R. C. MANKAD, J. ( 1 ) PETITIONER who was a member of the Indian Administrative Service (IAS for short) was holding the post of Additional Chief Secretary to the Government of Gujarat Home Department when he was due to superannuate from service with effect from 17/11/1972 He was however granted six months extension in service and retired with effect from 17/05/1973 He was reemployed as Commissioner for Tourism from 18/05/1973 and worked as such upto 2/01/1974 Thereafter he was re-employed as Member-Secretary of the Administrative Reforms Committee from 24/01/197 4/07/1975 While the petitioner was employed as Member-Secretary of the Administrative Reforms Committee he also held charge of the post of Vigilance Commissioner. From 28/07/1975 the petitioner was re-employed as full-time Vigilance Commissioner which post he held till 10/09/1980 It is the case of the petitioner that during the period of his re-employment his pay was determined in accordance with the formula of last pay drawn minus pension including pension equivalent of Death-Cum-Retirement Gratutity (DCRG for short) which was determined at Rs. 239 per month. In the different posts in which the petitioner was re-employed after his retirement from service his pay was fixed as follows: @@@ - S. No. Post Period Salary Pension Net held of the and Pen Salary post sion paid held equi- (exc- alent luding of allow- DCRG ances) deduct- ed from the sal- ary pay- able as per Co. 4 - 1 2 3 4 5 6 - Rs. Rs. Rs. 1 Commis- 18-5-73 3000/- 937/- 1824/- ioner of to and Tourism 2-1-74 239/- 2 Member- 21-4-74 3000/- 937 1824/- Secretary to and Administrative 27-7-75 239/- tive Reforms Committee 3 Vigilance 28-7-75 3500/- 937/- 2324/- Commissioner to and 19 239 - @@@ ( 2 ) THE petitioner submits that in S. P. Sinha v. Union of India and Others A. I. R. 1986 SC 240 the Supreme Court hold that there was no justification for deduction of pension equiva- lent of gratuity from the salary of the petitioner before the Supreme Court who was a retired High Court Judge payable to him during his reemployment as Chairman of the Andhra Pradesh Administrative Tribunal at Hyderabad to which he was appointed after his retirement as High Court Judge. The Supreme Court held that deduction of pension equivalent of gratuity from his salary of the re-employed post was illegal and directed payment of the amount deducted for his salary. The petitioner submits that the said decision of the Supreme Court is applicable to his case and therefore as held by the Supreme Court the amount of Rs. 239. 00 per month being the equivalent of DCRG could not have been deducted from his salary during the re-employ- ment period. According to the petitioner since deduction of Rs. 239. 00 per month as pension equivalent of DCRG was without any foundation in law he was entitled to refund thereof He therefore made representation to the State Government for refixation of his pay during the period of his re-employment in the light of the aforesaid decision of the Supreme Court and to issue appropriate orders for refund of the pension equivalent of DCRG illegally deducted from his salary. The petitioner made further representations to the State Government as stated in the petition since the only reply which he had received from the State Government was that the matter was referred to the Government of India. ( 3 ) PETITIONER has further pointed out that A. A. Dave J a retired High Court Judge who was re-employed after his retirement filed a petition being Special Civil Application No. 5712 of 1987 before this Court claiming that the pension equivalent of DCRG was illegally de- dueled from the salary payable to him for the period during which he was re-employed as Educational Tribunal with effect from 1/09/1974 The said petition was allowed and the amount of pension equivalent of DCRG illegally deducted from his salary was directed to be refunded to him with 12 per cent interest. The petitioner submits that his case is similar to the case of A A Dave J The petitioner further submits that the gratuity which is paid to him under Rules 18 and 19 of the Retirement Benefit Rules applicable to IAS Officers has not link with the pension and therefore pension equivalent of DCRG could not have been deducted from the salary of the post to which he was reemployed It is not disputed that the petitioner was entitled to last pay drawn before his retirement minus pension on his re-employment as aforesaid but the contention is that the term pension would not include pension equivalent of DCRG According to the petitioner it is wholly illegal artificial and arbitrary to deter- mine pension equivalent of DCRG and to include the same or treat the same as part of the pension for the purpose of calculating the amount of salary payable to a re-employed Government servant by deduction of not only the pension but also pension equivalent of DCRG. ( 4 ) IT is further pointed out by the petitioner that realising its error of deducting pension equivalent of DCRG from salary payable to reemployed Government servant the State Gov- ernment in Finance Department issued Resolution No NVT-3236-GOI-95-P dated 17/08/1988 whereby it is decided by the Government not to deduct pension equivalent of gratu- ity while