1991 PLP (C (PLC(CS))

To begin with, it would be necessary to dispose of the two legal objections raised by the learned counsel for the respondents. His first contention was that the appeal was unsustainable for the reason that the appellant had not fulfilled the mandatory legal requirement of exhausting departmental remedy before approaching this Tribunal for the desired relief. In this connection he referred to proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973 (hereinafter referred to as the said Act). In order to appreciate his argument the said proviso is reproduced as under: "(a) where an appeal, review or representation to a departmental authority is provided under the Sindh Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred." As is clear from the above proviso, the appellant was required to have resorted to departmental remedy available to him before filing the present appeal in this Tribunal. Since the impugned order was manifestly made at the level and with the approval of the Chief Minister, it was obligatory for the appellant to have preferred review petition to the Chief Minister in satisfaction of the above legal requirement. In reply to this objection the learned counsel for the appellant made a statement at the bar that the requisite review petition had been filed by the appellant. In support of his statement he invited reference to the document placed at pages 95 to 103 of the case file. However, this document was vehemently assailed by the learned counsel for the respondents whose argument was that it was afterthought as it was produced only after the office of this Tribunal in course of the usual preadmission scrutiny of the memo of appeal and the documents appended therewith had pointed out that it was missing. He submitted that the document in question was fictitious because neither it bears any date nor it carried the name and address of the appellant. Even the receipt according to the learned counsel under which the said document was purported to have been delivered to the PA to Secretary (S&GAD) looks highly suspicious as the date of its execution has been tampered with by over-writing. On top of all this, he added, the memo of appeal is conspicuously silent as to whether any such review petition was ever filed. After due consideration of the arguments addressed at the bar, it appears that the stand taken on behalf of the respondents could not be lightly dismissed. Had the appellant filed review petition, it would have been mentioned in the member of appeal. But unfortunately its mention is missing from such basic document which serves as foundation of the appellant's case. It was also not produced at the time of filing of appeal. The learned counsel for the respondents was correct in saying that the document purporting to be review petition was produced only after the objection was raised by the office of the Service Tribunal about its non-production. Even in the written statement filed by the learned Assistant Advocate-General on behalf of the official respondents no reference is made to such document obviously because the memo of appeal is silent about it. The learned counsel appearing on behalf of the Government also showed his total ignorance about any review petition having been filed by the appellant. At least no such document was available in his case papers. It is also true that the document subsequently produced before this Tribunal as copy of the review petition neither bears any date nor carries the name and address of the appellant. Normally when a copy of such document is produced alongwith the memo of appeal the appellant does not produce any receipt indicative of its delivery to the concerned appellate authority. The fact that the appellant has taken care to produce such receipt only speaks of his misgivings lurking in his mind. Even the receipt produced by him, as has been pointed out above, does not appear to be genuine as its date has been changed by overwriting. In these circumstances it is difficult to hold that the appellant had filed any review petition against the impugned notification. Even if it was assumed that the document he had belatedly produced was a copy of the review petition, it was apparently not filed within time. As required by section 23 of the Sindh Civil Servants Act, 1973, such review petition was to be instituted within 30 days of the impugned order. In the instant case although the impugned notification was issued on 9th February, 1986 the so-called review petition was admittedly filed on 1st April, 1986. In this connection the learned counsel for the appellant placed reliance on Second Proviso to sub-rule (1) of rule 3 of the Sindh Civil Servants (Appeal) Rules, 1980, contending that the delay made in filing the review petition was condonable. The said proviso reads as under:- "Provided further that the appellate authority or as the case may be Government may condone the delay in preferring appeal or review petition, if it is satisfied that the delay was for reasons beyond the control of the appellant or for the reason that the earlier appeal or review petition was not addressed to the proper forum." The above rule being subordinate legislation cannot have precedence over the provision of the Law of