1995 PLP (C (PLC(CS))

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the judgment dated 1‑9‑1991 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No. 96(L) of 1991, filed by the appellant against the order dated 9‑4‑1991 of respondent No.2, dismissing his representation treated as an appeal ;against the adverse remarks recorded in his A.C.R. for the period ending on 31‑12‑1983 under column (2)(F)`Ability to work under stress and strain', "Below average", dismissing the same on the ground that the appellant's above representation/appeal was hopelessly time‑barred. Leave to appeal was granted to consider the question, whether the Tribunal was justified to dismiss the above appeal on the ground of limitation when the competent. authority did not dismiss the same on the above ground but dismissed it on merits.

2. The brief facts are that the appellant received intimation about the above adverse remarks through the department's letter dated 15‑5‑1984. The appellant filed a representation/appeal before the Divisional Superintendent instead of filing the same before the General Manager, Pakistan Railways. In response to the above representation, the appellant received Divisional Office, Rawalpindi's letter dated 2‑9‑1984 for Divisional Superintendent, P.R. Rawalpindi, intimating to him that the appeal against the adverse remarks had been rejected by the competent that after the lapse of several years, the appellant made a representation dated 8‑1‑1991 to the General Manager. The appellant received a letter dated 9‑4‑1991 from General Manager intimating him that his representation dated 8‑1‑1991 against the adverse remarks recorded in his A.C.R. for the period from 31‑5‑1983 to 31‑12‑1983 had been considered and rejected by the competent authority. Against the above order, the appellant filed the aforesaid service appeal, which was declined for the above reason. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.

3. In support of the above appeal, Mr. S.M. Masood, learned ASC appearing for the appellant, has submitted that the representation made by the appellant to the Divisional Superintendent was incompetent as the latter was in fact the Countersigning Officer on the A.C.R, and, therefore, in terms of Para 3.39 of "A Guide to Performance Evaluation", the competent authority was the General Manager and, hence, the appellant's earlier representation dated 15‑5‑1984 and the order passed thereon by the Divisional Superintendent were without jurisdiction. His further submission was that though the period for filing of a representation in terms of Para 331 is thirty days but as the General Manager had not rejected his representation dated 8‑1‑1991 on the ground of limitation and had declined the same on merits, the Tribunal could not have dismissed the above service appeal on the ground that the appellant's representation dated 8‑1‑1991 to the General Manager was time‑barred. Ch. Fazal-e-Hussain, learned ASC appearing for the respondents, is unable to contradict the fact that the Divisional Superintendent was in fact the Countersigning Officer and, therefore, para. 3.39 which reads as follows:‑‑ "3.39. The words competent authority' in the last sentence of para 337 mean an authority next higher than the countersigning officer. All decisions on the representations against adverse entries in confidential reports should be taken by such an authority." is attracted to in the case in hand.

4. Since the representation dated 15‑5‑1984 was incompetent and so also the order passed thereon by the Divisional Superintendent, it was open to the General Manger to have dismissed the appellant's above representation dated 8‑1‑1991 on the ground of limitation but since no objection was raised in respect of the limitation and the same was decided on merits, the General Manager in fact impliedly condoned the delay. In this view of the matter, the Tribunal should have decided the appellant's service appeal on merits. We would, therefore, allow the above appeal with no order as to costs and would remand the case to the Tribunal to decide the above service appeal on merits after notice to the parties. AA./1221/S???????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.