1. MUSHTAK ALI KAZI (CHAIRMAN).-These four connected appeals arise from orders passed by the Government of Sind in respect of fixation dates of regularization of promotions of the appellants from Grade-16 to Grade-17 in the cadre of Assistant Directors, Industries and Mineral Development Department affecting their seniority in the said cadre. Since these appeals involve common questions of law and facts they will all be disposed of by this judgment.
2. The facts giving rise to these appeals in brief are as under :- The Government of West Pakistan by a notification dated 13-6-1970 in the Industries and Mineral Development Department accorded sanction to the creation of 23 posts of Assistant Directors in the Industries Unit Sind making provision in the budget for the year 1980-81. The Government of Sind udder notification dated 28-8-1971 promoted the appellants on temporary basis in the Directorate of industries from their posts of industrial Development Officers Grade-16 to Assistant Directors in Class-I junior. Since in those days the clearance for the proportions had to be obtained from the Public Service Commission these Officers were directed that they would draw their pay in Class-II scale until their promotions were regularised On 27-11-1972 their cases were referred to the Sind Baluchistan Public Service Commission for-their concurrence to the regularisation of these appointments The Public Service Com--mission asked the Industries Department to forward the proposal of the promotions of the appellants as Assistant Directors of Industries on the prescribed pro forma alongwith .The seniority list for further action. This letter was sent on 27-12-1972. The particulars were sent by the Department on 8-2-1973 but the correspondence and queries between the Public Service Commission and the Department concerned through the Services Department continued. By April, 1973 the Public Service Commission accepted the proposal in respect of some of the appel--lants. However no formal notification could be issued by the Government till the cases of all the promotees were cleared and a seniority list was prepared.
3. Meanwhile, after promulgation of the Sind Public Service Com--mission Act, the promotion of Assistant Industrial Development Officers was withdrawn from the purview of the Public Service Commission and was entrusted to the Departmental Promotion and Selection Committees constituted for the purpose. The cases of the appellants for promotion as Assistant Directors were cleared by the Departmental Promotion Com--mittee, and a summary was prepared by Secretary to Government of Sind, Industries and Mineral Development Department for regularization of promotion of 11 (eleven) Officers including the appellants. 1t was stated that these officers were promoted from Grade-16 to Grade-17 as Assistant Directors with effect from 24-5-1971 and their promotions were required to be regularised under the rules and notification to that effect might be issued after the Chief Minister had approved. This summary was forwar--ded to the Chief Secretary as usual who placed it before the Chief Minister Sind and the summary was approved on 19-2-1975. It was then returned to the Secretary Industries for issue of order A notification was subsequently issued dated 26-2-1975 promoting on regular basis the 11 (eleven) Assistant Directors Grade-1, with effect from the dates shown against each. The present appellants promotion according to this notifi--cation was regularized with effect from the dates of their respective appointments namely 29-5-1971. Thereafter their case was processed for allowing them pay in Grade-1'7 with retrospective effect from the dates of their appointment on promotion namely 29-5- 1971. The Secretary, Industries while referring their case to Secretary Services and General Adminis- -tration Department recommended that these Assistant Directors may be allowed to draw pay in Grade-17 "as they have been regularized to the post of Assistant Directors Grade-17 from the date of their promotion".
4. Subsequently on 2-10975 new rules namely the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 came into force superseding the old West Pakistan Industries Service (Class-I)
5. Rules 1962. Under rule 10 of these new rules seniority in the grade was to be reckoned from the date of regular appointment to the post in that grade and no appointment made on ad hoc basis could be regularized retrospec--tively. These rules could not be applied retrospectively to the cases that had already been processed under the 1962 Rules. However the Secretary to Government of Sind, Industries Department issued a fresh notification on 24-5-1972 in supersession of the earlier notification, regular--ising the promotions of the appellants and these promotions were shown to have been regularized under this new notification with effect from 26-2-1975 i.e. The date on which the regularization was approved by the then Chief Minister. This was done without any notice to the appellants. Two of the appellants namely Mr. Ali Anwar Shaikh and Mr. Dhani Bux Soomro immediately preferred Constitutional Petitions Nos. 1271 and 1272 of 1978 in the High Court of Sind because the change effected in the regularization from 29-5-1971 to 26-2-1975 affected their seniority in the seniority list issued subsequently. Mr. Abdul Sattar Shaikh, Additional Advocate- General conceded before the High Court that the subsequent notification cancelling the previous notification had not been issued by a competent authority. Since the previous notification had been issued with the approval of the Chief Minister, while the subsequent one dated 14-4-1977 did not have the approval of the equivalent authority, namely the Martial Law Administrator Sind. It was however argued by the Additional Advocate-General that the petitioners' remedy was to approach the Sind Services Tribunal constituted under the Sind Service Tribunals Act, 1973, as that tribunal had the exclusive jurisdiction in respect of matters relating to their terms and conditions of service.
