ORDER Jagmohan Lal, J. - The petitioner chandi Datt Misra was In the employ of the State Government as Cane Supervisor. The Cane Commissioner.U. P. (opposite party No. 1) who was his appointing authority, served a notice dated 22.5.1967 (Annexure 1) on him under the first proviso to -clause (a) of Fundamental Rule 56 contained in Financial Hand Book Volume 11 as amened from time to time, requiring him to retire on attaining the age of fifty-five with effect from the afternoon of 9.9.1967. This order was served on the petitioner on 27.5.1967.On 22.8.1967 the petitioner applied to the C,ne Commissioner for grant of such leave and for such period as may be admissible to him under paragraph I of G O No. G-2.163/X-13-1957. dated 22.5.1964 with effect from 5.9.1967. He want allowed to hand over charge and proceed on leave with effect from 5-9-1967 and it was intimated to him (vide annexure 5) that he will be granted such leave as may be admissible to him under the rules with effect from 5-9-1967. Subsequently the petitioner was informed by means of the order annexure 8 that he had been sanctioned leave only for the period from 5.9.1967 to 9.9.1967 and with effect from 9.9.1967 he shall be deemed to have retired from service. 2. The petitioner in this writ petition challenged both these orders,that is, the order (annexure 1) compulsorily retiring him with effect from 9.9.1967 and the order (annexure 8) granting him only five days leave Instead of for the full period that was due to him under the rules. 3. The writ was opposed on behalf of the opposite parties 1 and 2 who are the Cane Commissioner, U P and Cane Development Inspector,Cane Development Union Gonda, respectively. 4. I heard the learned counsel for the parties. The order of compulsory retirement was challenged on the ground that the first proviso to clause (a) of Fundamental Rule 56 under which this order of compulsory retirement was passed is ultra vires as it contravenes the provisions of Articles 14 and 16 of the Constitution. This challenge is no more open to the petition, r as the matter is concluded, so far as this court is concerned, by a recent Full Bench decision of this court in Nanak Saran Srivastava v. State of U. P. (1970 ALJ 1288). 5. This challenge is no more open to the petition, r as the matter is concluded, so far as this court is concerned, by a recent Full Bench decision of this court in Nanak Saran Srivastava v. State of U. P. (1970 ALJ 1288). 5. The learned counsel then contended that the order annexure 8 which in a way superseded the previous order, an annexure 5, without affording an opportunity to the petitioner to show cause against It is bad and illegal. It has been mentioned by the contesting opposite parties that on 22.8.1967 when the petitioner had applied for leave, fifty-six days earned leave was due to him besides some leave on private affairs and medical leave on medical certificate. The petitioner's contention is that all this leave should have been granted to him and was in fact so granted under the order annexure 5 which could not arbitrarily,be superseded by the subsequent order annexure 8 without even affording an opportunity to him to show cause against it. 6. In this connection the first question that arises is whether leave extending beyond the date on which the petitioner was required to be retired compulsorily under the first proviso to Fundamental Rule56 could be granted to him by the sanctioning authority and the second quiet on is whether the sanctioning authority can be complied by issue of amandamus or direction by this Court to grant that leave to the pet; inner. Rule 86-A provides that Government servant recruited on or after January 1, 1936 shall not be granted any leave beyond the date on which he must compulsorily retire. The first proviso to this rule, however, contains an exception to this general rule by providing that the authority empowered to grant leave may allow any Government servant, who has been denied in whole of in part on account of the exigencies of the public service the earned leave which was due to him pending retirement under Rule 81 -B the whole or any portion of the earned leave so denied even though it extends to a date beyond the date on which such Government servant must compulsorily retire. This proviso would not he obviously applicable to the petitioner's case because no leave applied for by him before his retirement was refused on account of the exigencies of the public service. This proviso would not he obviously applicable to the petitioner's case because no leave applied for by him before his retirement was refused on account of the exigencies of the public service. The learned counsel for the petitioner contended that the provision contained in the main Rule 86A would not apply in this case because after the amendment of Fundamental Rule 56 the age of compulsory retirement had become fifty eight years and not fifty-five years. If, however,a Government servant is required by the appointing authority to retire compulsorily after attaining the age of fifty five under the first proviso to the said Rule 56, his case will not be governed by the said provision contained In Rule 86-A. In support of this contention he relies on the office memorandum, dated 25.5.1964 a copy of which Is available in annexure B to the counter affidavit of opposite-parties 1 and 2. The relevant provision on which reliance Is placed on behalf of the petitioner is contained in paragraph 4 of this memorandum which reads as follows:- "A Government servant who is, required to retire or who himself chooses to retire voluntarily on three months' notice after attaining the age of 55 years under the revised proviso to Fundamental Rule 56(a) may be allowed the leave due and admissible