SINGHVI, J. — The petitioner joined the Rajasthan Judicial Service on 8.9.1956. He was promoted as District & Sessions Judge on May 7,1973. He was then elevated as Judge of the Rajasthan High Court w.e.f. 4.4.1983. Before elevation, the petitioner was holding the office of the Law Secretary, Government of Rajasthan and from that post, he had retired on March 31, 1983 on attaining the age of superannuation and his elevation as Judge of the Rajasthan High Court was after the said retirement. The petitioner retired as Judge of the Rajasthan High Court on February 6, 1990. On his retirement as Law Secretary, Government of Rajasthan the petitioner was granted gratuity amounting to Rs. 32,000/-. This was drawn by the petitioner on April 17, 1983. A pension payment order was also issued in favour of the petitioner, but he did not draw the pension in terms of the aforesaid pension payment order. Instead, he had applied for commutation of one third of pension. This commutation was sanctioned and the petitioner received a sum of Rs. 45, 634 .30 on July 8, 1983. The Registrar, Rajasthan High Court wrote a letter dated 29.08.1983 to the Secretary to the Government of India, Ministry of Law & Justice seeking clarification in the matter of recovery of commutted pension and also as to whether the petitioner would be entitled to get salary after deduction of the pension and what would be its impact on pension at the time of retirement as Judge of the High Court. After exchange of correspondence between the ministry of Law & Justice, Government of India, the Director, Pension Rajasthan, Jaipur, and the Secretary Law Department, Government of Rajasthan, Jaipur, the Government of India vide its letter dated February 15, 1985 clarified that the petitioners salary will be fixed after deducting from his salary the amount of pension and pension equivalent to gratuity. The Director, Pension then wrote a letter dated April 23, 1983 to the Registrar, Rajasthan High Court indicating that the gross amount of pension payable to the petitioner would come to Rs. 1000/- and the amount of death cum retirement gratuity would come to Rs. 241.70 per month. The salary of the petitioner would be fixed after deducting the amount of Rs. 1241.70. In pursuance of the subsequent order passed by the Registrar, Rajasthan High Court the petitioners pay was fixed after deducting the aforesaid amount. 1000/- and the amount of death cum retirement gratuity would come to Rs. 241.70 per month. The salary of the petitioner would be fixed after deducting the amount of Rs. 1241.70. In pursuance of the subsequent order passed by the Registrar, Rajasthan High Court the petitioners pay was fixed after deducting the aforesaid amount. However, the Honble Chief Justice, Rajasthan High Court considered the case of the petitioner and expressed opinion that fixation of pay of a Judge of the High Court was not within the jurisdiction of the State Government or even the High Court itself and, therefore, he directed that the Treasury Officer, State Secretariat, Jaipur shall not deduct any amount from the salary of the petitioner. A lot of correspondence was again exchanged between the various functionaries and ultimately the petitioner on his own accord asked the Director, Pension, Rajasthan to advise him as to under what head the amount should be deposited by him. After receipt of reply, the petitioner deposited the amount of commutted pension in instalments between 4.5.1988 to 2.9.1988. The gratuity amount was also deposited in instalments between 4.10.88 to 24.7.89. The Pension Department pointed out that the petitioner was required to deposit a sum of Rs. 625/-and the same was deposited on September 21, 1989. (2). After retirement of the petitioner as Judge of the Rajasthan High Court, the Central Government sanctioned a sum of Rs. 75,000/- as gratuity and Rs. 2,19,600/- as commutation of pension. Out of the said amount, a sum of Rs. 47,980.30 has been deducted by the State Government by way of interest for the period for which the amount of gratuity and commutted pension remained with the petitioner. The Director, Pension Rajasthan, Jaipur referred the matter to the Central Government for sanctioning the gratuity amount of Rs. one lakh. But the Government sanctioned only Rs. 75,000/-vide order dated 9.1.1990. This was apparently done under Rule 257 A of the Rajasthan Service Rules, 1951. (3). It has also been stated in the petition that the question of payment of cash equivalent to earned leave has not been finalised by the Government.At the time of retirement as Law Secretary, the petitioner was granted a sum of Rs. 13,815 on 13.5.1983 as the amount of encashment of leave due at his credit upto the date of his retirement as Secretary, Law Department, Government of Rajasthan. 13,815 on 13.5.1983 as the amount of encashment of leave due at his credit upto the date of his retirement as Secretary, Law Department, Government of Rajasthan. As a Judge of the High Court, the petitioner became entitled to encashment of leave upto 240 days. Registrar, Rajasthan High Court advised the State Government that 240 days leave was available to the credit of the petitioner and that he was entitled for encashment of the same, after deduction of the amount, which has already been paid to him, but the amount of leave encashment was not paid to the petitioner. According to the petitioner, the leave which he had encashed as a member of the Rajasthan Higher Judicial Service and the fact that he had drawn the amount of Rs. 13,815/-can have no relevance to the entitlement of the petitioner to encashment of leave upto 240 days as Judge of the High Court and that he was entitled to full encashment of the amount of Rs. 80,000/-. (4). Petitioner has then stated that he along with Shri S.S. Byas (another retired Judge of the High Court) made representation to the Chief Secretary, Govt. of Rajasthan on July 10, 1990 for payment of cash equivalent to earned leave and the balance amount of gratuity. A reference to the decision of the Honble Supreme Court in Satish Chandra vs. Union of India (1) decided on July 30,1990. But no reply has been received by the petitioner. The petitioner has referred to a Circular dated May 2, 1988 issued by the Government of India, Ministry of Law & Justice indicating that if the concerned State Government has not adopted the provisions contained in the Department of Pension and Pensioners Welfare Office Memorandum dated 14.4.1987 or have yet not issued any independent orders for revising the pensionary benefits to the employees of that State including the members of the State Higher Judicial Service, then the pensionary benefits to the Judge belonging to Part III will not be revised. The petitioner on his part made a representation to the Government of India, Ministry of Law & Justice (Department of Justice) on May 15, 1990 and in reply to the same, the Government of India has intimated vide letter dated May 29, 1990 that since the Government of Rajasthan has not adopted the enhanced rate of death-cum retirement gratuity in respect of Part III Judges elevated from the State Higher Judicial Services, the petitioner is not entitled to receive the gratuity amount of Rs. 1 lakh. (5). The petitioner has questioned the justification of discrimination between the High Court Judges in the matter of grant of death of (sic cum) retirement gratuity despite the decision of the Supreme Court in Satish Chandras case. The constitutional