JUDGMENTJUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN), J -In this appeal, appellant Mr. Nayar Bari, has called in question the correctness of the Sind Government's order contained in the S&GAD's notification No.SO III(S&GAD)/5-3/78, dated 9th February, 1986 which reads as under: "The Government of Sind, in exercise of the powers conferred under Section 24 of the Sind Civil Servants Act, 1973, is pleased to allow restoration of seniority, in BS-18, on the basis of their original seniority in the rank of Assistant Commissioner, to the following officers of the Provincial Civil Service reinstated under the provisions of MLC-23:-
1. Mr. Ahmadullah Faroouqi, Director (E&A), Relief Department, BOR.2. Mr. Baldcv Methrani, Director Assessm ent, B.O.R.3. Mr. Ghulam Muhammad Memon, Director Settlement, Survey and Land Records.4. Mr. Fakir Muhammad Daher, Director Food.5. Mr. Ghulam Abbas Soomro, Additional Secretary, Flome Department.6. Mr. Rehmatullah Qureshi, Additional Relief Commissioner, B.O.R.2.
The above orders shall not serve as a precedent in any other case of similar nature."
2. The factual back ground in which the above notification was issued may, briefly be summarized as follows: The appellant as well as the respondents No.2 to 7 (hereinafter referred as said respondents) were members of Provincial Civil Service, in Grade-17 when on 13.3.1972 the said respondents were retired under MLR-114. Subsequently as a result of review of their cases under MLC-23, the said respondents were reinstated in service on 8.4.1978. Meanwhile on 19.4.1975 the appellant was promoted to Grade- 18. Following their reinstatement the said respondents were also promoted to Grade 18 on different dates. Pursuant to the instructions issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division, vide office memorandum No.3/3/78-R II dated 5th July, 1978 like other reinstated persons. The said respondents were restored to the same position of seniority in the grade, in which they were serving at the time of their retirement, but on promotion to higher grade they were allowed seniority from the date of their regular appointment (Promotion) to the said higher grade. Thus all their junior colleagues including the appellant in gradc-17, who were promoted to grade-18 prior to the reinstatement of the said respondents became senior to them in Grade-18. Unsatisfied with this position, the said respondents made representation to the Government of Sind for the first time agitating against the seniority of Messrs Ali Dino Panwar, Abdul Wahab Shaikh, and Muhammad Hashim Memon.
However, their representation was rejected. Two of the said respondents namely Messrs Baldcv Mathrani and Fakir Muhammad Dahar came up in appeals before this Tribunal but they too were dismissed vide judgment of the Service Tribunal dated 28.8.1984. Thereafter the said respondents succeeded in getting the impugned notification issued by the Government of Sind wherebythey have been allowed the same seniority in Grade-18 which they had enjoyed in Grade-17.
Since the appellant's seniority in Grade-18 was adversely affected by the impugned notification, he first challenged it in the constitution petition No. ' 261 of 1986 but the said petition was dismissed vide judgement of High Court dated 1.12.1986. He went in appeal before the Supreme Court against the said judgement, but there too he did not succeed. His petition No. 37-k of 1987 was rejected by order of the Supreme Court dated 30.8.1987. Having failed at the aforesaid legal forums, the appellant filed the present appeal before this Tribunal on 31.6.1987. As a matter of abandant caution he also filed application under the Limitation Act for condonation of the delay.
The learned counsel for the parties were heard at great length. The mass of record available in the case-file was also carefully perused.
To begin with it would be necessary to dispose the two legal objections raised by the Learned counsel for the respondents. His first contention was that the appeal was unsustainable for the reason that the appellant had not fulfilled the mandatory legal requirement of exhausting departmental remedy before approaching this Tribunal for the desired relief, ln this connection he referred to proviso(a) to Section 4 of the Sind Service Tribunals Act 1973 (hereinafter referred to as the said Act), ln order to appreciate his argument the said proviso is reproduced as under; "(a) where an appeal , review or representation to 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 an appeal or application for review or representation to such departmental authority and a peried of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."