6. The Division Bench of the Hight Court held that since there was no dispute as to the validity of the impugned notification, as having not been passed by a competent authority, the said notification was set aside alongwith the consequential order determining the petitioners' seniority. This judgment was delivered on 14-5-1980.
7. The Secretary, Industries Department then put up a fresh summary before the Martial Law Administrator /Governor through the Chief Secretary for fresh approval of the notification which had been struck down by the High Court on the technical ground that it lacked the approval of the Martial Law Administrator. In this summary it was (erroneously) pointed out that under the rules of 1975 no appointment made on ad hoc basis could be regularized retrospectively under rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. The Martial Law Administrator accorded his approval to the proposal contained in the summary. A third notification was then issued dated 15-9-1980 that "the Martial Law Administrator/Governor had been pleased to accord his approval to the regularization of the promotion to Grade-17 of the 11 (eleven) officers including the four appellants with effect from 26-2-1975".
8. Immediately after issue of this last notification appellants Ali Anwar Shaikh, A. H. Mirza and Dhani Bux Soomro again preferred Constitutional Petitions Nos. 1333, 1379 and 1492 of 1980 before the High Court, calling in question the last notification referred to above. It was argued before the High Court that previously a dispute pertaining to seniority had not been entertained by the Services Tribunal and they had, there--fore, preferred the constitutional petitions instead. The Division Bench of the High Court held, that there was no doubt that the dispute relating to seniority is a matter pertaining to the terms and conditions of service of a civil servant and within the purview or jurisdiction of the Service Tribunal and as such the jurisdiction of the High Court under Article 191 of the Constitution was barred. This judgment was delivered on 10-1-1982 in all these petitions.
9. Appellant Ali Anwar Shaikh had already preferred a departmental appeal against the impugned notification dated 15-9-1980 before the Chief Secretary. Thereafter he preferred a. Second appeal on coming into force of the new departmental appeal rules on b-12-1980. On 7-3-1981 he preferred the service appeal before the Tribunal without impleading the other respondents as necessary parties. During pendency of this appeal an amended memo. Of appeal was filed impleading respondents 3 to 7 as necessary parties on 8-3-1982.
10. Appellant T. H. Wasti preferred an appeal to the Chief Secretary on 2-10-1980 and after coming into force of the new departmental appeal rules preferred a second departmental appeal on 6-12-1980.
11. No writ petition was filed by this appellant in the High Court and the appeal before the Services Tribunal without impleading the necessary parties was filed on 8-3-1981,.
12. Appellant Dhani Bux Soomro did not file a second appeal before the department but before the second writ petition was dismissed by the High Court on 10-1-1982 he had preferred an appeal before the Tribunal on 7-3-1981.
13. Lastly appellant A. H. Mirza after dismissal of the second writ petition filed before the High Court preferred his service appeal before the Tribunal on 7-2-1982.
14. It has been argued by the learned counsel for the appellants that the appellants were initially promoted against clear and substantive vacancies, as 23 posts of Assistant Directors had been created by the Government. Their promotions were not stopgap arrangement but they were termed as temporary because clearance had to be obtained from the .Public Service Commission under the rules then in force. In those days the rules that were applicable to their case were the West Pakistan Indus--tries Service (Class-I) Rules, 1962. These rules remained in force until the new 1975 rules were published on 19-10-1975. Under rule 9 of the old Rules in case of members appointed on promotion the seniority in the grade was to be determined with reference to their continuous officiation in that grade against the substantive vacancy. Mr. Wajihuddin has further pointed out that in the 1962 rules there is no mention of any ad hoc appointments by promotion nor is it mentioned that such ad hoc appointments could not be regularized with retrospective effect. That the general practice prevalent prior to the promulgation of . The new. Rules was that such promotions were rgularized after getting clearance from the Public Service Commission with effect from the dates of ,original appointments on promotion. Therefore, it could not be said that the appointments to these officers took effect from the date on which their regularization was approved by the then Chief Minister. It had been rightly construed that the regularization was with effect from the dates shown against the each officer in the first notification namely 28-5-1971 and the Government had sanctioned payment of arrears of salary Grade-17 to them from that date.