validity of Rule 257-A of the Rajasthan Service Rules, 1951 has also been assailed. The petitioner has further prayed that deduction of sum of Rs. 47,980.30 towards the so called interest is wholly arbitrary, unreasonable and unjustified. According to the petitioner, there is no provision under the Rules, by which the Government could claim interest on the amount of gratuity and commutted pension received by him as a member of the Rajasthan Higher Judicial Service on his retirement w.e.f. March 31, 1973 when he attained the age of superannuation. The petitioner had, infact been always ready and willing to deposit the amount of gratuity and commuted pension, but because of the correspondence and the directions given by the Honble Chief Justice etc. the petitioner could not deposit the amount in time and he himself asked the authorities of the Department and on their advise, deposited the amount. The petitioner has also claimed that there is no justification for not giving him the benefit of earned leave of 240 days as Judge of the High Court to which he became entitled after his elevation w.e.f. April 4, 1983. According to the petitioner there was no provision for clubbing of the earned leave to which the petitioner was entitled as a member of the Rajasthan Higher Judicial Service and the earned leave to which the petitioner is entitled as Judge of the High Court. (6). In reply to the writ petition, the respondent No, 1 has admitted that the petitioner was a member of the Rajasthan Higher Judicial Service at the time of his retirement on 31.3.1983 while holding the office of the Law Secretary. (6). In reply to the writ petition, the respondent No, 1 has admitted that the petitioner was a member of the Rajasthan Higher Judicial Service at the time of his retirement on 31.3.1983 while holding the office of the Law Secretary. It has also admitted the factum of elevation of the petitioner as Judge of the High Court w.e.f. April 4, 1983 and that he retired as Judge of the High Court on February 6, 1990. The respondent No. 1 has also admitted that the petitioner had applied for commutation of pension and the petitioner was authorised to pension, gratuity and commutation of pension. The petitioner did not draw the monthly pension, but drew the communed value of monthly pension amounting to Rs. 45634.30 and the amount of gratuity to the tune of Rs. 32,625/-. The matter regarding fixation of pay of the petitioner as Judge of the High Court was decided by the Govt. of India, Ministry of Law and Justice (Department of Justice) and the same was communicated vide letter dated 18.3.1983. According to the said order, a sum of Rs. 1241.70 was to be deducted from the monthly salary of the petitioner towards pension and pension equivalent to death-cum-retirement gratuity. The respondent No. 1 has stated that the Director, Pension is not competent authority to sanction pensionary benefits to the High Court Judges, they are sanctioned by the Government of India, Ministry of Law & Justice (Department of Justice) and the amount sanctioned in the case of the petitioner was only Rs. 75,000/-. It has been stated that Rule 257-A of the Rajasthan Service Rules, 1951 does not apply to the Rajasthan High Court Judges. This statement has been made in para 9 of the reply. In para 10, it has been stated that the matter of the petitioner pertaining to the payment of leave encashment amount for 240 days after deducting the amount of 13,815/- already paid to him along with interest, is at the final stage of finalisation and issuance of order. The petitioner is however, not entitled to leave encashment for both the periods separately because his order as Law Secretary was withdrawn by the Government of Rajasthan in Law and Judicial Department vide order dated 30.8.89 in view of Government of Indias letter dated 12.9.1988. The petitioner is however, not entitled to leave encashment for both the periods separately because his order as Law Secretary was withdrawn by the Government of Rajasthan in Law and Judicial Department vide order dated 30.8.89 in view of Government of Indias letter dated 12.9.1988. The respondent No. 1 has then asserted that under Sec. 17-A (2) of the High Court Judges (Conditions of Service) Act, 1954 (hereinafter to be referred as the Act) only a sum of Rs. 75,000/- is payable to the petitioner as gratuity. The Government has deducted the amount from the pension payable to the petitioner towards interest because the petitioner had retained the said amount. The State Government has nothing to do in the matter of pension, gratuity and leave encashment of the Judges of the High Court because the conditions of service of High Court Judges are regulated by the provisions of the Act as amended from time to time and the orders are to be issued by the Department of Law & Justice, Government of India. The State Government has merely to implement the orders of the Government of India. The respondent No.l has stated that the directions given in the case of Satish Chandra are not applicable because Shri Satish Chandra was elevated as Judge of the High Court while he was practising Advocate whereas the petitioner was a member of the Higher Judicial Service. The Act has divided the High Court Judges in 3 categories on the basis of source of recruitment of the Judges and the Judges belong to these 3 different categories are entitled to different benefits. Therefore, there has been no violation of the provisions of Article 14 of the Constitution of India in the matter of payment of gratuity to the petitioner. In para 13 the respondent No. 1 has stated that the office memorandum dated 14.4.87 is not applicable to the case of the petitioner because the same is applicable to only the cases of those employees to whom the Central Civil Services Pension Rules, 1972 are applicable. The respondent No. 1 has justified its stand regarding the amount of gratuity payable to the petitioner by stating that as per the provisions of the Act, the Government of India has sanctioned only a sum of Rs. 75,000/-. The respondent No. 1 has justified its stand regarding the amount of gratuity payable to the petitioner by stating that as per the provisions of the Act, the Government of India has sanctioned only a sum of Rs. 75,000/-. Rule 257 of 1951 Rules has no application to the case of the petitioner and the petitioner is not entitled to treatment at par with the Judges of the other High Courts. The amount of Rs. 47,980.30 was withheld by the Government because the petitioner had drew the amount of gratuity and commuted value of the pension unauthorisedly and had retained the said amount. In fact, no direction was necessary. In case of irregular drawal of pensionary benefits by the State Government employees, Government instructions provide for recovery of interest at the rate of 15-% P.a. and in the case of petitioner only 12% interest has been charged in terms of Government of India Memo dated 30.3.1978. (7). In the additional pleas, the respondent No. 1 has asserted that the Rajasthan High Court has not been impleaded as a party, although it is a necessary party. (8). During the course of hearing of writ petition, an amendment application was filed on behalf of the petitioner because the Government of Rajasthan (Law & Judicial Department) vide its letter dated October 30, 1990 addressed to the Registrar, Rajasthan High Court conyeyed the sanction to receive cash equivalent to the leave salary in respect of unutilised 240 days earned leave at his credit inclusive of dearness allowances on the date of retirement in view of the Supreme Court decision in Civil Writ Petition No. 764/87 Satish Chandra Vs. Union of India delivered on 30.7.1987 with the condition that the amount of Rs. 13,815/- alongwith the interest accrued thereon @ 12% per annum would be adjusted from the amount of encashment leave payable to the petitioner. The petitioner has assailed this letter on the ground that there is no justification for adjustment of Rs. 13,815/- along with interest @ 12% because the amount of Rs. 13,815/- was received by the petitioner for his service as member of the Rajasthan Higher Judicial Service upto 31.3.1983. Even if he had not been elevated as Judge of the High Court, he had a right to receive that amount. (9). 