2019 PLP (C (PLC(CS))

MUJAHID MUSTAQEEM AHMED, J.

The petitioner, Deputy Director (Cess) of Pakistan Central Cotton Committee (PCCC), at the verge of retirement, submitted an application on 20.8.2018 purportedly under Rule 18-A of the Revised Leave Rules, 1980 (the Leave Rules, 1980) to respondent No.5 for encashment in lieu of leave preparatory to retirement (L.P.R.). However, instead of acceding to his request, the competent authority vide impugned order dated 13.12.2018 granted him L.P.R.

2. By filing the instant petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (the Constitution) the petitioner has assailed aforesaid order with following supplication:- " ..that instant constitutional petition may kindly be accepted and the impugned Order No.PCCC/ Estt./2977 dated 13.12.2018 forcibly grant of LPR to the Petitioner by the Respondent No.5/V.P., PCCC and issued by Respondent No.6 may very kindly be set aside by declaring the same illegal, void ab-initio, null and void, against the law and facts and Petitioner's matter regarding grant of 365 days encashment be treated under Finance Division's S.R.O. No.70(KE)/2012 dated 29.08.2012 as the matter of other officers of PCCC recently were treated under Finance Division's S.R.O.No.70(KE)/2012 dated 29.08.2012 and grant 365 days encashment to the Petitioner without any discrimination in the supreme interest of justice."

3. Respondent No.1 in his reply, (not even properly wetted by Legal Branch/Law Officer) has tried to absolve his responsibility while submitting that he was unnecessary party and in fact Finance Division was the necessary party which has not been impleaded as respondent by the petitioner. As observed by this Court, Finance Division, Government of Pakistan is not a necessary party. Respondent No. 1 under the law was required to submit properly wetted parawise comments to this petition but he failed to meet such legal requirement. The evasive denial/claim on the part of said respondent is not sufficient to non-suit the petitioner.

4. Learned counsel for the parties have been heard at length and record gone through with their assistance.

5. The moot point involved in this petition is as to whether encashment in lieu of leave preparatory to retirement is right of an employee or sweet discretion of competent authority under the Leave Rules, 1980?

6. The Revised Leave Rules, 1980 deal with different types of leaves admissible to a government servant during his service. Rule 16 ibid describes Leave Preparatory to Retirement (L.P.R.) as under: "

16. Leave preparatory to retirement-(1) The maximum period upto which a civil servant may be granted leave preparatory to retirement shall be three hundred and sixty-five days. (2) Such leave may be taken, subject to availability, either on full pay, or partly on full pay and partly on half pay, or entirely on half pay, at the discretion of the civil servant. (3) An officer of BPS-21 or BPS-22 who, on or after the 19th day of February, 1991, opts to retire voluntarily after he has completed twenty-five years of service qualifying for pension may be granted leave preparatory to retirement equal to entire leave at his credit in his leave account on full pay or till the date on which he completes the sixtieth years of his age, whichever is earlier. Provided that such officer shall not be entitled to conversion of leave preparatory to retirement on full pay under rule 6 into leave on half pay. Rule 17 prescribes that if a civil servant cannot be granted leave preparatory to retirement, he will in lieu thereof be granted lump-sum leave pay for the leave refused to him. For facility of reference said provision of law may also be reproduced hereunder: "

17. Encashment of refused leave preparatory to retirement. If in case of retirement on superannuation or voluntary retirement on completion of thirty years qualifying service a civil servant cannot for reasons of public service, be granted leave preparatory to retirement duly applied for in sufficient time, he will in lieu thereof be granted lump-sum leave pay for the leave refused to him subject to a maximum of three hundred and sixty five days leave on full pay." Sub-Rule (2) of this Rule empowers the Authority to refuse and grant such leave partly. Said provision of law reads as under: "(2) Such leave can be refused partly and sanctioned partly but the cash compensation shall be admissible for the actual period of such leave so refused not exceeding three hundred and sixty five days." Rule 18 of the Leave Rules, 1980 gives discretion to the authority to refuse L.P.R. Said rule is not relevant for the purpose of disposal of this petition. However, Rule 18-A may be reproduced which is to the following effect: "18-A. Encashment of leave preparatory to retirement.-(1) A civil servant may fifteen months before the date of superannuation or thirty years qualifying service on or after the Ist July, 1983, at his option, be allowed to encash his leave preparatory to retirement if he undertakes in writing to perform duty in lieu of the whole period of three hundred and sixty-five days or lesser period which is due and admissible: Provided that a civil servant who does not exercise the option within the specified period shall be deemed to have opted for encashment of L.P.R. Sub-rule (4) of this Rule is of vital importance. Said rule runs as under: "(4) The civil servant shall submit the option to the authority competent to sanction leave preparatory to retirement, who shall accept the option and issue formal sanction for the payment of cash compensation. (underlining are of mine). As noted above, Rule 16 empowers the authority to grant L.P.R. to a civil servant for a maximum period upto three hundred and sixty five days subject to availability. As per Rule 17 in case a civil servant cannot for reasons of public service, be granted L.P.R. duly applied for, he will in lieu thereof be granted lump-sum leave pay for the leave refused to him. Sub-Rule (2) of said Rule provides that the authority has powers even to partly refuse and partly sanction such leave. However, civil servant will be entitled to get cash compensation in lieu of period of leave so refused. Rule 18-A requires a civil servant to exercise his option fifteen months before the date of superannuation or thirty years qualifying service for encashment in lieu of L.P.R. and even provides that if he does not opt within said period he would be presumed to have opted for encashment in lieu of L.P.R.

