' The case under consideration is the appeal of Dr. Nayar Ramzan, Ex-Medical Superintendent who was retired from service before time under M. L. R.
114.
2. The history of this case is very lengthy but for the purpose of this order, it would suffice to mention that the appellant's review petition was examined by the Martial Law Review Board who, according to the claim of the appellant, had come to the conclusion that the retirement of the appellant under M.L.R. 114 was unfair and unjustified. The Review Board had, therefore, recommended to the "Authority" i. e., M.L.A. Zone IV Governor, N.-W.F.P., that the appellant should be reinstated but the "Authority" did not accept the recommendations of the Review Board, and rejected the Appellant's petition for reinstatement.
3. The counsel for the appellant, at the time of preliminary hearing, contended that the recommendations of Review Board, which went in favour of the appellant, should not have been rejected by the "Authority" with a simple stroke of pen. The counsel argued that the Review Board was specifically constituted for making recommendation to the "Authority" after affording personal hearing and scrutinizing the relevant record of the petitioners. This was done in case of the appellant and on the basis of the oral and written evidence, the Review Board came to the conclusion that action against the appellant under M.L.R. 114, was unjustified and unwarranted.
Justice, therefore, demanded that the "Authority" should have accepted the recommendation of the Review Board and reinstated the appellant in service.
4. The point raised by the counsel for appellant has some substance in it but before going into such merit, the appeal was examined on the basis of limitation. The Provincial Government had rejected the review petition of the appellant on 16th February, 1981. The appellant filed a writ petition in High Court, Peshawar, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Law (Continuance in Force) Order, 1979 for declaration that the order of respondent No, 1, dated 7th February, 1981, being against the report and recommendation of respondent No, 3 is without lawful authority. The said writ petition came for hearing before a Divisional Bench of the High Court on 23rd June, 1981 when it was observed that- "In view of promulgation of the Provisional Constitution Order, 1981 (C.M.L.A. Order No, 1 of 1981 the position has positively changed. The learned counsel for the petitioner requested for adjournment to make their submissions."
ADJOURNED"
5. The case again came up before the same Bench on 21st November, 1981 and after hearing the arguments of the counsel for the petitioner (appellant), the writ was dismissed after recording brief order set out below for the benefit of reference : "After promulgation of the Provisional Constitution Order, 1981 C.M.L.A. Order No, 1 of 1981) the power of High Court in which Martial Law Order is challenged is ousted, hence this Petition is abated and dismissed accordingly in limine."
6. The appellant got the copy of the said order on 12th December, 1981, whereas the present appeal was filed in the Tribunal on 4th February, 1982 i,e, after a lapse of 53 days against 30 days allowed under section 4 of N.-W.F.P. Service Tribunals Act, 1974 and that too, if the period of ten (10) months spent in High Court is excluded having been bona fidely spent in Court without jurisdiction, which of course seems doubtful for the reasons to be discussed later.
7. In the light of the facts mentioned above, the counsel for the appellant at the time of preliminary hearing was asked to clarify certain pertinent objections which for the benefit of record are listed below :-
(i) It is a matter of common knowledge that appropriate forum for service matter is the Service Tribunal. If that is so, why the appeal was not preferred in the Tribunal against the order of respondent No, 1, dated 7th February, 1981 in the first instance ?
(ii) The writ petition in High Court was filed in March, 1981. The Provisional Constitution Order, 1981 (C.M.L.A. Order No, 1 of 1981) was also issued in March, 1981. There are clear provisions in the P.C.O.
That the orders of Martial Law Authorities are not challengable before High Court or Supreme Court.
That being so, why jurisdiction of proper forum i. e. Service Tribunal was not availed instead of wasting time in Court which had no jurisdiction ?
(iii) From the order of the High Court, dated 23rd June, 1981, it is clear that the learned Judges had doubted the jurisdiction of the High Court in the instant case, particularly after promulgation of the Provisional Constitution Order, 1981 (C.M.L.A.) Order No, 1 of 1981, then why the writ petition was not withdrawn from the High Court for taking it to the Service Tribunal, which, according to the counsel for appellant, is a proper forum for such matters.
(iv) The writ petition was dismissed in limine by the Divisional Bench of Peshawar High Court, on 25th November, 1981. Certified copy of the said order was supplied to the appellant on 12th December, 1981. Under section 4 of the N.-W.F.P. Service Tribunals Act, 1974, the appellant was required to prefer an appeal before the Service Tribunal within 30 days which expired on 11th January, 1982 whereas the present appeal was filed on 4th February, 1982 i. e. After a delay of 23 days.
8. The counsel for the appellant, while clarifying the preliminary objections mentioned above, stated that the matter was taken to High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, under which the said Court had jurisdiction. He further mentioned that Provisional Constitution Order, 1981 (C.M.L.A. Order No, 1 of 1981) was not in the field at that time.
Subsequently, the writ petition was not withdrawn because the learned Judges had desired that the counsel for petitioner should address the Court regarding jurisdiction. Since it was the order of the court, it had to be complied with. The arguments were advanced but the case was unfortunately dismissed. Since Provisional Constitution Order, 1981, has only ousted the jurisdiction of High Court and Supreme Court and Service Tribunal is not mentioned, the matter was brought to the Tribunal and an appeal was preferred within 60 days which are allowed for such appeals in High Court/Supreme Court. The counsel further mentioned that after dismissal of the writ petition by the High Court, the appellant was thinking of filing an appeal in the Supreme Court. For this purpose the questions of law were also framed but at the last moment the appellant decided not to file appeal in the Supreme Court but instead take the matter to the Service Tribunal.