13,815/- along with interest @ 12% because the amount of Rs. 13,815/- was received by the petitioner for his service as member of the Rajasthan Higher Judicial Service upto 31.3.1983. Even if he had not been elevated as Judge of the High Court, he had a right to receive that amount. (9). From the facts, which have come on record, it is evident that after joining Rajasthan Judicial Service on 8.7.1956, the petitioner received promotions, the last being one to the Rajasthan Higher Judicial Service. He retired on March 31, 1983 while he was holding the office of Law Secretary, Government of Rajasthan. He was elevated as Judge of the Rajasthan High Court on April 4, 1983. By a communication dated 12.9.1988 of the Government of India, Ministry of Law & Judicial (Department of Justice) addressed to the Chief Secretary, Government of Rajasthan, sanction of the President was conveyed under Sec. 16 of the Act of 1954 to the addition of 3 days i.e. 1.4.1983 to 3.4 1983 to the service of the petitioner with a specific stipulation that this period shall be disregarded in calculating additional pension, if any, under Part I or Part II or Part III of the First Schedule to the Act. The petitioner had applied for commutation of pension before his retirement from Rajasthan Higher Judicial Service. The Government of Rajasthan sanctioned this commutation and thereafter, the petitioner received the amount of gratuity and commutted portion of the pension. A lot of correspondence was exchanged between the Govt. of Rajasthan and the Government of India and, thereafter it was decided that the petitioner will be entitled to salary as Judge, of the High Court after deduction of a sum of Rs. 1241.70 in lieu of pension and pension equivalent to death-cum-retirement gratuity. The petitioner deposited the amount of commutted pension between 4.6.1988 to 2.9.88 and the amount of gratuity between 4.10.1988 to 24.7.1989. He had received a sum of Rs. 13815/- towards encashment of leave of 135 days, which was due to him at the time of retirement from the Rajasthan Higher Judicial Service on 31.3.1983. The petitioner was paid a sum of Rs. 75,000/- towards gratuity and from the pension payable to him on retirement of Judge of the High Court, a sum of Rs. 13815/- towards encashment of leave of 135 days, which was due to him at the time of retirement from the Rajasthan Higher Judicial Service on 31.3.1983. The petitioner was paid a sum of Rs. 75,000/- towards gratuity and from the pension payable to him on retirement of Judge of the High Court, a sum of Rs. 47,980.30 has been deducted towards the so called interest @ 12% per annum on the amount of commutted pension and gratuity received by the petitioner after retirement of the petitioner from Rajasthan Higher Judicial Service. The benefit of leave encashment as Judge of the High Court was not given to the petitioner but during pendency of the writ petition by an order dated October 30, 1990, sanction was accorded for payment of cash equivalent to the leave salary in respect of unutilised 240 days earned leave after deduction of Rs. 13,815/- along with interest @ 12% per annum. (10). It is also borne out from the record that although in the reply the respondent No. 1 has categorically stated that the judgment of the Honble Supreme Court in Satish Chandras case (supra) is not applicable to the case of the petitioner, in the order dated October 30, 1990 the Government has placed reliance on the aforesaid decision of the Honble Supreme Court. (11). Shri Paras Kuhad, learned counsel for the petitioner has, in the first place, argued that the petitioner has a right to receive gratuity amount of Rs. one lakh. In Satish Chandras case, the Honble Supreme Court has clearly held that all Judges of the High Courts retiring on or before 1.1.1986 are entitled to receive the gratuity amount of Rs. one lakh. The petitioner has been subjected to discriminatory treatment, because all. Judges of the High Courts of different States are entitled to receive gratuity amount of Rs. one lakh, but only in the case of the Judges of the High Court of Rajasthan whose cases are covered by Part III of the Schedule attached to the Act of 1954 are subjected to discriminatory treatment. Shri Kuhad argued that in the light of the decision of their Lordships of the Supreme Court in Satish Chandras case (supra) it is not open either to the Government of India or the State Government to pay gratuity of Rs. 75,000/- only. Shri Kuhad argued that in the light of the decision of their Lordships of the Supreme Court in Satish Chandras case (supra) it is not open either to the Government of India or the State Government to pay gratuity of Rs. 75,000/- only. He argued that no discrimination can be made between the Judges of different High Courts in the matter of payment of gratuity to them. Shri Kuhad attacked the vires of Rule 257-A of the Rajasthan Service Rules, 1951 by saying that by the aforesaid Rule a discrimination is sought to be practised between the Judges of the different High Courts in the country. According to him all Judges of the High Courts in the country constitute one class. Their conditions of service are regulated by the same provisions and, therefore, they cannot be treated differently in the matter of grant of gratuity. (12). Shri M.I. Khan, learned Additional Advocate General on the other hand argued that the petitioner has been declared entitled to gratuity of Rs. 75,000/- only because the Government of India, Ministry of Law & Justice (Department of Justice) has sanctioned Rs. 75,000/- towards gratuity. He argued that Rule 257-A of the Rajasthan Service Rules, 1951 has no application and instead gratuity is payable in terms of Section 17-A(2) of the Act of 1954. Shri Khan argued that the Act of 1954 has categorised the Judges in 3 categories on the basis of their source of recruitment and have provided different benefits of service, gratuity, pension etc. He submitted that no discrimination has been practised by the State Government against the petitioner. The Government has merely followed the instructions of the Government of India. (13). Shri Kuhad then argued that deduction of a sum of Rs. 47,980.30 towards the alleged interest on the amount of commutted portion of pension and gratuity received by the petitioner after his retirement as member of the Rajasthan Higher Judicial Service is wholly illegal and arbitrary. The first limb of submission of Shri Kuhad in this context is that there is no provision of law under which interest can be claimed from the petitioner. The provisions of Rajasthan Service Rules, 1951 do not provide for recovery of interest from the employees in