P L D 1990 Supreme Court 731 (PLP)

"It is, therefore, requested that Dr. Naru's appointment as Professor be corrected and rectified from 3rd May, 1975, the date on which he completes 7 years' experience as Assistant Professor." The respondent No. 1, thereafter, represented to the Martial Law Administrator, Complaint Cell, on 27th November, 1977 requesting an early decision on her representation made to the Government. Next, an interim reply was submitted by the Secretary, Government of Punjab Health Department, to the Chairman, Inspection Team, Martial Law Headquarters, on 30th January, 1978. The respondent No. 1 submitted yet another representation to the Martial Law Administrator on 9th September, 1978. By a letter dated 6th of August, 1978, she had been informed by the Health Department, as hereunder:‑‑ "In view of the Pakistan Medical Council Regulation No. 20, it has been advised by the Law Department/SGA&I Department that you do not appear to possess any basis for impugning the promotion as Professor of Dr. Nazir Alam Naru ordered on 3‑5‑1973."

5. The respondent No. 1 finally made a representation to the Governor of the Punjab, through Secretary to Government of Punjab Health Department, under section 21(2) of the Punjab Civil Servants Act, 1974, on 1‑10‑1978. on 29th of April, 1979, the Martial Law Authority communicated to her the comments of the Health Department rejecting her claim. She again represented to the Martial Law Administrator on 11‑5‑1979 on the same subject, and then filed the appeal before the Service Tribunal on 28‑5‑1979 and sought the following reliefs:‑‑ "(1) the appeal may kindly be accepted and impugned orders dated 29‑10‑1975, 22‑9‑1976 and 29‑4‑1979 may kindly be set aside; (2) the appointment of Respondent No. 2 as Professor from 3‑5‑1973 be held to be illegal and ineffective on the rights of appellant; (3) appellant may kindly be declared senior to Respondent No. 2 as Professor, and (4) costs of Appeal may also kindly be awarded to Appellant."

6. The Service Tribunal condoned the limitation, taking the view as hereunder:‑‑ "We have carefully examined this aspect of the case and find that the appellant was under a bona fide belief that the reply dated 29‑10‑1975 of the Section Officer, Health Department, being not in the name of the Governor, was not from the‑competent authority and further that she was under the belief that she could get the relief from the Departmental Authority which prevented her from approaching us. We have no hesitation to reiterate our earlier view as laid in 1980 PLC (C.S.) 605 which now stands further fortified by the observation of the Supreme Court in P L D 1975 SC 79 where the delay was condoned when it was found that there were quick changes in the constitution of law. We are of the considered opinion that the said observation of the Supreme Court would be applicable ‑to the facts of this case also as the appellant has diligently been pursuing her case before the Departmental Authority throughout and as such entitled to the condemnation of delay in view of the law as laid down in P L D 1961 SC 105, P L D 1967 SC 506, NLR 1978 (Services) L&S 535 and our own decision in the case of Ghazanfar Ali Chaudhry (case No. 956/838 of

). Although in our opinion the case of the appellant is not hit by limitation, as urged by the learned counsel for the respondent, yet as a matter of abundant caution to safeguard her interest we condone the delay." On Merits the Tribunal held as hereunder:‑‑ "It is a well‑established law that a senior officer in a lower grade continues to be senior in the higher grade as well and the earlier promotion of a junior person does not affect the right of a senior person. The senior officer only loses his right of seniority when he is superseded by a junior officer in the matter of promotion to the higher grade. The fact of super session can only be assumed when the junior and the senior are both considered together for the higher grade and the junior person is promoted in preference to the senior officer." On the third contention with regard to the eligibility of the respondent No. 2 to be appointed as Professor, the Tribunal held as hereunder:‑‑ "We also do not accept the contention of respondent No. 2 that the Government was justified by counting his two years training from 1968 to 1970 at the Jinnah Post‑Graduate Medical Centre, Karachi, as teaching experience as Assistant Professor on the ground that it was covered by a definition of the term 'teaching experience' as given by the Pakistan medical Council in its Resolution No. 20 of 1974. We take this decision for the reason that the term of 'teaching experience' has not been defined in 1971 rules as rule 2(2) of the said Rules states that the words and expressions used but not defined in these Rules will have the same meaning as given by the Pakistan Medical Council in the Ordinance of 1959 and the regulations made by the said Council."

7. Leave to appeal had been granted separately to respondent No. 2, but Ch. Fazal‑e‑Hussain, Advocate, the learned counsel representing him has appeared to state that as respondent No. 2 has retired from service, he is not interested in prosecuting his appeal nor contesting this appeal. Respondent No. 1 is also reported to have retired. In any case, she is not represented before us. IBE However, as the questions raised in the appeal of the Government of Punjab concern question of law of public importance, we have undertaken to dispose of this appeal independently on merits and expert against the respondents.

8. The grievance of the respondent No. 1 arose for the first time when a colleague of her, Assistant Professor like her, was promoted to the higher grade of a Professor, without satisfying the condition of eligibility for that post. This happened on 3‑5‑1973. Most of the time that she wasted upto 28th of May, 1979 was directed in seeking relief from Martial Law Authority which cannot be either categorized as departmental Authority or an authority in the hierarchy, superior to the departmental authority. Such knocking at the manifestly wrong door and seeking not legal remedies but administrative remedies could not justifiably be countenanced, condoned or ignored. In service matters, as has been pointed out by this Court in Chairman District Screening Committee Lahore and another v. Sharif Ahmad Hashmi P L D 1976 SC 258, time is of essence and that aspect stands further‑ emphasized by section 4 of the Service Tribunals Act which provides a limited period of waiting, even where representation or appeal has remained unattended. Similar is the position with regard to the question of seniority. It was also a stale matter the grievance having arisen in 1976 and a period of three years had been wasted in seeking administrative remedies through the Martial Law Administrator. The appeal was clearly time‑barred and the Tribunal was legally not correct in taking view that it was not time‑barred. Similarly, in condoning the delay no particular reason has been given because none of the decisions either of the Tribunal or the Supreme Court has permitted the recourse to such extra legal remedies as seeking redress from the Martial Law Administrators. Such an application repeatedly made to the same authority would in fact disclose that the respondent No. 1 was not interested in seeking the remedies available to her under the law.

9. As regards the view taken on merits, we have considered the same at length in another case coming up before us today i.e. Civil Appeal No. 376 of 1988 (Dr. Naseer Mahmood Akhtar v. Dr. Mahmood Ali Malik and another) and consider that independent of section 7(2) of the Punjab Civil Servants Act, 1974, even the rules of Service, inclusive of the Explanations, do not sustain the view taken by the Service Tribunal. It is also clear from the narration of facts that with her speciality the respondent No. 1 was not eligible to be considered for the speciality of Professor of Parasitology. The respondent No. 2 also was not then, as then required under the rules, possessed of the seven years requisite teaching experience to make him eligible for such promotion. The subsequent amendment in the eligibility rules or clarification having the effect of modifying the earlier requirement could not have retrospective effect. However, we do not intend discussing the merits of the case in greater detail on account of the fact that the appeal of the respondent No. I before the Service Tribunal was liable to be dismissed on the ground of being hopelessly time‑barred with no sufficient reason for condonation of delay.

10. The appeal is, therefore, allowed, The judgment of the Service Tribunal is set aside and the appeal filed by the respondent No. 1 before the Service Tribunal is dismissed as time‑barred. No order is made as to costs. M.B.A./G‑292/S appeal allowed