' TASSADUQ HUSSAIN JILLANI, J.---Ms. Farah Zahra (Respondent) having done her M. Phil from the University of Cambridge, United Kingdom applied (claiming eight years experience at various Universities) for the post of Assistant Professor in the Area Study Centre, Quaid-i-Azam University, Islamabad. She was recommended by the Selection Board and the matter was sent to the Board of Governors for final approval. The requisite teaching experience became a moot point. The Board of Governors appointed a 3-Member Committee and the latter rendered the opinion that she lacked the requisite teaching experience of four years. This order of the Board of Governors was challenged in a Constitutional Petiton by the Respondent, which was allowed vide judgment dated 13-7-2004, and it was held as under:-- .... There is no cavil to the fact that the petitioner had experience of one year at Harvard University as Research Fellow from August, 1997 to September, 1998. "She has also worked in Foreign Service Academy for two years as Course Director. In Quaid-I-Azam University, Islamabad as Visiting Faculty from August, 2001 to onward and in Kinaired College, Lahore as Visiting Faculty from 1991 to 1994 and thus she has total experience of 8 years, three years at undergraduate level and five years at postgraduate level. Her total experience by calculating the total experience of the petitioner in National/International Organization is more than four years. If the experience of the petitioner at University of Jaume I, Castellon, Spain is excluded, even then she has more than four years experience in the relevant field....."
2. Petitioners assailed the afore-referred judgment of a learned Judge of Lahore High Court in Intra-Court Appeal which was dismissed on the short ground of limitation vide impugned judgment dated 1-9-2004.
3. In support of this petition learned counsel for the petitioner has mainly made submissions on the question of limitation and he contended as under:---
(1) That against the judgment of the learned Single Judge dated 13-7-2004, the last date for filing of Intra-Court Appeal fell on 2-8-2004 on which date summer vacations of the Lahore High Court commenced and all its Benches were closed for work and in terms of notification issued by Hon'ble Chief Justice of Lahore High Court only urgent matters could be fixed.
(2) The petitioners, according to learned counsel, applied for the certified copy of the judgment on 15-7-2004 through Barrister Zafarullah which was prepared on 23-7-2004 and instead of going himself he asked Clerk of another Advocate Mr. Sajid to collect the certified copy. The High Court office refused to hand over the copy to him in absence of a written authority from the person (Barrister Zafarullah Khan) who applied (the certified copy stood 'prepared at S.No,1030 of High Court Office). Thereupon said Mr. Sajid Clerk applied afresh for a certified copy, which was handed over to him the same day, and the latter gave it to Mr. Zafarullah Khan Barrister-at-Law who without looking at the endorsement at the back of the certified copy of the judgment filed the I.C.A.
When the afore-referred defect came to the notice of learned counsel for the petitioners at the time of hearing of the Intra-Court Appeal on 1-9-2004, the counsel immediately collected from the copying agency the copy applied earlier at serial No,1030.
(3) In the afore-referred circumstances learned counsel contended that firstly the appeal was not time-barred as the last date for filing the appeal fell on the day when summer vacations commenced in the High Court (dated 2-8-2004) and secondly the period spent in obtaining certified copy had to be excluded. In support of the submissions learned counsel relied on PLD 1957 Karachi 843, PLD 1960 Karachi 741, 1975 SCMR 445, 1983 CLC 2853 and PLD 1993 Lahore 141.
4. Learned counsel for the respondent Syed Iqbal Haider while opposing the petition submitted that the Intra-Court Appeal filed by the petitioners was hopelessly time-barred, that there was no valid ground to seek condonation and that is why petitioners' learned counsel never filed an application under section 5 of the Limitation Act to seek the same. He added that certified copy of the judgment of learned Single Judge dated 13-7-2004 was applied for on 24-7-2004 and it was given to the petitioners on the same day. However, the Intra-Court Appeal was filed on 7th August, 2004 when the period of 20 days for filing the appeal had already expired on 3-8-2004. He contended that the law laid down in 1975 SCMR 452 has not been followed by this Court and that the latest law is reported in 1971 SCMR 779, 1999 SCMR 108, 2000 SCMR 354 and 2003 SCMR 1772 at page 1779.
5. We have heard learned counsel for parties and have given anxious consideration to the submissions made. The crucial point which escaped the notice of both the learned counsel is that to file an Intra-Court Appeal copy of the impugned judgment is not required to be filed. Thus if the period of limitation is computed with effect from the date of the judgment dated (13-7-2004) the petitioners had to file Intra-Court Appeal by or before 2-8-2004 whereas the same was filed on 7- 8-2004. In the meanwhile, the summer vacations of the Lahore High Court commenced with effect from 2-8-2004. The question, which requires consideration, is as to whether would the period of limitation run during the summer vacations. The relevant notification of the High Court regarding summer vacation 2004 was issued on 19th July, 2004 and it reads as under:-- "LAHORE HIGH COURT, LAHORE NOTIFICATION ' The High Court shall remain closed for regular judicial work from 2nd August to 31st August, 2004.
However, the vacation Judges, who will be notified separately, will be available at the Principal seat as well as the Benches during the said period.
(2) Only following categories of Urgent cases will he fixed for hearing during the vacation period:--
(i) Habeas Corpus Petitions or detention matters.
(ii) Anticipatory Bail Applications.
(iii) Petitions seeking injunction/stay orders in cases of imminent threat of irreparable loss.
