2011 PLP (C (PLC(CS))

MUHAMMAD SAIR ALI, J.

Through this appeal by leave, appellants have questioned judgment dated 23-12-2003 of the Federal Service Tribunal, whereby accepting respondents' appeal, departmental orders dated 3-3-1995, 3-4-1995 and 24-5-2001 were set aside assigning seniority to respondent No.1 etc. over the appellants.

2. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court for the appellants primarily contended that the Tribunal appeal filed by respondent No.1 was barred by time. And that the condonation of delay by the Tribunal was arbitrary and contrary to the settled principles of law. Respondent No.1 placing reliance upon department's letter dated 1-10-2001 stated that questions raised by him in his departmental appeal were referred to the Ministry for advice and decision on his appeal was postponed till receipt of the advice of the Establishment Division. And as such he was justified to file Tribunal appeal on non-decision of his departmental appeal by respondent No.2 i.e. Chairman Central Board of Film Censor who in this appeal was proceeded against ex parte for non-appearance despite requisite notices.

3. The facts are un-disputed. Respondent No.1 being aggrieved of departmental order dated 24-5-2001, filed his departmental representation on 23-6-2001.On non-receipt of response for three months, he served a reminder on 25-9-2001. Respondent No.2 on 1-10-2001 informed respondent No.1 that his appeal had been referred to Ministry to seek advice of Establishment Division on the points raised by him. And that "he would be informed of the decision on his appeal as soon as advice is received from that end". On our query as to whether appeal of respondent No.1 was decided or not, respondent No.1 stated that his appeal had been decided but he neither produced the said decision nor did he know the date of decision. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court for the appellants informed us that the appeal was not decided.

4. Be that as it may, respondent No. 1 without waiting for the final decision of his departmental representation/appeal, filed Tribunal Appeal No.1397(R)CE of 2002 on 24-10-2002 in the Federal Service Tribunal. This appeal was filed sixteen months after 23-6-2001 i.e. the date of respondent No.1's representation and after twelve months from department's letter dated 1-10-2001 which was heavily relied upon by respondent No.1. This letter could only help respondent No.1 if he had waited for the decision of his representation or appeal and then challenged the same in the Tribunal within the prescribed period of limitation therefore provided. Instead respondent No.1 opted to institute his Tribunal appeal on 24-10-2002 against the original departmental order without waiting for the decision of his departmental appeal. This appeal against the original order was patently barred by time. Had petitioner waited for the order on his departmental appeal, a fresh period of limitation would have become available to respondent No. 1.

5. In the condonation application filed along with Tribunal appeal, respondent No.1 sought condonation on the sole ground that "the order dated 7-10-2010 was showing the intention of the respondent No.1 to keep the appellant on waiting till the final conclusion of the department". Disregarding the drafting errors, this ground could not be of help to respondent No.1. Instead of filing appeal against the original order within 120 days period, he choose to wait for the decision of his appeal and put himself on the hold. But making a bad choice, he decided to jump in the midstream with no straw to catch on to. He lost the first opportunity bf filing timely appeal against the original departmental/order. He allowed the first period of limitation to while away before filing his appeal with a delay of twelve months. The second opportunity never arose. His departmental appeal remained pending without an order thereupon. It was only on such appellate order that respondent No.1 could file his departmental appeal there-against to avail of the outer period of limitation. His period of limitation for filing appeal from the date of his representation had expired while in absence of decision of his departmental appeal, the second period of limitation never became available. Tribunal appeal of respondent No.1 against the original departmental order was thus patently barred by time. The Tribunal's treatment of the questions of limitation and the grant of condonation was arbitrarily and casual wherefor Tribunal's order cannot be sustained.

6. Accordingly the present appeal is accepted. The impugned judgment dated 23-12-2003 passed by the Federal Service Tribunal is set aside. As a result respondent No.1's Tribunal appeal would stand dismissed. M.A.K./D-2/SC Order accordingly.