3. As is clear from the above proviso , the appellant was required to have resort to departmental remedy available to him before filing the present appeal in this Tribunal. Since the impugned order was manifestly made at the level and with the approval of the Chief Minister, it was obligatory for the appellant to have preferred review petition to the Chief Minister in satisfaction of the above legal requirememt. In reply to this objection the learned counsel for the appellant made a statement at the. Bar that the requisite review petition had been filed by the appellant. In support of his statement he invited reference to the document placed at pages 95 to 103 of the case file.
However, this document was vehemently assailed by the learned counsel for the respondents whose argument was that it was after though as it was produced only ofter the offices of this Tribunal in course of the usual preadmission scrutiny of the memo of appeal and the documents appended therewith had pointed out that it was missing. He submitted that the document in question was fictitious because neither it bears any date nor it carried the rame and address of the appellant. Even the receipt according tothe learned counsel under whieh the. Said dnrnment wac mirruarted tn have been delivered to the P.A.To Secretary (S&GAD) looks highly suspicious as the date of its execution has been tempered by over-writing. On top of all this, he added, the memo of appeal is conspicuously silent as to whether any such review petition was ever filed.
4. After due consideration of the arguments addressed at the bar. It appears that the stand taken on behalf of the respondents could not be lightly dismissed. Had the appellant filed review petition, it would have been mentioned in the memo of appeal . But unfortunately its mention is missing from such basic document which serves as foundation of the appellant's case. It was also not produced at the time of filing of appeal. The learned counsel for the respondents was correct in saying that the document purporting to be review petition was produced only after the objection was raised by the office of the Service Tribunal about its non-production. Even in the written statement filed by the learned Assistant Advocate General on behalf of the official respondents no reference is made to such document obviously because the memo of appeal is silent about it. The learned counsel appearing on behalf of the Government also showed his total ignorance about any review petition having been filed by the appellant. At least no such document was available in his case papers. It is also true that the document subsequently produced before this Tribunal as copy of the review petition neither bears any date nor carries the name and address of the appellant. Normally when a copy of such document is produced along with the memo of appeal the appellant does not produce any receipt indicative of its delivery to the concerned appellate authurity. The fact that the appcllartt has taken care to produce such receipt only speaks of his misgivings lurking in his mind. Even the receipt produced by him as has been pointed out above does not appear to be genuine as its date has been changed by over-writing. In these circumstances it is difficult to hold that the appellant had filed any review petition against the impugned notification.
5. Even if it was assumed that the document he had belatedly produced was a copy of the review petition, it was apparently not filed within time. As required by section 23 of the Sind Civil Servants Act 1973, such review petition was to be instituted within 30 days of the impugned order. In the instant case although the impugned notification was issued on 9th February, 1986 the so-called review petition was admittedly filed on lst April, 1986. In this connection the learned counsel for the appellant placed reliance on second proviso to sub-rule (1) of rule 3 of the Sind Civil Servants (Appeal)Rules 1980 contending that the delay made in filing the review petition was condonable.
The said proviso reads as under; "provided further that the appellate authority or as the case may be Government may condone the delay in preferring appeal or review petition, if it is satisfied that the delay was for reasons beyond the control of the appellant or for the reasons that the earlier appeal or review petition was not addressed to the proper forum."
6. The above rule being subordinate legislation can not have precedence over the provision of the Law of Legislature, therefore the limitation of 30 days fixed by section 23 of the Sind Civil Servants Act 1973 which is law of legislature, for purpose of filing departmental appeal review petition or representation can neither be enlarged nor relaxed by any rules/instructions, unless of course such power is delegated to the rule- making authority in the substantive law itself. Since no provision is available in the Sind Civil Servants Act 1973, Authorising the rule-making authority to provide for enlargement/condonation of the time limit, fixed by the above Act the aforesaid proviso framed in this regard is obviously ultravires of that Act. The sind Govt, will-1 therefore be well-advised to suitably amend section 23 hereinabove empowering the Govt./rule making authority to make rule in the nature of the amid proviso. After introducing such amendment in the substantive law the said proviso can be revalidated. This the learned counsel for the appellant can not invoke the above proviso in support of his argument that the delay made in review petition was condonable.