Legislature. Therefore, the limitation of 30 days fixed by section 23 of the Sindh Civil Servants Act, 1973 which is a law of legislature, for purpose of filing departmental appeal, review petition or representation can neither be enlarged nor relasead by any rules/instructions, unless, of course, such power is delegated to the rule-making authority in the substantive law itself. Since no provision is available in the Sindh Civil Servants Act, 1973, authorising the rule-making authority to provide for enlargement/condonation of the time limit, fixed by the above Act, the aforesaid proviso framed in this regard is obviously ultra vires of that Act. The Sindh Government will therefore be well-advised to suitably amend section 23 hereinabove empowering the Government rule making authority to make rules in the nature of the said proviso. After introducing such amendment in the substantive law, the said proviso can be revalidated. Thus the learned counsel for the appellant cannot invoke the above proviso in support of his argument that the delay made in review petition was condonable. Even otherwise, as is clear from the proviso, the power to condone the delay vests in the Appellate Authority. Admittedly no order has been passed by that authority condoning the delay the appellant had made in filing review petition before that authority. In fact appellant came to this Tribunal in the present appeal without waiting for decision of the departmental appellate authority. As such the delay made in filing of review petition remained uncondoned. Accordingly the departmental appeal/review petition filed after expiry of the prescribed time limit cannot be regarded as such appeal/review petition in the eye of law. Consequently the appellant is held to have failed to fulfil the mandatory requirement of exhausting the departmental remedy before coming to this Tribunal. The appeal is liable to be dismissed even on this solitary ground. The second objection of the learned counsel for the respondents was that the appeal was hopelessly time-barred and there was no sufficient ground for condoning the undue long delay. It is appellant's own admission that review petition against the impugned notification was filed on 1-4-1986. Admittedly it remained undecided until filing of the appeal before this Tribunal. In that situation, the present appeal could be filed latest sometime in August, 1986. But it was actually filed after over one year on 31-8-1987. According to the learned counsel for the appellant the reason for this delay was that the appellant was litigating his case in good faith before other legal forums. Relying on the Supreme Court authority reported as Federation of Pakistan v. Muhammad Azam Javaid and others 1988 S C M R 1458, he submitted that delay made in filing this appeal could be condoned on the aforesaid ground. The relevant portion of the judgment of the above reported case is reproduced below:-- "Section 29 of the Limitation Act provides for such a situation that the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. There being no modification or prohibition in Service Tribunals Act, the provisions of section 5 of the Limitation Act and in particular section 14 shall get attracted. The view taken by the Tribunal, about the appeal having been preferred to the wrong quarters in the same hierarchy we endorse the view taken that it being the designated authority and only channel for appeal having not been followed, it is a rectifiable irregularity and could be corrected by sending the appeal to the appropriate quarters for its comments. We find that the view taken by the Service Tribunal is correct:" It is an admitted position that before coming to this Tribunal in the present appeal, the appellant had filed Constitution Petition (No. 261 of 1986) on 4-3-1986 in the High Court which was dismissed by judgment dated 1-12-1986. Thereafter he preferred appeal against the above judgment of the High Court but that too was summarily dismissed by the Supreme Court by its judgment dated 30-8-1987. Thus, the facts of the instant case are distinguishable from those of the above reported case in as much as that in the latter case the only default attributed to the appellant was that instead of routing his departmental appeal through proper channel, `he submitted it directly to the departmental appellate authority whereas in the instant case, the forum of High Court chosen by the appellant was not in the same hierarchy. Accordingly the above authority of the Supreme Court is not helpful to the appellant. The appellant's learned counsel next referred to the last para. of the judgment of the Supreme Court by which appellant's appeal from the judgment of the High Court was summarily dismissed. It reads as under: "Learned counsel also expressed apprehension that an appeal before the Tribunal might now be treated as time-barred. The petitioner may, if so advised, rely upon the relevant provisions of the Limitation Act regarding his having pursued a remedy bona fide, in a wrong forum." The learned counsel for the appellant argued that the above observations of the Supreme Court were in the nature of recommendations and as such the Tribunal should condone the period consumed by the appellant in pursuing