1998 PLP 882 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This appeal is directed against judgment dated 6th June, 1995 passed by Federal Service Tribunal, Islamabad.

2. Relevant facts briefly mentioned are that appellant and a few other persons were appointed in the Collectorate of Customs and Central Excise, Peshawar as Upper Division Clerks on ad hoc basis. The ad hoc appointment of appellant and the others was extended by. means of notification dated 21st January, 1991 up to 9th January, 1991. On 26th December, 1990 service of the appellant Abdul Wahid was terminated. He preferred departmental appeal on 30th December, 1990, but received no reply. Thereafter, on 18th May, 1991 appellant filed Service Appeal No.162(P)/1991 before Federal Service Tribunal, Islamabad, challenging his termination and praying for reinstatement in service. The Tribunal partly accepted the appeal by means of judgment dated 21st January, 1993 and remanded the case to department with direction to re-examine his case in accordance with the rules and instructions issued from time to time. It may be seen that appellant was reinstated by the Collectorate of Customs vide notification dated 8th December, 1993, which is, however, reproduced below: .Mr Abdul Wahid U.D. Clerk whose services were terminated with effect from 26-12-1990 in pursuance of Cabinet decision dated 12-11-1990 is hereby reinstated in service with immediate effect subject to the terms and conditions prescribed in his original order of appointment issued vide this office C.No.II(22)(iii)16-Admn/84/1392 dated 20-2-1990. ....The appointment will continue to be treated as "ADHOC" till his services are subsequently regularized through the Departmental Selection Committee/Federal Public Service Commission in accordance with the rules. Appellant assumed the charge in pursuance of aforementioned order regarding his reinstatement and kept quiet for more than ten months. On 3rd October, 1994 he submitted a representation to the Chairman, Central Board of Revenue, Islamabad through proper channel claiming back benefits. It was pleaded that one Najibullah Khan (Inspector Customs), who was reinstated in similar circumstances, was granted back benefits. However, the department eventually rejected the representation vide order dated 18th December, 1994. The order is also reproduced below for ready reference:-- "To : The Collector, Customs & General Excise, Peshawar. Subject: Departmental representation for grant of all back benefits. Kindly refer to your Letter No. II-PL-(iii) 39-Adtnn/90/10048 dated 11-10-1994 on the above-noted subject.

2. The representation of M/s. Abdul Wahid and Munir Afzal, U.D.C. of your Collectorate have been considered and rejected by the Board as back benefits to Mr.Najeebullah were granted on the basis of the judgment of the Federal Service Tribunal. . (Sd.) (Maqbool Mahmood) Second Secretary. " Appellant feeling aggrieved by the departmental order dated 18th December, 1994, whereby claim for back benefits was rejected, preferred Service Appeal No.1 (P)/95 before Federal Service Tribunal, Islamabad on 1st January, 1995, which was eventually dismissed on 6th June, 1995. The concluding portion of the said order is reproduced below:-- "4 ....It will be seen from the guidelines that on restoration of an individual, his case was required to be placed before the Departmental Selection Committee for regularization in accordance with the rules and until such time the appointment was to be treated as ad hoc. The order dated 8-12-1993 restoring the appellant to his original appointment and treating him as ad hoc is therefore quite in conformity with the policy decision and there seems no infirmity in the departmental action which could be challenged before the Service Tribunal. The appeal is misconceived and is accordingly dismissed. "5....Before parting with the judgment, however, we observe that the department may place the case of the appellant before the respective Departmental Selection Committee for regularization of his services in accordance with the rules and instructions." The appellant then challenged said judgment of the Service Tribunal through Civil Petition for Leave to Appeal No.368/95. Leave was granted by this Court on 22nd November, 1995 to consider, inter alia, the discriminatory treatment meted out to the appellant as compared to Najeebullah, another employee of the Collectorate of Customs. Mr. Riazul Haq Sheikh, learned counsel for appellant, greatly stressed that treatment meted, out to appellant was discriminatory, and even Federal Service Tribunal while deciding similar grievance has granted back benefits to said Najeebullah, but unjustifiably denied the same to appellant. Answering objections with regard to limitation, he strenuously urged that cause of action accrued to appellant from 18th December, 1994 when his representation was rejected by the competent authority. To supplement his contention, reliance was placed on the observations in case reported as Anwar Muhammad v. General Manager, Pakistan Railways and another (1995 SCMR 950). Mr. K.G.Sabir, AOR, appeared for respondents and opposing the appeal contended that original representation made by the appellant was barred by time, therefore, mere rejection of highly belated representation would not provide basis for agitating the grievance beyond prescribed limitation. Learned counsel contended that any relaxation would tend to contravene specific requirement of substantive law contained in section 4 of the Service Tribunals Act (LXX) of 1973. He also argued that the appellant being ad hoc appointee there was no illegality in terminating the services by allowing notice-pay in accordance with the terms of appointment letter. The most crucial point which requires consideration would be whether an aggrieved employee has an unfettered discretion to file representation, appeal or review before the next higher/specified authority, at any time or a line has to be drawn whereafter no representation would be competent or entertainable. Section 4 of the Service Tribunals Act, 1973 is, however, reproduced below for convenience:- "

