Syed Nasir Ali Shah, Member.--Following almost admitted facts form the background of this appeal.
2. Compendiously and chronologically put, Ijaz Majecd, appellant was appointed as Assistant Director (Legal) in the Environmental Protection Agency (BS-17) through Federal Public Service Commission. On 17.11.2007, Govefnment of Punjab, Environmental Protection Department, Respondent No, 3 addressed a letter to the Secretary, Government of Pakistan, M/o Environment, Islamabad, Respondent No, 1, requesting for the posting of the appellant as Assistant Director (Legal) in the Environmental Protection Department, Government of Punjab against an existing post. Upon this vide notification dated 17.2.2009, Respondent No, 1 relieved the appellant to join the new assignment with the Respondent No, 3 on deputation basis for a period of 3 years or till further order, with immediate effect. Consequently, the appellant submitted his joining report to the Respondent No,
3. But the latter declined to accept the joining report of the appellant on the ground that Punjab Public Service Commission had already been moved to fill in the aforesaid post. Thus the appellant addressed a letter dated 26.3.2009 to the Respondent No, 3 wherein he requested that he may be permitted to join the aforesaid department against the aforesaid post. It appears that at the same time the appellant applied for the aforesaid post and in due course was selected for the said post by Punjab Public Service Commission. Eventually on 30.5.2009 offer of appointment of the aforesaid post was issued to the appellant. Thus on 01.06.2009 the appellant submitted his joining report for the said post. Upon this on 10.06.2009, Respondent No, 3 addressed a letter to the appellant wherein he was directed to provide copies of the Medical Certificate and relieving report. Consequently vide notification dated 31.8.2009, in supersession of earlier notification dated 17.2.2009, the Respondent No, 1 relieved the appellant to join his new appointment with Respondent No, 3 with immediate effect. Being a confirmed employee, the appellant was allowed to hold lien against the post of Assistant Director (Legal/Enforcement BS-17) in the department till the regularization of his service in Respondent No, 3's department as per rules.
However, the period of absence from duty i.e, 18.2.2009 to 31.08.2009 was treated as extraordinary leave (leave without pay). Aggrieved by this the appellant addressed letters to the Respondent No, 1 for conversion of extra ordinary leave (leave without pay) into half average pay. But his request was ultimately declined on 9.3.2011 by the Respondent No,
1. This letter was purportedly received by the appellant on 29.03.2011 who filed appeal before this Tribunal on 29.04.2011.
3. It was interalia pleaded that the impugned notification dated 31.08.2009 treating the period from 18.02.2009 to 31.08.2009 as extra ordinary leave (leave without pay) and the subsequent letter dated 9.3.2011 whereby departmental representation of the appellant against the aforesaid order dated 31.08.2009 was rejected are illegal, void ab initio and nullity in the eye of law. It was explained that as per leave admissibility certificate 160 days leave was due and admissible to the appellant and similarly according to the record of Accountant General Punjab, Lahore 48 days leave was at the credit of the appellant which come to 208 days whereas the period of "absence" from duty from 18.02.2009 to 31.08.2009 was merely 195 days. It was further maintained that the appellant was not at fault in remaining absent for the aforesaid period as Respondent No, 3, as noted above, had declined to accept the joining report of the appellant. The appellant thus prayed for setting aside of the aforesaid impugned notification dated 31.08.2009 and letter dated 09.03.2011 to the extent of sanctioning the extra ordinary leave (leave without pay). Alongwith the appeal the appellant filed an application under Sections 5 & 14 of the Limitation Act for condonation of delay by interalia maintaining that the impugned rejection letter dated 09.03.2011 was communicated to him on 29.03.2011 and as such the appeal could not be filed within 30 days of the said letter dated 09.03.2011.
4. The appeal was resisted by the respondents. Various preliminary objections were raised to the maintainability of the appeal.
' It was interalia maintained that the appeal is mala fide. Baseless and frivolous. It was also maintained that the appeal is based on misstatement of the facts. On merits it was maintained that when the joining report of the appellant was not accepted by Respondent No, 3, the appellant ought to have reported back to his parent department, Respondent No,
1. It was thus maintained that the aforesaid period of absence from 18.02.2009 to 31.08.2009 was justifiably treated as extra ordinary leave (leave without pay).
5. We have heard the learned counsel for the parties at considerable length and minutely gone through the available record with their able assistance.
6. We first advert to the point of limitation. In this case, as noted supra, the request of the appellant for treating the period from 18.2.2009 to 31.8.2009 as leave on half average pay was declined on 9.3.2011. Other things being equal the appeal ought to have been filed within 30 days of the communication of the said order. But the appeal was filed on 29.4.2011. Incidentally the respondents in their written objections have not adopted the plea that the appeal is barred by time. But within the scheme and stance of Section 3 of the Limitation Act, it is bounden duty of this Tribunal to see that the lis before this Tribunal is within time. At the cost of repetition it may be mentioned that the request of the appellant for treating the period from 18.2.2009 to 31.8.2009 as leave on half pay was declined by the Respondent No, 1 on 9.3.2011. But the respondents have not placed any material on the record to show that as to when the aforesaid letter was communicated to the appellant. On the other hand the appellant has placed on the record a copy of the envelope which tends to show that the aforesaid letter was delivered to the appellant on 29.03.2011. This being so the instant appeal having been filed on 29.04.2011 is within time.
