1990 PLP 152 (SCMR)

Feeling dissatisfied, the respondent filed a representation against the refusal to pay him according to the Scheme of Basic Pay Scales and Fringe Benefits with effect from 1‑7‑1983. As there was no response he filed an appeal before the Federal Service Tribunal after the expiry of 90 days. The Service Tribunal accepted his appeal by the impugned order and directed, that the benefit of increase in the pay visualised by the Scheme should be allowed to him from 7‑7‑1983. He this appeal, by leave to this Court. We have heard the learned Deputy Attorney‑General in support of this appeal. Mr. M. S. Siddiqui, Advocate learned counsel for the respondent, has also been heard in reply. The respondent, as observed above, had proceeded on leave from 18‑6‑1983. On this date, the relevant Rules, which governed his case, were the Revised Leave Rules, 1980. Rule 32 of these Rules is relevant in the present context and may be reproduced below: "

32. Pay during, leave.‑‑(1) Leave pay admissible during leave on full pay shall be 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 amount calculated under clauses (a) and (b) of sub‑rule (1) shall be halved to determine the greater of the two rates." According to the appellant, the respondent was entitled to claim pay during the period of his leave under the aforementioned Rules. But according to the respondent, and this plea has been upheld by the Service Tribunal, he was eligible to leave pay under the Scheme promulgated on 18‑8‑1983 in regard to Basic Pay Scales and Fringe Benefits of Civil Employees of the Federal Government, 1983, but sanctioned with effect from 1‑7‑1983. Para. 27 of the Scheme is the crucial paragraph, which is relied upon by both sides and it reads as follows:‑‑ "

27. All existing rules and orders on the subject shall be deemed to have been modified to the extent indicated above. All existing rules and orders not so modified shall continue in force under this Scheme:' After having heard both sides and after fully considering the matter; the terms of this Rule, in our opinion, are of no avail to the respondent. It may be observed that when the respondent applied for leave and was sanctioned it (on 15‑6‑1983) for the period from 18‑6‑1983 to 12‑7‑1983, the rules applicable relating to the pay during leave were the Revised Leave Rules 1980. The new Scheme of Basic Pay Scales and Fringe Benefits 1983 was promulgated on 18‑8‑1983 and on that date the period of his leave had been exhausted and he had actually resumed duty on 13‑7‑1983 i.e. more than a month before the Scheme of 1983 was issued. No doubt, this scheme was to take effect from 1‑7‑1983 but the question is whether any provision thereof had the effect of modifying the terms and conditions on which the leave was granted on 15‑6‑1983. In this connection, reliance is placed on Rule 27 of the Scheme. But Para 27 only says that "all the existing Rules and Orders on the subject shall be deemed to have been modified to the extent indicated above". On perusal of all the provisions of the paragraphs preceding para 27 we find that the question of pay during leave is not at all dealt with there-under and that the matter of pay during leave is not the subject‑matter thereof. Accordingly, the later part of para 27 becomes applicable which is to the effect that "all existing rules and orders not so modified shall continue in force under this Scheme". Accordingly, since the order sanctioning leave in favour of the respondent was made on 15‑6‑1983 whereby he was granted leave from 18‑6‑1983 to 12‑7‑1983 the said order cannot be deemed to have been modified under the provisions of the Scheme of 1983. The said order of leave (made on 15‑6‑1983) shall have effect according to its tenur and must be given effect accordingly notwithstanding the promulgation of the Scheme of Basic Pay Scales and Fringe Benefits 1983. The result is that the impugned order of the Service Tribunal dated 31‑10‑1984 cannot be sustained and must be set aside. The appeal succeeds and is allowed, leaving the parties to bear their own costs. A.A./P‑115/S Appeal accepted.