' QALANDAR ALI KHAN, J.--- The petitioner, Muhammad Afzal, has invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, thereby, seeking direction to the respondents to issue his appointment order against the vacant post of Theology Teacher (TT), according to the merit list prepared by the District Selection Committee. ' in paras (3) and (4) of the Civil Miscellaneous, according to which defay was neither intentional nor deliberate.
' Elaborating the reasons, it was disclosed in para (4) of the petition that learned counsel engaged by the applicant-appellant is a patient of "gout" and during Eid vacation, he suffered from swelling of joints due to which appeal could not be filed within the period of limitation.
' In para (5) of the petition, it has been asserted that after recovery from illness, appeal was filed by the counsel without wastage of time.
3. Seeking condonation of delay, highlighting the nature of illness, banking upon an affidavit sworn by learned counsel for the applicant-appellant, reiterating the contents of paras (3) to (5) of the petition, it was contended that that there is a sufficient cause for condonation of delay. Further submitted that if delay is not condoned, applicant-appellant shall suffer irreparable loss.
' To substantiate the contentions, help was sought from the dictum laid down in "Defence Housing Authority Lahore v. Lt. Col. (R) Muhammad Aslam" (2007 YLR 135), "Al-Waqar Corporation v. Rice Export Corporation and another" (2011 MLD 266), "Mrs. Zubaida Begum v. Mrs. S.T. Naqvi" (1986 SCMR 261), "Hassan Abbas v. 1st Additional District and Sessions Judge and 2 others" (2014 YLR 2042) and "Muhammad Malik v. Chairman, Mirpur Development Authority, Mirpur and 9 others" (1997 CLC 480).
4. Controverting the arguments, it was submitted by learned counsel for the respondent that illness highlighted in the petition cannot be recognized as a ground to grant premium. Further contended that each day's delay was to be explained but the application is totally silent in this regard. Argued that in the circumstances, indulgence cannot be shown in favour of applicant-appellant.
5. Provisions of Section 5 of The Limitation Act, 1908 (IX of 1908) (hereinafter called "Act IX of 1908") are applicable to the appeals in view of Section 7 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991 (XII of 1991).
6. The term "sufficient cause" has not been defined in The Act IX of 1908 and each case has to be decided keeping in view its own facts and circumstances.
' However, the expression under reference suggests a cause beyond control of the party. It rules out inaction, culpable slackness and negligence. Want of due care if appears would be sufficient to non-suit the party seeking indulgence.
7. Dealing with the expression, the Apex Court held in "Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan etc." (PLD 1964 SC 236) that sufficient cause shall be construed as cause beyond the control of a party. Referring to the provisions of Order IX, Rules 3 and 8 of The Code of Civil Procedure, 1908, it was further held that the courts had been lenient and had been condoning some negligence i.e, negligence to the extent to which it is regarded as human though they never condoned gross negligence.
' Rule of law enunciated in the Report was endorsed in "Abdul Ghani v. Ghulam Sarwar" (PLD 1977 SC 102).
' In "Rehmat Bibi etc. v. Ghazanfar Hussain" PLD 1983 SC (AJ&K) 21) while dealing with the expression, the Supreme Court of Azad Jammu and Kashmir held that sufficient cause means a genuine cause which is beyond the control of the party or a cause which is unavoidable despite care and attention.
' In "Jhanda v. Maqbool Hussain etc." (1981 SCMR 126) and "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628), it was held that a cause in order to treat it as sufficient cause must rule out element of negligence and carelessness.
8. In order to get benefit of Section 5 of The Act IX of 1908, it is also the duty of the party seeking premium to explain each day's delay after expiry of period of appeal. Reference may be made to "Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi etc." (PLD 1964 Supreme Court 236), "Mst. Sirajun-Munira v. Pakistan through Assistant Deputy Director-General (Admn.), Islamabad" (1998 SCMR 785), "Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Minister of Defence and another" (2000 SCMR 1197), "Messrs Tribal Friends Co. v.