his case before the High Court and Supreme Court. It is difficult to agree with this argument. All that the Hon'ble Supreme Court observed was that the appellant may rely upon the relevant provisions of the Limitation Act, if so advised. In other words the appellant had to seek the condonation of the delay if his case was covered by the relevant provisions of the Limitation Act. By virtue of section 29 of the Limitation Act, section 14 of the same Act is attracted for deciding if the time spent in litigating the case at other forums could be condoned. For the purpose of this case, subsection (2) of section 14 is relevant and it reads as under:-- "(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it." The question for consideration is whether, as required by the above provision of law, the appellant had pursued his case at other legal forums with due diligence and in good faith. The learned counsel for the respondents repelled the argument advanced on behalf of the appellant that his case for condonation of the delay squarely fell within four corners of section' 14(2) hereinabove. To appreciate the learned counsel's respective view points, reference may first be made to the impugned notification which leaves no doubt, whatsoever, that it speaks of restoration of seniority to the officers mentioned therein in Grade-18. The appellant being a senior officer of the Government could not be supposed to have no knowledge that seniority was included in the terms and conditions of service of a civil servant spelt out in the Sindh Civil Servants Act, 1973. It was also difficult to believe that he did not know that all cases relating to terms and conditions of service of a civil servant fall within jurisdiction of Service Tribunal to the exclusion of all other Courts including High Court. Since the ouster of jurisdiction of other Courts in service matters was brought about by the Constitutional provision namely Article 212 of 1973 Constitution, ignorance pleaded in this regard particularly the ignorance attributed to the appellant's counsel would not be a valid ground for the condonation. On the same point, this Tribunal has already observed in the case reported as Shahid Ahmad Khan v. I.?G.P. 1987 P L C (C.S.) 794 as under:-- "It is clear from the above judgment, that the ouster of jurisdiction of the Courts including High Court in service matters is by the Constitution and as such there is no force in the argument that other Courts were approached under the genuine impression that they had concurrent jurisdiction to decide the service matter. Even otherwise ignorance of the party's counsel as to the legal forum where the case was to be instituted or the wrong advice tendered by him in this regard is no valid ground for condoning the delay, particularly when no affidavit of such counsel was filed in support." Apart from above, it is disclosed in para. 4 of the memo of appeal that it was within the knowledge of the appellant that two of the respondents whose representation about their seniority vis-a-vis seniority of some other officers was rejected, had challenged the order of rejection before the Service Tribunal. Despite that knowledge he himself took his case to different forum namely High Court. Obviously this was not done in good faith. Again in the Constitution petition filed by him in the High Court he took the plea in para. 8 thereof that the petitioner had no other alternative efficacious remedy, which assertion on his part was patently wrong. He had not only departmental remedy available to him which he did not resort to before filing the Constitutional petition but also avoided the normal forum of Service Tribunal. Furthermore, the Constitution Petition No. D-187 of 1986 which was on all fours with the appellant's own petition referred to above, was dismissed on 17th March, 1986 during the pendency of his petition. It was clearly held by the High Court in its judgment delivered in the said petition that the petitioners should approach the Service Tribunal for seeking the desired relief. It was frankly conceded at the bar that the appellant came to know about the said judgment of the High Court soon after its announcement. Nonetheless he continued to pursue his Constitution petition until it was dismissed on 1-12-1986 on the basis of above decision of the Full Bench of the High Court. Even then he did not give up the wrong course he had been following in his case. Once again instead of approaching the Service Tribunal even at this belated stage, he preferred to challenge the High Court's decision before the Supreme Court. It is also worthy of note that the appellant himself started doubting his bona fides in pursuing the matter in the High Court, the moment it came to his notice that the Constitution Petition No. 187/86 which was similar to his case pending in the High Court was dismissed. This is clear from the fact that the said petition was dismissed on 17th March, 1986 and he claims to have filed review petition before the Chief Minister on 1-4-1986, obviously in an attempt to lay foundation for filing appeal before the Service Tribunal in case of his failure to achieve the desired relief through High Court/Supreme Court. Surely this did not reflect good faith on his part. Moreover, the appellant had allegedly chosen the wrong forum for his litigation on the advice of his counsel. But the application for condonation of the delay he has made is not supported by affidavit of the said counsel. Therefore, as held in Shahid Ahmad Khan's case, the delay could not be condoned. It may also be pertinent to refer in this regard to the two other cases reported as: Mrs. Ismat Tariq v. Sh. Shaukat Ali 1974 S C M R 158 and Abdul Ghani v. Ghulam Sarwar P L D 1977 S C

