SHAH ABDUR RASHID (CHAIRMAN).----In this appeal filed by Afe1 Ahmad who had been retired under M. L. R. 114, an application for condonation of delay in filing the appeal before the Tribunal, has been filed. This order will dispose of the said application.
2. The appellant had challenged the order of retirement by constitutional petition before the then High Court of Sind & Baluchistan which was pending when the Service Tribunals Ordinance, 1973, came into force --Section 6 of the said Ordinance, provides that all suits, appeals or applic9--tions regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Ordinance shall abate forthwith. The legal position that the writ petition pending before the High Court abated on 15th August, 1973 when the Service Tribunals Ordinance, 1973. Was promulgated by the President, is net disputed. The Service Tribunals Ordinance, 1973 was repealed and replaced by the Service Tribunals Act, 1973, which came into force of 26th September, 1973 and proviso to section 6 thereof gave the persons whose suit, application or appeal had abated to file appeal to the Service Tribunal within ninety days of its establishment. The Service Tribunal was set up on 22nd February, 1974 and therefore by virtue of the aforesaid proviso the petitioner should have approached the Tribunal on or before 22nd May, 1974. The present appeal was, however, filed on 1st September 1976 after a delay of more than two years and three months which is clearly barred by time.
3. The appellant in his affidavit appended to the application for condonation of delay has in para. 7 stated as follows :- "That although the Service Tribunals Act came into force during the pendency of the said petition, I did not approach this Hon'ble Tribunal earlier being under the bona fide belief that I could do so only after the final disposal of the matter by the Hon'ble Court. That, however, I have now been advised to approach this Hon'ble Tribunal, I have accordingly withdrawn my Constitution Petition on 26th August, 1976 and have preferred this appeal immediately there--after, Certified copy of the order of the Hon'ble Court permitting the withdrawal of the said petition will be filed separately."
4. The learned counsel for the appellant has urged that in order to administer justice to the aggrieved persons, the technical objection of limitation should not have been taken by the G6vernmentt which is the noblest litigant and is expected to help the Courts and Tribunal in giving substantial justice. He also argued that the administration of justice is an attribute of God and in an Islamic State, the Law of Limitation has no place whatsoever. We are quite conscious of these facts but as long as the law giving authority does not permit us to administer justice according to the Islamic Laws, we have to be guided by the statute which created us and which has laid down specific provisions with regard to our powers as also with regard to the time within which we can exercise our jurisdiction, The present petition under section 5 of the Limitation Act, 1908, has there-- fore, to be disposed of in accordance with the law which is in force, now.
5. The learned counsel for the appellant has relied on several authori--ties to pursuade us that in this particular case we should condone the delay under section 5 of the Limitation Act, 1908 read with section 7 of the Service Tribunal Act, 1973. He has contended that the lave was not clear on the specific point of jurisdiction in respect of the persons retired under M. L. R. 114 and that the Tribunal itself in one case was not able to give a unanimous decision. It is alleged that it was in these circumstances that the appellant was not able to decide earlier whether he should continue with his writ petition before the High Court or he should approach the Tribunal. This specific point is not raised in the application for condona--tion of delay and the affidavit filed therewith. However, the language of the statute is so clear that as far as the High Court is concerned, it had no jurisdiction to entertain any petition in respect of which the Tribunal had Jurisdiction and it is not open to argue that the legal position was uncer--tain. In any case it did not remain so for over two years and three months after which the present appeal was filed.
6. The learned counsel for the appellant then referred to the case of Chairman. Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258) and urged that on the principle laid down in this case, the delay of even eight years could be overlooked. In order to understand the-- law laid down in this case, I reproduce hereunder the specific para. To which refe--rence has been made :- "No hard and fast rule can be laid down for condonation of delay and the question of the sufficiency or otherwise of the cause is to be examined in the light of facts of each case. There have been cases where eight years delay was overlooked. On the other hand there are cases in which few months' delay was treated to be uncondonable. The principle, however, is well settled that Courts of equity have always refused aid to enforce stale claims or demands."