to him provided it does not extend beyond the date on which he attains the age of 58 years if the leave is allowed to be availed of before the expiry of the period of notice the period of notice or unexpired period of notice as the case may be and the leave should run concurrently". The learned counsel for the petitioner contends that in view of this clarification made by the Government earned have due to him could be granted by the sanctioning authority with effect from 5.9.1967 even though some, part of that leave extended beyond the date on which he was required to compulsorily retire, that is 9.9.1967, on the other hand on behalf of the opposite Parties 1 and 2 reliance is placed on a decision of this court in, State of U. P. v. Visheshwar Dayal,(1970 A. L. J. 1158), in which it was held that normally leave cannot extend beyond the date of retirement. In that case the question which is now before us wish not directly involved nor the of re said office memorandum dated 22.5.1964 in which the Government itself had classified the scope of Rule 86A was referred to by any party. In my opinion in view of above provision contained in part 4 of the said office memorandum, it is permissible for the sanctioning authority to grant leave which is due and admissible to a Government servant even though such leave extends beyond the date on which he is required to retire compulsorily under a notice served to him under the first proviso to Fundamental Rule 56(a). 7. The next question arises whether the servant can claim as of right that the entire leave that is due and admissible to him should be granted to him even if it extends beyond the date of his retirement.In my opinion no Government servant can claim leave is of right even during the continuance of his service-much lees to compel-the sanctioning authority to grant him leave extending beyond the date of his retirement.Fundamental Rule 67 lays down that the leave cannot be claimed as of right. Again Fundamental Rule 81 lays down that leave may be granted at the discretion of the authority competent to grant the leave From these provisions it is clear that leave cannot be claimed by a Government servant as of right. The learned counsel for the petitioner contended that the leave could be refused by the sanctioning authority only if the exigencies of the service so required and not arbitrarily and that in his case the leave applied for had originally been sanctioned under annexure 5 which was subsequently modified under annexure 8. A Perusal of these annuxures, however, shows that this contention cannot be accepted. Annexure 5 is obviously a provisional order which permitted the petitioner to proceed on leave with effect from 5.9.1967 after handing over charge and it was stated therein that he would be granted such leave as may be admissible to him. This clearly shows that the type of' leave and the period for which the leave would be granted had yet to be specified by the sanctioning authority. In annexure-8 it was specified that the earned leave which was sanctioned to the petitioner would he for the period from 5.9.1967 to 9.9.1967. This clearly shows that the type of' leave and the period for which the leave would be granted had yet to be specified by the sanctioning authority. In annexure-8 it was specified that the earned leave which was sanctioned to the petitioner would he for the period from 5.9.1967 to 9.9.1967. It cannot,therefore, be said that annexure 8 in any way superseded the orders contained in annexure 5 much less to say that the petitioner was entitled to be heard before this order could be passed. If the petitioner was really an ions to avail of his entire earned leave of about 64 days due to him, he could on the service of the notice of retirement on him on 27.5.1966 apply much earlier for sanction of this leave from a 'date so as not to extend beyond the date of retirement. If he failed to do and the sanctioning authority in its discretion did not grant him any leave beyond 'the date of retirement, he cannot have any legitimate grievance against it. In any case he cannot compel the sanctioning authority to do to. 8. The learned counsel for the petitioner then contended that this order contained in annexure 8 was mala fide. He pointed out that after the petitioner had proceeded on leave with effect horn 5.9.1967 he was in great need of money and he demanded his leave salary respectfully which was not paid to him and thereafter he served a notice under Section 80 of the Code of Civil Procedure on the Cane Commissioner requiring him to pay his leave salary otherwise he would file a suit.It is suggest that the Cane Commissioner feeling angry on account of the service of this notice passed the order annexure 8 on 16.5.1968.In my opinion these facts do not bear out the contention that this order was mala fide. As observed above, the order contained in annexure-5 was provisional and incomplete and it had to be supplemented by a final order actually sanctioning the leave specifying the type of leave and the 'period of such leave. That had been done in annexure-8. The petitioner has no statutory right to claim that the entire leave that was due to him on the eve of is retirement must have been granted by the sanctioning authority even hough such leave extended beyond the date of his retirement. That had been done in annexure-8. The petitioner has no statutory right to claim that the entire leave that was due to him on the eve of is retirement must have been granted by the sanctioning authority even hough such leave extended beyond the date of his retirement. This writ petition is therefore without any merit and it is liable to be dismissed. 9. The writ petition is dismissed with costs to the contesting apposite parties 1 and 2.