NIZAMUDDIN Versus SECRETARY, MINISTRY OF INDUSTRIES, ISLAMABAD
CH. A. RAHMAN KHAN (MEMBER) .‑‑‑Mr. Nizamuddin, Stenotypist, Central Testing Laboratories, Lahore, the appellant,, has filed this appeal against the impugned order of his `reversion, to the present post of stanotypist vide O.M. dated 8‑6‑1989. His departmental appeal, dated 26‑6‑1989 was rejected vide O.M., dated 24‑7‑1989.
2. Briefly, the facts 'of the case are that the appellant while working as Stenotypist in the Central Testing Laboratories was appointed to officiate as Stenographer (B‑11) vide O.M., dated 19‑9‑1982 which is reproduced below:‑‑
' "No. CTL/10(2)/70 PT‑X(1779), dated 19‑9‑1982.
Mr. Nizamuddin Stenotypist, Central Testing Laboratories, Lahore is hereby appointed to officiate, on purely temporary basis, as Stenographer (Grade‑11) in the same Organization vice Mr. Ghulam Raza who is absent from his duties since long.
This appointment will not confer any right to hold this post for an indefinite period nor to claim an equivalent post on the resumption of duties by Mr. Ghulam Raza."
3. It was contended that Mr. Ghulam Raza, Stenographer (B‑15) remained absent from duty for over seven years whereas under Rule 9 of Revised Leave Rules, 1980, a civil servant cannot be granted leave of absence (without pay) for more than five years. Also, if on the expiry of leave, the civil servant fails to join his duty, he will be deemed to have been dismissed from service vide F.R. 18 of Fundamental Rules and Supplementary Rules (Volume‑1). However, in the case of Mr. Ghulam Raza, Stenographer, he was allowed to resume duty under the directions of Establishment Division vide their letter, dated 14‑9‑1988 but the respondents were required to take disciplinary action against the official. It was strongly contended by the learned counsel for the appellant that no disciplinary action was taken against Mr. Ghulam Raza nor was any sanction of the President of Islamic Republic of Pakistan was obtained to grant him leave over and above five years. He could not, therefore, he allowed to resume duty without the conclusion of any disciplinary action or sanction of the President of Islamic Republic of Pakistan. In the absence of such a permission by the competent authority Mr. Ghulam Raza ceases to be a civil servant on the expiry of his five years leave (without pay) because he failed to join his duty. It was, therefore, strongly prayed 'that the reversion order of the appellant be set aside and the appellant be allowed to work against the post of Stenographer with all consequential benefits,
4. The learned counsel for the State alongwith the representative of the respondents controverted the arguments of the appellant. I; was submitted that the post of Stenographer which fell vacant due to the absence of Mr. Ghulam Rte, Stenographer was filled temporarily and purely as a stopgap arrangement. It was further submitted that Mr. Ghulam Raza, Stenographer was allowed to resume duty in spite of his unauthorised absence for about seven years vicar; Ministry of Industries letter, dated 6‑6‑1989. However, this action was taken by the respondents in view of Establishment Division's letter, dated 14‑9‑1988, the extracts of which are reproduced below‑
"No. 1/8/88‑R.3 Rawalpindi, 14th September, 1988
(i) In this case F.R.18 is not legal. The official should be taken back. The Industries Division would be at liberty to take disciplinary action against the official if they so desire.
(ii) As regards grant of extraordinary leave the issue is resolvable as Finance Division's Notification No. F.1(45)‑8.4/81, dated 13 February, 1982 (ESTACODE, p. 469) envisages a situation where extraordinary leave may be granted retrospectively in lieu of absence without leave.
(iii) However the first step would be the reinstatement of the official. Secondly a decision as to whether disciplinary action may be initiated or not. Thirdly the regularisation, if necessary, of absence without leave:"
5. In view of the above, it was contended that the reversion of the appellant to his post as Stenotypist vide order, dated 8‑6‑1989 is legally valid and the appellant's present appeal is liable to be dismissed accordingly.
6. We have heard the arguments from both the sides and perused the record presented to us carefully. We are of the view that the application of F.R.18 in the case of Mr. Ghulam Raza Stenographer, who remained absent for about seven years is not only appropriate but is legally sustainable. The F.R.18 reads as follows:‑‑.
" F.R.18 .‑ ‑‑Unless the Governor‑General in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty, elsewhere than on foreign service in Pakistan, whether with or without leave, a Government servant ceases to be in Government employ."
7. We have further observed from the record that the disciplinary action required to be taken vide Establishment Division's letter dated 14‑9‑1988 was never brought to the logical conclusion. There is nothing on record that the action recommended as a result of the enquiry against the charges of misconduct levelled against Mr. Ghulam Raza was not taken to a logical conclusion. There is also nothing on record that the President of Islamic Republic of Pakistan did ever grant permission to Mr. Ghulam Raza to continue his service as envisaged in F.R.18.
8. In view of the above, we are of the firm view that in the absence of a proper sanction by the President of Islamic Republic of Pakistan as required by a F.R.18 allowing Mr. Ghulam Raza to continue in service, he has ceased to be a civil servant on the expiry of his leave of absence after five years. We also feel that the disciplinary action has not been brought to a logical conclusion which actually should have been the first step in this case as recommended vide Establishment Division letter, dated 14‑9‑1988.
9. In view of the above, this is our considered opinion that under F.R.18:‑
(a) Mr. Ghulam Raza, Stenographer ceased to be a civil servant on the expiry of five years leave without pay. The post of Stenographer is, therefore, lying vacant.
(b) The sanction of the President of Islamic Republic of Pakistan is mandatory to allow Mr. Ghulam Raza to continue in service as a civil I servant.
10. In this view of ours, we are strongly supported by the judgments delivered by the Honourable Supreme Court at PLD 1990 SC 666 and 1990 SCMR 368 which reads as follows:‑‑
"Our conclusion, therefore, is that Fundamental Rule 18 is not ultra vires the Civil Servants Act, that it is continued as statutory rules on the strength of section 22 of the Civil Servants Act, 1973 and no procedural requirement exists in giving effect to it."
11. As a result, the present appeal before us succeeds. The impugned reversion orders of the appellant, dated 8‑6‑1989 are set aside. The appellant' shall be allowed to work against the vacant post of Stenographer till further orders with all the consequential benefits.
12. No order as to costs.
13. Parties be informed.
A.A./686/Sr.F Appeal accepted.