1990 PLP 1356 (SCMR)

Mian M. Ajmal, Assistant Advocate‑General, N.‑W.F.P. for Respondents. Date of hearing: 30th May, 1988. NASIM HASAN SHAH, J.‑‑‑This petition for leave to appeal is directed against the judgment & order of the N.‑W.F.P. Service Tribunal dated 30‑3‑1985 in Service Appeal No. 100 of 1984. The petitioner is a member of the provincial service having joined it in 1978 as an Extra Assistant Commissioner. He claims to have earned good reports till 1984 when in the report relating to the later part of the year 1981 i.e. from September, 1981 to December, 1981, the reporting officer (Deputy Commissioner, Peshawar) recorded the impugned adverse remarks regarding the work of the petitioner. The petitioner submitted a representation for expunction of the adverse remarks but the said representation was rejected on 20‑2‑1984. According to the petitioner, as the last‑mentioned order required some clarifications; therefore, he submitted another representation by way of review on 22‑3‑1984 and this representation was rejected on 12‑11‑1984. The petitioner then submitted an appeal before the N.‑W.F.P. Service Tribunal on 22‑12‑1984 praying for expunction of the adverse remarks. The learned Tribunal observed that the appeal was barred by time. In this connection, it was observed that the adverse remarks were communicated to the petitioner on 29‑10‑1983 and he filed a representation against it within time but this representation was rejected on 20‑2‑1984 and the order of rejection was communicated to the petitioner on 22‑2‑1984. He should have filed an appeal within 30 days. The petitioner, however, filed an appeal some 10 months after the communication of the aforesaid order to him. His appeal was, therefore, time barred. As regards the submission that the appeal was not at least time‑barred, so far as the order passed on review petition was concerned, it was observed that "a second representation against the adverse remarks could not be filed and the filing of the second representation of the rejection could not give him a fresh cause of action for the present appeal". In the result, the appeal was dismissed as time‑barred. Hence this petition. The main submission of the petitioner's learned counsel is that the review petition was duly entertained and rejected on merits and not on the ground that the second representation by way of review was not competent. Even if the observations of the learned Service Tribunal that the second representation by way of review was not competent be correct, even then, according to the petitioner, he was not alone in thinking that the second representation by way of review was competent but so also was the Government inasmuch it had duly entertained it and proceeded to dispose it of, on the merits. In these circumstances, this was a fit case for condonation of delay and a prayer to that effect was duly made before the Service Tribunal at the hearing of the appeal. We issued notice to the Advocate‑General, N.‑W.F.P., to address us on this aspect of the matter. Mr. Muhammad Ajmal, learned Assistant Advocate -General, has accordingly, appeared before us and contended that the second representation by way of review petition was not competent and has relied on Government of Pakistan through Secretary Establishment Division v. Bashir Ahmad Khan PLD 1985 SC 309 in support of his submission. But the dispute is not that the second representation by way of review was not competent. The question, on the other hand, is whether if under a bona fide mistaken view of the law this was done and the bona fides are apparent inasmuch as the same mistaken view was also shared by the Government, whether this was not a fit case for condonation of delay? We think it was. The learned Service Tribunal appears to have exercised its discretion not in accordance with law in refusing to condone the delay. It should, in our opinion, have condoned the delay and decided the appeal on merits. This petition is converted into an appeal and is hereby allowed. The impugned order of the Service Tribunal dated 30‑3‑1985 is set aside and the case remanded to the N.‑W.F.P. Service Tribunal for decision of the appeal filed by the petitioner afresh, on the merits. Order accordingly. H.B.T./I‑130/S Leave allowed.