1997 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑Appellant Mr. Sardar Ali was working as Stenographer in the Ministry of Railways. He applied for L.P.R. which was granted and he accordingly proceeded on L.P.R. with effect from 20‑12‑1989. In the meanwhile, after availing of leave, but before its expiry, he made an application on 3‑12‑1990 that the leave may be cancelled and he may be taken on duty and allowed to continue in service till the normal age of superannuation. His L.P.R. was not cancelled but the competent Authority recalled the order of L.P.R. and he was directed to resume duty and his leave was cancelled by order, dated 16‑12‑1990 and he joined on 19‑12‑1990. Thereafter, he was promoted as Selection Grade Stenographer (B‑16) with effect from 1‑6‑1991 by order dated 16‑10‑1991. He was also confirmed as Stenographer by office order dated 28‑5‑1995. But all of a sudden, his case was reviewed and he was made to retire with retrospective effect from 19‑12‑1990 by order dated 16‑5‑1996 and the period he served was treated as re‑employment, to which he made representation on 12-6‑1996, which was not responded to, and he then filed this appeal under section 4 of the Service Tribunals Act, 1973.

2. We have heard the learned counsel for the appellant. The contention of Mr. Fazal H. Chaudhry, Advocate is that the appellant made application for cancellation of his L.P.R. which was not accepted but subsequently he was recalled from L.P.R. by the competent Authority for which there is provision in Rule 18(2) of the Revised Leave Rules, 1980. Therefore, the impugned order rescinding the earlier order is illegal and ultra vires of the rules.

3. Mr. Khalid Abbas Khan, learned Federal Counsel and the Departmental Representative submitted that once L.P.R. is granted, the order cannot be modified or recalled and it becomes final and he referred to section 19 of the Civil Servants Act, 1973 in support of his submissions. He also submitted that the order of recall was valid having been passed by the competent Authority and his intervening period has rightly been treated as re‑employment.

4. The admitted facts are that the appellant was employed as Stenographer in the Ministry of Railways (Railway Board). He applied for L.P.R. which was sanctioned and he proceeded on L.P.R. but after availing of a major portion of his L.P.R., submitted application for cancellation of L.P.R. but this application was not accepted. However, the competent Authority at its own passed the following order on 16‑12‑1990: SUBJECT: RECALL FROM L.P.R. In terms of rule 18(2) of the Revised Leave Rules, 1980, the competent Authority (C.H/SR) has been pleased to recall Mr. Sardar Ali, Stenographer of this Ministry from L.P.R. The L.P.R. was sanctioned to the employee from 20‑12‑1989 to 19‑12‑1990 vide letter of even number dated 12‑11‑1989. The recall of the employee will be subject to the following conditions: (i) He will deposit total amount of G.P.F. drawn by him as a result of the sanction of L.P.R. He will also furnish a declaration regarding the total amount drawn by him. (ii) The period involved would be treated as under:‑‑ (a) Leave on full Pay = 120 days from 20‑12‑1989 to 18‑4‑1990. (b) Leave on half pay = from 19‑4‑1990 to the date of resumption." In pursuance of this letter, the appellant joined duty on 19‑12‑1990 as Stenographer. He continued serving as such and was allowed normal annual increments and was also promoted as Selection Grade Stenographer (B‑16) with effect from 1‑6‑1991 vide office order dated 16‑10‑1991, but all of a sudden his case was reviewed and after a period of six years, the impugned order was passed on 16‑5‑1996, whereunder the appellant was retired from service from the date he had proceeded on L.P.R., viz. 19‑12‑1990 and the intervening period was treated as re‑employment on the analogy of section 14 of the Civil Servants Act, 1973 which provides that a retired civil servant can be re‑employed in the public interest with the approval of the authority next above the appointing Authority. We have gone through the file produced by the departmental representative and from para. 356 of the noting, it appears that the appellant was recalled from L.P.R. under the orders of the competent Authority and this Note reads as under: " ....However, there is no bar if the Ministry at its own recall an employee from L.P.R. and allow him to continue in service till the date of superannuation. In the instant case, the employee concerned was recalled from L.P.R. in exercise of powers vested in Chairman/Secretary Railways vide Rule 18(2) of the Revised Leave Rules, 1980." For the sake of convenience, Rule 18(2) of the Revised Leave Rules, 1980 is reproduced hereunder:‑‑ "(2) All orders refusing leave preparatory to retirement to a civil servant and recalling civil servant from leave preparatory to .retirement shall be passed only by the authorities specified below:‑ (i) For civil servants of B‑17 and above. Secretary, Establishment Division‑Personally. (ii) For civil servants of B‑16and below. Secretary of the Division concerned‑ personally." It, thus, follows that the order of recall from L.P.R. was passed by the competent Authority in exercise of powers vested in it. The appellant continued in service for long six years and the order of recall‑could not be rescinded under the principle of locus poenitentiae, and that too without notice, as vested right had created in favour of the appellant. We feel that full facts were not brought to the notice of the competent Authority, i.e. the prime Minister, while passing the impugned order. He is an employee of the Ministry of Railways for all purposes in view of the order passed under Rule 18(2) of the Revised Leave Rules, 1980. Consequently, we accept the appeal, set aside the impugned order dated 16‑5‑1996 and reinstate the appellant into service with all back benefits as if he had never been out of service. A.A./147/Sr.F Appeal accepted.