fixing the pay on re-employment of a retired Government servant and to deduct only pension from the salary payable to a retired Government servant The State Government has however laid down that the said decision shall come into force with effect from 1/08/1988 In other words the benefit of the said decision is not given to the retired Government servants who were re-employed prior to 1/08/1988 The retired Government servants who were re-employed and who continue to be reemployed after 1/08/1988 were given the benefit of the said decision The petitioner submits that the Government could not have discriminated between those retired Government servants who were re-employed before a particular cut off date and whose who have been re-employed after the said cut off date or were in re-employment on what date The petitioner submits what in any case his case being similar to the cases of re-employed retired High Court Judges there was no reason or justification to deduct pension equivalent of DCRG from the pay or salary payable to him on his re-employ- ment as aforesaid The petitioner submits that he could not have been given different treatment in respect of pension equivalent of DCRG in contravention of the provisions of Articles 14 and 16 of the Constitution The petitioner has therefore prayed that deduction of pension equivalent of DCRG from his pay or salary payable to him on his re-employment as afore- said be declared as illegal and ultra vires and direct the respondent-State Government to pay or refund to him the amounts deducted by way of pension equivalent of DCRG with 12 per court interest ( 5 ) THIS petition is resisted by the State Government. In the counter-affidavit filed on behalf of the State Government it is not disputed that the petitioner who was a Member of the IAS and who had retired from service as Additional Chief Secretary Home Department was re-employed by the State Government in different capacities as stated in the petition It is however submitted that his salary on re-employment was fixed after deducting pension and pension equivalent of DCRG as per the provisions of Rule 330 of the Bombay Civil Services Rules (BCSR for short) It is submitted that the terms and conditions of the petitioners re-employment were to be regulated by the rules applicable to retired State Government employees and therefore the provisions of Rule 330 of the BCSR were applicable to the petitioner and accordingly his salary on re-employment was fixed after deduction of pension and pension equivalent of DCRG It is further submitted that the decision of the Supreme Court and the decisions of this Court to which reference has been made in the petition will be applicable only to the retired High Court Judges and not to other Government servants like the petitioner It is further submitted that the Government resolution dated 17/08/1988 referred to by the petitioner would not apply to the petitioner because the said resolution was not given retrospective effect According to the State Government since the deduction of the pension equivalent of DCRG from the pay of the petitioner on his re-employment was legal and valid the petitioner was not entitled to the refund of the amount deducted by way of pension equivalent ( 6 ) RULE 330 and Instruction I below it on which reliance was placed on behalf of the State Government read as follows (A) A person who is in receipt of a superannuation or retiring pension shall not be re-employed or continue to be employed in service paid from Consolidated Fund of India or of State or from a local fund except on public grounds and in a purely temporary capacity. (B) The authority competent to fix the pay and allowances of the appointment in which the pensioner is re-employed shall determine whether his pension shall be held wholly or partly in abeyance is the pension is drawn wholly or in part such authority shall take the fact into ac- count in fixing the pay to be allowed to him provided that an authority subordinate to Gov- ernment may not allow the pensioner to draw full pension in addition to the full pay of the post except when the re-employment or continued employment is for bona fide temporary duly lasting for not more than a year or the pension does not exceed Rs. 25 a month; provided further that in the case of a pensioner whose pension exceeds Rs. 26 but does not exceed Rs. 75 a month the amount of pension (including pension equivalent of death-cum-retirement gratuity or gratuity in lieu of pension) equivalent of half the amount by which the pension falls short of Rs 75 shall not be taken into account while fixing the pay to be allowed to such pensioner. INSTRUCTION 1: The pay to be allowed on re-employment is subject to the following conditions all of which must be satisfied (i) Pay on re-employment plus pension (in- cluding pension equivalent of death-cum-retirement gratuity or gratuity in lieu of pension) should not exceed the substantive pay drawn before retirement or the officiating pay ease in which a Government servant is re-employed in a post from which he retired. In cases where the substantive pay drawn before retirement is less than the minimum of the time-scale of the post in which a pensioner is re-employed pay on reemployment