2000SCMR181 (PLP)

IRSHAD HASAN KHAN, J.

Leave to appeal is sought against the judgment dated 16-12-1998, passed by Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), in Appeal No.381-R of 1998).

2. Brief facts are that the petitioner, while serving as Chairman and Professor of Biology in the Quaid-e-Azam University, was appointed its Vice -Chancellor on 27-12-1994, for a statutory term of four years with effect from assuming charge of office, by the Chancellor of the University, who is the President of the Islamic Republic of Pakistan, in exercise of powers vested in him under section 12(1) of the Quaid-e-Azam University Act, 1973 (hereinafter referred to as the Act). Appointment order provided that the petitioner shall complete his tenure, notwithstanding his superannuation earlier than the date of expiry of term of four years, Though the petitioner's statutory tenure of office was to expire on 26-12-1998 but the respondent No. 1, on 13-5-1997, issued an order under section 12(1) of the Act, appointing respondent No.3 as Vice -Chancellor of the University for a term of four years with immediate effect, in place of the petitioner, whose services were ordered to be terminated forthwith.

3. Feeling aggrieved, the petitioner filed a Writ Petition No. 1075 of 1995 before the Lahore High Court, Rawalpindi Bench, which was dismissed for lack of jurisdiction under Article 212 of the Constitution vide order dated 12-5-1998. The High Court held that the competent forum for seeking remedy was the Service Tribunal, whereupon the petitioner filed appeal before the Tribunal, which was dismissed being barred by time.

4. Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the petitioner contends that the tribunal was wrong in holding that the petitioner has already completed his tenure of four years' service, inasmuch, the petitioner's, statutory tenure of office was to expire on 26-12-1998, therefore, respondent No.l,, on 13-5-1997, illegally issued an order under section 12(I) of the Act, appointing respondent No.3, as Vice-Chancellor of the University for a term of four years in place of the petitioner, whose services were terminated, without assigning any reason. He further states that the Tribunal was wrong in dismissing the appeal being time-barred, inasmuch as, the petitioner was entitled to avail of period spent bona fide and in good faith, prosecuting proceedings in and before the High Court, under section 5 read with section 14 of the Limitation Act, 1908. It is submitted that the Tribunal passed the impugned order by misconstruing the above provision. It is further contended that the Tribunal was wrong in holding that departmental representation under section 4 of the Service Tribunals Act, 1973, should have been filed before invoking the jurisdiction of the Tribunal, inasmuch as, qua the period of limitation prescribed for appeal on the retrospective operation of section 2-A, the petitioner was deemed to be a civil servant for availing of remedy in appeal before the Service Tribunal and filing of departmental appeal was not a sine qua non for approaching the Tribunal. Reliance was also placed on order dated 16-12-1998, passed in Civil Petitions Nos. 483 of 1998 and 685 of 1998, in the case of Lt. Col (Retd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad, to contend that after retrospective operation of section 2-A of the Act, question of limitation should have been decided by the Tribunal in the light of the special circumstances since the provisions of section 4 of the Service Tribunals Act provided departmental appeal, were applicable only to civil servants and not to a person, like the petitioner, to invoke the jurisdiction of the Tribunal by virtue of section 2-A. Finally, it is contended that the petitioner is not seeking reinstatement but only arrears for the unexpired period of his statutory term of four years.

5. Leave to appeal is granted to consider the above questions. M.B.A./M-367/S Leave granted.