respect of any amount which may be said to have been paid in excess. The first limb of submission of Shri Kuhad in this context is that there is no provision of law under which interest can be claimed from the petitioner. The provisions of Rajasthan Service Rules, 1951 do not provide for recovery of interest from the employees in respect of any amount which may be said to have been paid in excess. Alternatively, he argued that the interest more than the one provided for in the Indian Interest Act, 1978 can (sic cannot) be claimed from the petitioner. He referred to the provisions of Sections 3 and 4 of the Interest Act in support of his argument that the Government cannot recover the amount of interest at a right (sic rate) higher than the one prescribed in the statute. (14). Learned Additional Advocate General countered this submission of Shri Kuhad by arguing that the petitioner had drawn the amount of commutted portion of pension and gratuity knowing fully well that he was not entitled to do so. In fact after his elevation as Judge of the High Court, the petitioner ought not to have accepted the amount of gratuity. In any case, when it was made clear that he will not be entitled to the amount, the petitioner ought to have deposited the same to the Government. The petitioner delayed the deposit of amount of the Government and therefore, the Government has rightfully claimed interest. According to the learned Addl. Advocate General, instead of charging interest @ of 15% per annum, interest @ 12% only has been charged from the petitioner. (15). Lastly, Shri Kuhad has argued that denial of leave encashment to the petitioner towards his earned leave of 240 days as Judge of the High Court is wholly unauthorised, arbitrary and illegal. He argued that the cash received by him in lieu of his earned leave of 135 days on his retirement from Higher Judicial Service has no relevance with the encashment of leave after retirement as Judge of the High Court. There is no carry-forward of the earned leave and there cannot be any clubbing of the quantum of earned leave. The petitioner had rightfully received the amount of Rs. 13,815/- towards leave encashment after retirement from Rajasthan Higher Judicial Service. There is no carry-forward of the earned leave and there cannot be any clubbing of the quantum of earned leave. The petitioner had rightfully received the amount of Rs. 13,815/- towards leave encashment after retirement from Rajasthan Higher Judicial Service. The Government had intentionally withheld the amount of cash equivalent to leave earned as Judge of the High Court on his retirement and even sanction was accorded after more than 8 months of the petitioners retirement as Judge of the High Court. Even in that order, the Government has unlawfully stated that the amount of Rs. 13,815/- with interest @ 12% per annum would be deducted. Shri Kuhad argued that the amount of Rs. 13,815/- was paid to the petitioner in accordance with the Rules, and therefore, there could be no question of deduction of the same, much less deduction with interest @ 12% per annum. (16). Shri M.I. Khan, learned Addl. Advocate General argued that the petitioners service from Rajasthan Higher Judicial Service was treated as continued on his elevation as Judge of the Hight Court and therefore, the benefits which he earned as member of the Rajasthan Higher Judicial Service will have to be taken into consideration while deciding the question of grant of cash equivalent to leave on retirement. The petitioner has received the amount of Rs. 13,815/- in 1983 but did not deposit the same. Therefore, the Government is fully justified in deciding the aforesaid amount with interest at the rate of 12% per annum. (17). In order to decide the questions raised in this petition, it would be appropriate to refer to the provisions of Article 221 of the Constitution of India as well as some provisions of the High Court Judges (Conditions of Service) Act, 1954:— "Art. 221. (1) There shall be paid to the Judges of each High Court such salaries as are specified in the Second Schedule. (1) There shall be paid to the Judges of each High Court such salaries as are specified in the Second Schedule. (2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the second schedule ;- Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment." "Sec. 2(gg) "Pension" means a pension of any kind whatsoever payable to or in respect of a Judge, and includes any gratuity or other sum or sums so payable by way of death or retirement benefits." Sec. (3) Kinds of leave admissible to a Judge:- (1) Subject to the provisions of this Act leave granted to a Judge may be at his option either - (a) leave on full allowances (including commutted leave on half allowance into leave or full allowances on medical certificate) or (b) leave on half allowances: or (c) leave partly on full allowance and partly on half allowances. (2) For the purposes of this Chapter, any period of leave on full allowances shall be reckoned as double that period of leave on half allowance. Sec. 5 "Aggregate amount of leave which may be granted-(l) The aggregate amoung of leave which may be granted to a Judge during the whole period of his service as such shall not exceed in terms of leave on half allowances three years together with the aggregate of the periods, if any credited to his leave account under sub-section (2) (a) (ii) of Section 4 as compensation for vacation not enjoyed. (2) The aggregate amount of leave on full allowances which may be granted to a Judge during the whole period of his service as such shall not exceed on twenty-fourth of the period spent by him on actual service together with one half of the aggregate periods if any, credited to his leave account under sub-section (2) (a) (ii) of Section 4 as compensation for vacation not enjoyed. (3) Subject to the provisions of sub-section (2) of Section 5 A, the maximum period of leave which may be granted at one time shall be, in the case of leave on full allowance, five months and in the case of leave with allowances of any kind, sixteen months." "Sec. 14-Pension Payable to Judges : Subject to the provisions of this Act, every Judge shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part I of the First Schedule :- Provided that no such pension shall be payable to a Judge unless (a) he has completed not less than twelve years of service for pension; or (b) he has attained the age of sixty two years; or (c) his retirement is medically certified to be necessitated by ill health. Provided further that if a Judge at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service in the Union or a State, the pension payable under this Act shall be in lieu of, and not in addition to, that pension. Explanation : In this section Judge means a Judge who is not a member of the Indian Civil Service or has not held any other (pensionable post) under the Union or a State and includes a Judge who being a member of the Indian Civil Service or having held any other (Pensionable Post) under the Union or the State has elected to receive the pension payable under Part I of the First Schedule . Sec. 15 (1) Every Judge- (a) Who is a member of the Indian Civil Service shall, on his retirement, be paid a pension in accordance with the scale and provisions in Part II of the First Schedule; (b) Who is not a member of the Indian Civil Service but has held any other (pensionable post) under the Union or a State, shall,on his retirement, be