4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any 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 with six months of the establishment of the appropriate 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 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 anneal, application or representation was not preferred; (b) .............................. (c) .. (2) .. 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." (Underlining is for emphasis) A bare perusal of the above provision manifestly discloses that the aggrieved employee is necessarily required to agitate his grievance before the appropriate departmental authority within thirty days from communication of the order adversely affecting him. Therefore, terminus ad quern has been explicitly mentioned in section

4. Any delay caused in approaching the appropriate/ prescribed authority or availing the remedy of representation beyond specified period without sufficient cause shall be obviously detrimental. The mandatory provisions of section 4 create express constraints whereby any employee aggrieved from departmental order affecting his terms and conditions should approach for rectification with greatest promptitude, so that controversy amongst contestants may not prolong or disturb day-to-day working. Seemingly, it is difficult to assume that period of limitation so prescribed would be dependent upon sweet choice of aggrieved person who might wake up from deep slumber at his own sweet whims possibly waiting for favourable environment to agitate his grievance and make endeavour to seek redress. Therefore, any omission, slackness, negligence .without specifying sufficient cause with regard to ' commencing period of representation contained in section 4 of the Service Tribunals Act cannot be easily ignored or overlooked. This position is further reinforced by subsection (a) of section 4 wherein said enactment mentions further restriction of waiting period for ninety days to avail remedy before the Service Tribunal. This view is supported by following reported judgments: (i) Aziz Ahmad v. Secretary to Government of Pakistan (1985 SCMR 368): " ....This instruction may be binding on the Establishment Division but it is not binding on the Service Tribunal in this case, the final decision having been made by the departmental authority on 17-12-1951 could not be challenged before the Service Tribunal in 1982 on account of the bar contained in the proviso (c) of section 4(1) of the Service Tribunals Act. No law was shown to us permitting the petitioner to file a fresh representation to the Department in 1980 to challenge the earlier decision taken on 17-2-1951. It is only if such a representation was permissible in law that the order refusing to entertain the said representation which was passed on 28-2-1982, could furnish him with a new cause of action and take his case out of the mischief of proviso (c) of section 4(1). In the circumstances, the Tribunal was justified in treating the order that was being challenged in reality before it was the order passed against him way back on 17-2-1951 and not the subsequent order passed on 28-2=1982 which merely indicated the inability of the Department to re-open the matter." (ii) WAPDA v. Aurangzeb (1988 SCMR 1354): ....C.P.L,A No.208/R/87, arises out of the same facts as given above in C.P.L.A. No.207/R/87. Appeal filed by the petitioner was dismissed by the learned Service Tribunal vide the impugned order- dated 7-6-1987 on the ground that on 11-4-1983 the petitioner and his counsel were quite aware of the correct legal position about the exclusive jurisdiction of the Service Tribunal in the matter; and that the delay occurred thereafter has to be explained and, according to the well-settled principle of law, reason for each day's delay has not only to be explained but has also to `be substantiated. In such a context, however, the sole submission of the learned counsel for the petitioner is that if the delay in filing the appeal is not condoned, injustice done to the petitioner shall be perpetuated and thereby he shall suffer an irreparable loss caused by the impugned order. Learned Tribunal held that the law on the point, however, is well settled that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay is properly explained and accounted for. For these reasons the application for condonation of delay was rejected and, consequently, the appeal was dismissed vide the impugned order." (iii) Federation of Pakistan v. Muhammad Azim Khan (1989 SCMR 1271); (Reliance in this case was also placed on the observations in case 1982 SCMR 582. "....The respondent addressed his representation to the Establishment Secretary and not to the next higher officer, as is required under the law. However, as he had, according to the finding of the Tribunal endorsed it to the President, the next higher authority over the Establishment Secretary, it can be said that there was substantial compliance with the requirement of the law. His filing the representation on 8-9-1979 when the order challenged was of 15-7-1989, can also be explained on the factual ground given by the respondent. As regards the time spend after 8-9-1979 there appears to be no explanation at all. The appeal filed before the Tribunal on 26-1-1980 was barred, being beyond 120 days of 8-9-1979 and in the alternative beyond thirty days of 28-10-1979. The Tribunal had been taking an incorrect view of the law is not a reason or sufficient reason for condonation of delay or even for explaining the delay. Besides, the diversity in the views of the Service Tribunal would clearly appear from the decision given by this Court in the case of Kadir Bux but in the two alternatives present in this appeal there was no divergence of views, in no case the limitation going beyond 120 days after filing of the appeal or representation or more than thirty days after the disposal of such appeal or representation. The Tribunal has therefore taken incorrect view of the law in holding that an appeal filed on 26-1-1980 was within time against the final order dated 28-10-1979. or after filing the representation on 8-9-1979." (iv) Muhammad Hasham v. Inspector-General of Police (1990 SCMR 1440): . .Before the Tribunal the petitioner sought condonation of delay by claiming credit for the time he had spent in pursuing his representation before the I.