1989 PLP 832 (PLC(CS))

‑‑‑ Locus poenitentiae‑‑Power of rescission is available till a decisive step is taken‑‑Employee promoted regularly after having qualified written test etc. and with due election‑‑Promotion order acted upon and employee working against post to which promoted for several years‑‑Such promotion order, held, could not be withdrawn and employee could not be asked to sit in competition again. PLD 1969 SC 407 rel. Nasim Ahmed Khan for Appellant. Ch. Sadiq Muhammad Warraich for Respondents. Date of hearing: 4th May, 1988. The appeals captioned above emerge from the decision dated 8‑10‑1987 recorded by learned Presiding Officer, Punjab Labour Court No. 6, Rawalpindi, whereby the grievance petitions of the respondents have been accepted. Since both the appeals involve common questions of fact and law, they arc being disposed of together through this single judgment.

2. The appeals are time‑barred and applications for condonation of delay have been given. The ground for condonation of delay is that Mr. Muhammad Saeed Bhatti, Advocate, who was deputed to get the copy of the judgment from the learned lower Court delivered the copy on 12‑3‑1988. An affidavit of Mr. Muhammad Saeed Bhatti, Advocate, has also been filed. The explanation given by the said lawyer for delivering the copy of the order of the learned lower Court late is that he had tried to contact the department but could not deliver the copy earlier on account of his professional (personal) engagements. Learned counsel for the appellant has cited three rulings on the point. They are 1985 S C M R 416, 198.5 C L C 1788 and P L D 1985 Quetta 74.

3. So far as the first mentioned ruling is concerned the facts were that on the last (late of the limitation stamp‑vendor was not available, therefore, the appeal could not be lodged on that date. It has been held that it was beyond the power of the appellant to lodge the appeal within time. It is clear that the party was vigilant to lodge the appeal within time but per chance on the last date of limitation, stamp‑vendor was not found, therefore, court‑fee stamp could not be purchased. Obviously there was no fault of the appellant in that case. The ruling, therefore, is distinguishable. The other ruling is 1985 C L C 1788 but this too is distinguishable. The facts of the case were that an appeal was brought against the decree for the recovery of Rs.3,000 as damages for malicious prosecution. Application for copy of the decree and the judgment had been given but only the copy of the judgment was supplied and not of the decree, therefore, the appeal was brought attaching to it the copy of the judgment only. Objection was raised by the opposite party that the appeal was time‑barred. Copy of the decree was supplied afterwards and it was attached to the appeal on such a date when the period of bringing the appeal had expired. It was held that since the application for copy was for the decree, as well as, judgment and copy of the judgment only was supplied, the appellant was not at fault and in these circumstances an application under section 5, Limitation Act for condonation of delay was allowed. Since the appellant in that case was not at fault, therefore, it was a good case of condonation of delay but the present case is quite different. P L D 1985 Quetta 74 is also distinguishable. The grievance petition under section 25‑A of the Industrial Relations Ordinance. 1969 was brought at Hyderabad but it was later on withdrawn for want of jurisdiction and the petition was presented at Quetta alongwith an application given under section 14 read with section 5 of the Limitation Act. Section 14 is quite clear and under this section the total period spent in a Court which had no jurisdiction is to be excluded. The period spent in the Hyderahad Court, therefore, was excluded and the petition was considered as within time. The lawyer who obtained the copy of the decision of the learned lower Court had not been engaged for filing the appeal. He may be counsel of the appellant in the learned lower Court or his services may have been hired only to obtain the copy. fie was thus an agent of the appellant and the appellant is responsible for the acts of the agent. Firstly the ground given in the affidavit of Mr. Muhammad Saeed Bhatti. Advocate, is not sufficient for condonation of delay and secondly the appellant was at fault in not contacting the said lawyer to obtain the copy from him. The appellant was at Rawalpindi, Mr. Muhammad Saeed Bhatti, Advocate, was also residing and practicing there and the learned Labour Court copy of whose decision was to be obtained was also located there. It was thus not impossible for Mr. Muhammad Saeed Bhatti, Advocate, to deliver the copy to the appellant in its office. He added that copy was delivered on 10‑2‑1988 and thus Mr. Muhammad Saeed Bhatti, Advocate, was guilty of gross negligence in not delivering the copy much earlier than 12‑3‑1988. He could have sent a telephonic message to the appellant for collecting the copy from him if he in reality could not personally go to the office. The appellant was also at fault. He knew that a period of limitation was fixed for preferring the appeal, therefore, he should have not slept upon the matter and should have contacted Mr. Muhammad Saeed Bhatti, Advocate, to get the copy from him. He should have when the period of limitation was about to expire sent some messenger to Mr. Muhammad Saeed Bhatti, Advocate. There is no explanation why no attempt was made to contact Mr. Muhammad Saeed Bhatti, Advocate. The appellant therefore, was guilty of gross negligence and did not exercise due care and caution which was expected from him. A party who fails to show diligence and has failed to exercise due care and caution can be said to have acted not bona fide. The affidavit of Mr. Muhammad Saced Bhatti, Advocate, shows that he in reality did not make any attempt to deliver the copy to the appellant. Saying that in spite of trying to contact the department he could not do so due to his professional engagements clearly shows that in reality he made no attempt. As mentioned above it was not difficult for him to go to the office personally or to send the copy through some messenger or to inform the appellant on telephone. He has not said in his affidavit that he had made such attempts but in spite of it could not contact the appellant. A valuable right has accrued to the respondent by lapse of time which cannot be denied without cogent and good grounds, therefore, the delay cannot he condoned.

