RANA BHAGWANDAS, J.---Leave to appeal against the judgment of Federal Service Tribunal was granted to consider whether the appellant was entitled to annual increments for the years 1990 and 1991 under F.R. 26(a) of the Fundamental Rules, while he remained on leave.
2. Appellant was employed as National Savings Officer in the National Savings Organisation under the Ministry of Finance. He was granted leave on medical grounds for the period 7-7-1990 to 24-2- 1992 and paid his salary. On return from leave, he reported for duty, when he was referred to Medical Board and being declared permanently incapacitated for further service was made to proceed on retirement with effect from 25-2-1992. On sanction of pension, appellant represented for issuance of revised sanction for payment of pension inclusive of two annual increments due to him on 1-12-1990 and 1-12-1991 but his request was turned down vide Memo. No,F.1(30)- Admn.II/76, dated 4-9-1993 on the plea that he was already given the relief and the grant of increments under F.R. 26(a) of the Fundamental Rules was not admissible. After unsuccessful departmental appeal, he preferred service appeal before the Federal Service Tribunal (hereinafter referred to as the Tribunal), which dismissed the same endorsing the view taken by the respondents. Hence this appeal.
3. We have heard Mr. Muhammad Tahir Chaudhry, learned Advocate Supreme Court for the appellant and Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney-General, assisted by Mr. M.S. Khattak, Advocate-onRecord and gone through the material on record. The fact that the appellant was granted leave on full pay for 545 days and leave on half pay for 53 days on medical ground by the respondents is not disputed. Moreover, the circumstance that on expiry of leave he reported for duty and, as required by rules, was referred to the Medical Board for determination of his fitness but he was declared permanently disabled from performing his duties and, thus, made to retire with effect from 25-2-1992, is also beyond the pale of any controversy between the parties.
4. Stance of the respondent organisation in the parawise comments before the Tribunal appeared to be that F.R. 26(a) was not applicable in the case of the appellant and, as he was on leave on 1- 12-1990, and 1-12-1991, he was not entitled to earn annual increments under the Rules. Respondents relied upon Rule 32 of the Revised Leave Rules, 1980 in support of their contention and insisted that the appellant was not entitled to any increment since he was not on active duty on the crucial dates. We are not persuaded to agree with the stance of the respondents which, on the face of it, appears to be, illogical, irrational and against the spirit of law. For the sake of ready reference, Rule 32 ibid and F.R. 26 of the Fundamental Rules are reproduced hereunder:-- Rule 32 of Revised Leave Rules, 1980: "32. Pay during leave.--(l) Leave pay admissible during leave on full pay shall be in the greater of--
(a) the average monthly pay earned during.The twelve complete months immediately preceding the month in which the leave begins; and
(b) the rate equal to the rate of pay drawn on the day immediately before the beginning of the leave.
(2) When leave on half pay is taken, the amounts calculated under clauses (a) and (b) of sub-rule
(1) shall be halved to determine the greater of the two rates." F.R.
26. The following provisions prescribe the conditions on which service counts for increments in a time-scale:-- "(a) All duty in a post on a time-scale and periods of leave other than extraordinary leave count for increments in that time-scale: Provided that the President shall have power, in any case in which he is satisfied that the leave was taken on account of illness or for any other cause beyond the Government, servant's control, to direct that extraordinary leave shall be counted for increments under this clause.
(b)...........................................................
(c)...........................................................
(d) ..........................................................
5. An amendment made in Rule 32 ibid, with effect from 21-9-1994 was brought to our notice, which caters for the right to revised salary in case of revision of pay scales and annual increment in case it falls due during the, period of leave of a civil servant. Through this amendment, after sub-rule (2) of Rule 32, sub-tole (3) has been inserted which postulates as under:- "(3) A civil servant shall be entitled to the leave pay at the revised rate of pay if a general revision in pay of civil servants takes place or an annual increment occurs during the period of leave of the civil servant. "
6. On a careful consideration of the Rules ibid, we are of the view that essentially and for all practical purposes, Revised Leave Rules, 1980 deal with the grant of and entitlement to leave and payment of salary during the period of leave of different kinds, admissible to a civil servant. Before the amendment introduced with effect from 21st September, 1994, the Rules did not provide for the grant of annual increment or otherwise during the period of leave of any kind. This amendment in the Rules certainly guarantees the right of a civil servant to the leave pay at the revised rate if a general revision in pay of civil servants takes place and annual increment accruing due during the period of leave. At any rate, this amendment would be prospective in nature and shall have no retroactive effect. The case of the appellant may, therefore, be not governed by Rule 32 as amended.
7. Having said so, we proceed to examine F.R. 26(a), which deals with entitlement of a civil servant to annual increment except when he is on extraordinary leave. Admittedly, the appellant was not granted 'extraordinary leave', which has not been defined in the Fundamental Rules or the Revised Leave Rules in strict terms. However, Rule 9 of the Leave Rules ibid provides that extraordinary leave without pay may be granted on any ground, up to a maximum period of five years at a time. Be that as it may, only exception for denial of annual increment to a civil servant during the period of leave, appears to be when he proceeds on extraordinary leave without pay. This rule again is not absolute and there is a proviso that in fit cases, for instance the leave obtained on account of illness or for any other cause beyond the control of a civil servant, the President retains the power to relax the Rules and to direct that extraordinary leave shall count for increments under this clause. The case of the appellant, in our view, squarely falls under F.R. 26(a) ibid and, we are of the definite view that he was entitled to earn annual increments during the period of leave sanctioned to him, which could not be denied arbitrarily and/or in a whimsical manner. At the conclusion of the arguments, the learned Law. Officer and even the departmental representative, who is no less a person than the Director Legal, were constrained to concede that the appellant is entitled to the relief asked for.
8. For the aforesaid facts and reasons, we allow this appeal, set aside the judgment of the Tribunal and declare that the appellant is entitled to annual increments on 1-12-1990 and 1-12-1991 with all consequential benefits. No costs.