1. ' Mian Rashad Ahmed appellant has filed this service appeal to challenge the legality and validity of Government Order No, 12744-52/78 dated 12th June 1978 whereby Tariq Bashir Sheikh respondent No, 3 was appointed as Deputy Director, Industries by respondent No. 1.
2. ' Brief facts which led to the filing of this appeal are that appellant was appointed as Assistant Director Minerals vide Government Order No, 585 dated 11th April, 1973 by respondent No. 1 who accordingly joined the service under the respondent. The appellant put in about 5 years service as Assistant Director but could not be promoted as Deputy Director Industries for the detailed reasons of malice, ill-will and enmity of Director Industries respondent No, 2 the details of which need not be mentioned here as the same is irrelevant for the purposes of deciding the legality and validity of the impugned order. Later on, Mr. Qamar-uzZeman Khan Naizi was promoted as Deputy Director on ad hoc basis who again was reverted vide Government order Admin. 15573-81/77 dated 5th December, 1977, and one Mr. Ghulam Rasool, a retired Superintendent Government Printing Press, was appointed as 0. S. D. In the Industry Department against a temporary post created for six months only and the post of Deputy Director was kept vacant vide Government Order No, 5329/79 dated 26th March, 1978, After six months, on the recommendation of Public Service Commission, the Azad Government appointed Mr. Tariq Bashir Sheikh as Deputy Director Industries vide the impugned Government order disregarding the superior claim of appellant to promotion as Deputy Director, Industries.
3. ' It is this impugned order from which the appellant felt aggrieved and filed a review petition before respondent No. 1 which remained undecided even after lapse of ninety days. Now the appellant chose to file this appeal before the Service Tribunal for the redress of his grievances as he considers that by the promotion of respondent No, 3.And by ignoring better and superior rights of appellant to such promotion his terms and conditions of service were violated by the respondent.
4. ' I have heard the preliminary arguments advanced by the counsel for the appellant on the point of limitation as this legal point if decided against the appellant would cut at the very roots of the right of appeal. The impugned order was passed on 26th June, 1978 against which a review petition was referred on 4th July, 1978. It remained undecided till the prescribed ninety days elapsed on 4th October, 1978. The appellant could have filed his appeal within a further extended period of 30 days from 4th October 1978 but he filed this appeal on 27th November, 1979, that is, after about an interval of one year. The appellant did not file any application for condonation of delay alongwith the memorandum of appeal supported with an affidavit. When his attention was drawn to this aspect of his case then on 28th January, 1981 the appellant filed an application in which it was contended that, firstly, the Service Tribunals Act, 1975 does not provide for any period of limitation for filing of appeal before Service Tribunal in case the review petition filed before the departmental authority is not decided within 90 days and as such, according to the counsel for the appellant, no limitation was prescribed for filing appeal before the Service Tribunal after the lapse of ninety days.
5. In the alternative, secondly, it was prayed that section 9 of the Service Tribunal Act, 1975 made sections 5 and 12 of the Limitation Act, 1908 applicable to service appeals and as such the appellant had sufficient cause which justified the delay caused in filing the appeal. It was prayed that the delay may be condoned in view of the circumstances which were faced by the appellant before filing the present appeal.
6. ' I have earnestly given serious consideration and thought to the contentions put forth by the learned counsel for the appellant and am of the view that the pleas advanced by the counsel for the appellant have no substance or force and do not merit any weight. I shall first deal with the first contention of the appellant that after availing of the departmental remedy an appeal before the Service Tribunal can be preferred at any time after a lapse of ninety days regardless of limitation as the Service Tribunal Act (hereinafter referred to as the Act) does not expressly and specifically provide any limitation for filing of an appeal. The relevant provisions of the Act which deal with the question of limitation are reproduced below for proper and clear appreciation of the point of limitation as involved in the appeal in hand : ' Section 4. Appeals to Tribunal.-Any civil servant aggrieved by any final order, original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal : ' Provided that-
(a) where an appeal, review or representation to a departmental authority is provided under any law, regulations or rules for the time being in force, no appeal shall lie to a Tribunal unless the aggrieved .Civil servant has preferred an appeal, or application for review or representation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred.
7. ' Now, from the above-quoted provisions of law as regards limitation for filing of appeal before the Service Tribunal it is manifestly clear that a period of limitation of thirty days from the date of communication of final order is provided for filing appeal before the Service Tribunal in all cases where a final order is passed after the establishment of Service Tribunal. However, the law itself has placed an embargo on the right of appeal of a civil servant in that where a right of appeal, review or representation to the departmental authority is provided under any law or rules in force, this right of appeal to the Service Tribunal cannot be availed of or exercised unless the right of departmental remedy is availed of and ninety days have elapsed. In other words the law has allowed an opportunity both to the civil servant and the departmental authority to get the grievance redressed departmentally by reviewing the impugned order but at the same time the framers of law, very wisely, did not leave the civil servant entirely at the mercy of departmental authority probably apprehending, that due to red-tapism or other adverse factors inordinate delay would take place in the disposal of the matters at the hands of executive. Therefore the law-givers gave a time-limit of ninety days to the departmental authority to review its orders and in case the authority failed to dispose of the matter before it within this limit the civil servant was not left to lament and wait indefinitely for a departmental decision but was given a choice to bring the cause before the Service Tribunal after the lapse of ninety days. This plan of the Legislature by no stretch of imagination or arguments can be interpreted or construed to mean that this provision for lapse of ninety days before the departmental authority washes away the substantive provision of limitation of thirty days and confers a right on the civil servant to bring his case before the Service Tribunal at his whim and free will as and when he chooses or feel like to have recourse to Service Tribunal by way of an appeal. The argument that as the proviso 'a' of section 4 does not expressly lay down a fresh limitation as to within what period after lapse of ninety days an appeal before the Tribunal may be preferred and as such an appeal may be filed at any time irrespective of limitation is quite fallacious and misconcieved. This proviso does not prescribe any limitation but is an enabling provision and prescribes a maximum period upto which a civil servant may await a departmental decision. After the lapse of this maximum period of ninety days the civil servant is at liberty to prefer his appeal before the Service Tribunal within the same limitation of thirty days originally fixed for filing of an appeal. During the period of these ninety days the limitation remains suspended as the law itself makes a provision for such a position and section 9 of the Limitation Act cannot be attracted to such a case under which it is said that once the time has begun to run no subsequent disability stops it. In the light of above discussion the argument of the counsel for the appellant is repelled as without any force.