Province of Balochistan" (2002 SCMR 1903) and "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628).
9. Keeping in view the above yardstick, now contentions raised by learned counsel for the parties are to be examined.
10. As referred earlier, it is the case of applicant that learned counsel engaged by him is suffering from "gout" and during Eid vacation, he suffered from swelling of joints and as suck, appeal could not be filed within the period of limitation.
"Gout" is hereditary meta-bolic disease that is a form of acute arthritis and is marked by inflammation of the joints. In the disease, joints affected may be at any location but gout usually begins in the knee or foot."
11. Though nothing has been placed on record in the form of any proof that counsel for the applicant was suffering from gout but as rightly pointed out by learned counsel for the applicant that he has sworn an affidavit disclosing his disease and in the absence of any counter affidavit, same has to be respected.
' As no counter affidavit has been filed on behalf of respondent, therefore, no other evidence is required to substantiate the contention of learned counsel for the applicant regarding nature of ailment with which he was suffering.
' However, the fact by itself would not be sufficient to grant premium to the applicant for two fold reasons.
' According to para (4) of the application and affidavit, counsel for the applicant suffered swelling of joints during Eid vacation. Contents of the application as well as affidavit are totally silent regarding number of Eid holidays and commencement of same.
' Perusal of the calendar for the year 2009 suggests that 21st and 22nd of September, 2009 were declared gazetted holidays for Eid-ul-Fitr E while appeal was preferred on 2nd of October, 2009 bearing Diary No,24.
' It is further to be noted that perusal of contents of the memorandum of appeal reveals that appeal was ready for filing prior to Eid-ul-Fitr holidays as is evident from the date of attestation of affidavits appended to substantiate the contents of memorandum of appeal and C.M. No, 1 of 2009.
' Affidavits were sworn before the Oath Commissioner, Lahore by the appellant on 19th of September, 2009 which was Saturday. Even after excluding Sunday and Eid holidays, there was ample time with the applicant to prefer the appeal in the office but no attempt was made to submit the memorandum of appeal.
12. It is to be noted that for filing of appeal, actual and physical presence of counsel for the applicant was not necessary. Anyone could have filed the appeal in the office. It is not the case of applicant that no such person was available to visit the office of Tribunal for submission of appeal.
' Affidavit sworn by learned counsel for the applicant as well as contents of the petition are also not suggestive that any attempt was made by learned counsel for the applicant to intimate the compelling circumstances to the applicant for non-filing of the appeal though time was running and ultimately it expired. Similarly, duty was cast upon the applicant to remain in touch with his counsel.
13. In view of the matter, there can be no two opinions that omission for any reason, whatsoever, does not suggest anything except want of due care and attention.
' As referred earlier, when there is an element of want of care and attention, it will amount to negligence and carelessness ruling out the of bona fide and due diligence.
14. It is not disputed that date of recovery of learned counsel for the applicant from ailment does not find mentioned either in the application or in the affidavit seeking condonation of delay which omission goes to the root of the petition, sufficient to non-suit the applicant because date of recovery from ailment of learned counsel for the applicant is an important factor which has to be taken into consideration in order to grant premium for condonation of delay.
' Contents of para (5) of the application as well as affidavit that appeal was promptly filed without wastage of time after recovery by itself would not be sufficient to prove the case of applicant.
' Date of recovery from illness is also an important factor in order to determine each day's delay and in view of omission to disclose the same, the applicant failed to explain each day's delay which was necessary in order to get premium under Section 5 of The Act IX of 1908.
' In similar circumstances, due to omission on the part of a public servant to disclose the date of recovery from ailment, Hon'ble Supreme Court of Pakistan did not grant premium to the applicants seeking condonation of delay in the case of "Mian Abdul Rahim Sethi and others v. Federation of Pakistan through Ministry of Defence and another" (2000 PLC (C.S.) 934) (2000 SCMR 1197).
