JUDGMENT 1. - The prayer of the petitioner in the instant writ petition is to issue direction to the respondents to sanction to the petitioner pension @ Rs. 15,000/- per month with other hcu fit;, such as commutation. gratuity P.L. encashment, family pension etc. 2. The facts leading to the institution of the writ petition are that the petitioner joined Rajasthan Judicial Service on January 30, 1972 and was promoted to the Rajasthan Higher Judicial Service in the month of April 1974. While the petitioner was still in the Rajasthan Higher Judicial Service as Law Secretary, the State of Rajasthan took the decision to appoint the petitioner as Judicial Member of the Rajasthan Taxation Tribunal (for short R.T.T.) and sought petitioner's consent vide letter dated September 6, 1995. It was interalia stated in the said letter that the Judicial Member shall receive such salary, allowances and other facilities as were admissible to a High Court Judge of Rajasthan. The petitioner accorded his consent and was appointed as Judicial member of R.T.T. vide Notification dated September 16, 1995 under Section 3(2) (a) of the Rajasthan Taxation Tribunal Act, 1995 (for short R.T.T. Act) for a period of five years or until he attained the age of 62 years whichever was later. The petitioner joined R.T.T. as Judicial member on September 18, 1995. While the petitioner was serving as Judicial Member of R.T.T. the High Court retired him on July 31. 1997 as R.H.J.S. officer. The petitioner was appointed as Acting Chairman of R.T.T. on December 27, 1997 and remained as such till February 28, 199 when R.T.T. stood abolished vide Rajasthan Taxation Tribunal (Repeal) Act, 1999 but the right to got pension was saved by section 4 of the said Act. While working as Acting Chairman the petitioner was entitled to receive such salary and allowances as are admissible to the Chief Justice of Rajasthan. The petitioner was drawing monthly pay in the sung of Rs. 26000/- as Judicial Member and Rs. 30000/- as Acting Chairman with D.A. and other allowances. The grievance of petitioner is that although he was in continuous service of the State for 37 years without break and was entitled to receive pension @ Rs. 15000/- per month, yet was only allowed pension in the sum of Rs. 9450/- per month vide Annexure-8 and further pension in the sum of Rs. The grievance of petitioner is that although he was in continuous service of the State for 37 years without break and was entitled to receive pension @ Rs. 15000/- per month, yet was only allowed pension in the sum of Rs. 9450/- per month vide Annexure-8 and further pension in the sum of Rs. 1300/- per month as per order dated June 19, 1999 (Annexure 17). The petitioner averred that as per the formula 1,80,000X9.15/2 he is entitled to Rs. 8,23,500/- towards commutation, Rs. 3,50,000/- towards gratuity and PL for 300 days @ Rs. 30000/- plus D.A. per month. 3. The respondents submitted return to the writ petition and averred that the petitioner retired from R.H.J.S. on July 31, 1997 on completion of 60 years of age. He was granted all the retiral benefits such as opinion, gratuity and commutation. All these benefits were consciously accepted by the petitioner without any protest. The petitioner was also given,the benefit of revision of pay scales up-n the acceptance of the recommendations of Fifth Pay Commission and revised Pension orders, revised commutation order and revised Gratuity Payment order were issued on May 1, 1998. The respondents pleaded that the claim of the petitioner for grant of pension on the salary of a Judge of High Court was not considered by the High Court presumably for the reason that the High Court could grant pension on the highest salary of R.H.J.S. The respondents denied that the petitioner was continuously in service of the State. The petitioner on attaining the age of superannuation was retired from R.H.J.S. and paid all the retiral benefit and the petitioner received all the retiral benefits without any murmur. The respondents denied that effective date of retirement of the petitioner would be September 17, 2000 when he completed his service in the Tribunal. The petitioner's pension as Member to Taxation Tribunal has rightly been fixed in accordance with the specific rules being framed in case of the Judges of the High Court. Earlier the High Court Judge was entitled to have his pension calculated @. Rs. 1600/- for each completed year of service and this has now been revised and raised to Rs. 5200/- for each completed years and a maximum of consolidated