JUDGMENT 1. :- The petitioner was initially appointed as Civil Assistant Surgeon on urgent temporary basis vide order dated 14.5.1990. After due selection by the Rajasthan Public Service Commission, the petitioner was given regular appointment as Civil Assistant Surgeon vide order dated 29.4.1971. Subsequently, the petitioner was also confirmed with effect from 1.6.1976 vide order dated 26.7.1976. 2. Due to certain domestic reasons, the petitioner applied for leave w.e.f. 1.10.1978. The leave was duly sanctioned from 4.10.1978 to 2.12.1978 with permission to avail Government holidays following dated 1.10.1978 to 7.10.1978 and 3.12.1978 vide order dated 25.9.1978. Subsequently, applications for extension of leave were sent by the petitioner from time to time. 3. Thereafter, vide letter dated 25.4.1983, the petitioner under some compelling circumstances, prayed that his resignation may be accepted w.e.f. 1.5.1983, however, subsequently, the petitioner requested the authorities to take him back in service and issue posting orders vide his letter dated 5.9.1984. Having accepted the request of the petitioner, vide order dated 7.12.1984, the petitioner was allowed to join as Civil Assistant Surgeon. Taking recourse to rule 86 of the Rajasthan Service Rules, 1951 (in short "RSR"), it was, however, directed that the posting shall be treated as fresh appointment from the date of joining. Thereafter, vide order dated 28.1.1985, the petitioner was posted as Civil Assistant Surgeon in General Hospital, Sirohi. The appointment was treated as fresh appointment on the post from the date of joining under rule 86 of the RSR. 4. While challenging the validity of rule 86 of the RSR, 1951, the petitioner has challenged the order dated 7.12.1984 and 28.1.1985 in so far as the services of the petitioner having been treated as fresh appointment under rule 86 of the RSR in the present writ petition. After claiming regularisation of services of the petitioner, he has also prayed for benefit of fixation of his pay as per subsequent Pay Scale Rules made effective from time to time. 5. The writ petition was admitted on 21.3.1990. In spite of service on the respondent, neither any reply has been filed nor any body has put appearance on their behalf. 6. Mr Amod Kasliwal, learned counsel for the petitioner very fairly conceded that he does not want to challenge the validity of rule 86 of the RSR, Mr. 5. The writ petition was admitted on 21.3.1990. In spite of service on the respondent, neither any reply has been filed nor any body has put appearance on their behalf. 6. Mr Amod Kasliwal, learned counsel for the petitioner very fairly conceded that he does not want to challenge the validity of rule 86 of the RSR, Mr. Kasliwal, however, submitted that in the present case clause (2) of rule 86 is applicable since initially the leave had already been sanctioned by the respondents. Submission of Mr. Kasliwal is that the order dated 7.12.1984 has been passed on an incorrect presumption that the petitioner was absent from duty w.e.f. 4.10.1978 without sanction of leave. 7. After considering the submissions made by learned counsel for the petitioner I have carefully gone through the material on record as also the relevant rules. 8. Rules 86 of the RSR is reproduced herein as under: "86. Absence after expiry of leave. (1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained wilfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2) [a] A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extention of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extraordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave." 9. Since there is no reply on behalf of the respondent, contents of the writ petition have to be taken as true. The petitioner was sanctioned leave w.e.f. 4.10.1978 to 2.12.1978 vide order dated 25.9.1978 as placed on record as Annexure-3 to the writ petition. Since leave had already been sanctioned and the petitioner having been allowed to join back his duties, the order could not have been passed under clause (1) of rule 86 of the RSR treating the services of the petitioner as fresh appointment. Since leave had already been sanctioned and the petitioner having been allowed to join back his duties, the order could not have been passed under clause (1) of rule 86 of the RSR treating the services of the petitioner as fresh appointment. In the present matter, the petitioner was entitled for benefit of clause (2) of rule 86 of the RSR. 10. It has also not been denied by the respondent that petitioner had been sending applications for extension of leave from time to time, however, neither acceptance nor refusal was ever communicated to the petitioner. In such circumstances, the respondents should have passed appropriate order under clause (2) of rule 86 of the RSR in regularising the services of the petitioner, moreso, when absence from duty for the intervening period has not been taken as misconduct by the respondent. 11. Accordingly, the writ petition is allowed, the impugned orders dated 7.12.1984 (Annexure 9) and 28.1.1985 (Annexure 10) are quashed and set aside to the extent of services of the petitioner been treated as fresh. The respondent is directed to pass necessary orders under clause (2) of rule 86 of the RSR taking into consideration the entire facts and circumstances of the present case. If the services of the petitioner are regularised, necessary orders may also be issued in regard to giving of all other consequential benefits to the petitioner including fixation of pay etc. Necessary orders be passed within 30 days from the receipt of certified copy of this order. If necessary, further fixation of pay and allowances etc. and also 15 yment of arrears be also made within three months thereafter.Petition Allowed. *******