may be the minimum of the time- scale minus pension. The term substantive pay refers to substantive or provisionally substantive pay in a permanent post but not pay in termporary post. The expression re-employed in a post from which he retired in this instruction should be interpreted to include any post in the same time-scale and also posts which are treated on an addition to the cadre. (II) Pay (i. e. gross pay minus pension) on reemployment should not except with the sanc- tion of the Government under Bombay Services Rule 51 exceed the minimum of the time-scale of post in which the Government servant is reemployed. (II) Pay (i. e. gross pay minus pension) on reemployment should not except with the sanc- tion of the Government under Bombay Services Rule 51 exceed the minimum of the time-scale of post in which the Government servant is reemployed. (III) Pay on re-employment plus pension (including pension equivalent of death-cum-re- tirement gratuity or gratuity in lieu of pension) should not exceed the maximum of time-scale of the post which the Government servant is reemployed. (IV) Special pay can be drawn in addition to pay on re-employment provided (1) the total of pension and pay on re-employment plus special pay is restricted to the substantive pay last drawn or officiating pay last drawn if the Government servant is re-employed in the same post plus special pay last drawn; and (2) the special pay is attached to the post in which he is re- employed. ( 7 ) IT is contended by the petitioner that his ease is directly covered by the decision of the Supreme Court in Shiveshwar Prasad Sinhas case (supra ). In the ease before the Supreme Court the petitioner was a sitting Judge of the Patna High Court when he became the Chair- man of the Andhra Pradesh Administrative Tribunal at Hyderabad. He attained the age of 6 2/02/1980 and ceased to be Judge of the High Court but continued to be the Chairman of the said Tribunal until 30/11/1981 when on the grounds of health he resigned. Under the High Court Judges (Conditions of Service) Act 1954 as amended in 1976 the petitioner was found entitled to gratuity of Rs. 18 668 67 and after adjusting certain loans to be recovered he was actually paid a sum of Rs. 7302. 02 as retirement gratuity calculated on the basis of Section 17a (3) (i) of the said act. On 14/12/1978 the Gov- ernment of India in the Ministry of Home Affairs laid down the terms and conditions of service of the Chairman and the Members of the Andhra Pradesh Administrative Tribunal. 7302. 02 as retirement gratuity calculated on the basis of Section 17a (3) (i) of the said act. On 14/12/1978 the Gov- ernment of India in the Ministry of Home Affairs laid down the terms and conditions of service of the Chairman and the Members of the Andhra Pradesh Administrative Tribunal. The terms and conditions of service of the Chairman were to the following effect: in partial modifications of the terms and conditions of service of the Chairman and Members of the Tribunal as contained in para 2 of this Ministrys letter dated the 6/07/1976 the Central Government hereby determine under para 3 of the Andhra Pradesh Admin- istrative Tribunal (sic) 1976 the following terms and conditions of service for the Chairman and Members of the Tribunal as from 3/08/1978: chairman - The same remuneration/allowances and conditions of service as admissible to a High Court Judge provided that on retirement as a Judge the pay plus pension and pension equivalent of the other retirement benefits if any shall not exceed Rs. 3 500 on retirement from the High Court the petitioners pension was fixed at Rs. 1067. 00 per month and he was to be paid while working as Chairman salary on the basis of difference be- tween Rs. 3500. 00 and the pension The petitioner was however paid monthly salary at the rate of Rs. 2263. 00 and a sum of Rs. 170. 00 was withheld from the salary The petitioner maintained that he was entitled to be paid Rs. 3600. 00 and therefore the difference between that sum and the amount fixed as pension would be the salary to which he would be entitled. When no heed was paid to his demand he was obliged to approach the Supreme Court for a writ of mandamus or appropriate direction7. 1 At the hearing of the petition no statutory provision which would authorise deduc- tion of Rs. 170. When no heed was paid to his demand he was obliged to approach the Supreme Court for a writ of mandamus or appropriate direction7. 1 At the hearing of the petition no statutory provision which would authorise deduc- tion of Rs. 170. 00 which represented pension equivalent of gratuity was pointed out Gratu- ity is payable to High Court Judges under Section 17a of the High Court Judges (Conditions of Service) Act 1954 as amended by act No. 35 of 1976 It was conceded by the learned Counsel for the Union Government that in case the petitioner was not re-employed after 1/02/1980 when he retired as a Judge no recovery was to be made from his pension The petitioner continued to be the Chairman of the Tribunal till he retired on the basis of re-employment and re- employment was covered by the aforesaid terms and conditions extracted above It was conceded on behalf of the Union Government that the re-employment was contractual and the terms of contract indicated that the petitioner was entitled to salary not exceeding Rs. 3 600 per month. The petitioner had not claimed anything beyond Rs. 3500. 