2002 PLP 1383 (SCMR)

CH. MUHAMMAD ARIF, J.‑‑‑The relevant facts as also the question of law giving rise to this Appeal with the leave of the Court stand mentioned in leave, granting order, dated 15‑11‑1995 against judgment dated 5‑6‑1995 of the Federal Service Tribunal, hereinafter referred to as the Tribunal, paras. 2 and 3 whereof read thus:‑‑ "

2. It is stated by the learned counsel that the petitioner, an Assistant in the office of Protector of Emigrants felt aggrieved of the provisional seniority list dated 21‑1‑1990 wherein he was shown junior to the respondents. He represented against it on 3‑2‑1990, This was followed by several reminders/applications but no response was given by the authorities. The petitioner ultimately approached the Wafaqi Mohtasib on 28‑3‑1994 who advised him to keep in touch with the Manpower Division for redressal of his grievance. The Establishment Division vide O.M. dated 30‑11‑1994, addressed to the Manpower Division, upheld the seniority position assailed by the petitioner. On coming to know of this decision, the petitioner made an application to the Director (Admn.), Bureau of Emigration, for copy of the Establishment Division's O.M. dated 30‑11‑1994 which copy was supplied to him on 27‑2‑1995. Petitioner then challenged the decision of the Establishment Division in an appeal filed before the Federal Service Tribunal on 27‑3‑1995. "

3. Learned counsel contended that the appeal against the decision of the Establishment Division filed within 30 days of the receipt thereof was well within time and the view taken to the contrary by the learned Tribunal was not tenable. It was further contended by the learned counsel that the petitioner's representation/appeal remained pending with departmental Authorities for all these years and the petitioner had been pursuing it very diligently. He could not be held responsible for their failure to dispose of the matter expeditiously. The learned Tribunal was in error in holding that the petitioner having agitated the grievance in 1988, he should not have waited for such a long time for getting the final reply for the purpose of filing the appeal before the Tribunal. Learned counsel also submitted that the judgment of this Court (1994 SCMR 1033) relied upon by the learned Tribunal is distinguishable on facts."

2. Mr. Fazal Elahi Siddiqui, learned Advocate Supreme Court appearing in support of this appeal has referred to the communication exchanged between the Government of Pakistan, Bureau of Emigration and Overseas Employment, Labour Manpower and Overseas Pakistanis Division (Manpower and Overseas Pakistanis Wing), Wafaqi Mohtasib Secretariat, Islamabad and the appellant as also between Wafqi Mohtasib (Ombudsman)'s Secretariat, the appellant and Director (Adorn:), Bureau of Emigration and Overseas Employment, Islamabad on the subjects: (i) 'Seniority of Assistants (BPS‑11)' (pp. 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54), (ii) 'Provisional Seniority List of Assistants (BPS‑11/15) of Bureau of Emigration and Overseas Employment, Islamabad' (pp. 55 to 58), (iii) 'Representations against the Seniority of Messrs Pir Khitab Shah and Allah Dad, Assistant made by Messrs Aslam Javed and Ghulam Hussain Assistants' Memorandum No. 14?1/89.Estt/Enig.l, dated 4‑12‑1993 (p.59), (iv) 'Delay in responding various applications/representations made to the employer' (p.60), (v) 'Failure to respond to representations', dated April 16, 1994, April 26, 1994, November 16, 1994, 4‑10‑1994 and 28th September, 1994 (pp. 61, 62, 63, 64 and 65), (vi) 'Seniority of Assistants, B‑11 in the Bureau of Emigration and Overseas Employment' dated 26‑2‑1995 (p.66), (vii) 'Provisional Seniority List of Assistants (BPS. 11/15) in the Bureau of Emigration and Overseas Employment' (p.67) and (viii) Office Memorandum No. 1/53/ 94‑R‑6, Islamabad, the 30th November, 1994 (p.68), to contend that as many as 22 reminders were issued by and/or at the instance of the appellant to the concerned quarters for deciding his departmental representation addressed to the Director‑General, Bureau of Emigration and Overseas Employment, Government of Pakistan, Islamabad on 3‑2‑1990 (pp.26‑28). It was only on 27‑2‑1995 that Establishment Division O.M. No. 1/53/94?8‑6 dated 30‑11‑1994 was supplied to his client on 27‑2‑1995 whereafter he made the appeal before the Tribunal on 27‑3‑1995 (incorrectly mentioned as 26‑3‑1995 in leave granting order dated 15‑11‑1995). According to him, the Tribunal was in error in holding that his client was in any manner responsible for not making an appeal earlier than 27‑3‑1995 in that section 4 of the Service Tribunals Act, 1973 (No.LXX of 1973) clearly provides for a concerned civil servant having the statutory right to file an appeal against an order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service ... within thirty days of the communication of such order to him...". In this behalf he has trade a reference to Syed Firdos Ali v. Secretary, Establishment Division, Islamabad and 2 others (1997 SCMR 1160) in which this Court ruled as under:‑‑ "