pension in case of a Judge of High Court to Rs. 1,56,000/- and Rs. 1,80,000/- per annum in case of Chief Justice of High Court. Rs. 1600/- for each completed year of service and this has now been revised and raised to Rs. 5200/- for each completed years and a maximum of consolidated pension in case of a Judge of High Court to Rs. 1,56,000/- and Rs. 1,80,000/- per annum in case of Chief Justice of High Court. Accordingly the petitioner has been allowed the benefit of additional pension of Rs. 1300/- per month for the period of three years completed by him while working as Member and later Acting Chairman of the Tribunal. The respondents further averred that the petitioner has been granted the benefit of revised pay following the acceptance of the recommendations of Fifth Pay Commission w.e.f. September 1. 1996, which accordingly reflected in his pension, commutation of pension and gratuity etc. Rule 256-D (b) of the R.S.R. is not at all relevant for the purpose of calculating his pension of the Member of the Tribunal. While calculating the pension of the petitioner as Member of the Taxation Tribunal para 2(a) of part III of the First Schedule of the High Court Judges (Conditions of Service) Act, 1954 is relevant and same was applied in his case. There is absolutely no justification for the petitioner's assumption that his monthly pension should have been fixed at Rs. 15000/- per month. Perhaps the petitioner calculated his pension as if he is retired as Judge of the High Court elevated to the bench from the subordinate judiciary. The Taxation Tribunal was a statutory body created pursuant to Article 323B of the Constitution which is not akin to High Court. The respondents further averred that Rs. 3,50,000/- is the revised gratuity even for R.H.J.S. after implementation of the report of the Fifth Pay Commission and the petitioner has also been paid gratuity amounting to Rs. 3,50,000/- as per Gratuity Revised Payment Order (Annexure R/3). The petitioner has been paid PL encashment. The respondents denied that H.P.L. is added to PL. The representation dated August 7, 2000 submitted by the petitioner was duly considered and rejected by a speaking order. 4. Mr. C.K. Garg, learned Senior Counsel appearing for the petitioner canvassed as under: (i) The petitioner had been in continuous service for a period of 37 years from January 30, 1962 till February 28, 1999 without break even for a single day. 4. Mr. C.K. Garg, learned Senior Counsel appearing for the petitioner canvassed as under: (i) The petitioner had been in continuous service for a period of 37 years from January 30, 1962 till February 28, 1999 without break even for a single day. (ii) As per sub-rule 7(b) of Rule 7 of the Rajasthan Sales Tax Rules 1995 the pension of the members of the Tax Board on retirement is determined on the basis of the last pay and allowances drawn on the post of Member. The same rule must be applied to members of the Tribunal. No discrimination can be practised between persons similarly situated. (iii) Rule 256 D(b) of R.S.R. mandates that the amount of pension shall be determined at 50 per cent of the pay last drawn. (iv) Finance Department Circular provides that in the case of the High Court Judges retiring after January l, 1996 the pension shall be determined as per the Central Government Pension Department Memorandum dated October 27, 1997 which provides that pension of Government servants shall be calculated at 50 per cent of the emoluments last drawn. Thus from whatever angle-pension admissible to a High Court Judge or to the official other than the High Court Judge the petitioner is entitled to get pension at 50 per cent of the pay Rs. 30,000/- last drawn. (v) Order dated June 19, 1999 of the Finance Department whereby additional pension of Rs. 15,600/- per annum calculated @ of Rs. 5200/- per annum with reference to a period of three years of petitioner worked as Judicial Member R.T.T., is incorrect for the following reasons: (a) The calculation of additional pension as contained in Para III Judges of High Courts and Supreme Court, of the Law Department memorandum dated January 13, 1999 wrongly relied upon. (b) The additional pension is different from, and is in addition to the ordinary pension as is clear from the words "in addition to ordinary pension" of the memorandum dated January 13, 1999. It is not in lieu of, and/or does not curtail, ordinary pension which can not be less that 50 per cent of pay last drawn, amount, of course varying with the period of service. It is not in lieu of, and/or