00 including the pension and accord- ing to him after deducting the pension of Rs 1067/- per month he was entitled to the balance of Rs. 2433. 00 and out of that sum Rs. 170 as pension equivalent of gratuity was not deduct- ible every month The Supreme Court held that there was absolutely no justification for direct- ing recovery of the pension equivalent of gratuity at the rate of Rs. 170. 00 per month. In fact the amount appeared to have been arbitrarily fixed It was held that action of the respondent was without any foundation in law and the petitioner had been unnecessarily harassed over such a trifling matter Several representations made by him went unheeded and he was obliged to come before the court. ( 8 ) IN our opinion the petitioners case is directly covered by the decision of the Supreme Court in Shiveshwar Prasad Sinhas ease. In that case deduction of pension equivalent of gratu- ity from the salary payable to the petitioner was sought to be made under the terms and condi- tions of the contract whereas in the instant case such deduction is sought to be made under the provisions of Rule 330 of the BCSR. In that case deduction of pension equivalent of gratu- ity from the salary payable to the petitioner was sought to be made under the terms and condi- tions of the contract whereas in the instant case such deduction is sought to be made under the provisions of Rule 330 of the BCSR. However it would not make any difference whether such deduction is sought to be made under the terms of contract or a statutory rule and the decision of the Supreme Court will apply with equal force to a case where terms and conditions of re- employment are contained in a statutory rule We may hasten to add that we are at the moment proceeding on the assumption the Rule 330 of BCSR permits deduction of pen- sion equivalent of DCRG while fixing the salary on re-employment of the Government servants However as discussed at the later stage of this judgment in our opinion on proper construction of Rule 330 pension equivalent of DCRG is not deductible while fixing the pay of the retired Government servant on his re-employment But even assuming for the sake of argument that Rule 330 permits such deduction the decision of the Supreme Court in Shivesh- war Prasad Sinhas case will directly apply In the instant case also it is not disputed that there is no statutory provision under which pension equivalent of gratuity was deductible from the pension of the petitioner if he was not reemployed In other words had the petitioner not been re-employed after he retired from service as stated above no recovery was to be made from his pension It would therefore appear that the amount of pension payable to the petitioner was fixed keeping in mind the fact that gratuity was paid under Rules 18 and 19 of the Retirement Benefit Rules applicable to IAS officers As in the case of the petitioner in Shiveshwar Prasad Sinhas case before the Supreme Court there was absolutely no justifi- cation to deduct pension equivalent of DCRG while fixing the pay of the petitioner on his re- employment to different posts It is true that under Rule 330 of the BCSR which is appli- cable to the petitioner on his re-employment his salary or pay on his re-employment includ- ing the pension could not have exceeded the last pay drawn by him The petitioner has not claimed anything beyond the last pay drawn by him including the pension However in addi- tion to the pension pension equivalent of DCRG was also deducted while fixing the salary or pay on re-employment which had no foundation in law Therefore following the Supreme Court judgment in Shiveshwar Prasad Sinhas case (supra) it must be held that deduction of pension equivalent of DCRG from the salary payable to the petitioner was illegal unjustified and arbi- trary. The argument that the said decision of the Supreme Court is applicable only to retired High Court Judges who are re-employed is devoid of any substance. The argument that the said decision of the Supreme Court is applicable only to retired High Court Judges who are re-employed is devoid of any substance. The law laid down by the Su- preme Court is applicable to retired High Court Judges who are re-employed as well as Gov- ernment servants who are re-employed The learned Assistant Government Pleader appear- ing for the respondent has not been able to point out to us as to how distinction could be made between a retired High Court Judge who is reemployed and the applicability of the decision of the Supreme Court could be restricted only to a retired High Court Judge who has been re- employed The law laid down by the Supreme Court is of general application and it also covers retired Government servant who has been reemployed As already pointed out above the only difference between the case of re-employment of retired High Court Judge before the Supreme Court and re-employment of retired Government servant is that the former was re- employed under a contract while the latter is reemployed under the relevant statutory rule But this difference is of no