' JAWAD-UL-HASSAN, DISTRICT & SESSIONS JUDGE/MEMBER-Ill, --- By this order I intend to dispose of a question of limitation regarding filing of appeal in hand. Marshiling of entire facts on merits of the appeal in hand are not necessary except to note the facts required to determine the period of limitation of appeal in hand.
2. The brief facts are that Muhammad Saleem is a Naib Qasid Government Degree College, Kamoki District Gujranwala (herein after be referred as the appellant). The respondents No. 1 to 3 being authority of the department of Higher Education, Government of the Punjab announced some posts of Laboratory Clerk in their department for Class IV government employees (BS-1 to 4), the appellant considering himself eligible for said posts applied for departmental promotion. The test of typing was held on 27.10.2011. As a result thereof the appellant was not: considered for promotion/appointment. Whereas the respondents No. 4 to 10 were selected for promotion vide order dated 28.10.2011 passed by Dy. Director Education (Colleges), Gujranwala. According to appellant: respondents No. 4 to 10 were not fit for promotion for the said posts and therefore the appellant started complaining against their appointment by promotion and against his non- selection. The appellant amongst others filed a joint representation to Secretary Higher Education for redressal of their grievance on 24.11.2011 bearing diary No. 3314, therein the petitioner inter alia sought the cancellation of promotion order and reconducting of typing test of those who were promoted or selected.. Meanwhile the appellant assailed the order dated 28.10.2011 by way of writ petition No. 2496/2012 on 1.2.2012. This writ petition was disposed of on 2.2.2012 with the direction to Secretary Higher Education Government of the Punjab to decide the representation of the petitioner within one month from the receipt of the order of the High Court and petitioner was directed to appear before the said Secretary on 6.2.2012. The appellant before this Tribunal filed the appeal on 11.1.2013 and annexed an order dated 25.4.2012 passed by Secretary Higher Education, Government of the Punjab whereby his (joint) representation was rejected in the following manner:--- "Whereas, in the opinion of the undersigned the promotion/appointments were made on merit, by the committee. Therefore, the petitioner's representations are hereby rejected."
' By way of appeal in hand the appellant challenged the order dated 19.10.2012 whereby his representation was again rejected.
3. The respondents No. 4 to 10 through their counsel and filed parawise comments and took preliminary objections regarding appeal being awfully barred by time while mentioning a wrong date filing appeal.
4. Learned counsel for the appellant argued that in the appeal in hand the order dated 19.10.2012 was assailed as the same order is final order whereby the cause to file the appeal accrued. He stated that promotion/selection of respondents no. 4 to 10 is illegal and their fitness is highly questionable whereas; the appellant was fit to be promoted against vacancies announced. He stated that order dated 25.4.2012 is not against the appellant therefore, the same was not challenged. He relied upon 1995 SCM R 584 and stated that filing of the writ petitions by the appellants in the High Court has actually condoned the delay, if any.
5. Conversely, the learned counsel for the respondents No. 4 to 10 and learned District Attorney vehemently opposed the contentions and stated that the appellants amongst others deliberately filed the writ: petitions knowingly and avoided to challenge the order dated 25.4.2012. He stated that this order in fact is original order. The controversy was resolved by the Secretary Higher Education by way of order dated 25.4.2012 which remained unchallenged and the appeal was filed beyond prescribed limitation.
6. Arguments heard and record perused.
7. As per record available on file the appellant was not promoted as a result of a required test rather other employees were selected for promotion vide order dated 28 10.2011 This was the cause which led the appellant to make representation on 24.11.2011 to Secretary Higher Education, Government of the Punjab. The Secretary Higher Education rejected the representation of the appellant vide order dated 25.4.2012. It is pertinent to mention that this order was passed after the direction dated 2.2.2012 passed in writ petition No. 2496/2012. In these circumstances the appellant was required to file appeal before this Tribunal against the actual order dated 25.4.2012 but the appellant opted to file other writ petition seeking his remedy under the Constitutional provisions before the Honourable Lahore High Court, Lahore. What happened is that another writ petition bearing No. 18279/2012 was filed. The honourable Lahore High Court vide order dated 11.7.2012 referred the matter to Secretary Higher Education, Government of the Punjab treating the petition alongwith annexures as part of the petition pending before him and decide the matter in accordance with law through a reasoned order. Record speaks that Secretary Higher Education vide order dated 19.10.2012 rejected the representation of the appellant. In Paragraph 7 of the said order the Secretary observed that he had already rejected the representation of the appellant vide order dated 25.4.2012 with the direction to Director Education (Colleges), Gujranwala for re- conducting of typing tests falling at serial Nos. 11, 12 and 13. It is pertinent to reproduce the paragraph 7 of this order dated 19.10.2012 for ready reference in order to resolve the controversy: "Whereas, after hearing all the concerned and perusal of relevant record of the case, the undersigned is of the opinion that the instant case is identical to the one already decided vide order dated 25.4.2012 and no new grounds/objection has been pointed out in this case. The appointments were made on merit by the committee and candidate at serial Nos. 11, 12 and 13 have qualified in typing test as was directed vide order dated 25.4.2012."
8. The perusal of aforesaid order makes it abundantly clear that two orders dated 28.10.2011 and 25.10.2011 were against the appellant which triggered the controversy. The appellant deliberately did not assail the order dated 25.4.2012 passed on his representation to circumvent the adverse effect qua filing of appeal before this Tribunal within time. Actually the appellant put a good glass on actual final order dated 25.4.2012 by repeating the representation on identical grounds decided earlier. Therefore, in the given circumstances I am of the considered view that the order dated 19.10.2012 is not efficacious to redress the grievances of the appellant before this Tribunal.
9. The appellant has not challenged the actual final order dated 25.4.2012 rather instead of it assailed the ineffective order dated 19.10.2012. In these circumstances the appellant was bound to file appeal before this Tribunal against the actual final order within time prescribed under the law till 25.5.2012. It is not case of the appellant that the said order was not communicated to him, it appears that he remained silent about said order dated 25.4.2012. Believing that the order dated 25.4.2012 was not communicated to the appellant, he should have filed appeal before this Tribunal after the lapse of 90 days from the date of making his representation dated 24.11.2011. The appeal in hand was filed on 11.1.2013 beyond period of limitation prescribed under the law.
10. Filing of writ petition by the appellant and directions issued therein by the Honourable Lahore High Court did not condone the limitation period required for approaching this Tribunal. No specific order is available qua to absolve the appellant from the restriction of period of limitation, therefore, the contention of the learned counsel for the appellant for condonation of delay on this account has no force. Precedent case relied upon by the learned counsel for the appellant has no help on this account.
11. The appellant was required to make application for condonation of delay, if any, in terms of Rule 8 of the Punjab Service Tribunal (Procedure) Rules, 1975. The appellant has failed to file any application for condonation of delay supported by an affidavit alongwith the appeal in hand which has adversely affected his case.
12. It is pertinent to mention here that in whole exercise the appellant is challenging the fitness of others, selected candidates instead of his fitness to be selected. According to section 4(1)(b) of the Punjab Service Tribunals Act, 1974 no appeal shall lie before this Tribunal against the order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade.
13. In the light of above discussion, I find the instant appeal has been filed with inordinate delay.
Therefore, the same is dismissed.