Dr. TAZA KHAN vs THE GENERAL MANAGER (PERSONNEL), RAILWAY
This matter arises from a petition filed against the judgment of the Service Tribunal, which had dismissed the petitioner's appeal concerning the treatment of his leave period as on duty and the grant of a study allowance. The petitioner, a Railway Guard, had proceeded on extended leave to pursue an M.B.B.S. degree. The core legal question was whether a railway servant pursuing higher education on leave is entitled to be treated as on duty and granted a study allowance under departmental rules, and whether an erroneous departmental order granting such benefits can be subsequently withdrawn. The Supreme Court held that under para 2003 of the Estacode, a railway servant can only be treated as on duty during a study period if entitled to be appointed to the service upon completion of training and if the qualification benefits the railway service, neither of which applied here. The Court further affirmed that an illegal administrative order does not become a past and closed transaction and can be lawfully withdrawn. Leave to appeal was accordingly refused.
- Whether a railway servant is entitled to be treated as on duty during a study period under para 2003 of the Estacode without showing entitlement to appointment upon qualification?
- Can an illegal departmental order conferring benefits be subsequently withdrawn or cancelled by the authorities?
- Does an order once passed and acted upon become a past and closed transaction that is irrevocable?
' MAMOON KAZI, J.---The petitioner was serving as a Guard in Pakistan Railways, Nowshehra. He applied for leave from 4-3-1984 to 22-12-1988 for taking admission in M.B.B.S. Classes at Bolan Medical College. He was granted leave with full pay for 144 days and without pay for 1681 days. After expiry of his leave the petitioner again applied for further leave from 22-2-1989 to 21-2-1991 which too was granted to him. Subsequently the petitioner applied for treatment of his leave period from 4-3-1984 to 22-12-1988 and again from 22-2-1989 to 21-2-1991 as being on duty and he also further requested for study allowance. Although his request was initially acceded to vide letter of the department dated 13-1-1993, but subsequently it was withdrawn on 29-1-1994.
' The petitioner filed departmental appeal on 3-2-1994 against the said order but nevertheless the appeal was rejected vide office order dated 22-3-1994. Feeling aggrieved, the petitioner filed his appeal before the Service Tribunal which was also dismissed.
2. The petitioner in his appeal before the Service Tribunal had invoked para 2003 of the Estacode but the Tribunal brushed aside the contention holding as.Follows:-- "Para 2003 of the Estacode on which the appellant has particularly placed reliance, provides that a Railway servant can be treated as on duty during the study period only if he is entitled to be appointed to the service of Government on passing through a course of training at a university, college or school in Pakistan. In the instant case the appellant while serving as Guard-III proceeded on leave for obtaining higher education and it cannot be said with certainty that on obtaining the degree in M.B.B.S. He was entitled to be appointed in the service of Railway or that his qualification in M.B.B.S. Were beneficial for the services he was rendering in the Railway."
3. The second contention of the petitioner was that the order treating the petitioner to be on leave during the period he was attending Medical College had earlier been given effect to, therefore, there was no justification for cancellation or withdrawal of the said order. This contention of the petitioner was also repelled by the Tribunal. Reference was made by the Tribunal to an earlier decision of this Court in Engineer-in-Chief v. Jalaluddin (PLD 1992 SC 207) wherein it had been held as under:-- "But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."
4. Learned counsel for the petitioner has not been able to point out any Rule or Authority to show that the order of the Tribunal was not based on correct appreciation of law or facts. We, therefore, find that the order passed by the Tribunal is not open to exception.
5. In the result, leave is refused.