consequence Whether under a contract or under a statutory rule while fixing the salary of a retired High Court Judge or a Government servant on his re-employment what is required to be seen is that his salary does not exceed the last pay drawn by him in- cluding the pension The pension only means the amount which is payable to him monthly or periodically and not the gratuity or the pension equivalent thereof In other words while fixing the salary of a retired High Court Judge or a retired Government servant on his re-employ- ment what is deductible is only his pension and not pension equivalent of gratuity from the last pay drawn by him Whether the right to receive salary on re-employment on the basis of last pay drawn flows from a contract or a statutory rule in substance will not make any difference so far as applicability of the law laid down by the Supreme Court is concerned A view similar to the one which we are inclined to take was taken by the learned single Judge of this court in A. A. Dave v. State of Gujarat 1988 GLH 162 ( 9 ) IN the view which we are taking it is not necessary to deal other convention urged before us We will however briefly deal with them I was argued that Rule 330 of BCSR under which the pension equivalent of DCRG is alleged to have been decided does not envisage such de- duction Therefore the question which arises for our consideration is whether Rule 330 permits such dimension clauses (b) of Rule 330 empowers the authority competent to fix the pay and allowances of the appointment in which the pensioner is re-employed and to determine whether his pension shall be held wholly or partly in abeyance If the pension is drawn wholly or in part such authority shall take the fact into account in fixing the pay to be allowed to him provided that an authority subordinate to the Government may not allow the petitioner to draw full pension in addition to the full pay of he post except in certain cases as mentioned in he rule It is pertinent to note that it is only while providing exceptions that reference is made to pension equivalent of DCRG In the substantive provision of clause (b) of Rule 330 while referring to pension there is no mention of pension equivalent of DCRG Rule 9 (40) while defining pension only says pension includes a gratuity This definition is hardly satisfactory Meaning attributable to the word pension would depend upon the context in which it is used. In other words whenever the word pension is used in the rules it will have to be construed having regard to the selling in which it is used. If the context in which it is used indicates that it has reference only to the pension other than the gratuity then it has to be understood in that sense alone it is not as if whenever the word pension is used it has to be understood to mean both the pension which is monthly or periodically payable and the gratuity Now if we examine the language of Rule 330 it appears to us that the word pension is used in the sense of the pen- sion which is payable monthly or periodically and not the gratuity This is evident from (i) it speaks about holding pension wholly or partly in abeyance; (ii) if the pension is drawn wholly or in part to take account of such fact; and (iii) whenever rule making authority wanted to make specific reference to pension equivalent of DCRG it has done so in the rule itself ( 10 ) FULL pay of the post in which the Government servant is re-employed can be permitted to be drawn in the following exceptional cases namely (I) when re-employment or continued employment is for bona fide temporary duty lasting for not more than a year; (II) pension does not exceed Rs. 25. 00 per month; and (III) in the case of pensioner whose pension exceeds Rs. 25. 00 but does not exceed Rs. 75. 00 a month the amount of pension (including pension or equivalent of death-cum-retirement gratuity of gratuity in lieu of pension) equivalent to half the amount by which the pension falls short of Rs 75 shall not be taken into account while fixing the pay to be allowed to such pensioner. ( 11 ) PENSION equivalent of death-cum-retirement gratuity is mentioned only in the third exception The expression pension equivalent of gratuity or DCRG is used for the first time in the Revised Pension Rules 1950 We are told that before the Revised Pension Rules 1956 came into force the formula for determining pension was different and the Government ser- vant was not entitled to gratuity on his retirement. The provision for payment of death-cum retirement gratuity came to be made for the first time in the Revised Pension Rules it was therefore that under Rule 2 of the revised Pension Rules a Government servant who was under the rule making cannot of the Government of Bombay and who held in a substantive capacity a permanent and pensionable post under the Government of Bombay or under the Local Fund administrared by the State Government on or after 1/04/1950 but before 1/01/1951 or was holding a lion or a suspended lion on such a post during the period mentioned above was given the following options: (A) coming on the Revised Pension Rules. (B) continuing under the rules applicable to him before the introduction of the Revised Pension Rules; or (C) drawing pension including