paid a pension in accordance with the scale and provisions in Part III of the First Schedule : Provided that every such Judge shall elect to receive the pension payable to him either under Part I of the First Schedule or, as the case may be, Part II or Part III of the Schedule, and the pension payable to him shall be calculated accordingly. (2) Notwithstanding anything contained in sub-section (1), any Judge to whom that sub-section applies and who is in service on or after the 1st day of October, 1974 may if he has elected under the proviso to that sub-section to receive the pension payable to him under Part II or, as the case may be, Part III of the First Schedule before the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976, receives the assent of the President, cancel such election and elect afresh to receive the pension payable to him under Part I of the First Schedule and any such Judge who dies before the date of such assent shall be deemed to have elected afresh to be governed by the provisions of the said Part I if the provisions of that part are more favourable in his case." 17. A. (1) Where a Judge, who being in service on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service)Amendment Act, 1986, dies, whether before or after retirement in circumstances to which section 17 does not apply, family pension calculated at the rate of fifty percent of the pension admissible to him on the date of his death shall be payable to the person or persons entitled thereto and the amount so payable shall be paid from the day following the date of death of the Judge for a period of seven years or for a period upto the date on which the Judge would have attained the age of sixty five years, had he survived whichever is earlier, and thereafter at the rate of half of the family pension so admissible. Explanation: For the purposes of determining the person or persons entitled to family pension under this sub-section- (i) in relation to a Judge who elects or is eligible to receive pension under Part I of the First Schedule, the rules, notifications and orders for the time being in force with regard to the person or persons entitled to family pension in relation to an officer of the Central Civil Services, Group A shall apply. (ii) in relation to a Judge who elects to receive pension under Part II or Part III of the First Schedule, the ordinary rules of his service if he had not been appointed a Judge with respect to the person or persons entitled to family pension shall apply and his service as a Judge being treated as service therein. (2) Where any Judge, who has elected to receive the pension payable to him under Part II or Part III of First Schedule , retires, or dies in circumstances to which section 17 does not apply, gratuity, if any, shall be payable to the person or persons entitled thereto under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that gratuity. (3) The rules, notifications and orders for the time being in force with respect to the grant of death cum retirement gratuity benefit to or in relation to an officer of the Central Civil Services, Class I (including the provisions relating to deductions from pension for the purpose) shall apply to in relation to the grant of death-cum-retirement gratuity benefit to or in relation to a Judge who being in service on or after the 1st day of October, 1974 retires or dies in circumstances to which Section 17 does not apply, subject to the modification that- (i) the minimum qualifying service for the purpose of entitlement to the gratuity shall be two years and six months: (ii) the amount of gratuity shall be calculated on the basis of twenty days salary for each completed year of service as a Judge. PART III 1. The provisions of this part apply to a Judge who has held any (pensionable post) under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I. 2. The pension payable to such a Judge shall be : (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension, and (b) a special additional pension of Rs. The pension payable to such a Judge shall be : (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension, and (b) a special additional pension of Rs. 1600 per annum in respect of each completed year of service for pension but in no case such additional pension together with the additional or special pension, if any, shall exceed to Rs. 8000 per annum: Provided that the pension under clause (a) and the additional pension under Clause (b) together shall in no case exceed Rs. 54,000 per annum in case of a Chief Justice and Rs. 48,000 per annum in case of any other Judge." (18). The question relating to payment of cash equivalent to leave came up for consideration in Union of India Vs. Gurnan Singh (2) and in Shiv Dayal V. Union of India.(3) In the later judgment, their Lordships of the Supreme Court after referring to the earlier decision, held as under :— "Chapter II of the Act deals with leave. Section 3 provides the kinds of leave admissible to a Judge. Section 4 makes provision for leave account to be maintained. Section 5 deals with aggregate amount of leave which may be granted. Section 5-A makes provision for commutation of leave on half allowances into leave on full allowances while Ss. 6,7 and 8 deal with grant of leave of specific kinds. These provisions in the Act deal with leave which has to be asked for and taken during the tenure of working as a Judge. Leave necessarily implies authorised absence from duty or employment (See Websters Third New International Dictionary). Rule 20-B makes provision for payment of cash equivalent of leave due under the appropriate provisions but subject to a maximum of 180 days. We have already indicated that the ratio of Gurnam Singhs case ( AIR 1982 SC 1265 ) has not been disputed. It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement benefit contemplated under R. 20-B; otherwise R. 20-B could not have been applied. The scheme in R. 20-B is that the payment would be made suo motu and without any application for it. It would necessarily mean acceptance of the position that the Act did not make provision for payment of the retirement benefit contemplated under R. 20-B; otherwise R. 20-B could not have been applied. The scheme in R. 20-B is that the payment would be made suo motu and without any application for it. Leave referred to under the Act is one which has to be asked for and is intended to meet a different situation. For calculating the benefits under R. 20-B, S. 5(3) of the Act is not relevant and in case in the leave account maintained under S. 4 of the Act leave is due, the benefit under R. 20-B has to be worked out subject to the upper limit of 180 days, equal to six months. The claim made by the petitioner that he was entitled to the benefit of six months is, therefore, justified subject, of course, to admissibility of leave to the extent of 180 days in the leave account. No dispute was raised before us that as a fact petitioner had to his credit more than 180 days of leave. Once we hold that the benefit under Rule 20-B is not controlled by Chapter II of the Act, the manner of calculation indicated in S. 9(1) of the Act would also not apply. The petitioner would thus become entitled to cash equivalent of six months salary which would work out at Rs. 24,000/-. As he has been paid a sum of Rs. 15,990/-, he is entitled to Rs. 8010/-. A writ in the nature of mandamus be issued to the Union of India to pay him the said amount within one month