1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the appellant, a civil servant, under Article 212(3) of the Constitution to examine the legality and the correctness of the decision of Punjab Service Tribunal, dated 11-10-1979 whereby it refused to condone a delay of four days in filing the appeal before it under section 8 of the Punjab Service Tribunals Act, 1974.
2. The appellant is a Neuro Surgeon. The contesting respondents 2 to 4 are also Medical Specialists. A provisional list of their seniority was issued in which the appellant was shown junior to all the three contesting respondents. He represented to the Government against it. By an order, dated the 17th of November, 1971 the Government of Punjab in the Health Department accepted the representation of the appellant applying the principles enunciated in Circular letter No. SOXII (S&GAD)-1/24-66, dated 10-12-1966. Aggrieved by this decision of the Government, the three contesting respondents filed separate appeals before the Civil Service (Appellate) Tribunal set up under West Pakistan Civil Servants (Appellate) Tribunal Ordinance, 1969. The Tribunal allowed the appeals of three respondents and restored to them their seniority on the ground that the circular on the basis of which the Government had accepted the representation of the appellant related to the inter se seniority of the promotees and the direct recruits while the case of the parties was one of direct recruitment to the post of professor. It was held that as the date of selection by the Public Service Commission of the respondents was earlier and as they had taken up their appointments as Professor earlier to the appellant they were entitled to be treated as senior notwithstanding the fact that their appointments were on temporary posts while that of the appellant was on a permanent post. In holding so the Tribunal followed the decision of this Court in Khushi Muhammad and others v. The General Manager, Pakistan Western Railway and others PLD 1970 SC 228.
3. Aggrieved by this decision of the Service Appellate Tribunal, the appellant filed a constitutional petition in the Lahore High Court and it was still pending there when the Punjab Civil Servants Act and the Punjab Service Tribunals Act were promulgated and enforced in 1974. On the 17th of July, 1974 the learned Chief Justice of the Lahore High Court in a number of constitutional petitions including that of the appellant held that it had abated in view of section 8 of the Service Tribunals Act. The appellant filed an appeal on the 24th of October, 1974 before the Service Tribunal which was held to be the-barred by four days as it was filed after the expiry of ninety days of abatement under section 8 of the Punjab Service Tribunals Act.
4. The appellant had taken up three grounds before the Service Tribunal for seeking condonation of the delay. The first was that the appellant and his counsel had no notice of the date of hearing, that is, 17-7-194. The appellant was personally outside the country from 16th of June 1974 to 7th of August, 1974 and received the information for the first the on 23rd of October, 1974 and filed the appeal the very next day. The second ground taken up was that even the counsel of the appellant Raja Muhammad Anwar, Advocate remained uninformed of the hearing of the constitutional petition and was, therefore, not in a position to inform the appellant of the order passed in the case. In support, he filed .a letter of Raja Muhammad Anwar, Advocate, which was dated 5-12-1979.
5. The third reason given was that before 17-7-1974 Raja Muhammad Anwar had been appointed a Deputy Attorney-General of the Government of Pakistan and in that capacity could not attend to such cases as that of the appellant.
6. The Tribunal followed the decision of this Court reported in Sh. Masood Ahmad v. Pakistan PLD 1976 SC 195 to hold that the abatement was automatic and peremptory and no order of the Court in which the proceedings were pending was required to be made. By reference to the cause list of the day the Tribunal held that "even the formal order of abatement was passed with notice to the counsel for the appellant". As regards the third objection it held that on account of his appointment as Deputy Attorney-General, the learned counsel representing the appellant did not suffer from any incapacity in putting up appearance on behalf of the appellant in the High Court and in ascertaining the nature of the order passed.
7. The learned counsel for the appellant before us has contended that it was a case of, at the worst, gross negligence of the learned counsel representing the appellant in the High Court and this Court has been condoning such negligence or defaults as of mistaken advice of a counsel and lack of diligence on his part in pursuing his client's interest. If this is not done, the appellant and clients like him who have onerous duty to discharge as civil servants and are pre-occupied with it will be punished for no fault of theirs. According to the learned counsel, the appellant had been diligently pursuing the remedy for the last fourteen years and even in the Tribunal, the appeal was pending for five years. It was rather harsh and late in the day to dismiss an appeal which had remained pending in the Court for five years on the ground that there had been a delay of four days in filing it.
8. The learned counsel for the respondents on the other hand contended that where the law itself is so clear and peremptory, there is no question of a mistaken advice of the counsel or a period of waiting for the Court to pass an order. Ignorance of law as such has never been of avail to any party whatsoever particularly so when the ignorance is gross and remains unexplained. As regards negligence of the counsel it is contended that this Court has been taking a very strict view of the discipline and responsibility of the counsel and has not been condoning or accepting laxity as a good explanation.
9. The findings of facts recorded by the Tribunal and not seriously disputed appear to be that the cause was properly listed on the 17th of July, 1974. The names of the parties and of the counsel representing them were correctly and clearly indicated. The learned counsel representing the appellant failed to make appearance or to keep himself informed of the orders passed by the Court. There is no averment from any quarter that the learned counsel for the appellant was ignorant of the provisions of section 8 of the Punjab Civil Services Act or that he had tendered a mistaken advice to his client. It also appears that the appellant had come to know about the abatement order on the 23rd of October, 1974 from quarter other than that of the counsel who was in a position after about over four years to inform his client in writing about it. We do not even at this stage have any explanation as to why the counsel representing the appellant in the High Court failed to make appearance on that date. The argument now advanced is that it was the month of vacation and according to the practice of the High Court ordinarily the notice cases were not to be taken up during those days and this beguiled the learned counsel for the appellant and he could not appear. We have nothing on the record specifically stating so.
10. It has been held by this Court in the case of Sh. Masood Ahmad that the provision of section 6 of the Civil Servants Act which is similar in nature as section 8 of the Punjab Civil Servants Act, by its own force abates the pending proceedings and permits a period of ninety days for taking the case to the Service Tribunal. No order of; the Court is necessary. The abatement is automatic and forthwith on the establishment of Service Tribunal. Keeping in view this law and the fact that its effect could not remain undetected by any lawyer using ordinary prudence and vigilance it cannot be said that the delay in the case was explained in a manner to necessitate the condonation.
11. Again in the case of Syed Ali Hasan Rizvi v Islamic Republic of Pakistan 1978 SCMR 207 this Court has held that it is within the exclusive jurisdiction of the Tribunal to exercise discretion in condoning the delay. This Court has only to ensure that it is not exercised arbitrarily or capriciously or in the absence or against the record on facts established. Adopting both these standards we find that in the' case of the appellant, the Tribunal having not exercised the discretion in his favour, we cannot on the facts established make a question of law of public importance requiring interference by this Court.
12. So far as the negligence of the learned counsel representing the appellant in the constitutional petition is concerned, this Court has very recently held in Mst. Mahmooda Begum and others v.
13. Major Malik Muhammad Ishaq and others 1984 SCMR 890 that in a case of gross ignorance of law or negligence on the part of the counsel, the client has to seek a redress against the counsel and that fact itself does not provide a good ground for the condonation of the delay. We find that a case for interference by this Court is not made out under Article 212(3) of the Constitution and for that reason the appeal is dismissed. No order as to costs.