1. ' MUSHTAK ALI KAZI (CHAIRMAN).-The appellant joined as an Overseer in a Rural Works Programme, Government of Sind on 6th June, 1966. In June 1974 he was promoted as Deputy Director, Peoples Works Programme and posted at Sanghar. In November 1978 he was taken up in the Education Department as an Assistant Engineer. In the year 1977 a Divisional Accountant. Peoples Works Programme Sanghar made an application against the appellant alleging certain Irregularities during his tenure as Deputy Director, Peoples Works Programme at Sanghar. Enquiries were made by the Martial Law authorities who referred their findings to the Secretary to Government of Sind, Rural Development Department. On the basis of these findings the Secretary issued a show-cause notice dated 6th February, 1979 to the appellant under rule 5 (3) of the Efficiency and Discipline Rules, 1973. The appellant was allowed seven days time to send his explanation. These allegations in the notice pertained to misuse of the vehicle and the P. O. L. And irregularities in the cost of repairs and purchase of parts. There were also allegations in respect of drawing of T.A. And D. A.
2. Bills, unauthorised use of the telephone and irregularities in granting contracts. Lastly there were allegations regarding purchase of a house in the name of his father in 1974 to 1976 showing that the appellant lived beyond means during this period.
3. ' The appellant asked for time to see the record at Sanghar and to make a proper reply. Sometime was initially allowed to him but he asked for further time. Ultimately the Secretary Education issued a notification dated 24th October, 1979 dismissing the appellant from Government service ' The appellant then filed a Constitutional Petition in the High Court of Sind through his Advocate Mr. A. Q. Halepota, on 29th October, 1979. This petition was admitted and was heard at a regular hearing by Justice Fakhruddin G. Ebrahim. It was dismissed by a short order that : "The case of the petitioner is on the face of it covered by section 4 of the Sind Service Tribunals Act, 1973 and or jurisdiction is therefore barred under Article 212 of the Constitution. The only ground urged by Mr. A. Q. Halepota was that the order was illegal, under the aforesaid rules inasmuch as the petitioner had been denied a reasonable opportunity of showing cause, and it is a case of hardship. None of these reasons will enable us to assume jurisdiction so clearly barred under the Constitution."
4. ' After the dismissal of the Constitution Petition on 20th April, 1980 the appellant for the first time moved as departmental appeal on 18th May, 1980 addressed to the Chief Secretary, Government of Sind. This appeal was not considered on merits but was rejected being time-barred by an order dated 19th July, 1980. The appellant then filed this appeal under section 4 of the Sind Service Tribunals Act, 1973 on 18th August, 1980.
5. ' The A. A.-G. In his written statement has raised certain legal objections that the appeal is not maintainable under section 4 of the Sind Service Tribunals Act, 1973. The appellant had failed to present the departmental appeal under rule 10 of the Government Servants (Efficiency & Discipline)
6. Rules, 1973 within the prescribed period of 30 days from the date of the order, under the Sind Civil Servants Act, 1973. Section 23 also provides that an appeal in respect of any order relating to terms and conditions of service shall be made by the civil servant within 30 days of the date of such order. Under section 4 of the Sind Service Tribunals Act, 1973, proviso (a) where an appeal to a departmental authority is provided under the Sind Civil Servants Act, 1973 or any rules against any such order, no appeal shall lie to a Tribunal miles the aggrieved civil servant has preferred an appeal to such departmental authority. An appeal to the departmental authority filed under the rules prescribed is therefore a condition precedent to the filing of the appeal before this Tribunal.
7. The prescribed rules are that the appeal, must be filed within 30 days of the impugned order.
8. Therefore, an appeal preferred on 18th May, 1980 against the order passed on 24th October, 1979 is clearly time barred and not maintainable. At the relevant time the rules applicable to departmental appeals did not provide for any condonation of delay in filing of departmental appeals, nor was any such application filed for condonation alongwith the appeal preferred before the Chief Secretary.
9. ' The proceedings instituted in the High Court by way of Constitutional Petition were clearly in violation of Article 212 of the Constitution and section 3 (2) of the Sind Service Tribunals Act, 1973.
10. Even the High Court order dismissing the petition contained an observation that the Constitutional Petition was on the face of it barred under the Sind Service Tribunals Act, 1973 read with Article 212 of the Constitution and the reasons advanced by the counsel could not confer jurisdiction on the High Court to consider the petition.
11. ' It is a well-established principle of law that the proceeding contrary to a clearly express provision of law cannot be said to be prosecuted in good faith. Where a party filed a revision petition in the High Court though the High Court had repeatedly said that it would not ordinarily interfere in revision in such matters and the party had filed the revision petition on the advice of his counsel, it was held that the time taken up during revision could not be excluded under section 14 of the Limitation Act (AIR 1929 Rang. 297=120 I C 236). Where the law gives no jurisdiction to a Court in a certain matter then there can be no bona fide mistake as to jurisdiction in relation to that matter and the time spent in a proceeding before such Court cannot be deducted.
12. ' The appellant even if he had been advised to approach the High Court in the first instance, could have simultaneously flied his departmental appeal within 30 days of the order of dismissal before the Chief Secretary. It was not necessary for him to wait until the decision of the Constitutional Petition and thereafter prefer the departmental appeal within 30 days of the decision of the High Court. For this delay in filing the departmental appeal the appellant cannot blame his counsel.
13. Under the circumstances, for want of a proper departmental appeal filed within the prescribed period of limitation, the present service appeal under section 4 of the Sind Service Tribunals Act, 1973 is not maintainable and the appeal is accordingly dismissed, but no order is made as to costs.