1. ' M. SALMI CHAUDHRY WHAIRMAN).-III this appeal by the appellant an ex. P. C. S. Judicial Officer who at the time of his retirement was employed as legal advisor in the office of respondent No. 1, the Chief Land Commissioner, Punjab, Lahore, the following relief is claimed the respondent may be ordered to grant 6 months L. P. R. To the appellant on full pay with effect from 1st September, 1973 or difference in emoluments suffered by him during the period of 6 months amounting to Rs, 6,725 may be ordered to be paid to him."
2. ' The brief facts of the case are that the appellant was due to attain the superannuation age on 7th June, 1973 and he applied on 22nd November, 1972 for the grant of 6 months leave preparatory to retirement with effect form 7th December, 1972, His application was to be routed through Lahore High Court to the Government for ultimate sanction. After waiting for quite some time on 1st February, 1973 he again reminded the respondent No. 1 about the fate of his application. He specifically pointed out that the leave preparatory to retirement was permissible only before the age of superannuation and it could not be availed of afterwards, The leave was ultimately sanctioned by the Government of Punjab on 14th April, 1973 subject to title with effect from the date of availing. After receipt of the orders the appellant again on 19th April, 1973 moved the respondent No. 1 to relieve him. However it appears that due to important service exigencies he was not relieved. The appellant ultimately on the 6th of June, 1973 requested that since he was due to attain the age of superannuation on 7th June, 1973 he may be relieved but he was still not relieved. The appellant finally on 11th July, 1973 applied to the Department for release indicating therein that he understood that the Department had a mind to reemploy him for a short term in which he was not interested. The appellant was ultimately relieved on 31st August, 1973, thus availing the re- employment from 7th June, 1973, to 31st August, 1973.
3. ' It appears that the appellants in the meantime had moved the Government for the benefit of L. P.
4. R. Beyond the date of retirement. This request of the appellant was turned down by the Government vide their order dated 31st July, 1975 which was conveyed to him on 18/19th August, 1975 through the Registrar, Lahore High Court. Hence this appeal filed before us on the 20th December, 1975. The appellant in the first instance placed reliance on the provisions contained in rule 8.22 and rule 8.23 of the C. S. R., Vol. I, Part I which inter alia provided that in the case of compulsory retirement, if a civil servant applied for the leave and the same was refused on the ground of public interest or the exigencies of public service, the due leave may be granted to the civil servant eyen if he extended to a date beyond the date of retirement. Thus according to the appellant he was entitled to the L. P. R. Applied for, even for the period extending beyond the date of retirement, In the alternative the appellant claimed that the Government vide their letter dated 11th June, 1977 in order to remove the hardship allowed the encashment of the leave due to the Government Servant for a maximum period of 4 months. Thus the appellant prayed that his appeal may be accepted on the grounds above. The learned Government Pleader appearing for the respondent argued that in view of the provisions contained in Article 221 of Interim Constitution of Pakistan, 1972 and section 12 of the Punjab Civil Servant Act, 1974, a civil servant had to retire after attaining the age of superannuation and as per instructions issued by the Government of Punjab vide their letter No, S.
0. R. I. (S & G A Ei) 4-9/72(A) dated 13t August, 1972, the L. P. R. Must be availed of before the retirement, and the refusal of the L. P. R. In the exigencies of public service will not provide a basis for any exception so as to extend the L. P. R. Beyond the age of retirement or to allow the L. P. R. After the age of retirement. He also argued that the provisions of Rule 8.22 of C. S. R. Punjab Vol. 1 Part I which corresponded to Fundamental rule 86 will operate subject to those constitutional provisions.
5. According to the Government Pleader the above instructions have been issued in pursuance of the provisions contained in the Interim Constitution. Thus rule 8.22 or rule 8.23 could not be pressed into service. He otherwise argued that those Rules were inapplicable as it was not a case of compulsory retirement. He also submitted that according to section 17 of the Punjab Civil Servants Act, *he leave could not be claimed as a matter of right and the same could be denied on the exigencies of service in the discretion of the competent authority. According to Government Pleader the action taken in this case was clearly in accordance with the spirit of the aforesaid section. He also pointed out that the appellant has been duly compensated by re. Employing him for the period from 6th July, 1973 to 31st August, 1973 during which period he had drawn full pay. Lastly the contention of' the Government Pleader was that letter dated 11th June, 1977 was not attracted to this case as the same had been issued after the lapse of about 4 years of the retirement of the appellant. He thus pressed for the rejection of this appeal.
6. ' After hearing both the parties we have no difficulty in holding that the appellant is not entitled to the grant of leave as a matter of right. In fact the appellant himself while sending a reminder on 1st February, 1973 pointed out that the leave could be availed of only before the date of superannuation. Even otherwise no law has been cited before us according to which the appellant was entitled to the grant of leave as a matter of right. In fact the leave sanctioned on 14th April, 1973 from the date of availing. The appellant was prepared to avail the leave from 19th April, 1973 to 17th June, 1973 which was less than 2 months. In view of the position above we are clear in or mind that the appellant was not entitled to avail leave as a matter of right. The provisions of the Rules which relate to cempulsory retirement, stood modified by the letter dated 31st August 1972 which clarified the position before the appellant applied for leave. The aforesaid letter has been issued by the Rule framing authority and therefore has to be treated as a rule under section 23 (2) of the Punjab Civil Servants Act. Even otherwise it appears to be highly doubtful as to whether rule 8.23, which was applicable to the ease of compulsory retirements was attracted to the facts of this case.
7. ' However we do feel that this is a case of hardship. The appellant bad applied for the grant of leave in time. The sanction of the leave was delayed for no fault on his part. Even after the sanction of the leave he was not relieved despite repeated requests on his part. The letter dated 11th June, 1977 as relied upon by the appellant may not be strictly applicable to the case of the appellant but since the intention behind the same appears to provide relief to the Government Servant who suffered hardship, therefore, in the case in hand we will recommend to the Government to reconsider the case of the appellant in the light of above letter, and we have every hope that the case of the appellant will be considered sympathetically. With the observations above the appeal is dismissed with no order as to costs.