15. It has then been argued that after the issue of the first notification regularising the promotions the Government acted upon the notification and the Officers drew the substantive pay in Grade-17 under notification. Thus, steps were taken to implement that notification and rights had beep created with regard to the pay, seniority etc. To the benefit of the officers. Therefore, the notification already issued could not be rescinded afterwards merely on the ground that it was against the new policy of the Government to discourage regularization with retrospective effect. Reliance is placed on the decision of Pakistan v. Muhammad Hamayatullah Faruqi (PLD1969SC407). It was held in that case that in cases of Government servants, principle of locus poenitentiae (power of receding till a decisive step-is taken) is available to Government or relevant authorities-- authority competent to make order has power to undo it the order however cannot be withdrawn ox rescinded once it has taken a legal effect and certain rights created in favour of any individual under General Clauses Act, section 21.
16. The same principle was reiterated in the case of Muhammad Nawaz v. Government of the Punjab (1981SCMR523). In that case also there was a recall of the earlier appointment order of a competent authority by the successor of that authority on the assumption that the earlier, appointment should not or could not have been made. It was observed that the recall order suffered from an inherent defect as after the fulfilment of the conditions there was left no animus revertendi on the part of the authority concerned to recall the earlier appointment order. Reliance was placed on the earlier decisions on this point reported in PLD 1955 FC 46, PLD 1964 SC 503, PLD 1969 SC 407 (already referred) and 1980 SCMR 268, as the law on the principle of animus revertendi or locus poenitentiae stands authoritatively settled by the aforesaid judgments of the Supreme Court. There is no necessity of dilating any further on the subject and it shall be sufficient to state, that on peculiar facts and circum stances of this case, the order of recall was without lawful authority.
17. The learned A. A. G. Mr. Hassan Akbar frankly concedes that 1975 rules relating to probation, confirmation and seniority which came into force on 2-10-1975 had no application to the case of the appellants which had been finalized before coming into force of these new rules. That 1962 rules continued to be effective until the publication of the new rules. That the rules framed under any Act could not be applied with retros--pective effect. Therefore, the cases of the appellants could not be reopened once they were finalized and a notification issued covering their case.
18. Mr. Fazle Ghani Khan on behalf of the respondents has also not been able to controvert the position that retrospective operation could not be given to the seniority rules of 1975 so as to enable the authorities to rescind the earlier notifications which had already been acted upon and under which vested rights had been created. The learned A. A.-G. And the counsel for the respondents have therefore, practically confined their arguments to the objections regarding appeals being non- maintainable for want of proper departmental appeals or review petitions to the competent :appellate authority and regarding the appeals being barred by limitation.
19. Under section 4 proviso (a) of the Sind Service Tribunals Act, 1973 `where an appeal, review or representation 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 unless the aggrieved civil servant has preferred ate appeal or application for review or represen--tation to such departmental authority and a period of 90 days has elapsed from the date on which, such appeal, application or review petition was so preferred". In these cases the final order was passed by the Martial Law Administrator/Governor in his capacity as the Chief Minister. This position had been clarified under Circular Letter No. SO-IX-Reg. (S&GAD) 4/22,177-1, dated 10-7-1977 regarding procedure under the Rules of Business. It was stated that "all references to the Chief Minister and the Cabinet in all laws should be construed as references to the Martial Law Administrator Sind ': Therefore, a review petition ought to have been filed by each of the appellants within 30 days of the date of the impugned order as provided under section 23 of the Sind Civil Servants Act, 1973. The impugned order in these cases was passed on 15-9-1980 and copy was endorsed to all officers concerned, therefore, the review petition ought to have been filed by 14-10-1980. Admittedly none of the appellants complied with this provision of law. Appellant Ali Anwar Shaikh in Appeal No. 5 of 1981 filed a departmental appeal addressed to the Chief Secretary on 14-10-1980 and pending the constitutional petition in the High Court preferred a second depart--mental appeal before the competent authority on 6-12-1980. Appellant T. H. Wasti in Appeal No. 6 of 1981 merely filed a departmental appeal to the Chief Secretary on 2-10-1980. Appellant Dhani Bux Soomro in Appeal No. 8 of 1981 preferred the first departmental appeal before the Chief Secretary on 6-12-1980 and appellant A. H. Mirza in appeal No. 11 of 1982 also preferred an appeal to the Chief Secretary for the first time on 6-12-1980. Therefore, in all cases review petitions to the Martial Law Administrator were not filed. Appellants A. H. Mirza and Dhani Bux Soomro did not file the first departmental appeal in time but the only departmental appeal was filed after the limitation on 6-12-1980. There is also no provision for filing of the second appeal as was done by Mr. Ali Anwar Shaikh and Mr. T. H. Wasti.