special additional pension under the rules applicable to him before the introduction of the Revised Pension Rules reduced by the pension equivalent of the gratuity admissible under Section III and receiving in lieu of this reduction in pension the death-cum-retirement gratuity and family pension as provided under S. III S. IV of the Revised Pension Rules. It would thus appear that under the rules applicable to a Government servant before the introduction of the Revised Pension Rules the formula for determining pension was different and under such formula higher pension was admissible than under the Revised Pension Rules. However under the rules before the introduction of the Revised Pension Rules no gratuity of DCRG was payable to a Government servant. Therefore the Government servant to whom old rules or in other words the rules in existence before the introduction of the Revised Pension Rules were applicable was given option to draw pension to come under the Revised Pen- sion Rules or to continue under the old rules applicable to him or to draw pension including special additional pension under the old rules applicable to him reduced by the pension equivalent of gratuity admissible under Section III and received in lieu of such production in pension death-cum-retirement gratuity and family pension as provided under Sections III and IV of the Revised Pension Rules. It would therefore appear that if the Government servant governed by old rules wanted the benefit of drawing pension under the old rules as also to receive DCRG and family pension under the Revised Pension Rules the pension payable to him under the old rules was to be reduced by the pension equivalent of the DCRG or the gratuity under Section III. It was only in the context of this option that provision was made for deduc- tion of pension equivalent of gratuity from the pension or in other words to reduce pension payable under the old rules to the extent of the pension equivalent of gratuity in case the Government servant to whom old rules were applicable also wanted the benefit of death- cum-retirement gratuity. It was only in the case of the Government servant who opted for draw- ing of pension under the old rules that the statutory provision was made for the deduc- tion of pension equivalent of DCRG from his pension. So far as the Government servants governed by the Revised Pension Rules are concerned there is no question of reducing the pension payable to them by the pension equivalent of gratuity since in the formula adopted for determining their pension the payment of DCRG was taken care of. If the pension equivalent of DCRG was again to be deducted from the salary payable to a retired Government servant or his re-employment it would amount to deduction thereof twice over-once while fixing his pen- sion and second time while fixing his pay on his re-employment. In our opinion it is in the con- text of the re-employment of retired Government servants governed by the old rules which were in existence before the coming into force of the Revised Pension Rules that reference to pension equivalent of gratuity is made in one of the exceptions mentioned in Rule 330. So far as retired Government employees governed by the Revised Pension Rules are concerned the ques- tion of deducting the pension equivalent from DCRG while fixing their pay on re-employ- ment does not arise. ( 12 ) IT was however sought to be urged that instruction (1) below Rule 330 adverted to above clearly indicates that pension equivalent of DCRG has to be taken into account while fixing the pay of a retired Government servant on his re-employment. ( 12 ) IT was however sought to be urged that instruction (1) below Rule 330 adverted to above clearly indicates that pension equivalent of DCRG has to be taken into account while fixing the pay of a retired Government servant on his re-employment. It is submitted that under the said instruction (1) pay on re-employment plus pension (including pension equivalent of death- cum-retirement gratuity or gratuity in lieu of pension) should not exceed the substantive pay drawn before retirement or the officiating pay in case in which a Government servant is re-em- ployed in a post from which he retired. In our opinion instruction (1) is not consistent with Rule 330. ( 13 ) IN Tara Singh v. State of Rajasthan AIR 1975 SC 1487 the Supreme Court while dealing with provisions of Rajasthan Civil Service Rules observed that notes to Civil Service Rules are promulgated with the rules in exercise of legislative powers. