1984 PLP 379 (SCMR)

MUHAMMAD HALEEM, ACTG. C. J.‑The appellant joined the police service as a Prosecuting Sub‑Inspector in January, 1950. After the integration of the provinces into One Unit in 1955, the West Pakistan Deputy Superintendents of Police Service Rules, 1964, were published. Rule 11 of these Rules provided an opportunity to the Prosecuting Inspectors to switch over to the executive side in relaxation of the rules. While on deputation to F. I. A. as officiating Prosecuting Sub‑Inspector with effect from the 28th of January, 1970, the appellant, in relaxation of the rules, was promoted to officiate as Deputy Superintendent of Police by order, dated the 6th of June, 1977 and his seniority was reckoned as from this date. Feeling aggrieved he represented that he should be given seniority with effect from the 21st of January, 1970 when he was promoted as Prosecuting Sub‑Inspector. This representation was ultimately accepted and the Government by its order, dated the 27th of September, 1979, directed that the appellant be placed in the seniority list of Inspectors from the date of his continuous officiation in the said post. Those police officers, who were affected, protested against this order through a representation addressed to the Home Department, Government of N: W. F. P., Peshawar. The matter was reconsidered and the seniority earlier given to the appellant was withdrawn by order, dated the 14th of June, 1980. This order was communicated to the appellant on the 28th of August, 1980. He thereupon submitted his representation to the Provincial Government (N.‑W. F. P.) on the 25th of September, 1980 and as it remained pending, the appellant filed an appeal before the N.‑W. F. P. Service Tribunal on the 7th of February, 1981. This appeal was dismissed by order, dated the 26th of April, 1982, both on merits and limitation. Leave was granted, inter alia, to consider as to whether rule 4 of the Service Tribunals Act permitted the filing of an appeal within a reasonable time after the expiry of the statutory period of 90 days. It is not necessary to refer to the merits of the case as we feel that in view the decision of this Court in Kadir Buz v. Province of Sind (1982 S C M R 583), this appeal can be disposed of principally on the ground of limitation. The majority opinion, which is the decision of the Court, While construing a like provision, held that the appeal could be filed within 120 days after the institution of proceedings seeking departmental remedy. The minority opinion, however, ruled that 120 days should be counted from the date of the original order. In this view of the matter, as the representation was made on the 25th of September, 1980, time began to run as from this date and expired on the 23rd of January, 1981 but the appeal was filed on the 7th of February, 1981 after a delay of 15 days. It was, accordingly, barred by time as no application under section 5 of the Limitation Act was filed before the Tribunal for the condonation of delay. The Tribunal, however, held that the order of the Provincial Government, dated the 29th of May, 1980, was final as no statutory remedy was provided against it under the Civil Servants Act or under the rules, and, therefore, time began to run as from the date of the communication of the order and expired on the 30th of July, 1980. The appeal when filed was barred by six months. The Tribunal also took notice of the fact that no application for the condonation of delay was made, and, accordingly, it held the appeal to be barred by limitation. From this it appears that the Tribunal proceeded on a different premise, but even after giving the benefit of the representation to the appellant, we find that the appeal was still barred. The counsel for the appellant submitted that he should be given an opportunity to apply for the condonation of delay before the Tribunal, by remanding the case to it, but we find allowing this prayer as it was for the appellant to be vigilant in pursuing his remedy and he cannot be allowed to benefit from his failure. Accordingly, this appeal is dismissed as barred by time. No costs. S. Q. Appeal dismissed.