1987 PLP (C (PLC(CS))

MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).‑‑This is an appeal against the order of the Government dated 31‑12‑1980, whereby appellant was retired from the service in the public interest, under the provision of section 12 of the Civil Servants Act, 1973 on completion of 25 years service, qualifying for pension. The appellant has challenged the order of his retirement on the following grounds:‑ (1) That the retirement order has been passed on the basis of recommendation of a Committee, which has no legal existence and such a recommendation as well as the order of retirement is unjustified. (2) That neither the Committee nor the President gave an opportunity of being heard to the appellant, therefore, the order is against the natural justice. (3) That appellant's age was 51 years and he was entitled to remain in service for further 9 years. (4) That expression of word 'Public Interest' in the order dated 31‑12‑1980 was only a colourful exercise of the powers. The appellant pleaded that his work has been satisfactory and to substantiate that he attached some certificates with the memo. of the appeal. This case was heard ex parte as no body turned up to defend the Government. The written arguments have also been submitted in this case. A list of written arguments is as under:‑ (a) That the appellant was not given an opportunity of being heard which according to the appellant was necessary. In this respect 1982 P L C 389 has been referred. (The intention seems to be incorrect). (b) Objection has also been taken with respect of the Review Committee and it has been urged that Committee has formulated its own procedure for determining the matter but it has no such power and' had to act on the guidelines issued by the Government. The competent authority was influenced by the recommendation of the Review Committee, which had no legal footing. In this respect, the following case‑law .has been referred P L D 1978 Azad J & K; P L D Pesh. 194‑195; P L D 1971 S C 124 and 1982 (194)(197); P L D 1977 S C 639; P L D 1976 Lah. 1512; P L D 1976 S C 178. (c) According to the attorney for the appellant, an order passed without application of mind is not maintainable. The reliance has been placed on the following authority by Mr. M.A. Rathore, who apart from being a pleader, is the Attorney for the appellant. P L D 1955 S C 357; P L D 1978 Lah. 811, 1377; PLD 1973 Azad J & K 27. (d) It is also pleaded that the order passed in review was communicated to the appellant which was received by him on 15‑4‑1984. In written arguments, it has been contended that appeal has been filed within the time from the date of knowledge and be treated in time. Reference has been made to an earlier decision of this Tribunal in Service Appeal No. 109 decided on 6‑10‑1981. In view of the memorandum of the appeal and the arguments, the following points need determination:‑ (i) Whether the appeal is in time?. (ii) Whether the appeal is competent, without availaing the remedy ' in time before the departmental authority? (iii) Whether the Government while acting as an authority, did not apply its mind and acted entirely on the recommendations of the Review Committee? (iv) Whether the proceedings before the Review Committee were illegal and what is its effect on the present case? The point replied as (i) and (ii) being preliminary are as such, disposed of first. (i) The original order of retirement has been passed by the Government on 31‑12‑1980. The appellant himself admits that he submitted the review petition, through a registered post on 11‑2‑1981 and he has also mentioned that decision of the review petition also came to his knowledge on 15‑4‑1984. The review petition against the original order if proved to have been presented on 11‑2‑1981 would be in time as the period prescribed for making an application of review is 90 days, under Art. 53, KSR Vol. II, Appendix II. The appeal before the Tribunal against to original order has been preferred on 15‑5‑1985. The cause of action accrued to the appellant against the original order on 31‑12‑1980, when his retirement order was passed. The appellant was entitled to prefer an appeal before a Tribunal against this order, within 180 days of the issuance of the order, if he had preferred review petition to the appropriate authority, within time. This, period of 180 days includes 90 days, which a person must wait for the result of his review/appeal, before the departmental authority. He has not come to this Court with the present appeal, within the above‑stated period of 180 days. Therefore, the appeal which is preferred on 15‑5‑1985 against the order passed on 31‑12‑1980 is time‑barred. The decision of this Tribunal, referred to, in respect of the limitation is not applicable because it is not the case of appellant that the order, dated 30‑12‑1980 had not come to his knowledge, within the period of limitation. There is also no application for the condonation of delay, involved, in filing; the appeal. Only the reference to the review petition, before appropriate) authority does not extend the time in respect of the cause of. action, which accrued to him on 31‑12‑1980. If he felt advised to wait for the: decision of appeal, against the original order, he could do so because a cause of action would have again accrued to him on the decision of the review petition. The appellant could also challenge the order passed, in review within a period of 30 days as envisaged in section 4 of the Service Tribunal Act but the appellant for the reason best known to him, has not challenged the order passed in review, which according to him, came to his knowledge on 15‑4‑1982. He has not even mentioned the date of the order passed in review from which it could be proved that he had actually challenged the order, nor he has placed any copy of that order on record from which the time taken in disposal of review could be ascertained, so that the benefit of time, so spent, could be given to him, if so allowed by law. A copy of the order, placed on record, shows that some review petitions of the appellant, against order No. Talimat/496/81 dated 8‑1‑1981 was dismissed by the Government but the retirement order, challenged by him bears No. Talimat/7465‑73/80, dated 31‑12‑1980. The copy of the order further shows that the review petition of the appellant, dated 11‑12‑1981 made to the Government, was dismissed on 15‑3‑1982. Hence it is not established that the appellant had preferred any review petition, against the impugned order, dated 31‑12‑1980. Even if the petition decided on 15‑3‑1982, which was against the order dated 8‑1‑1981, and which is shown to have been made on 11‑12‑1981, is presumed to have been made against the impugned order, it is made about ten months, after the passing of the said order. Thus, it was also made after the period of limitation prescribed for the remedy before the departmental authority and it will be presumed that no such remedy was availed of, which renders, the appeal incompetent before the Service Tribunal. We are supported in our view regarding the limitation as well as regarding the competency of appeal, by 1982 P L C 151, 1984 P L C 1629. and a recent decision of this Tribunal in the case Sabir Hussain v. Azad Jammu and Kashmir Government in Service Appeal No.252. The order is not challenged on the point of jurisdiction, nor mala fide is attributed to the Government, so that on proof of the same, the entire proceeding could be set aside or limitation could be ignored. In view of the above discussion, it is held that the appeal is firstly, time‑barred, having been preferred on 15‑9‑1982, against the order dated 30‑12‑1980 and secondly, it is incompetent because the remedy provided before the departmental authority is not proved to have been availed of. Thus, appeal merits dismissal.??? In view of the decision of the points (i) and (ii) reflected earlier, the other points raised by the appellant, in circumstances of this case, need no determination, as the same would bring no fruit to the appellant. The upshot of this discussion is that the appeal is dismissed but we make no order as to the cost. A.A./39‑S/Lb./S????????? Appeal dismissed.