7. This brings us to the main controversy. What falls for determination is whether Respondent No, 1, Secretary Environment, Islamabad, was justified in treating the period of absence of the appellant from duty from "18.02.2009 to 31.08.2009" as extra ordinary leave (leave without pay). This requires deeper examination of the impugned notification dated 31.08.2009 which is reproduced as under: "GOVERNEMNT OF PAKISTAN MINISTRY OF ENVIRONMENT ' Islamabad, the 31st August, 2009 NOTIFICATION ' No. 3(5)/2005-Admn-V. In pursuance of Environment Protection Department (EPD), Government of Punjab, Lahore's letter No, SOG/EPD/1-1/2009 dated 30 May 2009 and in supersession of Pakistan Environmental Protection Agency (Pak-EPA)'s notification No, 5(68)/2005-Admn dated 17 February 2009, Mr. Ejaz Majeed, Assistant Director (Legal/Enforcement) (BS-17), Pak-EPA, Islamabad is hereby relieved to join his new assignment in EPD with immediate effect.
2. Being confirmed employee of the Pak-EPA, Mr. Ejaz Majeed is allowed to hold lien against the post of Assistant Director (Legal/Enforcement) (BS-17) in Pak-EPA till regularization of his service in EPD as per rules.
3. The period of absence from duty of the above officer as reported by Pak-EPA i.e, from 18 February 2009 to 31 August 2009, will be treated as extraordinary leave (leave without pay).
4. This issues with the approval of the Secretary Environment.
Sd/ (Raashid Munir Waraich)
Section Officer (Admn-V)"
8. As is discernable from the above, this notification was issued in supersession of the earlier notification dated 17.2.2009 whereby, as noted above, the appellant was relieved to join his new assignment at Environment Protection Department/Agency, Government of Punjab, Lahore. The dictionary meaning of supersede is to obliterate, replace, make void or useless. The aforesaid notification dated 17.02.2009 having been superseded by the impugned notification dated 31.08.2009, reproduced above, by necessary implication the period of absence from 18.02.2009 to 31.08.2009 stood condoned. However, the learned counsel for the respondents has referred to Para- 3 of the aforesaid notification to point out that the period of absence was treated as extraordinary leave (leave without pay). This to our mind is at odd with stance and tenor of the aforesaid notification.
9. Notwithstanding the above, it has to be seen whether there was any occasion or justification for treating the aforesaid period of absence as EOL (without pay). The appellant has placed on the record a leave admissibility certificate, according to which at the relevant time he had 160 days leave at his credit. Not only this in paragraph 1-B of the memorandum of appeal it was maintained that the appellant had 48 days leave at his credit in the Punjab Government at the relevant time.
This was not specifically controverted in the written objections filed by the respondents. Thus 208 days leave was at the 'credit of the appellant at the relevant time whereas the period of "absence" of the appellant from 18.2.2009 to 31.08.2009 was for around 195 days. As such requisite leave being at the credit of the appellant there was no earthly reason to treat the aforesaid leave as EOL (without pay).
10. There is yet another aspect of the case. Rule-11 of Revised Leave Rules, 1980 reads as under:- "11. Leave not due. (1) Leave not due may be granted on full pay, to be offset against leave to be earned in future, for a maximum period of three hundred and sixty five days in the entire period of service, subject to the condition that during the first five years of service it shall not exceed ninety days in all.
(2) Such leave may be converted into leave on half pay.
(3) Such leave shall be granted only when there are reasonable chances of the civil servant resuming duty on the expiry of the leave.
(4) Such leave shall be granted sparingly and to the satisfaction of the sanctioning authority."
' As such if there was any perceived shortfall of the leave at the credit of the appellant resort to the aforesaid rule could have been made.
11. The controversy can be looked at from another angle. A perusal of the aforenoted facts would unmistakably reveal that during this whole episode the appellant never slackened. He diligently, persistently and proactively pursued his case in the Punjab Government and made repeated requests for joining duties. There is no speck of malfeasance/nonfeasance on his part.
12. It is pertinent to mention that in the memorandum of appeal and prayer clause the appellant repeatedly prayed that the aforesaid extra ordinary leave (leave without pay) may be converted into half average pay. This being the position and taking into consideration of the aforesaid circumstances we allow this appeal to the extent that the appellant will be entitled to half average pay for the period mentioned in the notification dated 31.08.2009.
13. No order as to costs. Parties be informed accordingly.