1987 PLP 1917 (SCMR)

SHAFIUR REHMAN, J.--The petitioner, a former employee of WAPDA, seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Federal Service Tribunal dismissing his appeal as time-barred.

2. The petitioner was removed from service on 12-1-1984 under section 17 (1-A) of the WAPDA Act, He filed an appeal against his removal in the Service Tribunal on 23-10-1984. He made an application dated 24-10-1984 seeking condonation of delay on the ground that against the order impugned in the appeal a departmental appeal had been filed on 30-1-1984 and that hearing had been afforded to him last on 15-10-1984. He had been pursuing this departmental appeal and on that account the delay in filing the appeal before the Tribunal be condoned.

3. The Service Tribunal refused to condone the delay taking the view which appears hereunder:- "We are unable to give any allowance to the appellant for period spent in his order reviewed. The order of authority passed under section 17(1-A) of the WAPDA Act is final and cannot be challenged except by way of appeal to the Tribunal. It was, however, contended that the review petitions are being entertained in the WAPDA. This may be so, but then it is only a departmental arrangement, having nothing to do with the legal position."

4. Mr. M.A. Khadim, Advocate, the learned counsel for the petitioner, has contended that in fact an order dismissing his review petition was passed on 25-10-1984 and communicated to him on 27-10-1984 and the reason given by him was sufficient to get the delay condoned. Besides, according to the learned counsel for the petitioner, in numerous other cases delay had been condoned by the Service Tribunal itself and reference in this context was invited to decisions in M. Sarwar Maqbool v. WAPDA Lahore (1987 P L C (C.S) 84), Gul Muhammad Khan v. Commissioner. Sargodha Division and another (1985 P L C (C.S) 105) and Muhammad Qasim Chang v Federal Service Tribunal and another (1986 S C M R 1656).

5. The law applicable (section 4 of the Service Tribunals Act (LXX of 1973) itself provides two occasions for appeal to the Service Tribunal. An appeal lies against an original order of removal as well as an appellate order. The situation visualized by the learned counsel and made a ground for seeking condonation has itself been taken note of in the statute and a provision made. It is the first proviso and reads as follows:- "Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred." The appeal filed by the petitioner before the Tribunal did not satisfy this requirement. The pendency of the review itself could not be made the basis for seeking condonation because for that a statutory provision already exists in the proviso. The petitioner had an opportunity to challenge the order passed in review, but he did not do so.

6. In the matter of condonation, each case has to be examined on its own merits and there cannot be uniformity when the facts on which condonation is sought, are different. The discretion exercised by the Tribunal in not condoning the delay in the case of the petitioner does not raise any question of law of public importance which may require our consideration under Article 212 (3) of the Constitution Hence leave to appeal is refused. S.Q./M-180/S Leave refused.