S SARWAR ALI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ petition, the petitioner has sought for issuance of an appropriate writ in the nature of mandamus directing the respondents to pay cash equivalent to leave salary with interest while he he held the Office of Lokayukta for a period of five years.

(2.) The short relevant facts are that the petitioner upon his retirement as Acting Chief Justice of this Court was appointed as Lokayukta on 7.2.1990 under Section 3 of the Bihar Lokayukta Act, 1973 (hereinafter referred to as 'the Act') and ceased to hold said office on 6.2.1995 on completion of full term of five years from the date, he entered upon his Office. In exercise of the powers conferred by Section 20 of the Act, the Governor of Bihar framed the rules called as the Bihar Lokayukta (Condition of Service) Rules, 1994 (hereinafter referred to as 'the Rules') Rule 5 of Rudes deals with the leave admissible to the Lokayukta and cash equivalent to leave salary in respect of the period of earned leave to the credit of the Lokayakta on the date, he ceases to hold office. For the determination of the question involved in this case it is useful to quote the said rule in extensor: 5. (1) The Lokayukta mayu be granted leave as follows: (a) earned leave, on full allowance, up to 1/11th period spent on duty, subject to a maximum of four months at any one time; (b) leave on medical certificate, in half the allowance admissible on earned leave, subject to maximum of three months at any one time; (c) extraordinary leave without allowance, subject to a maximum of three months at any one time. Explanation. - (1) All or any two of these kinds of leave may be granted in combination, at one time. (2) The Lokayukta may, in addition to any leave salary he may be entitled to under Sub-rule (1), draw the service pension. (3) The Lokayukta appointed under Section 3 of the Bihar Lokayukta Act, 1973 (Bihar Act VI of 1994), on ceasing to hold office after completing his full term of five years as provided in Sub-section (i) of Section 5 of the Act, Shall be entitled to the cash equivalent of leave salary in cases to hold office, Subject to maximum period of 180 (one hundred and eighty) days.

(3.) Accorfing to the case of the petitioner, he did not avail of any leave during the period he held office and as such he applied for cash equivalent to leave salary as envisaged under rule 5(3) of the Rules some-times in November 1996. however, vide letter dated 28.8.1997, the petitioner was intimated that he was not appointed Lokayukta under Rule 3 of the Rules and hence, he was not entitled to cash equivalent to leave salary. Rule 3 of the rules is as follows: A lokayukta who, immediately before the date of his appointment as such, was a Government servant, shall be deemed to have retired from parent service with effect from the date of his appointment as Lokayukta.