(iv) Any other matter involving urgency, which may be permitted by the Hon'ble Senior Vacation Judge, available at the Principal Seat or at the Benches.
(3) The urgency shall be determined by the office.
(4) No notice case shall be fixed/heard during this period unless ordered by the learned Bench.
(5) The Registry shall, however, remain open and all categories of cases might be filed during the period.
' BY ORDER OF HON'BLE CHIEF JUSTICE (Sd). Additional Registrar (Judicial)."
6. In 1975 SCMR 445 (Fazal Karim and another v. Ghulam Jilani and others) precisely this question was considered by this Court and it was held that the period during which the Court remains closed on account of a holiday or vacations has to be excluded while computing the period of limitation. At page 455 it was observe as under:- " From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision.
Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notifications, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not synonymous with "Court" as used in section 4 of the Limitation Act. The Court may be closed and yet the Office might still be open. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "Petition" as used in the notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacation could be filed on the re-opening of the Court and was, therefore, well within time."
7. Syed lqbal Haider, learned counsel for the respondent though on a Court query could not dispute that the afore-referred judgment of this Court has not been re-visited. However, he contended that this judgment has not been followed subsequently. In this connection he relied on Lehar Khan and others v. Amir Hamza and others 1999 SCMR 108. We have gone through this judgment and noted that this Court had referred to its earlier view (1975 SCMR 445) and distinguished it from the case which reference has been made by respondent's learned, counsel. This Court at page 110 of the said judgment 1999 SCMR 108 observed as under:-- "4. The case-law above-referred does not advance the case of the petitioner. Suffice it to say that no notification has been issued by this Court giving option to an applicant to file petition for leave to appeal as issued by the High Court referred in the case of Fazal Karim (1975 SCMR 452).
Furthermore, both these cases relate to filing of petitions during vacation in the High Court by such persons as may choose to do so. The learned counsel for the petitioner was labouring under the impression that the Registries of this Court are closed during vacation. The closure of the Peshawar High Court at that time or any other High Court at any particular time is not relevant for the purpose of computing the period of limitation for petitions to be filed in the Supreme Court. Suffice it to say that when this Court is in vacation it cannot be said that its Registries are also closed. As a matter of facts, the Registries are always open for receiving the petitions and other work. The Hon'ble Judges of this Court invariably work throughout vacation. Reference may also be made to the provisions contained in Rule 2, Order II of the Supreme Court Rules, 1980 specifically providing for the offices of the Court to remain open during the vacation and the winter holidays. The Hon'ble Chief Justice of Pakistan has also declared vide Office Order No, F-9/2/7385/SCA, dated 3-7-1985, the Registries of the Supreme Court of Pakistan as non-vacation offices. Clearly, the offices of the Court remain open during vacation and the winter holiday and usual working hours are observed."
8. Similarly the other precedent case-law to which reference has been made by respondent's learned counsel are distinguishable. The case of Jumma v. Maulvi Mubarak (1971 SCMR 779 at page 780) was relate-. Able to the question whether the period when the Supreme Court was closed due to vacation could be excluded from the period of limitation or not. The other two judgments also do not advance respondent's case in any manner (Nooruddin and 3 others v. Pakistan through the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others (2000 SCMR 354) and Muhammad Yar through Legal Heirs v. Muhammad (2003 SCMR 1772 at page 1779).
9. Even otherwise, if the period of the days in the summer vacations of the High Court is not excluded, there is a delay only of 5 days which delay, we are of the view occurred as the petitioners were under the impression that certified copy of the impugned judgment has to be appended while filing the Intra-Court Appeal. In terms of Chapter I, Rule 4 of the High Court Rules and Orders attaching a certified copy of A the order or judgment is not required for filing Intra-Court Appeal.
The said provision reads as under:- "In an Intra-Court Appeal the memorandum of appeal need not be accompanied by a copy of decree, order or judgment appealed from. The period of limitation prescribed in this rule shall be computed in accordance with the provisions of section 12 of the Limitation Act, 1908."
10. Ordinarily we would not have excluded the period spent for obtaining a certified copy of the impugned judgment but it seems that both the petitioners and the respondent were under the impression that a certified copy was required for filing Intra-Court Appeal, that is why this issue was neither raised by the respondent before the learned Division Bench of the High Court which passed the impugned order nor in the Concise Statement filed by the respondent before this Court nor even during the arguments. This mistake, therefore, was bona fide and we are inclined to exclude the period spent for obtaining certified copy of the impugned' udgment while computing the period of limitation.
11. So far as the objection of respondent's counsel that no application under section 5 of the Limitation Act seeking condonation of delay is concerned, the law is well-settled that in a suitable case the Court for reasons to be recorded can suo motu enlarge the time and condone the delay.
This is in line with the view taken in Sarwar Khan v. Mir Ali and 10 others (1980 CLC 110 SC(AJ&K)).
12. Since vide the impugned judgment Intra-Court Appeal filed by the petitioners was dismissed on the short ground of limitation, both the learned counsel confined their submissions on the question of limitation alone. We, therefore, would not touch the merits of the case.
13. For the afore-referred reasons this petition is converted into appeal and allowed. The impugned judgment dated 1-9-2004 is set aside.
' The Intra Court Appeal filed by the petitioners before the High Court shall be deemed pending and shall be decided within (8) eight weeks of the receipt of this judgment.