2003 PLP 1471 (SCMR)

SARDAR MUHAMMAD RAZA, J.

Zafar Iqbal Khan was an Accounts Officer in Rice Programme Unit (PARC), Kala Shah Kaku. A seniority list was issued by the authorities on 19-9-1994, whereby his two colleagues Anwar Beg and Akbar Khan were shown senior and promoted as Accounts Officer (B-17) by ignoring Zafar Iqbal. His departmental appeal, dated 16-10-1994 having not been respondend to, the petitioner filed writ petition before Lahore High Court, which was dismissed on 19-4-1999 for lack of jurisdiction.

2. Thereafter, Zafar Iqbal on 24-6-1999 resorted to the Federal Service Tribunal, Islamabad which appeal was dismissed on 15-8-2001 on ground of limitation, where condonation was declined. Zafar Iqbal seeks leave to appeal through this petition.

3. The petitioner in person challenged the judgment of the Service Tribunal on the ground that he had been litigating before the High Court when during the pendency of his Writ Petition section 2A was inserted in the Service. Tribunals Act, 1973, declaring him to be a civil servant for purposes of the said Act. That, as the High Court had not directed him to resort to the Service Tribunal and as the writ petition was decided on 19-4-1999, his .resort to the Service Tribunal on 24-6-1999 was not at all belated. That even if belated, the learned Tribunal ought to have had condoned the delay, considering it to be bona fide litigation in another forum.

4. Mr. Abdul Karim Kundi, learned counsel for respondent No.6, contended that law about limitation and condonation thereof qua a party litigating in a wrong forum is quite clear for a long period of a couple of decades. He was of the mind that in view of numerous rulings of the superior Courts, such type of delay has never been condoned because of being an act of non-vigilance and negligence.

5. It is an admitted fact that while serving in the Rice Programme Unit, Zafar Iqbal was not a civil servant. Thus, the matter of seniority and promotion could only be challenged in a Civil Court. He, however, was advised to invoke the Constitutional jurisdiction of High Court under Article

199. Around October, 1994, he filed a writ petition which .was pending in Court when on 10-6-1997 section 2A was inserted in the Service Tribunals Act, whereby a forum qua service matters was provided to the petitioner. Whenever the forum of Service Tribunal is provided to a person or a class of persons, litigating in any forum other than the Service Tribunal, the legal effect of such creation of forum is clearly provided in section 6 of the Service Tribunals Act, 1973, which is reproduced below:-- "

6. Abatement of suits and other proceedings.--All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or, application may, within ninety days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."

6. The above section though enacted in 1973 provides a remedy for all times to come whenever the jurisdiction of a Tribunal is extended. The section' operates to abate all suits, appeals or applications pending in any .Court while the proviso thereof lays down in more than clear words that any party to such a suit, appeal or application, within ninety days of the establishment of appropriate Tribunal would prefer an appeal to such Tribunal.. The words establishment of the appropriate Tribunal brought about by Service Tribunals (Amendment) Act (XXXI of 1974) are meaningful to the effect that whenever any Tribunal is established for any person or class of persons, they have to resort to such Tribunal within the period prescribed in the section itself.

7. By insertion of section 2-A in the Service Tribunals Act, the Tribunal got established for the petitioner with effect from 10-6-1997. It was incumbent upon the petitioner to have had resorted to the Tribunal on or before 10-9-1997, whereas, he filed appeal before the Tribunal on 24-6-1999 which was, of course, hopelessly time-barred.

8. The creation of a forum through section 2-A in the Act even after its enactment in 1973, was not a new phenomenon. A similar situation was faced by WAPDA employees, who, though not civil servants yet were so declared by West Pakistan Water and Power Development Authority (Amendment) Ordinance, extending Service Tribunals Act, 1973, to WAPDA employees with effect from 30-9-1975. This Court in Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249) had categorically held that the Amendment Ordnance applied to WAPDA employees on and after 30-9-1975 and that all civil appeals before District Courts abated on such date.

9. Similar was the situation faced by the employees of Pakistan International Airline Corporation where identical view was taken by the Court in The Chairman, P.I.A.C. v. Nasim Malik (PLD 1990 SC 951). In view of this legal position, we are in agreement with the learned counsel for the respondent that in the instant case the abatement provided by the law itself was automatic and it had to take effect from the very date (10-6-1997) when, through the insertion of section 2-A in the Service Tribunals Act, the change of forum took place. We also agree and hold that whenever the abatement is automatic, no party to a litigation before any forum other than the newly created one, is supposed to wait for the final decision of or any instruction by the forum where the cause is already pending. The petitioner, without waiting for the decision of the High Court or any instruction therefrom ought to have had resorted to the Service Tribunal. In this view of the matter, his appeal before the Tribunal was hopelessly time-barred and rightly declared so.

10. Coming to the question of condonation of delay, we would appreciate as to how far the petitioner is justified in saying that the Tribunal, had acted without jurisdiction in not condoning the delay involved as, according to him, it was caused due to bona fide litigation in another forum.

11. The law that has developed for decades holds a view contrary to the petitioner's prayer. In Ch. Muhammad Sharif v. Muhammad Ali Khan (1975 SCMR 259) the filing of an appeal before District Judge which otherwise should have been filed before the High Court, was considered to be an act of gross lack of care amounting to negligence an( in said case the refusal to condone delay was held justified. In the instant case as well, the continuation of writ petition before the High Court and failure to resort to the Tribunal after 10-6-1997 was a matter o negligence and lack of care. Lack of exercise of due diligence and caution before moving a wrong forum or staying in a wrong forum was again considered uncondonable by this Court in Mirza Muhammad Saeed v. Shahab-ud-Din (PLD 1983 SC 385), Muhammad Tufail Danish v. Deputy Director, F.I.A. (1991 SCMR 1841). It has now become a settled principle of law that litigating before a wrong forum has never been considered to be a bona fide act in law and the delay caused thereby has not been condoned.

12. Though not very necessary yet for academic exercise, we may observe that even on merit, the petitioner had no case. Learned counsel carried us through the record indicating that the petitioner was appointee on 22-7-1985 while Anwar Beg (respondent No.7) was appointed on 14-7-1982. Due to transfer and appointment in a project, there was some dispute between the employees of projects and those of head office. Regulation 12, Sub-Regulation (5) of Pakistan Agricultural Research Employees (Service) Regulations, 1984, provided that in case of such dispute an assessment committed shall be formed by the Council which shall make recommendations qua seniority in such cadre or post. In the instant case such Assessment Committee was constituted which gave seniority to Anwar Beg, who otherwise, was almost three years senior to the petitioner.

13. Akbar Khan respondent No.8 was given seniority by the same committee holding that it was a case of promotion and not initial appointment. He was given seniority with effect from 13-11-1985. No doubt, the petitioner having been appointed on 22-7-1985 prima facie appeared senior but Akbar Khan was declared senior on the principle that if a promotee of the department is so promoted and if a new incumbent is so appointed in the higher grade, in the same calendar year, the promotee will rank senior to the new entrant regardless of their dates of promotion.

14. Consequent upon what has been discussed above, there being no merit in the instant petition, it is hereby dismissed and leave to appeal refused. M.B.A./Z-137/S Appeal dismissed.