1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).--The facts relevant for the decision of appeal are that the appellant joined the Education Department on 10th October, 1953. In the year 1986 when the appellant has completed 25 years qualifying service for pension etc., the respondents decided to scan the record of appellant in order to find out whether she should continue in service or it is in public interest to retire her under section 12(ii) of the Act. The Respondent No.l decided to retire the appellant and accordingly issued Notification of her retirement dated 26-6-1986. The appellant aggrieved by the said order of her retirement proceeded to file review petition on 23-7-1986 and since this review petition was not decided within 90 days she decided to invoke the jurisdiction of this Tribunal under section 4 of the Punjab Service Tribunal Act, 1974, within next 30 days. The appellant 'accordingly filed this appeal on 20-11-1986, which was admitted to regular hearing on 30-7-1987. .

2. The respondents have contested the appeal, filed written objections, controverted the claim of the appellant. The appeal is resisted on merits as well as on the point of limitation.

3. Learned Counsel for the appellant has assailed the order of appellant's retirement on the following grounds:- (a) Firstly, that the appellant has bright service record and there is no adverse entry against her. (b) Secondly, the action is mala fide on the part of Respondent No. 2.

4. On the other hand learned District Attorney has raised preliminary objection to the effect that the appeal is time-barred and on merits it is submitted that the appellant has chequered record of service. She never accepted transfer order and almost on all occasions when she was transferred, she resorted to uncalled for litigation. We are informed that the appellant is in the habit of using un-parliamentary and foul language and in this behalf, the learned District Attorney has referred to report dated 26-11-1984. It is further submitted that she had been using all sort of political pressure to get school of her own choice. In this behalf reliance is placed on a Letter of Mr. Yusaf Raza Gillani, Member, Federal Council and Chairman Zila Council, Multan addressed to Ch. Abdul Ghafoor the then Education Minister. She was transferred out of the Division under the orders of MLA Punjab Zone A, on account of serious complaints as is clear from the above report, dated 26-11-1984, submitted to the Secretary Education. It is further submitted that the appellant's conduct itself speaks volumes as there were numerous complaints /inquiries against her. In particular her treatment with staff was such that at one time the staff went on strike. She was Headmistress, Girls School, Makhdoompur Pahoran in the year 1983 and local press fully exploited the situation which brought bad name to the Department.

5. Learned District Attorney while arguing the preliminary objection, has submitted that the order of retirement of appellant was made on 26-6-1986. This order was passed by Respondent No.l therefore, the appellant had no remedy of review or representation under the law. This way time spent in pursuing the review petition was wasted on account of negligence of the appellant. Learned District Attorney in this behalf has referred to sections 21 and 22 of the PCS Act and section 4 of Punjab Service Tribunals Act, 1974. The said provisions of law are reproduced as under:-

4. Appeals to Tribunals.--(1) Any civil servant 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 appropriate Tribunal, whichever is latter 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 or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servants has referred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred. Section Where a right to prefer an appeal or apply for review in 21(1): 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 may, except where 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:

22. Nothing in this Act or in any rule shall be conducted to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable. It is clear from the bare reading of these sections that remedy of review was not available to the appellant. Learned District Attorney further submitted that since the appellant has not even cared to add application a/s 5 of the Limitation Act, therefore, this tribunal has no justification to extend time in this behalf and has prayed for dismissal of the appeal. The reliance is placed on 1986 S C M R 1826. The relevant portion reads as under: "The petitioner, who appeared in person, admitted that he had not applied for condonation of delay before the Tribunal. The order of the learned Tribunal in the circumstances, is unexceptionable. The petition is accordingly dismissed."

6. Learned Counsel for the appellant has submitted that appellant had a right of review and the same was being availed of by others. We have asked the learned counsel for the appellant to refer to the provision of law providing for review against the order made by Respondent No.l. Learned Counsel for the appellant failed to set his hands on any provision of law. It seems that the appellant is confusing the provision of PCO with the provision of Punjab Civil Servants Act. When PCO was enforced on 24-3-1981 the jurisdiction of this Tribunal and other Courts was taken away and instead a remedy by way of review was provided. Article 13 of the PCO reads as under: "13- Bar of jurisdiction in respect of Order of Retirement of Civil Servant.-- Were a person in the service of Pakistan as been or is retired from service under the orders of the competent authority after he has completed 25 years of service qualifying for pension or other retirement benefits, no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceeding calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before and such Court or Tribunal immediately before the commencement of this order shall state forthwith. (2) Any person in respect of whom an order such as is referred to in Clause (I) has been or is made may, within 30 days from the commencement of this order or the date of the making of the order, whichever is later, apply to the competent authority for a review of the order."

7. The preliminary objection of the learned District Attorney is fully justified and must prevail. The appeal is dismissed as being time-barred. S.Q./148/Sr.P????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed