A. O. RAZIUR RAHMAN (MEMBER).-The appellant was an Accounts Assistant in the Military Accounts Department. After serving for 35 years in the said department, he applied on 13th February, 1978 for retirement, having exercised his option under the provisions of para. 5 of the Govern--ment of Pakistan, Ministry of Finance, O. M. No. OB-2-12/63/lmp(1), dated 18th August, 1966. His application for going on retiring pension was granted by the competent authority, the Military Accountant- General, who also allowed him Leave Preparatory to Retirement for 4 months and 16 days. This was notified by an office order, dated 7th May, 1978 issued by the Field Controller of Military Accounts, Lahore Cantonment.
2. Although the appellant had applied for L. P. R. For 6 months, the actual period for which he was allowed L. P. R. Was, as already stated, 4 months and 16 days, which was maximum entitlement under the then existing rules. Subsequently, New Leave Rules were promulgated on 21st September, 1978 and were made effective retrospectively from 1st July, 1978. On the basis of this change in the rules, civil servants; in service, or on L: P. R. On 1st July, 1978 became entitled to a maximum of 365 days of L. P. R. Subject to their having this much leave to their credit in the leave account.
3. On the basis of the above change in the rules, the appellant moved the Military Accountant- General, on 4th April, 1979 for extension of his L. P. R. To 365 days, under the New Leave Rules. This was rejected by the Military Accountant-General, through a Memo. Dated 14th April, 1979 and again by another Memo. Dated 9th September, 1979 on the ground that the date of premature retirement intimated by the Government servant, and accepted by the competent authority, in terms of Finance Division, O. M. No. OB-2-19/Imp(I), dated 18th August, 1966 could not be modified or withdrawn and, therefore, the application for grant of extension of L. P. R. Could not be acceded to.
4. Against this order of rejection, the appellant submitted a represen--tation to the Finance Minister, in which, inter alia, he raised the question as to how the new provisions regarding L. P. R.
For 365 days and other concessions made available in the New Leave Rules, for the individuals who were on L. P. R. On or after 1st July, 1978 would be made applicable in case the date of retirement could not be modified. This and other issues raised in the representation were not answered, but the Assistant Financial Adviser, evidently, on behalf of the Financial Adviser, Military Finance, informed him, by a communication dated 29th October, 1981 that the age of voluntary premature retirement, applied for by him and accepted by the competent authority, could not be modified or changed, in view of the provision to this effect contained in the Finance Division O. M. Dated 18th August, 1966 (already referred to earlier). It was further stated that, the date of his retirement having become effective from 1st December, 1978 his request for grant of L. P. R. For 365 days were. f. 15th July, 1-978 in relaxation of the date of his retirement, could not be acceded to.
5. Against the above order passed by the departmental authority, the appellant came up in appeal before the Tribunal on 11th November, 1981. The appeal, having been admitted for regular hearing by order, dated 27th April, 1982 is after final hearing on 16th August, 1983 being disposed of by this order.
6. In the written objections filed by the Respondent-Department, a preliminary objection was raised that the appeal was barred by limitation. This objection was also taken at the time of hearing. From the facts, as already narrated above, it is seen that the Financial Adviser, Military Finance rejected the departmental appeal of the appellant by order dated 29th October, 1981 against which the present appeal was filed on 11th November, 1981 which is within the 30 days allowed for the purpose.
The appeal is thus within time and not barred by limitation. The legal objection on this point raised by the respondent is, therefore, rejected.
7. As regards the merits of the case the dispute is over the question whether the date of retirement proposed by the appellant, and agreed to by the competent authority, could be changed in the light of the changed rules on the subject of entitlement to L. P. R. '
8. The appellant's contention is that, although, under the rules, written intimation, once submitted by a Government servant intending to retire after completing 25 years' service qualifying for pension shall be final and shall not be allowed to be modified or withdrawn, in view of the New Leave Rules for civil servants, introduced under Finance Division Memo. No. F. 1(2)-Rev. 1/78, dated 21st September, 1978 by which the maximum period of L. P. R. Allowable to retiring Government servants had been enhanced to 365 days and this enhanced entitlement was made allowable also to civil servants who were on L. P. R. On the date from which the New Leave Rules took effect, i.e., 1st July, 1978. Since the appellant was on L. P. R. On 1st July, 1978 it was argued by him, he was entitled to the benefit of the New Leave Rules and could not be denied the same on the ground that he had already given a date for retirement, which had been accepted and, on the basis of this acceptance, he had already proceeded on L. P. R.