7. Even otherwise as is clear from the proviso the power to condone the delay vests in the appellate authority. Admittedly no order has been passed by that authority condoning the delay the appellant had made in filing review petition before that authority. In fact appellant came to this Tribunal in the present appeal without waiting for decision of the departmental appellate authority.
As stich the delay made in filing of review petition remained un-condoned. Accordingly the departmental appeal/review petition filed after expiry of the prescribed time limit can not be regarded as such appeal/review petition in the eye of law. Consequently the appellant is held to have failed to fulfil the mandatory requirement of exhausting the departmental remedy before coming to this Tribunal. The appeal is liable to be dismissed even on this solitary ground .
8. The second objection of the learned counsel for the respondent was that the appeal was hopelessly time-barred and there was no sufficient ground for condoning the undue long delay. It is appellant's own admission that review petition against the impugned notification was filed on 1.4.1986 admittedly it remained undecided until filing of the appeal before this Tribunal. In that situation the present appeal could be filed latest some time in August, 1986. But it was actually filed after over one year on 31.8.1987. According to the learned counsel for the appellant the reason for this delay was that the appellant was litigating his case in good faith before other legal fourms.
Relying on the Supreme Court authority reported as Federation of Pakistan -vs-Muhammad Azam Javid and others (1988 SCM R 1458), be submitted that delay made in filing this appeal could be condoned on the aforesaid ground . The relevant portion of the judgement of the above reported case is reproduced below: "Section 29 of the Limitation Act provides for such a situation that the provisions contained in section, 4 sections 9 to 18 and section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law.
There being no modification or prohibition in Service Tribunals Act. The provisions of section 5 of the Limitation Act and in particular section 14 shall get attracted: The view taken by the Tribunal about the appeal having been preferred to the wrong quarters in the same hcirarchy we endorse the view taken that it being the designated authority and only channel for appeal having not been followed, it is a rectifiable irregularity and could be corrected by sending the appeal to the appropriate quarters for its comments. We find that the view taken by the Service Tribunal is correct."
9. It is an admitted position that before coming to this Tribunal in the present appeal, the appellant had filed Constitution Petition (No.261 of 1986) on 4.3.1986 in the High Court which was dismissed by judgement dated 1.12.1986. Thereafter he preferred appeal against the above judgement of the High court but that too was summarily dismissed by the Supreme Court by its judgment dated 30.8.1987 Thus the facts of the instant case are distinguishable from those of the above reported case in as much as that in the latter case the only default attributed to the appellant was that instead of routing his dipartmental appeal through proper channel,he submitted it directly to the departmental appellate authority where as in the instant case, the forum of High Court chosen by the appellant was not in the same heirarchv. Accordingly the above authority of the Supreme Court is not helpful to the appellant. The appellant's learned counsel next referred to the last para of the judgment of the Supreme Court by which appellant's appeal from the judgement of the High Court was summarily dismissed, lt reads as under: "Learned counsel also expressed apprehension that an appeal before the Tribunal might now be treated as time-barred. The petitioner may if so advised rely upon the relevant provisions of the Limitation Act regarding his having pursued a remedy bona fide, in a wrong forum."
10. The learned counsel for the appellant argued that the above observations of the Supreme Court were in the nature of recommendations and as such the Tribunal should condone the period consumed by the appellant in pursuing his case before the High Court and Supreme Court . Lt is difficult to agree with this argument. All that the Hon'able Supreme Court observed was that the appellant may rely upon the relevant provisions of the Limitation Act, if so advised, in other words the appellant had to seek the condonation of the delay if his case was covered by the relevant provisions of the Limitation Act. By virture of section 29 of the Limitation Act, section 14 of the same Act is attracted for deciding if the time spent in litigating the case at other forums could be condoned. For the purpose of this case, sub-section (2) of section 14 is relevant and it reads as under: "(2) in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief shall be excluded, where such proceedings is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of like nature, is unable to entertain it."