-G. The learned Tribunal declined to give him allowance for the said purpose. Considering that the order of the D.I.-G. on his appeal was final and that no representation lay to I.-G. as a matter of right we can find no legal error in the view taken by the learned Tribunal. The petition is dismissed. (v) Anwarul Haq v. Federation of Pakistan (1995 SCMR 1505): "6...The learned counsel for the petitioner next placed reliance on S.S Qureshi and 15 others v. The Secretary, Ministry of Foreign Affairs and 5 others (1985 SCMR 1953) and S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others (PLD 1981 SC 612) to contend that the seniority list purported to be issued firstly in 1975 and secondly in 1989 ought to have been circulated to the officers concerned and their objections and representations invited and in the light thereof a final list ought to have been issued. It was argued that this was never done, in that, the seniority list has not yet been circulated, therefore, the petitioner's appeal before the Tribunal was wrongly dismissed on the erroneous assumption that it wag time-barred. The above-quoted judgments are distinguishable and not applicable to the facts of the present case. A finding of tact has Deen recorded by the Tribunal that the petitioner was aware of his seniority position in July, 1975 on the issuance of the letter dated 25-7- 1975 when his post was redesignated and he was relegated in seniority to lower position as against his counterparts. The learned counsel for the petitioner frankly conceded before us that after redesignation of the post he has been performing his official functions as Assistant Executive Engineer. The Tribunal was therefore right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time-barred. Reliance was also rightly placed by the learned Tribunal on judgment of this Court in the case of Chairman, P.I.A.C. v. Nasim Malik (PLD 1990 SC 951) that when an appeal before the departmental authority was time-barred, the appeal before the Tribunal was also incompetent on that account. " Now looking to the facts of judgment in case Anwar Muhammad v. General Manager, Pakistan Railways and another (1995 SCMR 950) relied upon by the learned counsel for petitioner, it may be seen that adverse remarks were conveyed to petitioner Anwar Muhammad through letter dated 15th May, 1984. Representation was made by him, to Divisional Superintendent, Railways instead of General Manager within prescribed period challenging adverse remarks made during the period from 31st May, 1983 to 31st December, 1983. It is noticeable that reply rejecting said representation was conveyed vide letter dated 2nd September, 1984 issued by Divisional Superintendent, Railways, clearly indicating that same. was not forwarded to authority prescribed under the rules. Perhaps after few years again he submitted a representation to General Manager who under para. 3.39 of "A Guide to Performance of Evaluation" was factually. competent to examine the same being next higher authority, because Divisional Superintendent, Railways was only countersigning officer The original seemingly did not reach the concerned quarters specified by law and rules, therefore, order dated 8th January, 1991 was considered basis for availing remedy before Service Tribunal. , The facts and circumstances in the afore-quoted report are quite different and distinguishable from instant case because appellant Abdul Wahid admittedly did not make any representation for more than ten months. Therefore, representation/appeal submitted by appellant abdul Wahid before the competent authority on 3-10-1994 having been filed definitely beyond prescribed period of limitation, was not entertainable. We are accordingly pursuaded to observe that the principle of law enunciated in case of Anwar Muhammad v. General Manager, Railways (supra) has no applicability to the facts of present case. However, now it is well-settled that if original representation was barred by time and aggrieved employee does not disclose sufficient causes for such delay or inability to move departmental authority within prescribed period, then no subsequent order or disposal of such incompetent representation/appeal/review could create fresh cause of action or automatically operate to condone delay of limitation in availing the remedy under section 4 of Service Tribunals Act. For authority reference can be conveniently made to observations in judgments reported as (i) 1990 SCMR 1440, (ii) 1992 SCMR 1136, (iii) PLD 1977 SC 397). It is not out of place to mention here that appellant admitted before us that some of the persons except Mujeebullah and one Munir Afzal have not been granted back benefits. Therefore, mere fact that two persons have obtained certain advantage otherwise not permissible; cannot constitute adequate ground for claiming similar advantage on the basis of discrimination. Obviously, majority of the persons who were reinstated alongwith appellant during the year 1992/93 have not been awarded back benefits, therefore, in the peculiar circumstances plea of discrimination would not be attracted. The counsel for the appellant candidly conceded that except question concerning discrimination, appellant otherwise had no legal right in respect of back benefits. Thus, for the reasons discussed above we do not find any merits in this appeal; which is consequently dismissed. However, there shall be no' order regarding costs. M.B.A./A-56/S Appeal dismissed.