1997 PLP (C (PLC(CS))

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 Although his request was initially acceded to vide letter of the department dated 13‑1‑1993, but subsequently it was withdrawn on 29‑1‑1994.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 3‑2‑1W4 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‑tad 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. A.A./T‑114/S Leave refused.