does not curtail, ordinary pension which can not be less that 50 per cent of pay last drawn, amount, of course varying with the period of service. (c) The petitioner having put in 37 years of continuous service is entitled to get ordinary pension at 50 per cent of the pay last drawn and does not need the support of part III of the memorandum dated January 13, 1999. (d) The order dated June 19, 1999 was passed without realsing that the ordinary pension itself comes to Rs. 15000 per month. There is no need of additional pension. Because of continuous service under same Government the question of additional pension does not arise. It is a case of full pension as per R.S.R. (e) The statement in Additional Pension order of June 19, 1999 that "Shri Barisal was allowed salary as pay minus pension after he attained the age of superannuation as a member of R.H.J.S. is factually wrong. The High Court itself calculated the pension of the petitioner on completion of the age of 60 years. The petitioner had never applied for the pension. The amount of pension of Rs. 9450/- was deducted from the salary. The forgoing statement would have been correct had the petitioner accepted the appointment after retirement as R.H.J.S. officer after July 31, 1997. The appointment of the petitioner was made on September 16, 1995 while he was in service. Even on the date of retirement i.e. on July 31, 1997 the petitioner was drawing Rs. 26000/- per month. The petitioner cannot be deprived of what he is entitled to only because the High Court sanctioned the pension on July 31, 1997 on his completing the age of 60 years. It was sanctioned on paper until after March 1, 1999. The petitioner cannot be penalised for the act of the High Court. (f) The adjustment in respect of pension, commutation, family, pension, gratuity and earned leave is to be made on the basis of Rs. 30,000/- being the last pay on Feb. 28, 1999. (g) If the petitioner had been retired on July 31, 1999 he would have got Rs. 13,000/- as monthly pension for the reason that on that date he was drawing monthly salary of Rs. 26000/-. 30,000/- being the last pay on Feb. 28, 1999. (g) If the petitioner had been retired on July 31, 1999 he would have got Rs. 13,000/- as monthly pension for the reason that on that date he was drawing monthly salary of Rs. 26000/-. (h) Sanction of formal or notional pension by the High Court cannot deprive the petitioner of his due ordinary pension amount. 5. Reiterating the aver tenets made in the return to the writ petition, Mr. M. Rafiq learned Additional Advocate general canvassed that the petitioner is not entitled to any relief sought for by him in the writ petition. 6. I have pondered over the rival submissions and scanned the record. 7. Rule 9 of the Rajasthan Taxation Tribunal Rules 1995 (for short R.T.T. Rules) provides that the Chairman of the Tribunal and its members shall receive such salary and allowances as are admissible to the Chief Justice and Judge of the Rajasthan High Court respectively, there appears no provisions to give the Chairman and the members, the parity with he Chief Justice and Judges of the High Court in the matter of pension. From the material on record it also appears that the petitioner get retired from R.H.J.S. upon attaining the age of superannuation of 60 years w.e.f. the afternoon of July 31, 1997 and all retiral benefits were accepted consciously by the petitioner. Having carefully scrutinised the scheme of R.T.T. Act and R.T.T. Rules and also provisions contained in Article 323 B of the Constitution, I am of the view that the petitioner's appointment as Judicial Member and Acting Chairman R.T.T. was not an employment under the State of Rajasthan. The Chairman and the Judicial Member were appointed under section 3 of R.T.T. Act in consultation with the Chief Justice of the High Court. Sub-section (6) of Section 3 provides that Chairman or any other member shall not be removed by the Governor from his office except on the ground of proved misbehaviour or incapacity, after an enquiry made by the Chief Justice or by a sitting Judge of the High Court as may be nominated by the Chief Justice. It is thus evident that the Chairman and member of R.T.T. held the statutory office for a fixed term and were not removable except on an enquiry conducted by the Chief Justice or sitting Judge of the High Court. It is thus evident that the Chairman and member of R.T.T. held the statutory office for a fixed term and were not removable except on an enquiry conducted by the Chief Justice or sitting Judge of the High Court. The Chairman and Judicial Member of R.T.T. can not be treated as officers serving the State Government. 