15. As discussed earlier, in order to get benefit of provision of law under discussion, it is not only essential to prove that the applicant or any person acting on his behalf was not negligent but also after expiry of period of filing of appeal, it was the duty of applicant to explain each day's delay.
' In view of the discussion, the applicant failed to prove that non-filing of appeal within the statutory period was result of an act or omission beyond the control of applicant or the person acting on his behalf.
16. We have gone through the rule of law cited at bar by learned counsel for the applicant but the same, with great respect, would not advance the plea of applicant due to distinguishable facts.
2. The facts leading to filing of the instant writ petition, briefly stated, are that being eligible, the petitioner applied for one of the advertised vacant posts in Education Department Kohistan, in response to announcement of the vacancies by the District Education officer (Male), Kohistan (respondent No,3), and qualified test conducted by NTS in February, 2014, and was placed at serial No,10 of the merit list. According to the petitioner, the qualified candidates at serial Nos.1, 2, 7, 8 and 9 were appointed as SST whereas candidates at serial Nos.3 to 5 were appointed as TT' and candidate at serial No,6 was appointed as AT. The petitioner claimed that there were four vacant posts of TT in District Kohsitan and that respondent No,3 had issued appointment order against four vacant posts of TT on 23.05.2014; but candidate at serial No,4 of the appointment order at GMS Illeel did not join the school and, instead, opted to join the post of SST, thus, leaving the post at GMS Illeel vacant. The petitioner submitted application for his appointment against the vacant post in GMS Illeel after having ascended the top position on merit list in view of the said subsequent development, but his request was not acceded to; hence this writ petition, inter alia, on the grounds that the petitioner had qualified test for the post and thus valuable rights accrued to him as per policy of the government and further that he was about to cross the upper age limit prescribed for appointment in government service.
3. In the written comments, though several legal and factual objections were raised, but the main objection was to the effect that the government of KPK had imposed ban on appointments from waiting list in accordance with the direction of apex Court in Musa Wazir's case reported as (1993 SCMR 1124). The respondents, however, admitted claim of the petitioner to greater extent by not only acknowledging availability of ten vacancies and test and interview of top ten qualified candidates for the ten vacant posts and appointment of the candidates including candidates at serial Nos.6, 7, 8 and 9 of the merit list against the four vacant posts of TT, sans the petitioner who was not appointed despite availability of the vacancy after the last appointed candidate namely, Rashid Ahmad did not join the post of TT in GMS Illeel.
4. Arguments of Haji Sabir Hussain Tanoli, Advocate, for the petitioner and learned Additional Advocate General for the respondents heard, and record gone through with their valuable assistance.
5. As pointed out above, the refusal on the part of the respondent-department to appoint the petitioner against the vacant post of TT, becoming available subsequently due to non-joining of duty by Rashid Ahmad, appointed as TT in GMS Illeel, was because of a misperception prevailing in the education department, and generally observed in a number of cases, that appointment from waiting list was banned in pursuance of Musa Wazir's case; while losing sight of the fact that Musa Wazir's case was in an entirely different context as unlike same posts in the education department, the issues raised in the cited case were pertaining to combined competitive examination for different posts in the provincial government, necessitating appointment against all the posts in one go in order to uphold merit, and close doors for candidates at lower merit position but securing higher Government positions through manipulation of subsequent requisition for such posts, meant for candidates at higher position in the merit list, thus paving way for selection of those candidates who were placed in the waiting due to their lesser merit position.
6. Obviously, the decision of the august apex Court in the cited case relating to waiting list would not be applicable to appointment in the education department. In any case, already having appointed candidates at serial Nos.6, 7, 8 and 9 of the merit list as TT, the respondent-department could not decline appointment to the petitioner at serial No,10 of the merit list as the post of TT was still vacant after the candidate (Rashid Ahmad) did not join the post in GMS Illeel.
7. In view of the foregoing discussion, the writ petition is accepted, and respondents are directed to forthwith appoint the petitioner against the post of TT, keeping in view his eligibility for the post, and merit position, not disputed by the respondent-department.