3. Section 4 of the Service Tribunals Act by express words confers a right on the civil servant to appeal against the original or the appellate order of a Departmental Authority. This right cannot be abridged to only original order and not the appellate order. From the date of the appellate order i.e. 2‑5‑1990 the appeal filed within thirty days before the Service Tribunal was. within time. The appeal could not be dismissed as time‑barred." He reiterated the chronology of events between the years 1990 and 1995 to contend that copy of Establishment Division O. M. No.1 /53/94‑R‑6 dated 30‑11‑1994 was supplied to his client on 27‑2‑1995 and his appeal before the Tribunal on 27‑3‑1995 cannot but be held to be within time. He concluded h7is arguments by submitting that reliance placed by the Tribunal on Muhammad Arshad Saeed, D.I.‑G. Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 29 others (1994 SCMR 1033) for non‑suiting his client cannot be countenanced in law.

3. Contrarily, Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney‑General for Pakistan appearing on behalf of Official respondents (Nos. 1 to 3) has supported the findings recorded by the Tribunal to the effect that Appeal No. 141(R) of 1995 was time‑barred.

4. Nobody has entered appearance on behalf of the private? respondents.

5. We have considered the arguments addressed at the Bar and have also been taken through the available material by Mr. Fazal Elahi Siddiqui and the learned Law Officer.

6. It is not the case of the official respondents that: (i) either the appellant did not represent against Provisional Seniority List dated 21‑1‑1990 to the Director‑General, Bureau of Emigration and Overseas Employment Government of Pakistan, Islamabad on 3‑2‑1990

or (ii) the Establishment Division O.M. No.l/53/94‑R‑6, dated 30‑11‑1994 was conveyed/supplied to appellant Muhammad Aslam Javed earlier than 27‑2‑1995

or (ii) the appellant did not file Appeal No. 141(R) of 1995 before the Tribunal on 27‑3‑1995 i.e. within 30 days of the supply of copy of Establishment Division O.M. No.l/53/94‑R‑6, dated 30‑11‑1994.

7. We find that the dismissal of Appeal No.141(R) of 1995 by the l Tribunal as time‑barred cannot stand a detailed scrutiny of the attending facts and circumstances of this in juxtaposition with the contents of the communications between all concerned, including the Wafaqi Mohtasib Secretariat, between the years 1990 and 1995. The fact that the appellant was made to run from pillar to post for well over a period of 5‑1/4 years to obtain copy of Establishment Division O.M. No.1/53/94‑R‑6, dated 30‑11‑1994 rejecting his representation against Provisional Seniority List dated 21‑1‑1990 on 27‑2‑1995, goes a long way in establishing his bona fides in making appeal against the appellate order dated 30‑11‑1994 within 30 days of the receipt of its copy i.e. on 27‑3‑1995. The case of Syed Firdos Ali (supra) is on all fours with the present case.

8. In view of the above discussion, we are of the considered view that this appeal qualifies for being accepted, judgment, dated 5‑6‑1995 of the Tribunal set aside and case remanded to the Federal Service Tribunal for decision on issues other than limitation.

9. The above are the reasons for our short order of even date which reads thus:‑‑ "For reasons to be recorded, we accept the appeal, set aside the impugned order of the learned Federal Service Tribunal on the point of limitation and remand the case to it to decide it on merits. Costs to follow the event." S.A.K./M‑345/S ???????? Case remanded.