4. Even on the merits the appellant has no case. The respondents after they were selected, were actually promoted and remained promoted for several years, therefore, they could not be thereafter asked to again sit in the competition. There is no force in the argument of the learned counsel for the appellant that the respondents were not selected but had only qualified. Exh. P. 1 in both the cases shows that both the respondents were selected for promotion and were actually appointed on the post of Wireless Licence. Inspector. The opening sentence of Exh. P.1 reads as under:‑‑ "It is notified for general information that following officials have finally been selected for promotion/and appointment to the cadre of Wireless Licence Inspector, (Grade‑8) on the basis of the viva voce test and the written examination held on 13/14‑2‑1976 and 4‑5‑1976 respectively." The names of the respondents are given at serial Nos. 4 and 5 respectively. This argument of the learned counsel for the appellant is also against facts that the respondents were promoted on ad hoc basis and in officiating capacity. So far as Muhammad Nazir Bhatti is concerned, Exh. P. 7 shows that for him new post was created. In this order it is not mentioned that he was being appointed on ad hoc basis or in officiating capacity or against a temporary post. So far as Muhammad Bashir is concerned, Exh. P. 2 shows that he was promoted as Wireless Licence Inspector in Grade‑8 and was posted at Islamabad. It is not mentioned that he was appointed on ad hoc basis. These appointments were made in 1976. So far as Muhammad Nazir Bhatti is concerned he was asked to qualify the prescribed departmental examination again as vide Exh. P. 2 the Government had refused to grant the relaxation of the condition of qualifying departmental examination. Exh. P. 2 is addressed to Muhammad Nazir Bhatti and Muhammad Bashir both the respondents. But Muhammad Nazir was informed vide Exh. P. 3 that the notice P. 2 had been withdrawn meaning thereby that he was not required to pass departmental examination again. Vide Exh. P. 4 again the matter was taken up and Muhammad Nazir Bhatti was informed that the order of withdrawal of relaxation of the rule had been 'withdrawn and he was asked to qualify the examination to be held on 20/21‑3‑1983. After promoting the respondent in a regular manner and after they had remained working on the posts for several years they could not be abruptly asked to qualify the examination again. The relaxation of qualifying the examination again also could not be legally withdrawn. Of course, if the respondent had not been selected and promoted against permanent vacancies, and new vacancies had accrued after several years they could have been asked to sit in the competition again. Learned counsel for the appellant has produced copy of the judgment of the Hon'ble High Court dated 25‑4‑1979 but the ruling is distinguishable from the present case. The employees in that case had been temporarily posted, P L D 1969 S C 407 applies to the present case. It is based upon the principle of locus poenitentiae which means that power of rescission is available till a decisive step is taken. It has been held that before a decisive step has been taken it is open to the Government tc withdraw or to rescind the order. In the present cases also the respondents had been regularly promoted after they had qualified and selected, so the order of promotion could not be. withdrawn and they could be asked to sit in the competition again.

5. As a result the appeals fail as being time‑barred as well as on the merits and thus are dismissed. A.E./538/Lb. P Appeals dismissed.