9. The attention of the learned counsel for the appellant was drawn towards section 4, of the N.- W.F.P. Service Tribunals Act, 1974, and it was pointed out to him that only 30 days are allowed for preference of such appeal in the Service Tribunal, the counsel appreciated the point but stated that the delay is condonable in view of the fact that a proper application for condonation of delay has also been filed alongwith the appeal. The council also quoted two authorities which according to him bear relevance to the issue under consideration. The authorities are:
(1) Farooq Ahmed Khan v. The Federation of Pakistan. Civil Appeal No, 29/1981, decided on 3rd May, 1981.
(2) Amanullah Khan v. Islamic Republic of Pakistan. Civil Appeal No, 9-K/81, decided on 26th May, 1981.
10. I have examined the arguments advanced by the counsel for condonation of delay but I find myself not in agreement with him for more A than one reasons. The appellant has wasted time in seeking relief in a Court which had no jurisdiction. The same counsel who appeared before the Tribunal also remained associated with the case in the High Court He should have given proper advice to the appellant for seeking relief in proper forum at proper time. Pursuing the case in a wrong Court, knowing fully well that it had no jurisdiction, do not, therefore, constitute "sufficient cause" for condonation of delay within the scope and meaning of section 5 of the Limitation Act.
There is no proof that the appellant was contemplating to prefer appeal in the Supreme Court against the order passed by the High Court. It is also not clear why the appellant changed his mind for not going to the Supreme Court in an appeal. It is also not known why the appellant could not make-up his mind in time to have come to the Tribunal in appeal within 30 days as required under the law. No doubt, the appellant has preferred an application for condonation of delay but delay of this type and magnitude requires adequate justification on day to day basis. No such justification is given in the application for condonation of delay nor sufficient justifications were offered at the time of arguments except that appellant was thinking of filing appeal in the Supreme Court for which 60 days are allowed. In absent of sufficient cause, the delay cannot be condoned on the mere plea of an I written request.
11. I have also examined the authorities quoted by the counsel for the appellant but I am afraid, they are not relevant. In case of Amanullah Khan v. The Federation of Pakistan, the Supreme Court in its order, dated 22nd January, 1980 had remanded the appeal of the petitioner to the Federal Service Tribunal for adjudication on merit. The Tribunal dismissed the appeal as time-barred. The Supreme Court in its order, dated 26th May, 1981 held that the action of the Tribunal was not in accordance with the order ,of the Supreme Court. As regards the point of limitation, the Supreme Court of Pakistan had observed that the petitioner filed an affidavit on 15th January, 1975 in the Federal Service Tribunal, explaining the cause for which his appeal in the Tribunal got delayed and prayed for condonation of delay submitting that the law on the subject and the scope of filing appeal before the Tribunal was in fluid state, therefore, the petitioner in good faith has been pursuing the remedy in the High Court and Supreme Court. Their Lordships also went through the affidavit and in their opinion, grounds mentioned therein constituted sufficient cause, for condonation of delay. It was for this 'reason that in the earlier order the Supreme Court impliedly condoned the delay and directed the Tribunal to proceed with the case on merit.
12. The order passed by the Supreme Court of Pakistan in case of Farooq Ahmed Khan is also not applicable. The petition of Farooq Ahmed Khan was dismissed by the Lahore High Court on the ground of laches on 19th April, 1974. His review petition was also dismissed on 7th November, 1974.
However, in the meantime he approached the Federal Service Tribunal through an appeal on 24th August, 1974, which was dismissed for want of urisdiction on 4th December, 1977. His petition for special leave to appeal efore Supreme Court of Pakistan was converted into appeal and it was decided on 22nd January, 1980 that the Service Tribunal had the jurisdiction to hear and decide the case. The Service Tribunal on 14th October, 1980, however, dismissed the appeal as barred by 21 days. The Supreme Court of Pakistan accepted the appeal and condoned the delay of 21 days on the following grounds :-
(1) The Service Tribunal had held that there was no application for condonation of delay but the fact was that condonation application was already there but the Service Tribunal had overlooked it.
(ii) The Service Tribunal had held that under section 6 of the Service Tribunals Act, 1973, the petitioner should have moved the Service Tribunal within 90 days of the date of abatement. This was not done and, therefore, the appeal became time-barred. The Supreme Court of Pakistan did not accept this contention of the Service Tribunal and observed that the grievance of the petitioner was that on 6th of May, 1974, the jurisdiction was conferred on the Service Tribunal but no proceedings were pending on that date which could abate. The petitioners's case fell within the ambit of section 4 of the Service Tribunals Act, 1973 which provides 6 months period after the establishment of the appropriate Tribunal in which a civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of any terms and conditions of his service could file the appeal before concerned Service Tribunal and in that view of the matter his appeal was within time.
13. As is apparent from the above detail, the case of Amanullah Khan is distinguishable in the sense that the Supreme Court of Pakistan had condoned the delay because (i) The case was earlier remanded by the Supreme Court to the Service Tribunal for decision on merit. (ii) The law on the subject and scope of filing appeal before the Service Tribunal was in fluid state at that time.
Similarly in case of Mr. Farooq Ahmed Khan the orders of the Supreme Court were based on conditions peculiar to that case only. These conditions are not operative in the present appeal.
14. For the reasons given above, the appeal is dismissed in limine on the ground of limitation.