8. It will be relevant to refer Rule 92(3) (vii) of R.T.T. Rules which provides as follow: "9(3)(vii). PENSION - Pensionary Benefits to the Chairman and Members, Judicial and Technical of the Tribunal shall be payable in accordance to the specific Rules being framed, in the case of the Judges of the High Court." Part III of the First Schedule of 1954 Act runs as under: 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 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. 5200/- per annum in respect of each completed year of service for pension. Provided that the pension under clause (a) and the additional pension under (b) together shall in no case exceed Rs. 1,80,000/- per annum in the case of a Chief Justice and Rs. 1,56,000/- per annum in the case of any other Judge." 9. Part III of the First Schedule of 1954 Act as amended by High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Act 1998 provides as under: "In addition to ordinary pension as per earlier pensionable post held under the Union or State prior to elevation to High Court, Supreme Court admissible under para 2(a) of Part III of the First Schedule/Schedule to the High Court Judges (Condition of Service) Act, 1954 Supreme Court Judges (Conditions of Service) Act 1958 as revised in terms of this Department's circular letter No.L-11016/ 16/97 Justice dated 2nd April, 1998: Rs. 5200/- for each completed year of service as Judge/Chief Justice Supreme Court subject to maximum of Rs. 5200/- for each completed year of service as Judge/Chief Justice Supreme Court subject to maximum of Rs. consolidated pension under pars 2(a) and 2(b) Rs. 1,56,000/- per annum in the case of Judge, High Court, Rs. 1,80,000/- per annum in the case of Chief Justice of High Court and Judge Supreme Court and Rs. 1,98,000/- per annum in the case of Chief Justice of India." 10. Rule 256 D(6) RSR mandates that pensionary benefit to the Chairman and member of the Tribunal shall he payable in accordance with the specific rule being framed in the case of Judges of the High Court and therefore, for determination of amount of pension of the Member of the Tribunal, provisions contained in para 2(a) of Part III of the First Schedule of the High Court Judges (Conditions of Service) Act 1954 are attracted. 11. I am unable to pursuade myself to agree with the submissions advanced before me by Mr. C.K. Garg learned Senior Counsel. From the perusal of amended order dated June 17, 1996 the petitioner got retired from R.H.J.S. w.e.f. the after noon of July 31, 1997. In the said amended order, earlier order dated June 3, 1996 was clarified. It cannot therefore be held that the petitioner had continued to be in the services of the State of Rajasthan. While the order dated June 3. 1996 stated that the petitioner was retired from State Service, the subsequent order dated June 17, 1996 was more specific to further state that the petitioner was retired from R.H.J.S. of the State. To my mind, for the purpose of calculating the pension of the petitioner as Judicial Member of R.T.T., his service as such member was a separate service than the service rendered by him in R.H.J.S. of the State of Rajasthan. Case of the petitioner cannot be equated with that of the case of the Member of Rajasthan Sales Tax Board who continued in the State Service as R.H.J.S. or IAS Officer. The petitioner was granted pension on the highest salary of R.H.J.S. Benefit of additional pension of Rs. 1300/- per month for the period of three years completed by the petitioner while initially working as Judicial Member and later on Acting Chairman was allowed to the petitioner according to provisions contained in Para 2(a) of the part III of the First Schedule of 1954 Act. 1300/- per month for the period of three years completed by the petitioner while initially working as Judicial Member and later on Acting Chairman was allowed to the petitioner according to provisions contained in Para 2(a) of the part III of the First Schedule of 1954 Act. The petitioner was also granted the benefit of revised pay, pension commutation of pension, gratuity and earned leave. Only the Chief Justice of High Court is entitled to receive pension in the sum of Rs. 15000/- per month and the petitioner cannot claim such parity. 12. For the reasons aforementioned I do not find any merit in the writ petition, it stand dismissed accordingly with any order as to costs.Writ Petition dismissed. *******