102. In the first mentioned case it, was held: "The law having been authoritatively declared by this Court, it is not possible to hold that the petitioner was acting with due diligence in pursuing her application in the High Court for the grant of a fitness certificate, especially when the application remained pending for more than two years. The petitioner was all along assisted by a counsel and the failure of the counsel to take note of the law declared by this Court could obviously be attributed only to lack of due diligence on his part. The petitioner cannot escape the consequences of this lack of diligence:' In the second case it was held: "Section 14 permits the exclusion of time only for proceedings `prosecuted in good faith', therefore, in order to make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as `good faith'; `nothing shall be deemed to be done in good faith which is not done with due care and attention'. Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control." In view of what has been stated in the foregoing paragraphs the appellant cannot be held to have pursued his case at wrong forums in good faith, as has been observed in above two authorities. The appeal being hopelessly time-barred, there is absolutely no justification to condone the long delay of more than a year in filing the same. Coming to the vires of the impugned notification the learned counsel for the respondents expressed the view that the said notification was not appeal-able as it was issued by the Government in exercise of its plenary powers. The view does not seem to be correct. Since the notification had the effect of disturbing the appellant's seniority viz-a-viz the said respondents' seniority, the cause of action definitely accrued to the appellant. It is entirely a different matter if he did not avail it at proper legal forum and within time. On the other hand learned counsel for the appellant contended that the impugned notification was without jurisdiction and hence void. In support of his view, he relied upon two Supreme Court authorities and the instructions issued from time to time by the Federal Government. He submitted that the said notification was also discriminatory inasmuch as that it was not to be followed as a precedent. The first case relied upon by the said learned counsel is reported as Government of Pakistan v. Junejo Muhammad Iqbal P L D 1987 S C 427 wherein it was held: "As already indicated the question of seniority of the respondents has to be decided in the light of the office memorandum of 5-7-1978 and not in accordance with the general principles of seniority as contained in the office memorandum of 31-12-1970. Clause (e) clearly states that, on promotion to the higher grade the reinstated civil servants will take seniority from the date of their regular appointment to a post in that grade. That being the position the claim of the respondents that on promotion they were entitled to regain seniority in the next higher grade over those who were junior to them in the lower grade at the time of their retirement must be rejected." In the above reported case, the officers of Federal Government were reinstated like appellant under MLO-23. It would appear that the said MLO is silent as to determination of the seniority of the reinstated officers. However, the Supreme Court has ruled as indicated above, in the case of Junejo Muhammad Iqbal that seniority of the reinstated officers has to be decided in the light of office memorandum dated 5-7-1978 (admittedly issued by the Federal Government) and not in accordance with general principles of seniority. It is true that the Supreme Court has given its ruling in the case of Federal employees has referred to office memorandum issued by the Federal But the same principles have been reiterated by the same Court in the case of provincial employees, which is the second case on which the appellant's counsel has placed reliance. It is an unreported case relating to Civil Appeals Nos. 167-K/84, 37-X/85, 38-K/85 and 39-K of 1985 filed by Ali Gohar and two others which were disposed by the same judgment dated 15-9-1988, wherein their Lordships of the Supreme Court took the following view: The upshot is that the situation obtaining in the appellant's case is not different from that which obtained in the case of Junejo Muhammad Iqbal and, accordingly, the rule laid down therein will also apply to his case with the result that his appeal must also fail." It is not denied that the Government of Sindh had adopted the Federal Government's instructions contained in its office memorandum dated 5-7-1978, with regard to determination of seniority of the reinstated officers. However, subsequently by its Memorandum No. SOIX-RSC (S&GAD) 4/20-78(Pt-V), dated 2nd April, 1981 the Sindh Government after consultation with the Federal Government issued the revised instructions as under:-- "I am directed to refer to this Department Letter No. SOIX-RSC (S&GAD) 4/20-78, dated the 22nd May, 1980 on the subject noted above and

