2010 PLP 1899 (SCMR)

CH. IJAZ AHMED, J.

This petition is barred by 39 days. The petitioner has filed application for condonation of delay. Relevant paragraphs of the application for condonation of delay are reproduced hereunder:-- "That on receipt of the above said order on 20-7-2009 by the Office of the Petitioner request was made to the Directorate of Food on 21-7-2009 to grant sanction to file an appeal. The sanction was granted by the Advocate-General, Punjab, Lahore vide letter No. 1655-AG/SC, dated 4-8-2009 and requested to the Solicitor to the Government of the Punjab, to issue necessary instructions in this regard. That the case for filing of C.P.L.A. through Secretary Food, Government of the Punjab, was moved- on 4-8-2009 to the Solicitor Department, Government of the Punjab, issue instructions/sanction in the subject case vide letter dated 1-8-2008, has asked learned Advocate-General. Punjab to file C.P.L.A. along with stay application. There is no delay on the part of the Food Department as the earlier letter was 27-7-2009 and sanction was issued vide letter dated 1-8-2009 by the Office of the Solicitor Department."

2. We are pained to note that a number of cases filed by the government agencies are time-barred. It is possible that such petitions are filed either to oblige the litigants or to conceal the illegality, inaction and negligence of the officers/authorities concerned. The burden of decision is thus shifted on the Court system. Such manoeuvre can neither be appreciated nor approved. It is well-settled that the government functionaries are equal before the Courts. No preferential treatment can be shown to the Government/or its agencies. A stock explanation of administrative delays is normally pleaded in the condonation applications. Such explanation does not constitute a sufficient cause or a reasonable ground to be attached any weight or credibility. In fact it constitutes an admission of the guilty neglect of the concerned and thus compounds the ever existing, manage mental inefficiency and lack of decision making in the Govt. offices. Those seeking condonation of delay are under legal duty to explain each day's delay and to show their vigilance to avoid such delays which fatally obviates a valuable remedy. Reference is made to: (i) East Pakistan v. Abdul Hamid Darfi and others (1970 SCMR 558) (ii) Federation of Pakistan v. Niaz Ahmad (1997 SCMR 959) (iii) Commissioner of Income Tax v. Rais Pir Ahmad Khan (1981 SCMR 37)

3. The grounds mentioned in the present condonation application do not disclose any plausible explanation as to the cause of delay. Such grounds were highlighted by this Court in Muhammad Sharif Javaid Warsi's case (PLD 2003 SC 6) and a committee was also formed to propose solutions. Relevant observations were:-- "

2. It has been noticed that in the cases filed on behalf of the Federal and Provincial Governments the departments file proceedings in Courts after the period of limitation without seeking condonation of delay on sustainable legal grounds except saying that the time was consumed in completing departmental formalities, whereas on the other hand the settled law is that on the point of limitation Government departments are not to be treated differently. Be that as it may, we consider it appropriate to constitute a Committee under the Chairmanship of the learned Attorney-General to suggest ways and means while remaining within four corners of the existing laws so as to stop this malady. On the receipt of the suggestions from the committee order will be passed accordingly".

4. The Committee constituted in the aforesaid judgment made recommendations in this regard in the following manner: (PLD 2003 Journal 95). 5.0 In all cases where the appeal is barred by time the administrative ministry must, in writing, communicate to the Ministry of Law/Law Officer responsible for tiling the appeal the reasons for the delay. The delay of each day must be cogently explained. Reasons like time is consumed in moving the file from one desk to another, or that the matter escaped attention or that the approval of the competent authority took time etc. have been consistently rejected by the Supreme Court. Such reasons must not be advanced. 5.1 Every petition/appeal which is barred by time must be accompanied by a certificate of the ASC/AOR responsible for the petition/appeal that he has examined the application for the condonation of delay in the light of the pronouncement of the Supreme Court and is of the view that the delay of each day has been cogently explained and that it is a fit case for the condonation of appeal. 5.2 The application for condonation of delay must also identify the member (s) of the staff and/or officer (s) responsible for the delay. Their name, designation name and address must be stated in the application. The application must also clearly state the disciplinary proceedings initiated against the person(s) concerned and the stage of the proceedings. It must also specify the steps taken by the department to assess the revenue loss caused by the delay in filing the appeal and the steps taken to recover it from the delinquent officer. 5.3 The Advocate Supreme Court/Advocate-on-record responsible for the petition/appeal must certify that he has examined the application for condonation of delay and it contains the name and particulars of the person responsible for the delay and the details of the actions initiated against him. COSTS 5.6 The rejection of the application for condonation of delay by the Supreme Court should personally expose the counsel concerned to a Cost of Rs.10,000."

5. It appears the Government, its agencies officers/Advocate Supreme Court have pushed all the above recommendations into oblivion. We would like to recount the duties of Attorney-General for Pakistan by reproducing Article 100 (3) of the Constitution which states:-- (1)

(2)

(3) It shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all courts and tribunals in Pakistan." Similar are the duties and obligations of the Advocate-Generals of the provinces under Article 140 (2) of the Constitution which reads that:-- (1)

(2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government."

6. In view of the above constitutional duties, should we expect the learned Attorney-General and the learned Advocates-General and the law officers under them to act appropriately to ensure avoidance of loss to the respective Governments.

7. Article 4 of the Constitution also mandates each and every authority to act in accordance with law. Article 4 of the Constitution and its binding effect was interpreted by this Court in Utility Stores Corporation of Pakistan Ltd.'s case (PLD 1987 SC 447). Article 5 (2) of the Constitution also obliges every citizen to obey the command of the Constitution. Article 4 of the Constitution and its binding effect was interpreted by this Court in Utility Stores Corporation of Pakistan Ltd.'s case (PLD 1987 SC 447). Article 5(2) was dilated upon by this Court in Ch. Zahur Illahi's case (PLD 1975 SC 383) to emphasize that nobody was above the Constitution. Duties of the public functionaries were also highlighted. It was also observed by this Court that each functionary was duty bound to decline to act on the unlawful/illegal direction of his superior; how highsoever. See Zahid Akhtar's case (PLD 1995 SC 530) and Ghulam Mohyuddin's case (PLD 1964 SC 829).

8. In view of the above, petition for condonation is dismissed. Leave is declined. Civil Petition is dismissed for being barred by time.

9. Copies of this order be sent to the following authorities who are directed to sent the same to all the concerned for record and compliance to ensure that the cases of the Government are filed within the prescribed period of limitation. Let a mechanism for diligent institution and pursuit of such cases be evolved. (i) Attorney-General for Pakistan. (ii) Secretary, Law, Justice and Parliamentary Affairs. (iii) Chief Secretaries of all the Provinces. (iv) Advocate-Generals of all the Provinces. M.H./F-2/SC Petition dismissed.