2009 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Abdul Khaliq, Lineman-II has been transferred from Chichawatni to Quetta vide order dated 10-6-2000 and Corrigendum dated 12-12-2001. He is aggrieved by his this transfer and has challenged it through the present appeal filed under Section 4 of the Service Tribunals Act, 1973. Along with appeal an application for grant of temporary injunction has also been filed restraining the respondents from implementing the impugned order.

2. The appellant has submitted that his Appointing Authority was the Executive Engineer and only he was competent to transfer him. According to the learned counsel for the appellant the impugned order of transfer has been passed by an incompetent authority, therefore, it is illegal. It is also submitted by him that the appellant could not be transferred from the Circle in which he was appointed to any other Circle.

3. The appeal has been resisted by the respondents. It is maintained that the appeal is hopelessly time-barred and is also not competent, as the appellant had not availed the departmental remedy by filing a departmental appeal against the impugned order. On merits it is maintained that the appellant can be transferred anywhere in Pakistan.

4. We have heard the learned counsel for the parties and have also perused the record.

5. The appellant did not file any departmental appeal against the impugned order. Remedy under Section 4 of the Service Tribunals Act, 1973 is available to a Civil Servant only when he has availed the departmental remedy. Section 2-A has been inserted in the Service Tribunals Act, 1973 and by fiction of law the appellant has become a Civil Servant. Under the said law he has no right to file the present appeal without filing the departmental appeal. We are, therefore, constrained to hold that the present appeal is incompetent. Reliance is placed on the law laid down in 2001 SCMR 848 and 1992 SCMR 1789.

6. The second objection of the respondents is that the appeal is hopelessly time-barred. The impugned order had been passed on 10-6-2000 and the Corrigendum was issued on 12-12-2001 but this appeal was filed on 3-12-2002. The maximum period of limitation for filing an appeal under Section 4 of the Service Tribunals Act, 1973 is 120 (sic) days starting from the date the order in question is passed. Since the impugned order had been passed on 10-6-2000, therefore, the present appeal is hopelessly time-barred. Even if the period of limitation is computed from the date when the Corrigendum was issued the appeal would still be hopelessly time-barred. As observed above the Corrigendum was issued on 12-12-2001 but the appeal was filed after about one year on 342-2002. No good ground has been shown for condonation of this inordinate delay in filing the appeal. The learned counsel for the appellant has submitted that the appellant had under a bona fide mistake, approached the National Industrial Relations Commission for the redress of his grievance and then had filed a Writ Petition and it was due to this bona fide mistake in selection of the correct forum that the present delay in filing the appeal had occurred. We are not convinced by this argument. Ignorance of law is never a valid excuse for condonation of delay. Section 2.A had been inserted in the Civil Servants Act on 10-6-1997. The employees of WAPDA, under this amendment, could come to this Tribunal only for the redress of their grievances. The appellant cannot be allowed to plead that since he did not know about this amended law, therefore, he had started litigation in the National Industrial Relations Commission and subsequently before the Honourable High Court. The appellant had engaged lawyers for the National Industrial Relations Commission and the High Court as such this ground is also not available to him that he had not been given correct legal advice. In 2001 PLC (C.S.) 212 it has been held that mistake of a counsel in approaching a wrong forum on account of carelessness, negligence and without due diligence and caution, could not be taken up as a good ground for condonation of delay. This authority is applicable to the facts of the present case and endorses our above observation that the mistake of a lawyer or ignorance of law shall not be a good excuse for condoning the delay in filing the appeal in this Tribunal. It is correct that the appellant had also approached the Honourable High Court and he was advised to approach this Tribunal for the redressal of his grievance, but this direction of the Honourable High Court did not enlarge or condone the period of delay. This Tribunal is not an Executing Court and the appeal before it filed under Section 4 cannot be passed on the orders of the High Court. In this regard reliance is placed on 2001 T.D. (Service)

1. In the circumstances we are constrained to hold that the appeal is hopelessly time-barred and there is no reason for condoning the delay.

7. On merits also the appellant has no case. He had accepted his appointment on the basis of his appointment order which is on the record as Annexure "A". The terms and conditions incorporated in the appointment order overruled all other circulars/instructions relating to the terms and conditions of his employment. The Condition No.9 of the appointment order clearly says that the appellant shall be required to serve the authority (WAPDA) anywhere within Pakistan. In view of this condition the appellant can be transferred anywhere in Pakistan. He cannot claim that he could not be transferred from Chichawatni to Quetta. The learned counsel for the appellant has submitted that in Condition No.9 it is mentioned that the authority competent to transfer the appellant was his appointing authority who in the present case was the Executive Engineer. The learned counsel for the appellant has argued that only the Executive Engineer was competent to transfer the appellant being his appointing authority. There is no force in the argument. The Executive Engineer is only a delegatee of the authority in which the appellant has been employed. Any other authority who is higher in rank than the Executive Engineer is competent to transfer the appellant. In the present case the appellant had been transferred by an authority higher than the Executive Engineer who had issued the appointment orders of the appellant. That authority was fully competent to pass the impugned order of transfer. The argument of the appellant is thus repelled.

8. The learned counsel for the appellant has also argued that the appellant could not be transferred from the Circle in which he was appointed. This argument is also without any legal force. The appellant is an employee of WAPDA. WAPDA has constituted and created Circles for administrative reasons. No employee of WAPDA can claim that he is employed for a certain Circle and cannot be transferred to any other circle. Had this been the position, the Condition No.9 referred to above would not have been mentioned in the appointment order. The appellant is not an employee of WAPDA for one Circle only. He is an employee of WAPDA for entire Pakistan and can be posted or transferred anywhere in Pakistan. The argument is accordingly rejected.

9. For the above reasons we find no merit in the appeal. It is, therefore, dismissed in limine. The application for grant of temporary injunction is also dismissed.

10. We have dismissed the appeal but we hope that the Competent Authority and the Chairman of WAPDA shall consider the case of the appellant on compassionate grounds keeping in view that he is only a lineman and it may be very difficult for him to work efficiently in the remotest corner of the Country in the meagre salary he is drawing.

11. Parties be informed. H.B.T./1/FST Appeal dismissed.