1. ' ZAIDULLAH KHAN (MEMBER).---Raja Muhammad Hayat Khan respondent was appointed as Assistant Engineer in the Local Government Department on 27-6-1973 and he remained in service up to 23-3-1978. In the year 1978, he applied for ten days casual leave and then, he absented from his duties. Afterwards, action was taken against him and notices were served to make him appear in the department. In the meantime, he came in the department and presented an application that he was on leave. During the period of leave, he became ill and, therefore, he could not join the duties in time and he may be marked as present and allowed to resume the duties but that application remained pending. In the meantime, Raja Muhammad Hayat Khan, as it is said, went abroad and rejoined the department again on ad hoc basis vide Government Order No, SLG/SO/560-66/88, dated 25-1-1988. He applied to the Government that he went abroad for his treatment and he was a permanent employee of the department, therefore. He should not have been reemployed on ad hoc basis rather his services should have been continued and the order of ad hoc appointment may be amended. This order was subsequently modified and the duration of absence which commences from 23-3-1978 and ends on 25-1-1988 was treated as leave without pay and a Notification was duly issued under No,SLG/DS/1903-1897/91, dated 14-5-1991. This order which is Annexure 'C' has been challenged by the appellant Khawaja Ghulam Muhammad. Hence it is stated in his appeal that the Assistant Engineer Muhammad Hayat Khan was temporarily appointed in the Local Government Department on 27-6-1973. He left the Department without any leave on 22-3-1977 when his total service was four years and nine months and according to the appellant, a person who has a service of less than five years, can only be granted a leave without pay for two years and in case, an employee who has a service of ten years or more, can be granted maximum leave without pay for five years. In the instant case, respondent Muhammad Hayat Khan was absent from service for about 8 years and this period of absence cannot be regularized and the Government has acted in contravention of the Leave Rules. This period cannot be relaxed and by relaxing this period, the appellant has been severely affected by the order of the Government.
2. ' The order which was amended was a fresh order and the respondent was employed on ad hoc basis and this order could not be subsequently amended and made in continuation of the previous service. According to the appellant under Article 113 of K.S.R. a Government employee who is absent for more than five years, is out of service and even under this Article, Raja Muhammad Hayat Khan cannot claim to be an old employee of the department and his services cannot be continued in contravention of the Leave Rules. It is also averred in the appeal that even if the power of relaxation is available to the Government, it is only for those civil servants who started their services after the Leave Rules of 1983 came into force. According to the appellant because he is senior-most Assistant Engineer and the order in favour of respondent which has enabled the respondent to continue his service has severely affected the rights of the appellant. It has been prayed by the appellant that the same may be set aside.
3. ' The written statement filed by respondent Muhammad Hayat Khan is that the appeal is time- barred and no terms and conditions of service of the appellant have been infringed by the impugned order, therefore, the appeal does not lie. The appellant was inducted in service as Draftsman and subsequently, he was appointed as Overseer and thereafter, he has been appointed as Assistant Engineer in his own pay and scale. His seniority cannot be ascertained in comparison to that of the respondent No,3. The claim of the appellant that he is the senior-most Engineer in the department in not correct. It is also incorrect that respondent was a temporary employee of the department. He has been approved by the Public Service Commission, therefore, he was the permanent employee of the department. It was for the medical grounds that he applied for leave. After 23-3-1978, he had been submitting the medical certificates in support of his application for leave. Respondent No,3 joined his service after one year and 3 months when he recovered from the illness but he was not allowed to join the duties and, therefore, he was unable to join the service. The Government was competent to relax any conditition of service and the order under appeal has rightly been issued in exercise of powers of Government. His services cannot be considered afresh but it will be treated in continuation of his pervious service. Respondents prayed that the appeal being baseless, may be dismissed.
4. ' We have heard the arguments advanced by the learned counsel for the parties and have also gone through the relevant record of the case.
5. ' The main point to be determined by the Tribunal is whether the absence of the respondent Muhammad Hayat Khan from the duties for more than five years can be relaxed by the Government and whether it can be treated as leave without pay or not? We have taken all points into consideration and have come to the conclusion that Raja Muhammad Hayat Khan was never dismissed from service. He had applied for casual leave on medical grounds and he had submitted medical certificates but no order on the application for leave was passed by the competent Authority till the date when a fresh order of appointment on ad hoc basis was issued in favour of the respondent. According to rules, the Government was quite competent to relax any condition which is hindering any just and equitable order in favour of the respondent. It is correct that the previous service of the respondent Raja Muhammad Hayat Khan was less than five years and in ordinary course, only two years leave without pay could have been granted but the Government using its extraordinary powers for relaxing the relevant rule, considered the difficulties of the respondent and relaxed the service rule and treated the absence from service for about eiht years as leave without pay. In our view, the Government's power in this regard cannot be challenged to substantiate this view, we can have a reference to 1977 PLC (C.S.T.) page 190, wherein it is held as follows:-- "Absence from duty when cessation of employment.---Where the appellant was away from duty for more than six years and no leave of any kind was sanctioned, held, that the appellant had ceased to be Government servant under rule 3.27 of the Civil Service Regulations, Punjab on expiry of period of five years' continuous absence from duty. Where no express relaxation had been granted, mere order of Government allowing appellant to resume duty was held to be not tantamount to grant of relaxation contemplated under rule 3.22."
6. ' The only thing to be seen is whether a Notification has been issued in accordance with the Rules regarding the relaxation. In the above citation, similar circumstances occurred and a Government civil servant was absent from the service for more than five years and no Notification for relaxing the relevant rule was issued by the Government and his subsequent service was not treated to be in continuation of previous service but under the case under appeal, the Government has issued a Notification and treated the period of absence from duty as period of leave without pay and, therefore, the order under appeal does not suffer from any irregularity or illegality.
7. ' As regards the contention of the counsel for the appellant that under Article 113 of KSR, a person who is out of service for more than five years, ceases to be a Government servant does not hold good because the Government has relaxed the relevant provision of service laws. It is also not correct to say that the Leave Rules of 1983 cannot be helpful to the respondent because they are applicable to those Government servants who joined the service after 1983. Any service rule which is notified is not only for a particular Government servant but it is for all who are, at the proper and relevant time, Government servant. Unless and until, it is clearly provided in the rules that they should be applicable to such and such class of Government servants.
8. ' The net result of the whole discussion is that the appeal stands dismissed. The matter of seniority shall be considered if properly challenged by the appellant by way of another appeal. No order as to costs.