the petitioner who had been re-employed almost 197 days after superannuation. The charge of having been discriminated against was not correct. Eligibility to receive special pay was governed by G.R. dated 14th April, 1975. Petitioner's claim was not tenable thereunder and it was for that reason that his representations were rejected. 5. The first ground urged by Mr. Manudhane is that the State Government errs in believing that a servant on refused leave is not in service for the purposes of G.R. dated 14th April 1975. Mr. Dixit representing the State Government counters this by referring to the disabilities of a person on refused leave as also the words used in the resolution appointing petitioner as a member of the Industrial Tribunal. In the latter, petitioner's appointment is described as 're-employment' and his status is referred to a as a retired District Judge. In a loose sense the words employed are not incorrect. But the choice of words used in the resolution will not be decisive. In the latter, petitioner's appointment is described as 're-employment' and his status is referred to a as a retired District Judge. In a loose sense the words employed are not incorrect. But the choice of words used in the resolution will not be decisive. Turning to the rules governing refused leave, Rules 161 and 753 of the BCSR may appear to give conflicting signals. The concept of refused leave requires some explanation. Government servants accumulate earned leave and the accumulation has to be lopped of beyond a certain figure. In the past the ceiling was 180 days or six months. Exigencies of service required the denial of leave to certain sections of employees. This resulted in hardship to deserving employees. To ameliorate their lot, the Government devised the concept of refused leave. Servants who had accumulated earned leave but had been refused the same when applies for because of the exigencies of service, could apply for refused leave. This leave could not exceed six months and it began the day after the attainment of superannuation. A person on refused leave received salary and allowances not pension. He could be though this was theoretical recalled to duty. Side by side the rules made it clear that period of refused leave was (i) not to be treated as sanctioning an extension in service for the purpose of computation of pensionary or "Contributory Provident Fund Benefits, and (ii) retention of lein. Resolution of the seeming dilemma lies in seeking an answer to the question as to whether there is a cesser of employment ? If the servant is on leave, gets salary and allowances and if the commencement of pension is postponed to the expiry of such leave, it cannot be said that there is a disruption in service. The disabilities such as the refused leave period not adding to the pensionary or contributory provident fund benefits and non-retention of lien, are conditions annexed to the leave and have to be read as restrictions vide the said leave. This being the effect of the rules, the words used in the resolution speaking of petitioner's appointment as Member of the Industrial Tribunal, lose all significance so far as petitioner's entitlement to the special pay is concerned. 6. Mr. Manudhane relies on (H.B. Huilgol v. Divisional Superintendent, (Personnel) Southern Railways, Hubli)1, A.I.R. 1967 Mysore 116 in support of the petitioner's claim on the first count. 6. Mr. Manudhane relies on (H.B. Huilgol v. Divisional Superintendent, (Personnel) Southern Railways, Hubli)1, A.I.R. 1967 Mysore 116 in support of the petitioner's claim on the first count. There, a person on leave preparatory to retirement was held to be in service so as to take the benefit of rules raising the age of retirement. That decision rests on different facts and rules which render the ratio inapplicable to this petition. Be that as it may, the preceding appraisal suffices to bring petitioner's claim for special pay within the intendment of the 14th April 1975 G.R. 7. The other ground on which the special pay claim is made is unanswerable. Petitioner submits that the G.R. of 14th April 1975 permits grant of special pay to draftees from in-service personnel as also those immediately re-employed after attaining superannuation. If it be deemed as not payable to persons re-employed some period after retirement, a question arises as to what is the justification therefor ? The G.R. speaks of the extreme difficulty encountered by the Government in getting the services of qualified persons to man posts in the Labour adjudicatory machinery. One solution was to re-employ persons drawn from the judiciary and attaining superannuation while in the labour judiciary. When drafted preceding retirement they were getting the special pay and this was to continue upon re-employment, provided the same was immediately after attainment of the age of retirement. The appointees from the subordinate judiciary were to get the special pay when drawn from (i) in-service personnel and (ii) re-employment immediately following superannuation. Both these categories functioned with equal powers and responsibilities in the labour judiciary and were given special pay. A retired officer chosen for the labour judiciary some days or even months after retirement, was so chosen because of the suitability to man that post. The work expected from him was in no measure different than that expected of the categories given special pay. It is said that a retired person had no legal claim or right to re-employment. But the same applies to persons on the verge of retirement and yet they were given special pay upon immediate re-employment. The discrimination in regard to special pay entitlement thus rests upon nothing more than the commencement of re-employment. If it was to coincide with the day next after the last day in service, the re-employed servant got special pay. But the same applies to persons on the verge of retirement and yet they were given special pay upon immediate re-employment. The discrimination in regard to special pay entitlement thus rests upon nothing more than the commencement of re-employment. If it was to coincide with the day next after the last day in service, the re-employed servant got special pay. If there was a longer hiatus be it of two days or six months the entitlement vanished. This is a glaring case of treating equals inequally. GRs governing pay and perquisites are not tablets incorporating the laws of the Medes and the Persians. If they be arbitrary, they have to be struck down. 8. The result of the foregoing discussion is that the petition succeeds. Respondent No. 1 do pay to the petitioner arrears of special pay @ Rs. 300/- p.m. for the period 6-1-1977 to 31-3-1985. As to the claim for interest I award the same @ 6% p.a. and from three months after the date of this judgment and until payment. Having regard to the somewhat difficult questions that arose for determination, parties are left to bear their own costs. Rule in these terms made absolute. Rule made absolute. -----