2020 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

The respondent No.1 was absent from duty from 05.5.1983 to 05.5.1990 equaling 2557 days. He was removed from service on 17.02.1984 for willful absence from duty. However, on 03.4.1990 he was reinstated in service without back benefits. On 06.4.1990 he was promoted from UDC to Inspector. On 6.12.1994 he was granted all back benefits. On 06.6.1995 he was granted seniority in the cadre of Inspector from the date of qualifying a departmental examination in 1983. On 22.8.1995 the appellants regularized his absence in three categories of leave, namely, leave on half pay ("LHP"), leave on full pay ("LFP") and extraordinary leave ("EOL"). On 13.01.2011 his EOL was certified as earned leave. By that time he had already retired from service on 01.2.2010. On post retirement he applied for three annual increments from 1987-1989 vide application dated 18.10.2013. That relief was denied by the appellants on 26.02.2015. The learned FST by the impugned judgment has granted the said relief.

2. The learned counsel for appellants submits that having obtained all types of financial relief the respondent through fragmentary applications has sought more and more, benefits. In the present case, the relief prayed calls for the relaxation of F.R.-26 which is in the following terms: "F.R.

26. The following provisions prescribed 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."

3. Learned counsel for the appellants submits that there is no proof on record about the injury or illness suffered by the respondent. This plea has no substance in the light of the series of reliefs granted one after the other to the respondent by the appellant department. In the circumstances of the case, where the respondent's disability/illness stands acknowledged through the repeated favourable orders passed by the appellants there is no basis for the objection raised.

4. Finally, learned counsel for the appellants has contended that for the period in question for which increments are sought by the respondent he was on EOL granted vide order dated 22.8.1995. In respect of such period this Court in the judgment reported as Secretary, Communication and Works Department, Lahore and another v. Malik Riaz Ahmad (1993 SCMR 1014) observed as follows: "The period which the respondent wanted to count towards increment fell between 12.11.1980 and the date of reinstatement. It can be divided into two parts: first part will cover the period between 12.11.1980 and 21.12.1982; and the second part will relate to the period between 22.12.1982 and the date of reinstatement. So far as the first part is concerned, the respondent had himself stayed away from his post and it cannot therefore be said that his absence was for reasons beyond his control. Obviously, in terms of clause (b) he cannot claim that this part should also count towards increments. As regards the second part, admittedly, the respondent had reported himself for duty on 22.12.1982 and it was the department which was not prepared to take him back. Thus, his absence in the period falling between 22.12.1982 till reinstatement was beyond his control. We see no reason why he should not be allowed to count this part of his extraordinary leave towards increment." [emphasis added]

5. Clearly, the EOL period of absence from duty of the respondent is attributable to his own doing. No cause for such EOL has been given by the appellant whilst dividing the duration of his absence into different types of leave periods. Indeed such relief may constitute a favour given to the respondent. We consider that attempt to seek increments for the period of leave which is neither LFP nor LHP but is classified as EOL cannot be sanctified further by assuming the same to be beyond his control. In the light of the law reproduced above, we disagree with the finding given by the learned FST in its impugned judgment. Consequently, the impugned judgment dated 06.6.2017 is set aside and this appeal is allowed. MWA/S-19/SC Appeal allowed.