11. The question for consideration is whether, as required by the above provision of law, the appellant had pursued his case at other legal forums with due diligence and in good faith. The learned counsel for the respondents recalled the argument advanced on behalf of the appellant that his case for condonation of the delay squarely fell within for corners of section 14 (2) hereinabove. To appreciate the learned counsel's respective view points, reference may first be made to the impugned notification which leaves no doubt ,whatsocner, that it speaks of restoration of seniority to the officers mentioned therein in grade-18. The appellant being a senior officer of the Government could not be supposed to have no knowledge that seniority was included in the terms and conditions of service of a Civil Servant spelt out in the sind civil servants Act 1973. It was also difficult to believe that he did not know that all cases relating to terms and conditions of service of a Civil Servant fell within jurisdiction of Service Tribunal to the exclusion of all other courts including High Court. Since the ouster of jurisdiction of other Courts in service matters was brought about by the constitutional provision namely Art. 212 of 1973- Constitution,ignorance pleaded in this regard particularly the ignorance attributed to the appellant's counsel would not be valid ground for the condonation. On the same point, this tribunal has already observed in the case reported as Shalid Ahmed Khan -vs- IGF (1987 PLC (CS) 794 as under:"It is clear from the above judgement, that the ouster of jurisdiction of the courts including High Court in service matters is by the constitution and as such there is no force in the argument that other courts were approached under the genuine impression that they had concurrent jurisdiction to decide the service matter. Even otherwise ignorance of the party's counsel as to the legal forum where the case was to be instituted or the wrong advice tendered by him in this regard is no valid ground for condoning the delay particularly when no affidavit of such counsel was filed in support."A part from above it is disclosed in para 4 of the memo of Appeal that it was within the knowledge of the appellant that two of the respondents whose representation about their seniority vis-a-vis seniority of some other officers was rejected, had challenged the order of rejection before the service Tribunal. Despite that knowledge he himself took his case to different forum namely High Court. Obviously this was not done in good faith. Again in the Constitution petition filed by him in the High Court he took the plea in para 8 thereof that the petitioner had no other alternative efficatious remedy, which assertion on his part was patenly wrong. He had not only departmental remedy available to him which he did not resort to before filing the Constitution petition but also avoided the normal forum of Service Tribunal. l2. Further more the constitution petition No.D-187 of 1986 which was on all fours with the appellant's own petition referred to above was dismissed on 17th March, 1986 during the pendency of his petition.
It was clearly held by the High Court in its judgment delivered in the said petition that the petitioners should approach the Service Tribunal for seeking the desired relief. It was frankly conceded at the bar that the appellant came to . Know about the said judgement of the High Court soon after its announcement. Nonetheless be Continued to pursue his Constitution petition until it was dismissed on 1.12.1986 on the basic of above decision of the Full Bench of the High Court. Even then he did not give up the wrong course he had been following in his case. Once again instccd of approaching the Service Tribunal even at this belated stage, he preferred to challenge the High Court's decision before the Supreme Court.
It is also worthy of note that the appellant himself started doubting his bonafidcs in pursuing the matter in the High Court, the moment it came to his notice that the Constitution Petition No. 187/86 which was similar to his case pending in the High Court was dismissed . This is clear from the fact that the said petition was dismissed on 17th March 1986 and he claims to have filed review petition before the Chief Minister on 1.4.1986, obviously in an attempt to lay foundation for filing appeal before the Service Tribunal in case of his failure to achieve the desired relief through High Court/Supreme Court. Surely this did not reflect good faith on his part. Moreover the appellant had allegedly chosen the wrong forum for his litigation on the advice of his counsel. But the application for condonation of the delay he has . Made is not supported by affidavit*of the said counsel.
Therefore as held in Shahid Ahmad Khan's case, the delay could not be condoned . It may also be pertinent to refor in this regard to the two other cases reported us: (1) Mrs. Ismal Ta-riq vs. Sh.
