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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."

Part 'D' of the Second Schedule makes provision as to the salaries and allowances payable to the Judges of the High Court. The entitlement of every High Court Judge is to the specified salary and to allowances, which, inter alia, include 'leave of absence' and 'pension'. The rights in respect of leave of absence and pension to which a Judge of a High Court is entitled are to be determined by or under law made by Parliament and, until so determined, as are specified in the Second Schedule to the Constitution. Accordingly, Parliament enacted the 1954 Act, Chapter 11 whereof comprising Sections 3 to 13 enumerates the kinds of leave admissible to a Judge. These are (a) leave on full allowances (b) leave on half allowances, and (c) leave partly on full allowances and partly on half allowances. Section 4 requires keeping of a leave account showing the amount of leave due to a Judge in terms of leave on half allowances. It further provides that there shall be credited to the leave account of a Judge (i) one-fourth of the time spent by him on actual service, (ii) a period equal to double the period by which the vacation enjoyed by him in any year falls short of one month if he has been detained for work during vacation, and (iii) the period of leave earned by him in any pensionable post held by him earlier under the Union or the State, so, however, as not to exceed 240 days in terms of leave on full allowance. Section 5 indicates the aggregate amount of leave which may be granted while Section 5-A provides for commutation of leave on half allowances into leave on full allowances. Sections 6 to 8 deal with grant of leave not due, special disability leave and extraordinary leave. Section 9 as it stood before its amendment by Act 32 of 1989, provided that the monthly rate of leave allowances payable to a Judge while on leave on full allowances shall be for the first 45 days of such leave a rate equal to the monthly rate of his salary and thereafter Rs 2220. The monthly rate of leave allowance payable to a Judge while on half allowances shall be Rs 1110 only. Section 10 provides for allowances for joining time, Section 11 permits combining of leave with vacation, Section 12 sets out the consequences for overstaying leave or vacation and Section 13 specifies the authority competent to grant leave. Chapter III of the said statute deals with pensions. Section 14 provides that every judge on his retirement shall be paid pension which shall not exceed Rs 54,000 per annum in the case of a Chief Justice and Rs 48,000 in the case of a Judge of the High Court. Section 17 deals with extraordinary pension, Section 17-A with family pension, Section 19 with commutation of pension, Section 20 with provident fund, Section 20-A with deposit- linked insurance scheme and Section 21 prescribes the authority competent to grant pension. Chapter IV deals with miscellaneous matters which include Sections 22-A, 22-B and 22-C extracted earlier. Section 23 provides for medical treatment facilities and Section 24 empowers the Central Government to make rules inter alia relating to leave of absence of a Judge, pension, use of official residence, medical facilities, etc. In pursuance of the said power the Central Government made the 1956 Rules by which certain additional benefits, e.g., free (furnished) official residential accommodation, free water and electricity benefits, etc. were conferred. Rule 2 which we have extracted earlier, provides that the condition of service of a Judge of the High Court, where not expressly provided for in the 1954 Act, must be determined by the rules governing a member of the IAS of the rank of Secretary to the Government of the State in which the principal seat of the High Court is situated but in the case of a Judge of the High Court of Delhi and Punjab & Haryana by the rules applicable to a member of the IAS on deputation to the Central Government holding the rank of a Joint Secretary to the Government of India stationed at New Delhi. Rule 2-A indicates the rights of a Judge availing of an official residence, Rule 2-B sets out the value of free furnishing to which he would be entitled in the official residence and Rule 2-E relates to the extent of reimbursement allowed on account of the use of water and electricity. Reference may also be made to the All India Services (House Rent Allowances) Rules, 1977, hereinafter referred to as 'the 1977 (HRA) Rules'. Under Rule 3 of these rules a member of an All India Service, serving in connection with the affairs of the Union, is entitled to draw HRA at the rates governing officers of the Central Civil Services Group A. However, if such member of the service is serving in connection with the affairs of a State, he is entitled to draw HRA at such rates as are admissible to officers of the State Services, Class 1, so, however, that the same shall not be less than the rates applicable to a member of the Service, serving in connection with the affairs of the Union. These, in brief, are the legal provisions to which our attention was invited by the learned counsel for the original petitioner.

