2003 PLP (C (PLC(CS))

In case titled Lt. Col. Sanaullah Raja v. Muhammad Shafi and 2 others 1997 PCr.LJ 1527, the judgment of the Shariat Court was assailed in appeal before this Court. The question of limitation was at issue in the light of section 25 of the Islamic Penal Laws Act, 1974. It was observed by the Court that in section 25 the starting point of limitation has not been mentioned. However it was laid down that limitation would start from the date of announcement of the judgment by the Shariat Court. In a case titled Chairman Azad Jammu and Kashmir Council v. Abdul Latif and 5 others 1997 MLD 2926, it was laid down by this Court that Supreme Court can condone delay to avoid anomaly but it was observed that no such situation existed in that case as such the delay was not condoned. This case is distinguishable both on facts and law with the present case. In case titled Sardar Aftab Ahmed v. Sardar Khurshid Hussain and 3 others 1999 PLC (C.S.) 40, the question of limitation was resolved in favour of the appellant on the ground that he applied for the copy of the judgment on 12-7-1997 which was made available to him on 22-7-1997. After deducting days which were spent in obtaining the copies, his appeal was held within limitation. In a case titled Abdul Khaliq v. Abdullah Khan and 4 others 1998 PLC (C.S.) 1396, the dispute was contested by the parties under the provisions contained in New Mirpur Town (Allotment of Land) Act, 1964. In this case after discussing the authorities referred by the learned counsel for the appellant it was resolved as follows: "

There is no quarrel with the proposition enunciated in the authorities cited by the learned counsel for the appellant that the Civil Court had the jurisdiction if a case of mala fide, patent disregard of statutory provision or total absence of jurisdiction of the forum concerned etc, is made out

" The last authority referred by the learned counsel for the petitioner is a case titled Azad Government and others v. Ch. Muhammad Arif and others [Civil Petition for Leave to Appeal No. 121 of 2001 decided on 12-9-2001]. In this case one of the ground raised on behalf of the petitioners was that a writ petition filed by the respondents was hit by the principle of laches. The same was resolved by making following observations:-- "

6. During the course of arguments I was inclined to grant leave to the-petitioners on the point argued by the learned counsel for the petitioners that the writ petition was hit by the principle of laches as the impugned notification was issued on 19-5-1999 and the writ petition was filed on 21-4-2000, therefore, the same was liable to be dismissed but on careful consideration of the pleadings of the parties before the High Court. I have reached the conclusion that the respondents have sufficiently explained the laches, if any, in filing the writ petition. Paras Nos.4, 5, 8 and 9 of the writ petition are reproduced below.

5. Thereafter the grounds were mentioned by this Court whereby the delay in filing writ petition in the High Court was explained. This case is also distinguishable with the facts of the present case. In the present case the petitioner in her appeal has not tendered any reasonable explanation for the delay of 12 years in filing appeal before the Service Tribunal having exclusive jurisdiction in respect of controversy raised by the petitioner relating to terms and conditions of her service. All these authorities are distinguishable with the present case both on facts and law, therefore, are of no help to the case of the petitioner.

6. On the other hand, Mr. Raza Ali Khan, the learned counsel for the respondents, defended the judgment under challenge.

7. I have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Under section 9 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the competent authority is vested with the jurisdiction to pass appropriate orders of transfer and posting of civil servants subordinate to it. Under this provision of law no civil servant can claim posting at a particular place as of right. No doubt the Government has issued instructions that a civil servant shall retain his posting at a particular place at least for a period of two years however if any person is transferred before the expiry of two years stay at a particular station by the competent authority, such transfer order cannot be termed void ab initio merely that it has been passed in violation of the Government policy the concerned civil servant, therefore, cannot disobey the transfer order by his/her conduct. The aggrieved civil servant has to seek the remedy from the concerned forum against transfer order in accordance with the prescribed method. The petitioner, herein, was transferred and posted as Industrial Teachress in Industrial School Sehnsa. In compliance to her transfer order she did not join her duty as such the competent departmental authority initiated proceedings against her under the provisions contained in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. On account of wilful absence from her duty she was terminated from her service vide order dated 15-10-1987. She availed departmental remedy with success as she was reinstated in the service and the period she remained out of service was treated leave without pay subject to entitlement. If she was not still satisfied, she should have filed appeal before the Service Tribunal, but she remained engaged in pursuing remedies which were not admissible to her under the Service laws. Only such period can be condoned which was spent in wrong forum despite due care and diligence. In the present case the forums selected by the petitioner for her remedies were not chosen with due care and diligence, therefore, the period spent in pursuing such remedies before such forums cannot be made ground for the condonation of delay. The petitioner challenged the impugned order dated 6-4-1989 through an. appeal before the Service Tribunal after the lapse of 12 years on 9-7-2002. In my view the Service Tribunal rightly dismissed her time-barred appeal in limine. In view of above, finding no force in this petition, the same is therefore, dismissed. Alongwith the petition for leave to appeal an application has been moved for the maintenance of status quo. As the petition has been dismissed therefore, the said application is also rejected. H.B.T./349/SC (AJK) Petition dismissed.