from today. Parties are left to bear their own costs. We would like to add that it is manifest that in view of the enunciation of law by us in this judgment, the principles governing the cash equivalent of leave would apply not only to the petitioner but also the Judges who have already retired or who may retire hereafter, from the date from which this facility was made available to the members of the Central Services holding the rank of Secretary to the Government of India or its equivalent." (19). In Satish Chandras case (supra), which was decided on July 30, 1987, Honble Supreme Court noted the statement made by the Additional Solicitor General on behalf of the Government in the following words :— "Coming to the question of amount of gratuity payable to the Judges, the learned Additional Solicitor General, on behalf of the Government, has very fairly stated that it is now agreed that the maximum limit of the amount of gratuity payable to a Judge should be rupees one lakh, with effect from 1.1.1986 and that suitable legislation will be brought forward soon. It has also been stated that necessary instructions will be forthwith issued to make payments of gratuity upon a maximum of rupees one lakh to Judges who have retired on or after 1.1.1986. In the circumstances, a direction will issue to the Accountant Generals and the Pay & Accounts Officers of the States to make payment of gratuity subject to a maximum of rupees one lakh, with effect from 1.1.1986. Let such a direction issue." In that case, the question of cash equivalent to leave was also considered in the light of the judgment in Gurnam Singhs case and Shiv Dayals case and the view taken in the two earlier decisions were reiterated. (20). In M.L. Jain Vs. Union of India and others (4), question of admissibility of pension to a Judge whose case was governed by the provisions of Part III of First Shedule, was examined by their Lordships of the Supreme Court. Their Lordships took note of Office Memorandum No. 2/1/87-PIC-II dated April 14, 1987 and subsequent Office Memorandum dated April 16, 1987 of the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare and noted that as per para 2.3 the orders contained in the aforesaid memorandums were not to be applied to the retired Supreme Court and High Court Judges and other Constitutional/statutory authorities whose pension etc. was to be governed by separate orders and necessary orders in whose cases were got issued by the respective administrative authorities. was to be governed by separate orders and necessary orders in whose cases were got issued by the respective administrative authorities. Their Lordships then took notice of the letter dated December 18, 1987 of the Government of India, Ministry of Law & Justice, Department of Justice, which contained directions as to the manner in which the basic pension to the Supreme Court Judges and High Court Judges governed by the provisions of Part HI of First Schedule to the High Court/ Supreme Court Judges (Conditions of Service) Act, 1954/1958 was required to be determined. Their Lordships reproduced they contents of the letter in para 13 of the judgments and the proceeded to observe as under:— "We fail to appreciate the propriety of the aforesaid letter of the Ministry of Law and Justice giving liberty to the different State Governments to deny the benefit of the revised pension to the Service Judges consequent upon the enactment of Acts 38 of 1986 and 20 of 1988 read along with the aforesaid Office Memoranda issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare dated April 14, 1987 and April 16, 1987 and Rule 2 of the High Court Judges Rules, 1956. Virtually this means that the State Governments may or may not issue any orders in terms of paragraph 2.3 of the Office Memorandum dated April 16, 1987 appointing a date for grant of revised pension, or appoint different dates for the grant of revised pension to the retired High Court Judges who had opted to be governed by Part I of the First Schedule of the Act. Such a direction, in our view, was constitutionally impermissible as offending Article 14 of the Constitution. It is tendamount to denial of equal treatment to persons belonging to the same class without any rational basis." The Court noted the concession of the learned Attorney General and assurance of the learned Additional Solicitor General, who had given out that there was a patent disparity in the pension fixed for the petitioner in that case and the disparity would be removed as expeditiously as possible. The Court also noted that the Attorney General had given out that he would advise the Government to bring about parity between the pension drawn by the petitioner and other Judges in India. (21). The Court also noted that the Attorney General had given out that he would advise the Government to bring about parity between the pension drawn by the petitioner and other Judges in India. (21). From the judgment of Satish Chandras case and M.L. Jains case, it is clear that maximum limit of the amount of gratuity payable to a Judge was one lakh w.e.f. 1.1.1986. Learned Additional Solicitor General had agreed that suitable legislature would be brought soon and necessary instructions will be ssued forthwith to make payment of gratuity amount to the maximum limit of rupees one lakh to the Judges who have retired after 1.1.1986. The Supreme Court issued directions to the Accountant Generals and the Pay & Accounts Officers of the States to make payment of gratuity subject to a maximum of rupees one lakh w.e.f. 1.1.1986. In M.L. Jains case (supra), the Court unequivocally held that the Ministry of Law & Justice had no justification to issue letter in order to deny the benefit of revised pension to the service (sic retired) Judges consequent upon the enactment of the Acts No. 38 of 1986 and 20 of 1986 (sic 1988) read with the other Memorandums issued by the Government of India on April 14, 1987 and April 16, 1987 and Rule 2 of the High Court Judges Rules, 1956. The Court observed that it cannot be left to the State Governments to issue or not to issue any order in terms of para 2.3 of the Office Memo datted April 16, 1987 for grant of revisedpension or appointing different dates for grant of revised pension to the retired High Court Judges who had opted to be governed by Part III of the First Schedule of the Act and held that such direction would be clearly contrary to the provisions of Article 14 of the Constitution of India. (22). In the light of the aforesaid principles, now we may examine the arguments of the learned counsel for the parties, which have been referred to hereinabove. (23). Admittedly, the petitioner had retired from service on February 6, 1990 i.e. after 1.1.1986. According to the Government of India, the petitioner is entitled to revised death-cum retirement gratuity provided the Government of Rajasthan has adopted the enhanced rate of death-cum-retirement gratuity. (23). Admittedly, the petitioner had retired from service on February 6, 1990 i.e. after 1.1.1986. According to the Government of India, the petitioner is entitled to revised death-cum retirement gratuity provided the Government of Rajasthan has adopted the enhanced rate of death-cum-retirement gratuity. The State of Rajasthan issued Notification dated October 20, 1987, whereby the Rajasthan Service Rules, 1951 were amended and Rule 257-A was added wherein it came to be provided that the maximum amount of death-cum-retirement