2002 PLP 1653 (CLC)

This petition for leave to appeal has been directed against the impugned judgment passed by the High Court on 29‑11‑2001, whereby the writ petition filed by the respondent herein was accepted and his removal from service was declared to be without lawful authority.

2. The necessary facts. giving rise to the present petition for leave to appeal, are that the respondent challenged the notification of Government, dated 21‑4‑2001, whereby he along-with many others was removed from service on the basis of report of the Inquiry Committee appointed by the Government to examine the cases of illegal and irregular appointments and such appointments which were made beyond the budgetary provisions in the Development Authority, Muzaffarabad. The Committee appointed by the Government through notification dated 23‑12‑2000 submitted its report on the basis of which the respondent and many others listed in the schedule attached to notification, dated 21‑4‑2001 were removed from service. The respondent through his writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act called in question the notification of Government, dated 21‑4‑2001, whereby he was removed from service. The writ petition, as stated earlier was accepted by the High Court vide the impugned judgment, dated 29‑11‑2001 and the recommendation of the Committee to the extent of removal of respondent from service was declared to be arbitrary and without lawful authority as such the order/notification, dated 21‑4‑2001 was also declared to be of no legal effect to the extent of respondent. It is the aforesaid judgment of the High Court which is the subject‑matter of present petition for leave to appeal.

3. The learned counsel appearing on behalf of the petitioners, Development .Authority and others, have contended that the respondent was appointed without the approval of the Finance Member, Board of Development Authority, therefore, his initial appointment was illegal and without lawful Authority. They also contended that the up-gradation of the post was also illegal because of the fact that the initial appointment was wrong and was made during the period when the Development Authority was at the verge of deterioration and financially about to collapse due to over political appointments. The learned counsel contended that the removal order of respondent was passed by the Government in order to put the Development Authority in a strong financial footings and the same Was not mala fide but it was a bona fide exercise in order to save the Development Authority. The learned counsel contended that the action was not against any individual but for the betterment of the Authority and if the steps would have not been taken, the Development Authority would have been collapsed.

4. On the other hand Raja Muhammad Hanif Khan, the learned counsel for the respondent, by controverting the arguments advanced by the learned counsel for the petitioners, submitted that without entering into the merits of the case the petition for leave to appeal was barred by limitation of one day for which no sufficient explanation has been furnished by the petitioners nor an application for condonation of delay has been moved on their behalf justifying the delay. The learned counsel as well as the Registry office pointed out that the impugned judgment was announced on 29‑11‑2001 in presence of Kh. Nazir Ahmed Wani, the learned counsel for the petitioners, and the appeal was lodged on 29‑1‑2002, whereas the period of limitation had already expired on 28‑1‑2002 as such the petition for leave to appeal was barred by limitation of one day. Raja Muhammad Hanif Khan, the learned counsel for the respondent, submitted that the petitioners applied for supply of copy of the grounds of writ petition and the impugned judgment of the High Court on 29‑1‑2002 and the same were supplied 'to them on the same date, as is apparent from Annexure "DC" and from the reverse side of the impugned judgment of the High Court. The learned counsel also contended that the petitioners applied for copy of judgment and grounds of writ petition on 29‑1‑2002 when the limitation for filing the petition had already expired. He also emphasized that the Government vide notification, dated 21‑1‑2002 rejected the proposal for filing the petition tier leave to appeal against the impugned judgment vide Annexure "DD". In presence of aforesaid notification another notification was issued on 29‑1‑2002 which is Annexure "DE" whereby the sanction for filing the petition has been accorded. Perusal of both the notifications according to the learned counsel, would reveal that the notification dated 21‑I‑2002 is still in existence and the same has not been cancelled. In this view of the matter the subsequent notification dated 29‑1‑2002 does not authorize the Advocate‑General to file the petition for leave to appeal especially so when the notification, dated 29‑1‑2002 has been issued after the expiry of the prescribed period of limitation for filing the petition. Therefore, the petition being incompetent and barred by limitation is liable to be dismissed.

5. I have given my due consideration to the arguments advanced by the learned counsel for the petitioners as well as the learned counsel for the respondent and perused the relevant record. The impugned judgment of the High Court was announced on 29‑11‑2001, whereas the petition for leave to appeal was lodged on 29‑1‑2002. The application for supplying the copies of grounds of writ petition and impugned judgment of the High Court was moved by the petitioners on 29‑1‑2002 and the same were supplied to them on the same day. i.e. 29‑1‑2002 when the period of limitation for filing the petition had already expired., There is no explanation whatsoever furnished by the petitioners for lodging the petition for leave to appeal one day late than the prescribed period of limitation. It is a settled law that tile delay of each and every day has to be explained by the petitioners for lodging the petition after the prescribed period of limitation.

6. In a case reported as Mehboob and another v. Muzaffar Din 1992 SCR 338. a preliminary objection was raised that ,the petition fir leave to appeal is time‑barred by two days. An application for condonation of delay was also filed. However,. it was observed that the case is one of negligence rather than any predicament in the way of petitioners to file the petition for leave to appeal in time. In an unreported case titled Azad Jammu and Kashmir Government v. Rashid Ahmed Katel Civil Petition for Leave to Appeal P1o.41 of 1987, decided on 17‑2‑1988 the delay of one day was not excused and the petition was dismissed as being barred by limitation. In a case reported as Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70 it was observed that delay of each day has got to be satisfactorily explained. On account of delay a valuable right accrues to other party and in order to deprive him of such a right there must exist a very convincing and sufficient cause:

7. Under, the Supreme Court Rules a petition for leave to appeal beyond time is liable to be dismissed summarily in absence of sufficient cause. Even no application for condonation of delay of has been moved by the petitioners, as such no reason having been furnished by the petitioners for lodging the petition beyond the period of limitation, the same is liable to be dismissed.

8. The other contention of the learned counsel for the respondent is that in the first instance the sanction for lodging the appeal was refused to the petitioners on 21‑I‑2002 and the subsequent sanction was accorded on 29‑1‑2002 when the period of limitation for filing the petition for leave to appeal had already expired. Thus the sanction which was accorded in favour of petitioners beyond the period of limitation is no sanction in the eye of law.

9. The petition being incompetent and barred by limitation, stands dismissed. H.B.T./309/SC(AJ&K) Petition dismissed.