20. It has been argued by Mr. Wajihuddin that under rule 6 of the Sind Civil Servants (Appeal) Rules, 1980 which came into force on 8-11-1980 any delay in preferring the appeal could be condoned by the departmental authority as also the fact that the petition was not addressed to the proper forum. He has also argued that under rule 6 of these Rules, where the competent authority has made an order before coming into force of these rules, appeal from that order could be filed within 30 days of the announ--cement thereof. According to Mr. Wajihuddin "thereof" is an obvious mistake and it should have been announcement "hereof''. The learned counsel has argued that if the idea was that the appeal could be filed within '30 days of the order that would only be a repetition. That the intention was that in cases of orders passed before these rules, an appeal could be filed within 30 days of the announcement of these rules. However there is no ambiguity nor absurdity in the literal interpretation of this rule. It is not, therefore, open to the Tribunal to ascertain what could be the intention of the framers of the rules. Under the rule as it is, there is no provision for filing of a second appeal and obviously this was done only to bring the service appeal within time by counting 90 days from the date of filing the second appeal, These appeals are, therefore, not maintainable as the remedy of the departmental review has not been availed of by the appellants.
21. The appeals are also admittedly time-barred having been filed beyond the period of limitation provided under the Act. These appeals had to be filed on expiry of 90 days from the date of departmental review petitions, but this was not done instead writ petitions were filed in the High Court within four days of the passing of the order and pending the writ petition the appeals were filed on 7-3-1981, 8-3-1981 and 7-2-1982. In all these appeals applications have been moved under, section 5 of the Limitation Act for condonation of the delay on the ground that the time taken up in prosecuting constitutional petitions before the High Court should be excluded. The existence of sufficient cause for not filing the proceedings in time, is a condition that must be satisfied before the Court exercises this power of granting or refusing the extension of time. The delay which the party could have avoided by exercising due care and attention, cannot be a sufficient cause. . The act of the advocate in filing writ petition in the High Court instead of an appeal under section 4 of the Sind Service Tribunals Act cannot be regarded as bona fide, honest or excusable mistake on his part, as he did not act with due care and attention and did not take the trouble to read section 4 of the Sind Service Tribunals Act and Article 212 of the Constitution conferring exclusive jurisdiction in service matter on the Services Tribunal. This point was even argued in the first constitu--tional petition and mention has been made in this respect in the judgment by Fakhruddin, J. As he then was: The learned counsel on behalf of the appellants has argued that at one time the Tribunal was under the impres--sion that the matters pertaining to seniority did not fall within the jurisdiction of the Services Tribunal and acting on this impression writ petition had again been filed in the High Court for a ,second time: The judgment in the second writ petition was however delivered on 10-1- 1982 but the service appeals appear to have been filed long before the judgment on 7-3-1981: It cannot, therefore, be argued that the time taken up in the second writ petition should be excluded because .The remedy was prosecuted in the wrong Court on account of a bona fide mistake. All these remedies were being pursued simultaneously and the appeals before the Tribunal are admittedly time-barred. No sufficient cause has been made out to excuse this delay under section 5 of the Limitation Act. These appeals would also appear to be not maintainable under proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, as proper review petitions were preferred before the competent authority namely Martial Law Administrator acting as the Chief Minister.
22. But as already pointed out above, the learned A. A..-G. Mr. Hassan Akbar frankly concedes that the summary submitted to the Martial Law Administrator/ Governor after the High Court decision in the first writ petition, contained an obvious misstatement regarding application of the 1975 rules to the cases of the appellants. The rules had no retrospective effect. The third and the last notification issued on 15-9-1980 purporting to regularise the promotions with retrospective effect from 26-2- 1975 would still be in violation of the 1975 rules. Mr. Hassan Akbar also states that the first notification which was superseded after the second notification, was revived when the second notification was with--drawn by the third notification, That the third notification does not expressly cancel the first notification ; so that the result is that there are two parallel notifications namely,.
23. The first notification since revived and the third notification bout in force Mr. Hassan Akbar therefore, suggests that the Government may be advised to allow the first notification to remain in force withdrawing the third and the last notification.
24. It is true that the limitation only bars a remedy but does not extinguish the right. In Shariat there is no bar of limitation to the institution of suits or other legal actions Where the civil servant has suffered due to mistaken application of the rules framed subsequently and the mistake is patently causing injustice and hardship, it should be the anxiety of the Government to rectify the mistake suo motu instead of taking shelter behind technical defences to perpetuate such an injustice.
25. Therefore even if these appeals for technical reasons are found to be non-maintainable and time barred, the proper course for the Government would be to submit a fresh summary to the Martial Law Administrator/Governor pointing out the earlier mistake, and stating that the new policy of the Government not giving any retrospective effect to regularization-would not apply to, the case finalized prior to the coming into force of the new rules on 2-10-1975, as the rules have no application with retrospective effect. That the first notification which was approved by the then Chief Minister should therefore, be allowed to remain applicable to cases of such officers which are already finalized, and acted upon.
26. With these observations, we dismiss all the four appeals' as being not maintainable and barred by limitation. We make no order as to costs.