1999 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal by way of leave of the Court, is directed against the order, passed by the Service Tribunal on 11‑2‑1998, whereby the appeal filed by the appellant, herein, was dismissed.

2. The necessary facts, giving rise to the present appeal, are that according to the appellant he was inducted in Azad Jammu and Kashmir Police (Reserve) Service as Constable on 3‑7‑1962, and by dint of his hard work was promoted as Sub‑Inspector on 1‑2‑1974. The appellant is M.A.LL.B. The Inspector‑General of Police, respondent No.2, promoted the appellant as Prosecuting Inspector without the consent or the request of the appellant. In 1983, the Azad Jammu and Kashmir Deputy Superintendent o‑` Police Service Rules, came into existence, wherein it is claimed by respondents, that promotion on the post of' D.S.P. was confined only to the Reserve Police and not the Prosecution Branch Many junior officers to the appellant were promoted to various ranks but the appellant is still posted as Prosecuting Inspector. The appellant made representations to the Inspector- General of Police to transfer him back to his parent Branch but the matter remained procrastinating for a pretty long time. Ultimately on 29‑1‑1995 the application of the appellant was rejected. The appellant filed an appeal against the order of Inspector‑General of Police before the Secretary Home who failed to decide it within the statutory period and consequently the appellant filed an appeal before the Service Tribunal for the redressal of his grievance on 12‑6‑1995. The Service Tribunal dismissed the appeal filed by the appellant on 11‑2‑1998, on the ground that the matter of transfer did not fall within the purview of terms and conditions of service, therefore, the Service Tribunal was not competent to hear the appeal. It was also observed by the Service Tribunal that transfer of appellant from Prosecution Branch to Reserve Branch will affect adversely the seniority of Inspectors (Reserve) Police. According to the appellant the impugned order, dated 11‑2‑1998 of the Service Tribunal was not within his knowledge as the same was not announced in his presence as the appellant was transferred from Muzaffarabad to District Rawalakot in October, 1997, and due to unavoidable circumstances which were beyond the, control of the appellant he could not contact his counsel who was also unaware of the new posting of the appellant. Sardar Rafique Mahmood Khan, Advocate, in support of the assertion of the appellant has also filed an affidavit.

3. It is further claimed by the appellant that on account of observation made by the Service Tribunal in the impugned judgment,, when it came to the knowledge of the appellant he filed a writ petition before the High Court for seeking a direction to the .respondents to transfer the appellant from Prosecuting Branch to Reserve Branch but the High Court dismissed the writ petition in limine expressing its view that the case of appellant relates to the terms and conditions of service and the proper forum for the appellant was to file an appeal before the Supreme Court and if he was unaware of the order of the Service Tribunal he could seek the condonation of delay, if allowed under law. In these circumstances the appellant claims that he filed a petition for leave to appeal against the order of Service Tribunal passed on 11‑2‑1998 before this Court on 23‑7‑1998, therefore, he prayed that the delay in filing the appeal may be condoned for the above stated reasons.

4. We have heard the‑learned counsel for the parties and perused the relevant record. The office has reported that the appeal filed, by the appellant against the order, passed by the Service Tribunal is barred by limitation of 99 days.

5. It has been contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, that at the time of announcement of judgment by the Service Tribunal, the appellant had been transferred to Rawalakot: The judgment having been announced in his absence the appellant deserves the condonation of delay. The learned counsel has further contended that in view of the observation made by the Service Tribunal that the transfer matter does not relate to the terms and conditions of a civil servant, therefore, the appellant chose the forum of High Court by filing a writ petition seeking direction against the respondents. This mistake of choosing a wrong forum being bona fide is sufficient cause for the condonation of delay.

6. On the other hand Raja Shiraz Kayani, the learned Advocate -General, controverted, the arguments advanced by Sardar Rafique Mahmood Khan, the learned counsel for the appellant. He has contended that no reasonable explanation has been given by the appellant so as to justify the condonation of delay. The learned counsel also submitted that an advice, which is not given after due care and diligence can never be a ground for condonation of delay.

7. After hearing the learned counsel for the parties and perusing the record, it may be stated that without adverting to the merits of the case of the present appeal is liable to be dismissed as the same is barred by limitation. The impugned judgment, which was assailed before us was announced by the Service Tribunal on 11‑2‑1998. The same was duly intimated to the learned counsel for the appellant Sardar Rafique Mahmood Khan on 14‑2‑1998, as it appears from the notice attached with the paper book at page 25, wherein the signatures of Sardar Rafique Mahmood Khan have been affixed. This shows that at least Sardar Rafique Mahmood Khan, the learned counsel for the appellant, was intimated of the judgment of Service Tribunal three days after, it pronouncement, but all the same the learned counsel is stated not to have informed the appellant with regard to the announcement of the judgment. The affidavit filed by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, runs counter to the facts apparent from the file. In his affidavit the learned counsel has deposed that the appellant contacted him for the first time on 23‑5‑1998, therefore, he filed the petition' for leave to appeal on 23‑7‑1998. In our view it is a settled proposition of law that knowledge of counsel would be deemed to be the knowledge of the client. In case reported as Azad Jammu and Kashmir Council v. Abdur Rashid and others (PLD 1997 (AJ&K) 17), it was held that knowledge of the counsel would be deemed to be the knowledge of the client and thus, failure of the counsel to inform his client about the decision of case does not constitute sufficient cause for condoning delay. In this case reliance was placed upon cases reported as Rehmat Bibi and 4 others v. Ghazanfar Hussain and another (PLD 1983 SC (AJ&K) 25) and Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others (1974 SCMR 223)

8. In a case reported as Dr. Muhammad Iqbal Qureshi v. Azad Government and others (1993 SCR 111), it was held that as the counsel admitted the service of notice on him few days after the announcement of judgment, his failure to inform his client did not constitute sufficient cause, for condoning delay. Identical view was taken in cases reported as Mahboob and another v. Muzaffar Din (1992 SCR 338), Khadim Hussain Khan v. The State (PLD 1982 SC (AJ&K) 13), Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif (PLD 1983 SC (AJ&K) 70).

9. After giving due consideration we are of the view that the counsel for the appellant having been intimated of the judgment on 14‑2‑1998, the filing of appeal before this Court on 23‑7‑1998 is hopelessly time‑barred by 99 days. The explanation furnished by the appellant and the counsel for the appellant for condonation of delay is neither reasonable nor in consonance' with law as the same does not appear to be a bona fide mistake rather it is a case of gross negligence, therefore, the limitation cannot be condoned.

10. In the light of what has been stated above, the appeal being time , barred is hereby dismissed with costs. Appeal dismissed