' CH. IJAZ AHMED, J.--- Necessary facts out of which the present petition arises are that the petitioner was appointed as Assistant Director by the respondent-Bank. Subsequently the petitioner was promoted as Deputy Director of the respondent-Bank. While he was serving as Deputy Director of the respondent-Bank he secured Quaid-eAzam scholarship for Ph.D. In Agriculture by the Ministry of Education. He submitted an application dated 26-7-1992 for leave for one year with effect from 26-9-1992 to 25-9-1993 as admissible under the rules before the Deputy Director Personnel Administration Department of the respondent-Bank. The competent authority did not pass any order on his application. He submitted an another application in continuation of his earlier application before the competent authority on 5-8-1992 with the prayer that he may be granted leave on half pay for one year with effect from 26-9-1992 to 25-9-1993. The competent authority had sanctioned leave for 365 days vide office memorandum as under:--
1. Leave on half pay Ex-Pakistan w,e,f, 324 days 26-9-1992 to 15-8-1993
2. Extraordinary leave (without pay) Ex-Pakistan 41 days w,e,f, 16-8-1993 to 25-9-1993 Total: 365 days ' Petitioner being aggrieved submitted representation before the Chairman of the respondent-Bank on 29-11-1998 with the request for treating period of his leave from 26-9-1992 to 21-1-1996 as study leave. The Appellate Authority did not decide his application. The petitioner being aggrieved filed Appeal No,439(L) of 1999 before the Federal Service Tribunal, Islamabad, on 20-4-1999. The learned Service Tribunal dismissed his appeal vide impugned judgment dated 20-9-2004. Hence the present petition.
2. The petitioner submits that learned Service Tribunal had erred in law to dismiss his appeal without application of mind. He further urges that it is the duty and the obligation of the competent authority to decide his application and representation by application of mind with cogent reasons.
The Appellate Authority has failed to decide his application whereas the competent authority sanctioned his study leave on half pay for one year without application of mind and rules and regulations on the subject.
3. The learned counsel for the respondent-Bank submits as under:---
(i) That learned Service Tribunal had erred in law to assume the jurisdiction without adverting to the dictum laid down by this Court in Muhammad Mobeen-us-Salam's case PLD 2006 SC 602.
(ii) That petitioner himself filed an application before the competent authority for sanctioning of his study leave on half pay, therefore, competent authority was justified to sanction his leave with half pay.
(iii) That the petitioner had not completed 5 years of service when he submitted an application for sanction of study leave. Length of service is condition precedent to sanction leave to the petitioner with full pay. In support of his contention he has relied upon para No,7 of Study Leave. Rules prescribed by the President (F.R.84) at Sl.No,22 at page 504 of ESTACODE Vol.1 Edition 2007.
(iv) That the impugned judgment is in accordance with the rules and regulations on the subject.
(v) That rules framed by the Respondent-Bank are not statutory rules, therefore, appeal before the Service Tribunal is not maintainable. In support of his contention he has relied upon Muhammad Mobeen-us-Salam's case PLD 2006 SC 602 and Muhammad Idrees's case PLD 2007 SC 681.
4. It is better and appropriate to reproduce the legislative history of the respondent-Bank.
Agricultural Development Bank Ordinance, 1961 (IV of 1961) came into force on 11-2-1961. Under section 39(2)(e)(0 the Board of the respondent-Bank has power to frame regulations qua the requirement of the employees of the Bank, the terms and conditions of their service, onstitution and management of provident funds for the employees of the Bank and matters connected with all these funds and the duties and conduct of the employees and agents subject to the approval by the Federal Government. Certain provisions and the regulations were amended without approval of the Federal Government which were interpreted by this Court in Anwar Hussain's case 1992 SCMR 1112 and laid down the following principle:- .
"In other words, if any Regulations on these subjects are framed after the date of the coming into force of the Amendment Act, prior approval of the Federal Government would be essential for bringing such Regulations in effect. But, it will be difficult to construe the provisions of the proviso to destroy the Regulations which had already come into force prior to the amendment, as obviously that would amount to giving retrospective operation to the provisions of the Amendment Act.
It;therefore, follows that the remaining Regulations of 1961, other than the substituted Regulation 95, having come into force prior to the 1973 amendment, when no prior approval of the Federal Government was necessary, shall continue to remain in force and operative notwithstanding the amendment of subsection (2) of section 39."
' Subsequently said regulations were framed along with the following regulations along with other regulations with the prior approval of the Federal Government under section 39(2)(e) and (f) of the Ordinance mentioned hereinabove:---
(1) ADB (Staff) Service Regulations, 1961.
(2)
(3) ADB Officers Service (Efficiency and Discipline) Regulations, 1975.
(4) ADB Clerical and Non-Clerical Staff Service (Efficiency and Discipline) Regulations, 1975.
5. It is an admitted fact that the petitioner had submitted two applications with request for study leave on 26-7-1992 and 5-8-1992 respectively. The applications were allowed as mentioned above by the competent authority vide order dated 22-8-1992. The President had promulgated Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002 under the provisions of Proclamation of Emergency of the fourteenth day of October, 1999 and Provisional Constitution Order No,1 of 1999 read with Provisional Constitution (Amendment) Order No,9 of 1999 and in the exercise of all powers enabling him in that behalf under the Constitution (Ordinance No,LX of 2002) on 4-10-2002. The afore said Ordinance was repealed in terms of section 12 of the Ordinance, 2002 from the date after the dissolution of ADBP with effect from 14-12-2002 vide notification S.R.O. No,823(1)(2002). Under section 9 of the said Ordinance, 2002 the Federal Government may, by the notification in the official Gazette, make rules for conveying out the purpose of this Ordinance. It is pertinent to mention here that Federal Government framed no rules on the subject in terms of the afore-said provisions of law. Generally amending Ordinance or Act has always saving clause but the Ordinance in hand has no saving clause. The question for determination for us is that earlier regulations framed under section 39(2) are applicable in the case in hand or not. The petitioner has filed applications for securing leave for study in the year, 1992 which were sanctioned in the year, 1992. The petitioner filed an appeal before the Service Tribunal on 20-4-1999 therefore said regulations govern the case of the petitioner in terms of section 6 of the General Clauses Act, 1897. See:---
(i) Sheikh Muhammad Amin's case PLD 1966 Lahore 473
(ii) Abdul Wahid's case PLD 1994 Quetta 89
(iii) Ziaullah Khan's case 1992 SCMR 602
(iv) Aziz Khan's case PLD 1980 Peshawar 227
(v) Taza Khan's case 1992 SCMR 1371.
' It is settled principle of law that the rules under the new Act or the Ordinance has not yet been framed. Till new rules are framed, old rules would deemed to be operative despite their implied repeal. See Kemal Sharif Rana's case PLD 1985 Lahore 135.
6. The question of law has already been settled by this Court in Muhammad Mubeen-us-Salam's case PLD 2006 SC 602 vide paras 108 and 109 which are produced hereunder:--- "108. The threadbare discussion on the subject persuades us to hold:
(1) Section 2-A of the STA, 1973 is partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service had not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2(1)(b) of the CSA, 1973.
(3) The cases of the employees under section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445, it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Miscellaneous Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.
7. The afore-said paras were clarified by this Court in Muhammad Idrees's case PLD 2007 SC 681.
Relevant observation from para 3 is as under:-- "While examining these matters, we find that cases at serial Nos.89 to 1914, mentioned in the later part of the judgment involve the employees whose services are not governed by statutory rules."
8. Contentions of Syed Iftikhar Hussain Gillani, Advocate, Supreme Court, in para 4 are as under:-- "The employees had succeeded before the learned Federal Service Tribunal after protracted litigation and, therefore, it was a fit case' for applying de fecto doctrine to save and protect the judgments delivered by the learned Federal Service Tribunal in favour of the employees ' Mr. Khalid Anwar, Advocate Supreme Court, appearing on behalf of State Bank of Pakistan submits in para 6 as under:- "The cases not covered by section 2-A stand abated which, include the proceedings and judgments of the learned Federal Service Tribunal."
' Finally this Court has analyzed the judgment in Muhammad Mubeen-us-Salam's case in Muhammad Idrees's case PLD 2007 SC 681 and directs in para 14 as under:--
(a) The cases noted at serial Nos.89 to 1914 stand abated with the result that the proceedings and judgments rendered by the learned Federal Service Tribunal also stand nullified. The affected/aggrieved parties are allowed a further period of 90 days to have recourse to the available remedies.
(b) The judgments of the learned Federal Service Tribunal rendered on the basis of section 2-A of the Service Tribunals Act, 1973 which were never challenged before this Court had attained finality and shall be implemented by the concerned organizations without dragging the employees into further litigation.
(c) The cases in which the services of the employees were governed by statutory rules are not hit by Mubeen-us-Salam's case."
9. The case of the petitioner falls under category (c) mentioned hereinabove. The regulations framed under section 39(2) of Ordinance, 1961 do not have any provision for grant or refuse of study leave. Then para 7 of ESTACODE mentioned hereinabove remains in the field which is reproduced hereunder:- "Study leave should not ordinarily be granted to Government servants of less than five years' service or to Government servants within three years of the date at which they have the option of retiring, or, if they have the option of retiring after 25 years' service, within three years of the date at which they will complete 25 years' service. Nor should it be granted to Government servants who are about to retire on proportionate pension."
' Mere reading of the said para 7 is directory in nature as the competent authority while framing para 7 had used the word ordinarily means usual, normal, common and reasonable. See Blacks'
Law Dictionary and Messrs Gadoon Textile Mills' case 1997 SCMR 641. The respondent-Bank has firstly erred in law to rely upon para 7 reproduced hereinabove in presence of their own statutory rules, as mentioned above, even otherwise there are special circumstances in the case in hand while sanctioning leave of the petitioner by the respondent as the petitioner was appointed on 26- 11-1987 and the leave was sanctioned on 22-8-1992, therefore, there are only 4 months less from five years while serving with the respondent-Bank.
10. In view of what has been discussed above, the petition is converted into appeal and allowed with costs throughout. Consequently impugned judgment of the Federal Service Tribunal is set aside and the order of the respondent-Bank dated 22-8-1992 is also set aside to the extent that ex- Pakistan leave was sanctioned with half pay with effect from 26-9-1992 to 15-8-1993 as leave on full pay. The said order dated 22-8-1992 be modified that his leave be granted with full pay in accordance with law and rules on the subject.