BISHAMBHAR DAYAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) BY means of this petition under Article 226 of the Constitution the petitioner has claimed relief for the issue of a writ of certiorari quashing the order of the State Government dated 19th January, 1984, refusing the petitioner's request for the grant of gratuity and also for the issue of a writ of mandamus directing the State of Uttar Pradesh to fix and pay the gratuity and cash equivalent of the leave at the credit of the petitioner.

(2.) THE petitioner was appointed a Judge of this Court on 6th May, 1957, and after serving as Judge for twelve years in this Court, he was appointed Chief Justice of the Madhya Pradesh High Court on 19th March, 1969 and retired from there on 13th September, 1972. After his retirement the petitioner was appointed Lokayukta of Uttar Pradesh on 14th September, 1977, and after working for a full term of five years, he retired on 13th September, 1982. THE State of Uttar Pradesh fixed the petitioner's pension by the Government Order dated 17th July, 1983; but, the petitioner's claim for the grant of gratuity and leave encashment was kept under consideration. By a letter dated January 19, 1984, the State Government informed the petitioner that his claim for gratuity could not be accepted as there was no provision for gratuity in the U.P. Lokayukta (Conditions of Service) Rules, 1981. Agggieved, the petitioner has approached this Court by means of this petition claiming the relief as noted earlier.

(3.) THE U. P. Lokayukta & Up- Lokayuktas Act, 1975; was enacted to make provision for the appointment and functions of Lokayukta. Section 3 of the Act confers power on the Governor to appoint Lokayukta after consultation with the Chief Justice of the High Court and the leader of the Opposition in the Legislative Assembly. Section 5 prescribes a term of five years from the date on which he enters upon his office as Lokayukta. It, further, lays down conditions of service of Lokayukta. Sub-section (5) lays down that the allowances and pension, if any payable to, and other conditions of service, of the Lokayukta shall be such as may be prescribed. Proviso to this section lays down that in prescribing the allowances and pension payable to, and other conditions of service of Lokayukta, regard shall be had to the allowances and pension payable to and other conditions of service, of the Chief Justice of the High Court and the allowances and pension, if any, payable to and other conditions of service of the Lokayukta shall not be varied to his disadvantage after his appointment. Section 21 (2) (b) of the Act confers power on the Governor to frame rules which may provide for the allowances and pension, if any, payable to and other conditions of service of the Lokayukta and Up- Lokayuktas. THE State Government in exercise of its powers under sub section (2) read with clause (b) of section 21 of the U. P. Lokayukta and Up-Lokayuktas Act, 1975, framed rules regulating the service of Lokayukta and Up-Lokayuktas. Rules were published in the Gazette dated September 5, 1981 which is known as "THE Uttar Pradesh Lokayukta (Conditions of Services) Rules, 1981". THEse rules expressly provide that Lokayukta shall be entitled to rent free official residence, conveyance, facilities for medical treatment, travelling allowance, general provident fund, leave and pension. Rule 10 lays down that other allowances (including the dearness allowance) and conditions of service of the Lokayukta, provisions where for have not expressly been made in the Act or the rules, shall be the same (as far as may be) for the time being as applicable to the Chief Justice of the High Court. THE rules contain provisions for other allowances and pension; but, they do not contain any provision for gratuity. Since there is no provision for gratuity in the rules the same would be governed by the Rules which may be applicable to the Chief Justice of the High Court. This is in consonance with the proviso to section 5 (5) of the Act which lays down that while prescribing pension and other allowances payable to Lokayukta, regard shall be had to the allowances, and pension payable to the Chief Justice of the High Court. THE legislative intent is thus clear that unless expressly provided for, the allowances and pension of Lokayukta shall be similar as payable to the Chief Justice of High Court. THE legislature having regard to the high office of Lokayukta intended that he should be entitled to the same pensionary benefits to which the Chief Justice is entitled.