7. What this authority lays down is that Courts of equity do not condone delay where stale claims or demands are made. The learned counsel contends that since the appellant's case prima facie shows that the order against him is based on mistaken identity, the claim is neither stale not frivolous and, therefore, this Tribunal should lean in favour of condo--nation. This authority is of no help to the appellant because as held in so many cases and as is apparent from the language of section 5 of the Limitation Act, 1908, itself, the delay can be condoned only when the appellant has sufficient cause for not preferring appeal within the stipulated period. In fact as has been observed in the above referred case, no hard and fast rule can be laid down for condonation of delay and the question of sufficiency or otherwise of the cause has to be examined in the light of facts of each case. In the present case, the appellant is a literate person for having served the Government for a long time. Fie was expected to remain vigilant about the law and should have consulted his counsel as to what would be the fate of the writ petition after the coming into force of the Service Tribunals Act, 1973. There is nothing on record to show that the appellant acted with due diligence and consequently it cannot be said that there was sufficient cause for not coming to the Tribunal within the stipulated time.
8. Reference was made to the case of Nazar Muhammad v. Mst. Shezada Begum (PLD 1974 SC 27) wherein it was held that mistaken advice given by the counsel, may be considered sufficient ground for condonation. In the present case, however, as already observed, there is nothing in the affidavit of the appellant to show that he was advised not to approach the Tribunal within 90 days of its establishment and that the writ petition filed by him had not abated automatically. Again reliance was placed on the case of S. M. Said v. Settlement Commissioner (1974 SCMR 149) wherein delay was condoned on the basis of wrong advice given by counsel. In that case not only the appellant has relied on wrong advice but his counsel had frankly admitted before the Court that the delay was caused by wrong advice given by him. In the present case the counsel who was entrusted with the writ petition, never made any statement that he had given wrong advice to the appellant. On similar facts the Lahore High Court in the case of Fazil Muhammad and others v.
Subah Sadiq (PLD 1965 Lah. 542) has held that when the delay is caused on the mistaken advice of counsel, this constitutes sufficient ground for condonation of delay. The case does not help the appellant because as already stated ; there is nothing on record to establish that counsel had advised the appellant otherwise.
9. The case of Ghulam Fatima v. Federation of Pakistan (PLD 1970 Lah. 493) which has also been relied upon, is of no avail. The ratio of the case is that mistake of law of party and its agent, which is committed bona fide in spite of due care and attention, is sufficient case for condonation of delay.
In the appeal before us, the appellant has not been able to make out the case that he had taken due diligence in finding out the legal position after coming into force of the Service Tribunal Act, 1973. Another case reported as Syed Abid Ali Shah v. Ahmed Ali Qureshi (PLD 1976 Kar. 104) also lays down similar law and is of no help to the appellant.
10. The learned counsel for the appellant has also relied upon PLD 1976 Kar. 891, PLD 1977 SC 102, Law Notes 1975 Lah. 127, PLD 1976 Lah. 1304, and PLD 1974 SC 151, in support of his contention but in all these cases the delay was condoned either on the ground of mistaken advice for the reasons of the party being completely ignorant of law.
11. In the present case, as already observed, the appellant is a literate person. He was one of the several Government Servants who were retired under M. L. R. 114 and it is common knowledge that all these aggrieved persons had been in touch with each other and had formed, in some cases, common front to get them exonerated. In any, case the law became clear when the Supreme Court pronounced its Judgment on 25th November, 1975 in the case Sheikh Masood Ahmad v.
Federation of Pakistan (PLD 1976 SC195) holding that all the 'appeals, petitions, suits, etc. Stood automatically abated on the commencement of the Service Tribunals Ordinance, 1973, and that no formal order of the Court was necessary to terminate the proceedings before it. Learned counsel for the appellant has not been able to explain as to why so much time was taken by the appellant in coming to the Tribunal after final decision had been given by highest Court of the country.
12. The learned counsel argued that though the Supreme Court had given a positive decision yet it is not necessary that this decision may not be changed in any subsequent case. He referred to the cases of Dosso, Assm a Jilani and Nusrat Bhutto and contended that in each case, different views had- been expressed by the Supreme Court and that the Court is not precluded from taking another view after having once decided a particular point of law. We are afraid there is no substance in the contention of the learned counsel. It is very rare that the Supreme Court reviews its own decision. The case of Nusrat Bhutto was specifically distinguished by the Supreme Court from the case of Assm a Jilani and it cannot be said that the Supreme Court had changed its views in the latter case. In any case the Courts are bound by the latest decision of the Supreme Court and the plea, as raised by the learned counsel does not deserve even to be considered.
13. In the circumstances stated above, we do not find that the appellant has made out a case for condonation of delay. The appeal is, therefore, dismissed as being barred by time.