9. The stand of the respondent-department is that the Finance Division O. M., dated 18th August, 1966 which barred the withdrawal or modification of an application for voluntary retirement on completing 25 years' service qualifying for pension, has remained unaffected by the New Rules under which the amount of Leave Preparatory to Retirement has, subject to avail--ability, been enhanced to 365 days. It has been contended that the pro--visions of the Finance Division O. M. Of 18th August, 1966 and the revised Leave Rules stand on two different footings and that, although the New Leave Rules increase the number of days for which L. P. R. Can be allowed, the Finance Division O. M. Itself disallows the change in the date indicated by the Government servant applying for retiring pension.
10. The above point of dispute calls for a clear decision, keeping in view the letter and spirit of the rules on the subject.
11. It is true that the Finance Division O. M. Referred to states cate--gorically that, once an intimation regarding the date on which he intends to retire has been given by a Government servant, it shall be treated as final and shall not be allowed to be modified or withdrawn. This provision is contained in paragraph 5 of the O. M. Referred to and is reproduced below :- "(5) Retiring Pension.-Subject to the provisions of the Essential Services Maintenance Act, all Government servants shall have the right to retire on a Retiring pension after completing 25 years qualifying service ; provided that a Government servant, who intends to retire before attaining the age of superannuation, shall, at least, three months before the date on which be intends to retire, submit a written intimation to the authority which appointed him, indicating the date on which he intends to retire. Such an intima--tion, once submitted, shall be final and shall not be allowed to be modified or withdrawn.
12: So far as the New Leave Rules are concerned, paragraph 3(i.e) thereof lays down that "'the maximum period up to which a civil servant may be granted Leave Preparatory to Retirement shall be 365 days". Para--graph 16 lays down the method of recasting the leave account were. f. 1st July, 1978 while paragraph 20 makes the new provision applicable to civil servants already on L. P. R. On 1st July, 1978 and paragraph 22 modifies the existing rules and general orders on the subject to the extent indicated in the New Leave Rules. Paragraphs 20 and 22 are reproduced below :- "Para 20.-The above provision shall take effect from 1st July, 1978 and shall also cover those Civil Servants who may be on L. P. R. On that date.
Para 22.-The existing rules and general orders on the subject shall be deemed to have been modified to the extent indicated in the preceding paragraphs."
13. Although it has not been stated in the New Leave Rules that a civil servant, who has applied for and been granted L. P. R. Cap, under the New Rules, apply for a change in the date of retirement earlier indicated by him, it is obvious that, in the case of a civil servant who was already on L.P.R. On the date of the commencement of New Rules, the applicability of the New Leave Rules to him would automatically result in giving him the right to change the date of retirement. The appellant, under the old rules, was entitled to 4 months and 16 days of L.P.R. On the basis of this entitle--ment his L. P.
R. Could not be extended beyond 30th November, 1978. But when, on 1st July, 1978 he became entitled to 365 days of L. P. R. It naturally followed that his L. P. R. Could not be restricted to the period up to 30th November, 1978 otherwise the extension of the period for which L. P. R. Could be allowed to him would become meaningless. Had the appellant applied for L. P. R. After the publication of the Rules, he would automatically have allowed 365 days of L. P. R. Under these rules.
But, if no provision had been made in the New Rules for back-dating the applica--tion of the rules and making them applicable retrospectively to those also who were on L. P. R. On 1st July, 1978 the benefit of the New Rules could not be given to such persons. Therefore, it is obvious that the very inten--tion of Government in retrospectively applying the New Rules to those already on L. P. R. Was to remove the disadvantage of the old rule, under which they had applied for and gone on L. P. R.