Shoukat Ali (1974 SCM R 158) and (2) Abdul Ghatu vs. Ghulam Serwar (PLD 1977 S.C. 102) . In the first mentioned case it was held; The law having been authoritatively declared by this court . It is not possible to hold that the petitioner was acting with due diligence in pursuing her application in the High Court for the grant of a fitness certificate, especially when the application remained pending for more than two years.
The petitioner was all along assisted by a counsel and the failure of the counsel to take note of the law declared by this Court could obviously be attributed only to lack of due diligence on his part.
The petitioner can not escape the consequences of this lack of diligence.".
In the second case it was held:"Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore in order the make out sufficient cause under section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court.
Good faith has been defined in clause (7) of section 2 of the Limitation Act as 'good faith'; nothing shall be deemed to be done in good faith which is not done with due care and attention". Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presenation of the appeal in the wrong court was on account of circumstances beyond his control".
In view of what has been stated in the forgoing paragraphs the appellant c an not be held have pursued his case at wrong forums in good faith, as has been observed in above two authorities.
The appeal being hopelessly time- barred, there is absolutely no justification to condone the long delay of more than a year in filing the same.
14. Coming to the vires of the impugned notification the learned counsel for the respondents expressed the view that the said notification was not appealable as it was issued by the Government in exercise of its plenary powers. The view does not seem to be correct. Since the notification had the effect of disturbing the appellant's seniority vis-a-vis the said respondents' seniority . The cause of action definitely accrued to the appellant. It is entirely a different matter if he did not avail it at proper legal forum and within time. On the other hand learned counsel for the appellant contended that the impugned notification was without jurisdiction and hence void.In support of his view. He relied upon two Supreme Court autheritics and the instructions issued from time to time by the Federal Govt. He submitted that the said notification was also discriminatory in as much as that it was not to be followed as a procedent.
The first case relied upon by the said learned counsel is reported as Govt, of Pakistan -vs- Junejo Muhammad Iqbal (PLD 1987 S.C 427) wherein it was held: "As already indicated the question of seniority of the respondents has to be decided in the light of the office memorandum of 5.7.1978 and not in accordance with the general principles of seniority as contained in the offices memorandum of 31.12.1970. Clause (s) clearly states that on promotion to the higher grade the reinstated civil servants will take seniority from the date of their regular appointment to a post in that grade. That being the position the claim of the respondents that on promotion they were entitled to regain seniority in the next higher grade over these who were junior to them in the lower grade at the time of their retirement must be rejected."
15. Ln the above reported case, the officers of Federal Govt, were reinstated like appellant under MLC-23. It would.Appear that the said MLC is silent as to determination of the seniority of the reinstated officers. However the Supreme Court has ruled as indicated above, in the case of Junejo Muhammad Iqbal that seniority of the reinstated officers has to be decided in the light of office memorandum dated 5.7.1978 (admittedly issued by the Federal Govt.) and not in accordance with general principles of seniority . It is true that the Supreme Court has given its ruling in the case of Federal employees and has referred to office memorandum issued by the Federal Govt. But the same principles have been reiterated by the same court in the case of provincial employees, which is the second case on which the appellant's counsel has placed reliance. It is an un-reported case relating to Civil Appeals Nos.l67-K/84 4,37-K/85, 38-K/85 and 39-K/1985 filed by Ali Gohar and two others which were disposed by the same judgment dated 15- 9-1988, wherein their lordships of the Supreme Court took the following view:"The upshot is that the situation obtaining in the appellant's casses is not different from that which obtained in the case of Junejo Muhammad Iqbal and, accordingly, the rule laid down therein will also apply to his case with the result that his appeal must also fail."