7. A combined study of Rules quoted above would reveal that phrases "if duly applied" used in Rule 17, "at his option" used in Rule 18-A and "shall be deemed to have opted for encashment of LPR" occurring in proviso to Rule 18-A supra have much significance. They clarify that a civil servant cannot claim L.P.R. as of right rather it is discretion of the Authority to grant or refuse him said leave or to partly allow and partly refuse the same. However, if such leave is refused or if the civil servant does not duly apply for L.P.R. the civil servant becomes entitled as of right to claim encashment in lieu of such leave. It further amplifies that if a civil servant intends to avail L.P.R. he has to duly apply for the same and in case he does not apply, he would be deemed to have opted for encashment in lieu of L.P.R. Sub-Rule (4) of Rule 18-A puts a clog on discretion of the authority and postulates that in case a civil servant submits his option for encashment in lieu of L.P.R. the authority has no other option but to accept the option and issue formal sanction for payment of cash compensation.

8. Needless to mention that encashment in lieu of L.P.R is a monetary benefit which the law bestows on a civil servant, who prefers to perform duty instead of proceeding on L.P.R. and such fiscal benefit cannot be withheld by the Authority without any cogent and valid reason. The discretion vested with the authority under Rule supra, as per settled law, should be exercised fairly, honestly and not arbitrarily or fancifully. There is no cavil to the proposition that rule of interpretation in the matter of fiscal legislation, statutes, memos, letters, circulars was that same were to be interpreted in such a way as to grant more benefits to the subjects/employees than the Government because those were persons who were hard hit by financial worries and the problems and employees should not be made to suffer for the fault of department. Reference in this regard may be made to the case Mst. Riffat Naheed, Lady Medical Technician v. District Health Officer, Bahawalpur and 2 others (2004 PLC (C.S.) 1081) and Noor Wali Khan and others v. Federation of Pakistan and another (2017 PLC (C.S.) 1113). The Hon'ble Supreme Court of Pakistan in case Pakistan International Airlines Corporation v. S.M. Ismail Naqvi and others (2010 SCMR 42) held that admissibility of annual increment and encashment for PL/LPR are not allowed by way of concession. On the contrary, they are the normal benefits/entitlements admissible to the concerned employee.

9. In the present case the petitioner has exercised the option granted to him by Rule 18-A of the Leave Rules, 1980. In such eventuality discretion of the authority is curtailed by sub-Rule (4) quoted supra which prescribes that the civil servant shall submit the option (for leave encashment) to the authority who shall accept the option and issue formal sanction for the payment of cash compensation. This provision leaves no discretion with the Authority to refuse this fiscal benefit in shape of payment of cash compensation/encashment in lieu of leave. I have not been able to find any provision in these Rules which could empower the authority to grant/sanction L.P.R. to a civil servant who does not apply for the same rather opts for encashment in lieu of such leave.

10. It has been noticed that no reason whatsoever has been assigned in the impugned order to decline prayer of the petitioner for leave encashment and sending him on L.P.R. In absence of any cogent reason on the part of department for refusing to grant civil servant encashment in lieu of LPR to which he was entitled as noted supra, the impugned order appears to be arbitrary, fanciful and tainted with mala fide. It appears that the petitioner was compelled and forced to proceed on L.P.R. instead of availing leave encashment. Although a subordinate cannot resist and has to yield to the pressure of the authority, but one can well imagine the stress in the mind of said person when the authority goes out of the way. Having not volunteered to proceed on leave, he not only feels depressed, rather doomed and defamed among his colleagues for no fault on his part and this arbitrary act of the authority to my mind stigmatize career of such civil servant at fag end of his career, which amounts to punishment. Non-disclosure of any cogent reason for such order makes the impugned order flimsy, tainted with mala fide and non-speaking thus violative of section 24-A of the General Clauses Act, 1897, and as such nullity in the eye of law.

11. Learned counsel for the petitioner has also drawn my attention to Annexures-L, L-I, L-2 and Annexure-M whereby the respondents have approved 365 days encashment in lieu of L.P.R. to their other subordinates serving in the same department. Perusal of these documents also show that the petitioner has been discriminated in the matter of option for encashment which is sheer violation of Article 25 of the Constitution.

12. In view of what has been noticed and discussed above, I do not find any cogent and valid reason to sustain impugned order. Consequently, the instant writ petition is allowed, the impugned order is set-aside and the matter is remanded to the Secretary, Ministry of National Food Security and Research, Government of Pakistan/respondent No.3 to take-up application of the petitioner for leave encashment and ensure its fair decision in accordance with law/rules (as interpreted supra) and policy within 15 days from the date of receipt of order of this Court, after affording right of audience to the petitioner. The period of forced L.P.R. (if impugned order stood implemented) be treated as leave of any sort as per option of the petitioner. If indulgence of Ministry of Finance for arranging funds for leave encashment etc. is needed, request in this regard be made, pressed and pursued till its logical conclusion by the competent authority.

13. For the above purpose, the petitioner is directed to appear before respondent No.3 on 27.06.2019. MH/S-70/L Case remanded.