This naturally mean that the period of L. P. R. Already granted would be extended to 365 days, wherever the leave account justified such extension. Once the period of L. P. R. Has been extended the date of retirement would naturally have to be adjusted accordingly. The date contained in the original application made by the civil servant, thus, has to be cancelled and it could not be used against the appellant to prevent him from getting the benefit of the New Rules on the subject. This did not mean that the rule barring withdrawal or change in the intimation for retirement stood amended. As stated clearly in paragraph 22 of the New Leave Rules, the existing rules and general orders on the subject stood modi--fied to the extent indicated. By virtue of change in the amount of L. P. R. That a civil servant could be granted and by virtue of this being made applicable even to those who had already proceeded on L. P. R. The date of retirement mentioned in the earlier application of the civil servant himself and approved by the Government becomes irrelevant and has naturally to be modified, if the enhancement of the amount of L. P. R. Has to have any meaning for the civil servant.
14. If the contention of the respondents were accepted that, in spite of paragraphs 20 and 22 of the New Leave Rules, the date of retirement of the civil servant could not, in view of paragraph 5 of the Finance Division O. M. Of 18th August, 1966 be extended, it would follow that the new benefit allowed by these rules were intended to apply only to those cases where L. P. R. For the entire period admissible under the New Rules had been granted, but not on full pay for the entire period. If this were the intention, the rules would have made it clear that the provision contained in paragraph 3 (i.e) and para--graph 16 would cover only those civil servants on L. P. R. On 1st July, 1978 who had been granted L. P. R. For the entire period of their entitlement and not to those to whom an additional number of days would be required to be granted under the new rules. Alternatively, it could have been clearly stated that the relevant provisions shall cover civil servants already on L. P.
R. On 1st July, 1978 but shall not have the effect of extending the period of L. P. R. Or changing the date of retirement.
15. It has been stated in the written objections and was repeated at the time of arguments that---- "this letter could only be operative in his case had he been granted initially L. P. R. For one year, including Leave on Half Average Pay due to insufficient L. A. P. At his credit, in which case the portion of leave on J average pay could have been converted into leave on fall pay according to the provisions of the Revised Leave Rules, 1978. This would not have involved any change in the date of his retirement."
As already discussed above, there is no force in this argument which is, therefore, rejected.
16. During the course of arguments, the learned counsel for the res--pondent-department drew our attention to the Establishment Division O. M. No. F. 23/2/81-Cl (B), dated 12th April, 1981 pertaining to "with--drawal of application for voluntary retirement from Government service after completion of 25 years qualifying service for pension", in which it has been stated that- "in partial modification of the existing rules/orders, if a Government servant withdraws his application for premature retirement or modifies the date of retirement, before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified, as the case may be."
On the basis of this, it was contended, on behalf of the department, that the rule barring the modification or withdrawal of the application for retirement made by a civil servant was still operative and has not been modified by the New Leave Rules. It was contended that only an allowance has been made to the effect that if a Government servant withdraws or modifies the application before acceptance by the competent authority, the application shall be deemed to have been withdrawn or modified. While it is true that this order issued by the Establishment Division modifies the previous O. M. Of the Finance Division, it has no relevance to the point at issue in this case. We are not concerned with the question of a permanent modification or amendment of the Finance Division O. M. Referred to but with the question of the applicability of the rule relating to enhancement of the total period of L. P. R. Admissible to a civil servant applying for retirement on completing 25 years' service. While the Establishment Division O. M. Modifies the rule in respect of civil servants who may henceforth apply for retiring pension, the New Leave Rules, by being made applicable to civil servants already on L. P. R. On 1st July, 1978, allow such civil servants to get all the benefits of the change in the Rules.
16. In the light of the above discussions, we have no hesitation in coming to the conclusion that, although there is no mention of this in the New Leave Rules, we cannot deny to a civil servant, who had already applied for L. P. R. The right to change the date of his retirement. By virtue of the very fact that he has been given the right to a longer period of L. P. R. The right to change the date of his retirement accrues to him auto--matically and cannot be denied through the tortuous quibbling indulged in by the respondent-department.
17. In the result, we allow the appeal and order that the appellant shall be granted L. P. R. For 365 days, with effect from 15th July, 11978 and that he shall be given all the consequential benefits thereof.