gratuity shall in no case exceed Rs. 75,000/-. Respondent No. 1 in its reply further stated that as per the provisions of Sec. 17-A (2) of the Act, the petitioner is entitled for payment of Rs. 75,000/- only as gratuity and the State Government has nothing to do in the matter of conditions of service of High Court Judges except to implement the orders of the Government of India and since the Government of India has sanctioned payment of gratuity amount of Rs. 75,000/- only to the petitioner, he is not entitled to make a claim for payment of Rs. one lakh as gratuity. It is also the case of the State Government that the provisions of Rule 257 have no application to the case of the petitioner as the same do not apply to Rajasthan High Court Judges. Thus, there is an apparent conflict between the stand of respondent No. 1 and respondent No. 2 on the question of petitioners claim for payment of gratuity amount of Rs. one lakh, whereas the respondent No. 2 has taken the stand that the petitioner is entitled to the benefit of revised amount of gratuity and it is admissible to him in case the State of Rajasthan had adopted the enhanced rate of death-cum-retirement gratuity in respect of Part III Judges elevated to (sic from) the State Higher Judicial Service, respondent No. 1 had come out with the case that the respondent No. 2 has sanctioned the gratuity amount of Rs.75,000/- to the petitioner and it has merely carried out the orders of respondent No. 2 and also that Rule 257 does not apply to the case of the petitioner. (24). It is clear from this conflicting stand of the respondents that the respondents are themselves not clear about the claim of the petitioner. (24). It is clear from this conflicting stand of the respondents that the respondents are themselves not clear about the claim of the petitioner. This ambiguity between the stands of respondent No. 1 and 2 had resulted in wholly unjust and arbitrary deprivation of the full amount of gratuity payable to the petitioner as per the directions of the Honble Supreme Court in Satish Chandras case (supra). The direction given by their Lordships of the Supreme Court in Satish Chandras case on the basis of the statement made by the learned Additional Solicitor General on behalf of the Government that necessary instructions will be forthwith issued for payment of gratuity upto the maximum of Rs. one lakh to the Judges who have retired after 1.1.86, this controversy has been created by the respondents in the case of the petitioner. As per the provisions of Section 17-A of the Act, the pension of the petitioner is to be calculated on the basis of the Rules applicable under the ordinary rules of service as if he had not been appointed as Judge of the High Court. However, this provision has got to be read in the light of the judgement in Satish Chandras case and also in the light of the observations made by their Lordships of the Supreme Court in the subsequent judgment in M.L. Jains case. Obviously, the respondent No. 1 has miserably failed to discharge its obligation of bringing its Rules regarding pension to person like petitioner in tune to the directions of the Supreme Court in Satish Chandras case, but mere failure of respondent No. 1 to do so cannot is any event result in depriving the petitioner of the benefit to which he is otherwise entitled in the matter of death- cum-retirement gratuity of Rs. one lakh. It was obligatory for the State Government to have issued necessary orders of amended its Rules so as to provide for payment of death-cum-retirement gratuity of Rs. one lakh to the petitioner and similarly situated persons. If that in not done a glaring and hostile discrimination would be perpetuated by the respondent No. 1. The provisions of 1954 Act apply to all High Court Judges throughout the country including those who are governed by Part II or Part HI of the First Schedule of the Act. Thus, broadly speaking, their conditions of service are identical. If that in not done a glaring and hostile discrimination would be perpetuated by the respondent No. 1. The provisions of 1954 Act apply to all High Court Judges throughout the country including those who are governed by Part II or Part HI of the First Schedule of the Act. Thus, broadly speaking, their conditions of service are identical. They all are similarly situated and therefore, by mere enactment of the ordinary rule of service by different State Governments differently or by not making uniform provisions in such Rules, the State Governments cannot apply different yardstick in the matter of payment of gratuity or other pensionary benefits to the retired Judges of the High Courts, who are governed by the provisions of Part II of III of the First Schedule. The State Governments cannot arbitrarily create classification amongst the retired Judges of the High Court in the matter of their pensionary benefits. There can be no reason or justification for such an artificial classification. The respondent No. 1 has failed to point out as to how could it deny the petitioner and other similarly situated persons the benefit of death-cum-retirement gratuity amount of Rs. one lakh. The lope sided approach adopted by the respondent No. 1 in shifting the burden on respondent No. 2 and vice-versa cannot in any manner be appreciated. (25). Although the respondent No. 1 in its reply has stated that Rule 257-A does not apply to the High Court Judges, in our opinion, even if that rule is treated to be applicable in view of the provisions contained in Section 17-A (2), the provisions of this rule so far as it would restrict the amount of death-cum- retirement gratuity payable to a High Court Judges is clearly arbitrary and discriminatory and offends Article 14 of the Constitution of India. By framing a rule under proviso to Article 309 of the Constitution of India, the rule making authority cannot create artificial classes amongst the Judges who are governed by Part III of First Schedule to the Act. There can be no rational much less justification for dividing the class of Judges of the High Courts in two sub-classes or mini classes for the purpose of entitlement of death-cum-retirement gratuity upto the maximum limit of Rs. one lakh. There can be no rational much less justification for dividing the class of Judges of the High Courts in two sub-classes or mini classes for the purpose of entitlement of death-cum-retirement gratuity upto the maximum limit of Rs. one lakh. Thus, if Rule 257-A is held to be applicable to the Judges of the Rajasthan High Court, who are governed by Part III of the First Schedule appended to the Act, this rule must be held to be unconstitutional to the extent it restricts the eligibility of the Judges of the High Court to receive death-cum-retirement gratuity amount of Rs. 75,000/- only and it must be held that the petitioner and other similarly situated persons arc entitled to the death-cum-retirement gratuity amount of Rs. one lakh. (26). The question relating to deduction of the amount of Rs. 47,980.30 now required examination. The petitioner had applied for commutation of pension before his retirement from the Rajasthan Higher Judicial Service while holding the office of Law Secretary. His application was processed by the concerned Government department and sanction for release of cummutted portion of pension was issued after his elevation as Judge of the High Court on April 4, 1983. Similarly, the amount of gratuity was also sanctioned after his