2001 PLP (C (PLC(CS))

(3) An appeal to the Supreme Court from a judgement, decree, order or sentence of an Administrative Court or Tribunal shall lie only to the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grant leave to appeal." We would also like to record that the Sindh Service Tribunal Act, 1973 (Sindh Act XV of 1973) came into force on 5th December, 1973 and its procedure rules were framed on 29th August, 1974. Section 4 of the Sindh Service Tribunals Act, 1973 reads as under:- "

4. Any Civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within twelve months of the establishment of a Tribunal whichever is later) prefer an appeal to the Tribunal having jurisdiction in the matter: (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; and (b) no appeal lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade; and (c) subject to the provisions of section (b) no appeal shall lie to a Tribunal against and order or decision of a departmental authority made at any time before the 1st July, 1969. Explanation.--In this section 'departmental authority' means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants." In the history of long litigations in service matter the final picture that has emerged, on the point of limitation is C.A. No.K-58 of 1979 (Haji Kadir Bux v. Province of Sindh and others as reported in 1982 SCMR 582 whereunder their Lordships, by a majority judgment held to be 120 days from the date of filing the departmental appeal/representation if preferred. This is now the established position of law on this subject and has been followed ever since passing of that order. Incidentally Sindh Service Tribunal from its very inception is located in Block Nos.80 and 81 just at the back of Sindh High Court Building at a walking distance and its location is well-known to all those who frequent or practice in the High Court. What worries us is that despite an absolute Constitutional bar to all Courts/forums except Service Tribunal in service matters of civil servants provided as early as 1973 i.e. 25 years and existence of Sindh Service Tribunal for almost the same period and score of decisions of Honourable Supreme Court of Pakistan that such matters lie in exclusive jurisdiction of Service Tribunal, such matters continue to be agitated and admitted at wrong forums. One reason could be the ignorance of law by the litigants specially the lower formations of civil servants basically illiterates and semi-literates but ignorance of law is no excuse' is the well-established principle of law. Other reason could be 'incorrect legal advice' rendered by a few members of the Bar, who advertently or inadvertently continue to agitate service matters in the forum of Constitutional Petitions before the Honourable High Courts, for reason of their own. If done inadvertently, the same principle of ignorance of law is no excuse, would and should ordinarily be applied to such petitions. If filed 'advertently' it would amount to professional misconduct i.e., giving a wrong legal advice to their clients, who despite having a good case may suffer sometime irreparable losses on account of limitation as provided in section 4 and proviso (a) of the Sindh Service Tribunals Act, 1973, their appeals being rendered 'Time Barred'. What adds insult to an injury is that under limitation a right is not extinguished but becomes 'Non-enforceable' at law. Some of such litigants may have a good case, that could succeed eventually but for the fact that their appeal is dismissed as 'Time Barred': Condonation of delay, though within the inherent powers of the Trial Court, yet delay for each day has to be properly accounted for p, and justified to the satisfaction of the trial Court, under the provisions of C. P. C. In the instant appeal, the appeal has to be dismissed for more than one reasons as detailed below:-- (i) While there are score of rulings on approach to the wrong legal forum--whereunder authorities so approached, are required to forward the same to the competent Authority/forum and their failure to do so, will not be the reason for denial of justice to the appellant. The C.P. No.D-559 of 1995 as evident from its year was filed almost 3 years ago. Normally speaking it should not have been admitted in view of absolute Constitutional bar on its admission as provided under Article 212 clause (2) of 1973 Constitution. Even, if admitted for whatever reasons, it should have been dismissed on the very first hearing or at feast forwarded to the Sindh Service Tribunal; at the very first opportunity. This has not been done, admittedly. (ii) Normally speaking, condonation of delay is within the competence of the Court having jurisdiction in the matter unless it is a direction from its Appellate Court. Under the provisions of Article 212(3) of the Constitution of Pakistan, 1973, the Appellate Court in respect of Service Tribunal, is the Hon'ble Supreme Court of Pakistan. Therefore; it would have been appropriate if the Divisional Bench of Hon'ble High Court Sindh had left the question of condonation of delay (i) ordinate and approximately 2 years) to the decision of Sindh Service Tribunal. Instead, the words used in the judgment, dated 28-5-1997 are 'limitation period shall be deemed to commence from the date of this judgment. The use of the word 'shall' according to established legal terminology has a mandatory or binding effect. It is our considered view that such observation or direction could only be given to the Sindh Service Tribunal by the Hon'ble Supreme Court of Pakistan alone. Hence, the said order, dated 28-3-1997 of the Divisional Bench of Hon'ble High Court of Sindh is not legally binding upon the Sindh Service Tribunal, with all due deference to that order. (iii) Without prejudice to the above legal position, we might have considered admission of this appeal had it not been a case of Double Fault, and the appellant would have approached Sindh Service Tribunal within one months of the dismissal of his said Constitutional Petition viz 28-5-1997. However, appellant applied far the certified thereof on 18-12-1997 which was delivered to him on 22-12-1997. He filed this service appeal on. 15-7-1997 without furnishing a copy of the orders of the Hon'ble High Court, on the basis of similar order passed by the same bench in C.P. No.D-490 of 1995, passed on 28-5-1997 in respect of one Irshad Ali son of Imitaz Ali certified copy which was applied on 25-6-1997 and provided on 26-6-1997. Limitation of counted to the furnishing of certified copy of C.P. No.P-559 of 1995 (of the appellant) is:-- May, 29-5-1997, to 30-5-1997 - 3 June, 1997. - 30 July, 1997. - 31 August, 1997. - 31 September, 1997. - 30 October, 1997. - 31 November, 1997. - 30 December, 1997. - 21 _________ Total: 207 days _________ Thus, the present service appeal is hopelessly time-barred for which no cogent reason have been advanced to condone the same. It is, therefore, our considered view that for the reasons mentioned above, this service appeal is dismissed in limine with no orders as to the cost. H.B.T./24-ST/K Appeal dismissed.