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the notes will fill up gaps. The Supreme Court referred to its earlier two decisions in Shyam Lal v. State of U. P. AIR 1954 SC 369 and Shivacharan Singhs case AIR 1965 SC 280 and observed that notes which are appended to rules are of aid not only in applying the rules but also in interpreting the true import of the rules Referring to its decision in Union of India v. K. P. Joseph AIR 1973 SC 303 it was pointed out that although the Government cannot supersede statutory rules by admin- istrative instructions yet if the rules framed under Article 309 of the Constitution are silent on any particular point the Government can fill up and supplement the rules and issue instruc- tions not inconsistent with the rules already framed and these instructions will govern the conditions of service. It would therefore appear that if the Government issues instructions which are not consistent with the rules such instructions will not have any force In our opinion on a proper construction Rule 330 does not envisage inclusion of pension equivalent in the word pension used in the substantive part of clause (b) of Rule 330 This us observed above is evi- dent from context in which the word pension is used and the provision of the Revised Pension Rules Instruction (1) not being consistent with Rule 330 cannot have any efficacy or force of law In our opinion therefore the pay of a retired Government servant on his re-employment cannot be fixed or determined on the basis of what is stated in instruction (1) ( 14 ) AS observed by the Supreme Court in Som Prakash v. Union of India AIR 1981 SC 312 the payment of gratuity or provident fund should not occasion any deduction from the pension as a set off Otherwise the minimum statutory provisions concerning provident fund and gratuity become illusory. Pension are paid out of regard for past meritorious services. The root of gratuity and the foundation of provident fund are different. Each one is a salutary bene- faction statutorily guaranteed independently of the other DCRG is paid to retiring Government servants on account of past meritorious services founded by them. We fail to see how and why what is paid for the past meritorious services can be taken into account while fixing the pay of retired Government servant on his re-employment. ( 15 ) FOR the reasons discussed above we hold that the State Government or the authority concerned was not right in reducing the pay or salary payable to the petitioner on his re-em- ployment by both pension and pension equivalent of DCRG Under Rule 330 of the BCSR only pension and not the pension equivalent of DCRG could have been taken into account while fixing the petitioners pay or salary on his re-employment. Recovery of pension equivalent of DCRG from the pay or salary payable to the petitioner was without any foundation in law and consequently illegal unjustified and arbitarary. Recovery of pension equivalent of DCRG from the pay or salary payable to the petitioner was without any foundation in law and consequently illegal unjustified and arbitarary. ( 16 ) WE may mention here that the State Government itself realised that it was not legal take into account the pension equivalent of DCRG while fixing the pay of retired Govern- ment servant on his re-employment as is evident from its decision contained in the Resolution dated 17/08/1988 issued by the Government in Finance Department to which reference has already been made Under this resolution the Government decided not to deduct pension equivalent of DCRG while fixing pay on re-employment of retired Government servant and to deduct only pension from the salary payable to him with effect from 1/08/1988 There is no rationate in making the said decision applicable only to these retired Government employees who were in re-employment on 17/08/1988 or who were re- employed thereafter The decision not to deduct pension equivalent of DCRG was obviously taken because such deduction was illegal unjustified and arbitrary. If that be the position it is difficult to comprehend as to why the decision of the government was made effective from Au- gust 1 1988 There is no explanation much less a reasonable explanation to fix the cut off date from 1/08/1988 The fixing of this cut off date was illegal and arbitrary and violative of Articles 14 and 16 of the Constitution. To make the decision of the Government effective from 1/08/1988 clearly discriminates between the retired Government servant who was re-em- ployed prior to that date and the retired Government servant who was re-employed on that date or thereafter. In our opinion therefore to the extent that the aforesaid decision of the Govern- ment is made effective from 1/08/1988 it is illegal and arbitrary. The above decision of the Government will be applicable to all retired Government servants who were re-employed prior to 17/08/1988 or were re-employed on that date or thereafter. ( 17 ) IN the light of the above discussion this petition must succeed. The above decision of the Government will be applicable to all retired Government servants who were re-employed prior to 17/08/1988 or were re-employed on that date or thereafter. ( 17 ) IN the light of the above discussion this petition must succeed. In the result this petition is allowed and we direct the respondent-State Government to refund or repay to the petitioner the amount of pension equivalent of DCRG recovered or deducted from pay or salary payable to him on his re-employment as aforesaid within eight weeks from the date of the receipt of the writ of this court. In other words the aggregate or total amount recovered or deducted by way of pension equivalent of DCRG from 18/05/197 3/09/1980 shall be refunded to the petitioner within eight weeks from the date of the receipt of the writ of this court. The respondent shall pay to the petitioner Rs. 1000. 00 by way of cost. Rule made absolute accordingly. .