2013 PLP (C (PLC(CS))

MIAN SAQIB NISAR, J.

The factual backdrop of the instant appeal, with leave of the Court dated 6-10-2006, is that:- the appellant was a Civil Judge, who was dismissed from service by the competent authority vide order/notification dated 9-3-2000; the relevant portion whereof reads as "NOW, THEREFORE, the Chief Justice and Judges, as Authority, having found the accused officer guilty of the above said charges hereby order that Agha Inam-ur-Rahim Khan, Civil Judge-cum-Judicial Magistrate Section 30, Multan be dismissed from service, with immediate effect". It is claimed by the appellant that the said order was conveyed to him on 23-3-2000 and he statedly on 8-4-2000 filed an appeal under section 5 of Punjab Subordinate Judiciary Service Tribunal Act, 1991 (the Act, 1991) (the relevant law), before the Special Tribunal (the Tribunal) constituted for hearing appeals under the Act ibid. This appeal according to the appellant was filed within the prescribed period of limitation i.e. 30 days. It is also the case of the appellant, that the said appeal was returned on 14-4-2000, requiring him to first avail the remedy of representation available under the law. He, therefore, according to section 21 of the Punjab Civil Servants Act, 1974 (the Act, 1974), which was duly attracted to his case, filed a representation before the Governor of Punjab, which remained pending and after the lapse of three months, as the said representation was not decided, he as permissible vide proviso to section 5 (supra) initiated a fresh appeal on 19-7-2000 before the Tribunal. However, as argued by the appellant's counsel, this appeal has been dismissed not on merits, rather illegally and erroneously as being barred by time. Hence this appeal.

2. Learned counsel for the appellant by referring to the leave granting order, which reads below:-- "The learned counsel submitted, inter alia, that the order dated 9-3-2000 of dismissal of the petitioner from service dispatched by registered post on 11-3-2000, was received by him on 23-3-2000. He made a representation to the Hon'ble Chief Justice of the Lahore High Court, Lahore on 8-4-2000 which was found to be incompetent and was returned on 14-4-2000. Therefore, he made another representation to the Governor of Punjab on 23-4-2000 followed by Service Appeal No.22 of 2000 before the Punjab Subordinate Judiciary Service Tribunal. Therefore, the appeal before the learned Tribunal was well within time in terms of section 5 of the Punjab Subordinate Judiciary Service Tribunals Act, 1991 read with section 21 of the Punjab Civil Servants Act, 1974. Leave to appeal is granted to consider the above and other submissions of the learned counsel. Since it is a short matter, the office is directed to fix this appeal for final hearing within a period of six months." and further by relying upon proviso to section 5 of the Act, 1991 read with section 21(2) of the Act, 1974 urged that the appellant could not competently file an appeal before the Tribunal, without first availing the remedy of representation and, therefore, it is for this reason that the appeal earlier filed before the Tribunal was rightly returned to him as having been incompetently initiated. Thereafter, he validly brought the representation before the Governor of Punjab, and awaiting its outcome for 90 days, when it was not decided, he appropriately filed an appeal (out of which this appeal has arisen) before the Tribunal. Therefore, the impugned decision of the Tribunal on the point of limitation is patently wrong and against the law.

3. Heard. In order to dilate upon the point(s) noted in the leave granting order and also to appreciate the contentions of the learned counsel for the appellant, it seems expedient to refer to some important facts of the case, such as:- against the order dated 9-3-2000 the appellant claims to have filed an appeal in terms of section 5 of the Act, 1991, but from the memo. of appeal on the record, it reveals that the same was not brought before the Tribunal, as erroneously argued by the learned counsel today, rather it was addressed to the honourable Chief Justice of the Lahore High Court. Obviously, as said appeal was neither competently instituted nor filed before the forum having jurisdiction, therefore, in this situation the Deputy Registrar (Confidential) on behalf of the Registrar of the High Court conveyed to the appellant as follows:-- "Dated Lahore, the 14th April, 2000. Subject: APPEAL UNDER SECTION 5 PUNJAB SUBORDINATE JUDICIARY SERVICES TRIBUNAL ACT, 1991. I am directed to refer to the subject and to return herewith, in original, appeal addressed to Hon'ble Chief Justice of this Court for proper presentation under the relevant provisions of law, to the concerned authority." It is clear from the letter, that it was never communicated to the appellant that any remedy of representation was available to him which should first be availed. Rather admittedly as the honourable Chief Justice (C.J.), inter alia, in the capacity as the competent authority had passed the dismissal order of the appellant dated 9-3-2000, therefore, (C.J.) had no jurisdiction to hear the appeal, and so, in fact it (appeal) was returned to the appellant for proper presentation, before the forum having jurisdiction in the matter. In any case, it was never returned to the appellant suggesting or advising him directly or remotely, that he should avail any remedy of representation in terms of section 21 of the Act, 1974, before the Governor of Punjab. It is the appellant's own deed or his comprehension of the law, that instead of approaching the Tribunal within time, through the proper channel, he opted to approach the Governor, vide representation.