to inform you that the question of allowing the normal seniority to the reinstated persons on promotion to higher grade after reinstatement in service under MLO-23, has been considered in consultation with the Federal Government who have advised that such a person cannot be allowed any retrospective seniority. As such he will not rank senior to the persons, who have been promoted to a higher grade before his reinstatement irrespective of their position in inter se seniority in the lower grade. (2) However, such cases as involve hardship may be decided by invoking the provisions of section 24 of the Sindh Civil Servants Act, 1973, which does not limit or abridge the power of the Government if it is felt that it would be just and equitable to do so. I am therefore desired to request you to take further action in such cases accordingly. (3) This issues with the approval of the Chief Secretary." The impugned notification has obviously been issued under para. 2 of the above instructions. Thus, it is quite in keeping with the dictum laid down by the Supreme Court that seniority of the reinstated officers is to be decided in the light of special instructions of the Government and not in accordance with general principles of seniority. Nevertheless the question would still arise if the impugned notification is not derogatory to subsection (4) of section 8 of the Sindh Civil Servants Act. The said subsection reads as under: "(4) seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade:" The above provision which relates to seniority of promotees has clearly excluded the possibility of giving seniority to the promotees from retrospective effect. Accordingly the argument was raised by the learned counsel for the appellant that since the impugned notification has given seniority to the said respondents retrospectively, it is in derogation of subsection (4) of section 8 reproduced above and hence illegal. But this argument overlooks the effect of the provisions contained in section 24 of the Sindh Civil Servants Act, 1973. It reads as under: "

24. Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." It would appear that the power conferred on the Government by section 24 is exerciseable notwithstanding anything contained either in the Sindh Civil Servants Act or any rules. In other words the provision contained in subsection (4) of section 8 referred to above cannot operate as impediment in the way of Government. In this connection the learned counsel for the said respondents also invited reference to the case reported as Iqan Ahmad Khurram v. Government of Pakistan P L D 1980 S C 153 wherein, section 23 of the Civil Servants Act, 1973 applicable to Federal employees which is ditto copy of section 24, of the Sindh Civil Servants Act, 1973 reproduced above has been construed as under:-- "??but the reading of the section 23 and proviso, as a whole, makes it clear that it is a residuary provision and it enables the Government to deal with the case of any person under the Rules according to justice and equity, so long as he is not treated less favourably than the Rules require and the Government can, within its plenary power make adjustments of a compensatory nature." The above authority clearly supports the view that in the case of hardship, the Government can use its plenary power under the above section and make appropriate order compensating the civil servant who has suffered the hardship. There cannot be two opinions; that the case of the said respondents relating to determination of their seniority in Grade-18 was a hardship case. The appellant who entered Grade-17 on 19-9-1968 was more than ten places junior to the said respondents in the said grade, as they were inducted in that grade during the period from 1963 to 1965. If they had not been assigned the same seniority position in Grade-18, which they enjoyed in Grade-17, they would have become many place's junior to the appellant. As such not only their further promotion would have been postponed until after promotion of the appellant but also they could at times be posted on his subordinates. Since they were restored to the position as if they had not been retired under MLR 114, justice and equity demanded that they should not be made to suffer in the said manner. Because the legal hitch in their way was obviously not insurmountable. Accordingly the Government was perfectly justified in issuing the impugned notification to undo the wrong caused to the said respondents. As for the argument of the appellant's learned counsel that the impugned notification was discriminatory and hence unsustainable, it would suffice to say that para. 2 of the notification which has not only rendered the notification discriminatory but has also the effect of limiting the Government's very power could be overlooked and ignored. For above reasons the appeal is dismissed with no order as to costs. M.Y.H./225/Sr.S???????????????????????????????????????????????????????????????????????????????? Appeal dismissed.