I6. It is not denied that the Government of Sind had adopted the Federal Government's instructions contained in its offices memorandum dated 5-7-1978, with regard to datermination of seniority of the reinstated officers. However , subsequently by its memorandum No. SOIK-RSO (S&GA D) 4/20- 78 (Pt-V). Dated 2nd April, 1981 the Sind Govt, after consultation with the Federal Government issued the revised instructions as under; "I am directed to refer to this Department letter No. SOIK- RS 50 (S&GAD)4/20-78,dated the 22nd May, 1980 on the subject noted above and ............... To inform you that the question of allowing the normal seniority to the reinsatatd persons on promotion to higher grade after reinstatement in service under MLC-23, has been considered in sonsultation with the Federal Government who have advised that such a person cannot be allowed any retrospective seniority. As such he will not rank senior to the porsons who have been promoted to a higher grade before his reinstatement irrespective of their position in inter-se- seniority in the lower grade.
(2) . However, such cases as involve hardship may be decided by invoking the provisions of section 24 of the sind Civil Servants Act, 1973, which does not limit or abridge the power of the Govt., if it is felt that it would be just and equitable to do so. I am therefore desired to request you to take further action in such cases accordingly.
(3) . This issues with the approval of the Chief Secretary."
The impugned notification has obviously been issued under para 2 of the above , instructions. Thus it is quite in keeping with the dictum laid down by the Supreme Court that seniority of the reinstated officers is to be decided in the light of special instructions of the Government and not in accordance , with general principles of seniority. Never theless the question would still arise if the impugned notification is not derogatory to subsection (4) of section 8 of the Sind Civil Servants Act.
The said subsection reads as under;"(4). Seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to a post in that grade."
The above provision which relates to seniority of promotees has clearly excluded the possibility of giving seniority to the promotees from retrospective effect. Accordingly the argument was raised by the learned counsel for the appellant that since the impugned notification has given seniority to the said respondents retrospectively , -it is in derogation of subsection (4) of section 8 reproduced above and hence illegal . But this argument overlooks the effect of the provisions contained in Section 24 of the Sind Civil Servants Act, 1973. It reads as under; "24. Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable;Provided that , where this Act or any rule is applicable to the case of a Civil Servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
It would appear that the power conferred on the Government by section 24 is excrciscablc notwithstanding anything contained either in the Sind Civil Servants Act or any rules. In other words the provision contained in subsection (4)of section 8 referred to above can not operate as impediment in the way of Government . In this connection the learned counsel for the said respondents also invited reference to the case reported as Iqan Ahmad Khurram -vs- Government of Pakistan (PLD 1980 S.C.153) wherein, Section 23 of the Civil Servants Act 1973 applicable to Federal employees which is ditto copy of section 24 of the Sind Civil Servants Act 1973 reproduced above has been construed as under;-"............................................................... "but the reading of the section (S.23) and proviso, as awhole, makes its clear that it is a residuary provisipn and............... Itenables the Government to deal with the case of any perso' under the Rules according to justice and equity, so long as he is not treated less favourably than the Rules require and the Government can, within its plenary power make adjustments of a compensatory nature."17. The above authority clearly supports the view that in the case of hardship, the Govt.Can use its plenary power under the above section and make appropriate order compensating the civil servant who has suffered the hardship.
There can not be two opinions; that the case of the said respondents relating to determination of their seniority in Grade-18 was a hardship case. The appellant who entered Grade-17 on 19.9.1968 was more than ten places junior to the said respondents in the said grade, as they were inducted in that grade during the period from 1963 to 1965. If they had not been assigned the same seniority position in Grade-18, which they enjoyed in Grade-17, they would have become many places junior to the appellant. As such not only their further promotion would have been postponed until after promotion of the appellant but also they could at times be posted as his subordinates, Since they were restored to the, position as if they had not been retired under MLR 114, justice and equity demanded that they should not be made to suffer in the said manner. Because the legal hitch in their way was obviously not insurmountable. Accordingly the Government was perfectly justified in issuing the impugned notification to undo the wromg caused to the said respondents. As for the argument of the appellant's learned counsel that the impugned notification was discriminatory and henc unsustainable, it would suffice to say that para 2 of the notification which has not only rendered the notification discriminatory but has also the effect of limiting the Government's very power could he overlooked and ignored.
For above reasons the appeal is dismissed with no order as to costs.
Given under our hands and the seal of this Tribunal on this 20th day of March, 1989 at Karachi.