8. Under the judgment impugned in these appeals, the High Court, placing emphasis on the proviso to Article 221(2) of the Constitution, held that since the original petitioner had served as a Judge/Chief Justice of the High Court of Punjab & Haryana for over 15 years before his transfer as Chief Justice of the High Court of Patna, he had earned the right to full pension and other ancillary benefits which could not be denied to him merely on account of his fortuitous transfer to Patna. Therefore, notwithstanding the fact of his transfer and subsequent retirement from Patna, he was, by virtue of the proviso to Article 221(2), entitled to all the allowances and benefits derived by him immediately before his transfer if they were more beneficial. It, therefore, took the view that certain rights had vested in him by virtue of the proviso to clause (2) of that article which could not be altered to his 'disadvantage' by the process of transfer. In support of this view reliance was placed on the decision rendered by the Allahabad High Court in B. Malik v. Union of India2. On this line of reasoning the objection to territorial jurisdiction raised by the State of Bihar was brushed aside. As regards the original petitioner's claim that in computing the cash equivalent of earned leave, the value of all allowances, namely, (i) sumptuary allowance of Rs 500 per month, (ii) compensatory allowance under Article 222(2) of Rs 900 per month, (iii) city compensatory allowance of Rs 75 per month, (iv) value of rent free and furnished house under Section 22-A of the 1954 Act, and (v) value of conveyance facility under Section 22-B of the 1954 Act, should be added, the High Court ordered that all allowances except city compensatory allowance and house rent allowance payable to a Judge/Chief Justice at the time of his retirement had to be added in calculating the cash equivalent of leave salary payable under Rule 20-B of the 1955 Rules read with Rule 2 of the 1956 Rules. The city compensatory allowance and house rent allowance having been specifically excluded by sub-rule (3) of Rule 20-B were held to be inadmissible. In calculating the monetary benefit of the conveyance allowance, the High Court went by the payment made to Judges 2 AIR 1970 All 268 of the Calcutta High Court and awarded Rs 3500 minus the cost of 150 litres of petrol per month. The original petitioner is, however, aggrieved that the High Court ruled that the city compensatory allowance and house rent allowance were to be excluded in calculating the leave salary admissible to a Judge on retirement, inasmuch as sub- rule (3) of Rule 20-B of the 1955 Rules applied mutatis mutandis only and not literally and in any case the said sub-rule had no application in view of Section 3 of the 1954 Act as also because the statutory right to the use of official residence under Section 22-A of the 1954 Act was wholly different in content from house rent allowance drawn by a member of the service under the 1977 (HRA) Rules. On the other hand the Union of India contends that in view of this Court's decision in Gumam Singh case' the High Court ought not to have held the other allowances as includible in calculating the cash value of leave salary.

14.Rule 20-B(3) of the 1955 Rules also posits that HRA will not be included in calculating the cash equivalent of leave salary admissible under the said rules. A member of the service serving in connection with the affairs of the Union or the State is entitled to draw HRA under such rates and subject to such conditions as may be specified by the Government concerned, vide Rule 3 of the 1977 (HRA) Rules. Now one of the three basic requirements for a human being living in civilised society is shelter, that is, a place of residence for himself and his family members. Every human being spends a part of his earnings on acquiring a reasonably decent living place depending on his status in life and so does a government employee. It is generally assumed that a government servant can bear a certain burden for acquiring a place of abode for himself and his family, say 10% or thereabouts of his salary, but if the burden that he is required to bear is heavier than what was assumed when the pay structure was constructed, he has to be compensated for the extra burden falling on him by grant of HRA. This, briefly put, is the logic on which the system of grant of HRA appears to have been introduced. Under the 1955 Rules, therefore, HRA is not includible for computing cash equivalent of leave salary. Sub-rule (6) of Rule 20-B which provides the formula for working out the cash equivalent leaves no room for doubt that only pay plus DA has to be taken into account and no other allowance. To leave nothing to doubt it is specifically provided that city compensatory allowance and HRA shall not be included. This much is clear on a plain reading of Rule 20-B as also 20-C of the 1955 Rules.