8. ' Now I take up the other argument of the appellant that he is entitled to the benefit of section 5 and 12 of the Limitation Act by virtue of which delay in filing appeal can be condoned as he had sufficient cause for not filing the appeal within prescribed limitation of thirty day after lapse of ninety days before the departmental authority. Section 12 of the Limitation Act is not at all applicable to the facts of this appeal because it is not a case of excluding the period spent in obtaining copy of a judgment or decree. However section 5 of the Limitation Act applies by virtue of section 9 of Service Tribunal Act, 1975 and it is to be determined whether the appellant had any sufficient cause for not filing appeal within the prescribed period of limitation. Section 5 of the Limitation Act provides that a belated appeal may be admitted nor hearing by condoning delay if the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the prescribed time. Now it is to be seen as to what exactly is meant by sufficient cause and whether appellant has satisfactorily proved that a sufficient cause in fact existed which deterred him from filing the appeal. The word "sufficient cause" should receive a liberal construction so as to advance substantial justice and the expression must mean a cause which is beyond the control of the party invoking the aid of the section. The test, therefore, whether or not a cause is sufficient it is to be seen whether it could have been avoided by the party by the exercise of due care and attention. In other words it is to be adjudged whether the delay caused was bona fide in the circumstances of the case. Section 5 gives a discretion to the Court to determine and decide whether sufficient cause existed or not but this direction is to be exercised not capriciously and arbitrarily but on sound judicial principles.
9. ' Keeping the above-stated principles in view it is now to be examined whether in the particular circumstances of the case in hand the appellant had such a sufficient cause as to entitle him to condonation of delay.
10. ' As discussed earlier the law relating to period of limitation for filing service appeal is quite clear and unambiguous and an aggrieved civil servant is required to avail of departmental remedy before filing appeal in the Service Tribunal and an option is afforded to him to knock the door of Service Tribunal without waiting for the final order of the departmental competent authority provided ninety days have elapsed since preferring of departmental appeal. The appellant being fully aware of his right to file a departmental review challenged the impugned order dated 26th June 1978 quite promptly on 4th July 1978. According to the appellant the Chief Executive called him on 29th September, 1978 for the hearing of his review petition and assured him of deciding the case in his favour and directed him to remind the matter on 19th October, 1978 if the decision was not taken before that date. As no decision was taken the appellant submitted an application to the Chief Executive on 25th October, 1978 on which Chief Executive called upon the appellant on 27th October, 1978 and directed the Director, Industries to expedite the promotion case of the appellant but unfortunately the then Director Industries breathed his last on 6th November, 1978. Later on vide a Circular No, 29455/75 dated 22nd November, 1978 the Chief Executive held a meeting in which besides other matters the promotion case of the appellant was also to be discussed but the same could not be done due to absence of Director Industries who was on tour. After some time the Director Industries submitted proposal of promotion of the appellant on 25th February 1979 and at the same time the appellant was selected for overseas training vide letter No, 594 dated 25th February, 1979. The matter remained under correspondence till 23rd June 1979 when on 26th June, 1979 the appellant was nominated by the British Council for foreign scholarship and N.O.C. Was issued on 5th August 1979 and consequently the appellant left for United Kingdom for training on 27th August, 1979 leaving a vakalatnama for the counsel to file an appeal before the Service Tribunal which ultimately was filed on 24th November, 1979, that is, after about one year's delay.
11. ' The above-stated facts as given by the appellant in his application da ted 28th January, 1981 as explanation of delay caused in presenting appeal are self explanatory and leave no room for any doubt that the appellant was not prevented from filing his appeal by any cause what toe' speak of any sufficient cause. It seems that appellant was fully aware of the legal position about the limitation and procedure for filing of appeal before the Service Tribunal after availing of the departmental remedy but somehow he entertained a false hope that the departmental authority will sooner or later decide the matter in his favour and thus he kept on waiting for the lucky day on which his dream of success was to materialise but to his bad luck the good day lingered on and in fact never dawned with a happy news. As a result quite a considerable period elapsed before he could think of taking recourse to the right path of presenting appeal before the Tribunal. It may be that the appellant was misled by the promises of Chief Executive, if any, and thus missed the track out of over-confidence but this fact by itself does not speak of any diligence and bona fides on the part of appellant and by no stretch of argument constitutes any cause, much less a sufficient cause, for condoning the delay Had he acted with care and diligence he could have filed his appeal well in time.
12. ' The upshot of this discussion is that there is no sufficient cause to justify the delay in filing appeal and the arguments of the learned counsel are brushed aside as without substance.
13. ' In consequence of the whole discussion the appeal is dismissed in limine as hopelessly time- barred. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.