elevation as Judge of the High Court. Subsequently, the Government of India decided that the petitioner would get salary after deduction of the amount of pension and pension equivalent to gratuity. It is the case of the petitioner that he had, at no stage, expressed his unwillingness to deposit the amount of Rs. 45,634/-towards commutted pension and a sum of Rs. 32,000/- against the amount of gratuity. In fact the petitioner on his own accord asked the Director, Pension as to under what head the amount should be deposited by him and he deposited the said amount between 4.5.1988 and 24.7.1989. The statement made in the petition in paragraph 8 has not been disputed in substance by the respondent No. 1. It has stated that the matter regarding fixation of the pay of the petitioner as Judge of the High Court was decided by the Government of India, Ministry of Law & Justice (Department of Justice), New Delhi vide its communication dated 15.2.1985. According to the order of the Government of India, a sum of Rs. 1241.70 was to be deducted from the pension and pension equivalent to death-cum- retirement gratuity. According to the order of the Government of India, a sum of Rs. 1241.70 was to be deducted from the pension and pension equivalent to death-cum- retirement gratuity. According to respondent No. 1 this was not complied with by the petitioner. Letter dated 15.2.1985, which has been placed on record with the reply docs not however, support the assertion of the respondent that the petitioner had not complied with the direction given to him. Moreover, at no stage the petitioner was called upon to pay interest on the amount of commutted pension and death-cum-retirement gratuity. The petitioner was never informed that he is required to deposit the amount of commutted pension and death-cum-retirement gratuity already received by him or that he was withholding that amount and was liable to pay interest on the same in case of his failure to refund the same. There is also nothing on record that the amount was withdrawn by the petitioner on the basis of any mis-representation etc. Thus, the plea of the respondent No. 1 that the petitioner had unauthorisedly withheld the amount, is wholly untenable. In our view, therefore, the very foundation of the action of the respondent in deducting a sum of Rs. 47,980.30 towards alleged interest is not tenable in the eye of law. Thus, the action of the respondent No. 1 in deducting the amount of Rs. 47,980.30 from the pensionary benefits payable to the petitioner is not legally sustainable. (27). In so far as the claim of the petitioner regarding cash equivalent to leave salary in respect of the period of earned leave at his credit at the time of his retirement is concerned, it may be noticed that by virtue of Rule 2 of the High Court Judges Rules, 1956, the provisions contained in the All India Service (Leave) Rules, 1955 have been made applicable. Rule 20-B of the Rules of 1955 makes provision for payment of cash equivalent to leave salary. So far as the provisions of Chapter II of the Act of 1954 are concerned, those provisions deal with leave, which has been asked for and taken during the tenure of working of a Judge and Rule 20 makes provision for payment of cash equivalent to leave due. So far as the provisions of Chapter II of the Act of 1954 are concerned, those provisions deal with leave, which has been asked for and taken during the tenure of working of a Judge and Rule 20 makes provision for payment of cash equivalent to leave due. The scheme of Rule 20-B provides for suo motu payment of cash equivalent of leave due and there is no necessity of making any application for that purpose. As already held by their Lordships of the Supreme Court in Shiv Dayals case (supra) it has been held the upper limit for payment of cash equivalent of 180 days earned leave was applicable prior to the amendment made in the Rules in the year 1986. Now the upper limit has been enhanced to 240 days. This fact has been impliedly recognised by the respondent No. 1 in its letter dated 30.10.1990, whereby the sanction of the Governor has been conveyed to the petitioner for his entitlement to receive cash equivalent to leave salary in respect of earned unutilised 240 days earned leave including dearness allowance on the date of his retirement. Reference in this letter has been made to the decision of their Lordships of the Supreme Court in Satish Chandras case (supra). Thus, in view of the letter dated 30.10.1990, the claim of the petitioner for cash equivalent to leave salary in respect of 240 days of unutilised leave stands virtually admitted. However, an error which the respondent No.l has committed is that in the letter dated 30.10.1990, a direction has been given to adjust the amount of Rs. 13,815/- alongwith interest at the rate of 12%. The amount of Rs. 13,815/- represents the cash received by the petitioner in lieu of the leave due to his credit at the time of the leave due to his credit at the time of retirement as member of the Rajasthan Higher Judicial Service. The admissibility of cash equivalent of leave salary in respect of the period of earned leave under Rule 20-B of 1955 Rules, which have been made applicable by virtue of Rule 2 of the High Court Judges Rules has nothing to do with the cash equivalent of leave salary drawn by the petitioner on his retirement as a member of the Rajasthan Higher Judicial Service. That amount was paid to the petitioner for the leave earned by him as a member of Rajasthan Higher Judicial Service. As a Judge of the High Court, the petitioner had become entitled to get the benefit of cash equivalent of leave salary in respect of leave earned by him as Judge of the High Court. These two benefits are independent of each other and therefore, there could be no justification for adjusting the amount of Rs. 13,815/-. Which was received by the petitioner as cash equivalent of leave salary in respect of the leave earned by him as a member of the Rajasthan Higher Judicial Service while calculating the amount of cash equivalent to leave salary in respect of the leave earned by him as Judge of the High Court. In our opinion, the respondent No. 1 has misconstrued the High Court Judges Rules read with All India Services (Leave) Rules, 1955. (28). Thus we hold that the action of the respondents in seeking to adjust a sum of Rs. 13,815/- from the cash equivalent of leave salary in respect of leave earned by the petitioner as Judge of the High Court is without the authority of law and is liable to be declared as such. We cannot appreciate for a moment that it took a period of more than 8 months to the respondent No. 1 to convey the sanction of the Governor regarding payment of cash equivalent of leave salary in respect of unutilised 240 days of earned leave, which was at the credit of the petitioner. More surprising is the action of the respondent No. 1 in seeking to charge interest at the rate of 12% per annum on the amount of Rs. 13,815/-. It is not the case of respondent No. 1 that the petitioner had illegally withdrawn the amount of Rs. 13,815/- or had retained any sum, which could not have been retained by him. (29). In the result, the writ petition is allowed. It is declared that the petitioner is entitled to receive death-cum-retirement gratuity amount of rupees one lakh. The respondents are directed to make payment of Rs. 25,000/- to the petitioner within a period of 2 months from the date of receipt of copy of this order.