4. In view of the above facts, the key questions which require resolution in the matter are: (i) whether the remedy of representation before the Governor of Punjab was available to the appellant as per proviso to section 5 of the Act, 1991 read with section 21 of the Act, 1974; and (ii) if so, thus the appeal of the appellant before the Tribunal was not beyond the prescribed period of limitation.

5. For answering the above questions, it is expedient to reproduce the two noted provisions i.e. section 5 of the Act, 1991 and 21 of the Act, 1974. The former section reads as follows:

"

5. Appeal to Tribunal.

Any member of subordinate judiciary 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 six months of the establishment of the Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that

(a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 (Punjab Act VIII of 1974), or any rules against any such orders, no appeal shall lie to the Tribunal unless the aggrieved person 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 shall lie to the Tribunal against an order or 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. Explanation.

In this section 'departmental authority' means the authority, other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of service of members of subordinate judiciary." Whereas, section 21 of the Act, 1974 postulates as below:-- "

21. Right of appeal or representation.

(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order. (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post." From the plain reading of section 5 it is evident that any member of the subordinate judiciary if aggrieved of a final order (original/appellate) passed by a departmental authority, affecting the terms and conditions of his service, has a right to prefer an appeal within 30 days from the date of communication of the said order before the Special Tribunal constituted under the Act, 1991. This is preeminent and the foremost and the appellant never availed this remedy till 19-7-2000. However, an exception to the above has been created/provided as per the proviso to section 5, where an appeal, review or representation to the 'departmental authority' is provided under the Act, 1974 or by/under "any rules against any such order" (the quoted expression obviously means the rules framed under, the Act, 1991), no appeal etc. under section 5 shall be competent unless the aggrieved person has first preferred such appeal/review/representation to the departmental authority and the period of 90 days has elapsed without any outcome of such availed remedy. It may be relevant to mention here that though under section 9 of the Act, 1991 the rule making power is available in the terms that "The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act", but no rules have been framed and this legal position is also conceded by the learned counsel for the appellant.

6. Having stated the above legal and factual position, it should now be examined whether the remedy of appeal, review or representation was available to the appellant in terms of proviso to section 5 of the Act, 1991, with reference to section 21 of the Act, 1974. In this context it may be mentioned that section 21(1) ibid explicitly provides that the right of appeal or to apply for review should be available "to a civil servant by any rules applicable to him" it does not cater for a "representation". It is not even the case of the appellant, rather his learned counsel has argued otherwise, and also emphasized that where the right of appeal/review is not available under section 21(1), the case shall fall within the purview of subsection (2) thereof, and the remedy of representation shall thus be usable before the authority, next above the authority which has made the order; the Governor of Punjab according to the learned counsel is an authority above the honourable Chief Justice of the High Court and the Judges who passed the dismissal order dated 9-3-2000, therefore, it is argued that the representation before the Governor of Punjab was competent and a validly invoked remedy by the appellant, which was not decided within a period of ninety days, constraining the appellant to avail his right of appeal well within time.

7. We are afraid that the contention propounded by the learned counsel for the appellant is conceptually flawed, unfounded and misconceived. The remedy of representation under section 21(2) of the Act, 1974 is only available before the "authority next above the authority which made the order"; the Governor of a Province who in terms of Article 105 of the Constitution of Islamic Republic of Pakistan, 1973 has to act on the advice of the Chief Minister as has been explained in the case reported as Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6) that the Governor of a Province, by no stretch of constitutional scheme or on the interpretation of any provisions of the Constitution or the law on the subject can be held to be an authority next above the Chief Justice and the Judges of the High Court, who in this case were pleased for the dismissal order of the appellant dated 9-3-2000. Rather, shall be ludicrous, unfounded and misconceived to hold so, especially for the reason that according to Article 192 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as, "Constitution of High Court.- (1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President". Therefore, the honourable Chief Justice and the Judges of the High Court put together is the High Court, thus neither on the touchstone of the constitutional scheme etc. nor on the established rule of independence of judiciary, the Governor can be said to be an authority next above the High Court for any purpose whatsoever. Therefore, we are of the considered and candid view that the representation filed by the appellant before the Governor of Punjab was not within the purview and contemplation of proviso to section 5 of the Act, 1991 read with section 21(2) of the Act, 1974, rather was an absolutely invalid, frivolous and unfounded representation before the forum, a person or authority having no jurisdiction in the matter, consequently 90 days time was not available to the appellant as envisaged by proviso to section 5 (supra).

8. It may be pertinent to mention here that though the provisions of section 5 of the Limitation Act, 1908 by virtue of section 7 of the Act, 1991 are made applicable to the appeals before the Tribunal, but the appellant never moved any such application seeking condonation of delay, despite being faced with a situation that his appeal before the Tribunal was barred by time. Even no such case qua the above has been made out vide contents of the present memo. of appeal or verbally before us.

9. As the order of appellant's dismissal was passed on 9-3-2000, admittedly it was conveyed to him on 23-3-2000 and the properly presented appeal was filed by him on 19-7-2000, much beyond the prescribed period of limitation i.e. thirty days, therefore, the appeal before the Tribunal was hopelessly barred by time and has been rightly disallowed on that score. This appeal thus has no merits and is hereby dismissed. MWA/I-8/SC Appeal dismissed.