' The relevant facts which gave rise to the present appeal are that in 1959 Ashiq Muhammad Khan respondent was serving as Field Qanungo in the Revenue Department. By then he had put in 22 years' service. Action under the Public Conduct (Scrutiny) Ordinance, 1959 was initiated against him by the Deputy Commissioner, Rahimyar Khan, hereinafter referred to as the Deputy Commissioner. The Screening Committee headed by the said Deputy Commissioner recommended that he be compulsorily retired. The recommendation of the committee was conveyed to him on the 15th of April, 1959 whereupon he preferred an appeal before his appointing authority i.e, the Deputy Commissioner who on 25-4-1959 accepted the said appeal. On 29-6-1959 the Deputy Commissioner conveyed to him the order of the Commissioner, Bahawalpur Division whereby he was compulsorily retired from service w.e.f, 30th of June, 1959. He submitted a review petition against the said order before the Commissioner who rejected the same in limine on the ground that no "revision" lay under the law. In April, 1962 he came to know that the Commissioner had never passed any such order of his compulsory retirement and that the order conveyed to him had been manoeuvred by officials in the office of the Commissioner, Bahawalpur Division, who were inimical towards him. He therefore, on 7-6-1962 filed a writ petition against the said order of his compulsory retirement. The said writ petition however, was dismissed and he was asked to make a representation to the Government. His representation was also rejected on 13-3-1963. He filed another writ petition but the High Court declined to go into the questions of fact and the respondent was advised to file a Civil Suit. On 6-2-1964 the respondent instituted a suit for a declaration to the effect that the order dated 29-6-1959 conveyed by the Deputy Commissioner, Rahimyar Khan whereby he was compulsorily retired was without any legal authority and other orders passed in that behalf were null, void, illegal and without jurisdiction and that the respondent continued to be in service as Field Qanungo.
2. The appellants contested the suit. They admitted the initiation of action against the respondent under the Public Conduct (Scrutiny) Ordinance, 1959, his compulsory retirement by the Deputy Commissioner, the acceptance of the respondent's appeal by the Deputy Commissioner as appointing authority and the fact that the order of compulsory retirement passed by the Commissioner, Bahawalpur Division on 28-6-1959 was conveyed to the respondent by the Deputy Commissioner on 29-6-1959. They maintained that the Commissioner did pass the said order but submitted that the same was not available on the record.
3. On the pleadings of the parties the following issues were framed:--' ISSUES:
(1) Whether order dated 29th of June, 1959 is null, void and inoperative upon the rights of the plaintiff?
(2) Whether the Commissioner did not pass any order on 28th of June, 1959 in respect of the appeal filed by the plaintiff?
4. The parties adduced their evidence on the above issues. On the basis of the said evidence on 31- 10-1964 the learned trial Court dismissed the respondent's suit. On 12-1-1966 however, his appeal was accepted by the District Judge, Bahawalpur and the case was remanded with the direction to record further evidence. After recording such further evidence the trial Court again on 24-6-1966 dismissed the suit. Feeling aggrieved the respondent lodged an appeal which was accepted by the learned District Judge, Bahawalpur vide judgment dated 8-4-1967. His suit was accordingly decreed. This is the regular second appeal wherein the appellants have questioned the correctness of the judgment of the learned first appellate Court.
5. I have heard the parties' counsel and have gone through the record.
6. Learned counsel for the appellants has assailed the impugned judgment on two grounds, firstly, that the suit was barred by time and secondly the respondent had himself admitted in his previous appeals, review petition and writs that the order dated 28-6-1959 was made by the Commissioner and therefore, he was now estopped from claiming that the said order did not exist.
7. Learned counsel for the appellants has contended that by the instant suit the respondent wanted to have the order of the Commissioner dated 28-6-1959 set aside and therefore, Article 14 of the Limitation Act would apply, according to which the period of limitation for bringing such suit was one year and as the suit had been instituted beyond the prescribed time it was liable to be dismissed. Learned counsel for the respondent has contended that the appellants could not raise this plea of limitation in second appeal as they had not raised any such plea either before the trial Court or the first appellate Court. Perusal of the written statement submitted by the appellants reveals that they had not raised any objection about limitation. They had also not taken any such plea before the learned District Judge in first appeal. It is now an established principle of law that a plea which was neither taken in the pleadings nor before the first appellate Court could not be allowed to be raised in second appeal. In this regard reliance is placed on Muhammad Rafique and others v. Barkat Ali and others 1988 SCMR 1526, Baddar Din v. Bahadar Ali and others PLD 1968 Lah. 573 and Abdul Ghaffar v. Muhammad Aslam Khan and others 1985 MLD 456. I, therefore, do not allow the appellants to raise this plea in the present appeal. Even otherwise, the contention raised by the learned counsel for the appellants is not tenable. In the present suit the respondent had sought a declaration to the effect that the order of the Commissioner dated 28-6-1959 conveyed to him through letter dated 29-6-1959 by the Deputy Commissioner, was null, void and ineffective against his rights. Clearly, it is not a suit "to set aside any act or order of an officer of Government in his official capacity". In these circumstances, Article 14 of the Limitation Act would not apply and instead Article 120 would be applicable, according to which the period of limitation is six years. This view was taken in Rashid Inayat v. Federation of Pakistan PLD 1957 (W.P.) Lah. 378 and reiterated in F.A. Khan v. Government of Pakistan PLD 1964 SC 520. Relying on these authorities it is held that the suit instituted on 6-2-1964 to have the order dated 29-6-1959 declared null and void, was well within time.
8. As regards the second contention, it is an admitted fact that the appellants had not raised the plea of estoppel either before the trial Court or before the first appellate Court and therefore, this plea also cannot be allowed to C be raised in second appeal. Even on merits, the plea is devoid of force. It is true that in his previous appeals, review petitions etc. The respondent had admitted the existence of the impugned order of the Commissioner because he was made to believe through a responsible officer i.e, Deputy Commissioner that such an order had been passed. Later on, however, when he further probed into the matter and inspected the relevant files he came to know that no such order had ever been passed. In these circumstances question of estoppel did not arise and he could take up the plea that the impugned order of the Commissioner dated 28-6- 1959 did not exist and his compulsory retirement from service was illegal, null and void.
9. After having gone through the material available on record I am satisfied that the conclusions drawn by the learned District Judge were unexceptionable. It is abundantly proved from the evidence on record, of which there is no rebuttal, that after the Screening Committee headed by the Deputy Commissioner had made its recommendation on 15-4-1959, the respondent had preferred an appeal on 25-4-1959 (Certified copy Exh. P.1) under rule 6 of the Public Conduct (Scrutiny) Rules, 1959 (promulgated on 21-1-1959) before his appointing authority i.e, the Deputy Commissioner and his appeal was accepted on 28-4-1959. At that time according to rule 6 of the Rules, appeal against the recommendation of the Screening Committee lay before the appointing authority of the aggrieved person. The said appeal before the Deputy Commissioner therefore, was perfectly in accordance with the Rules as they stood at that time and the Deputy Commissioner was competent to dispose of the same which he did on 28-4-1959. In these circumstances, the said order of the Deputy Commissioner was final, so far as action under Public Conduct (Scrutiny)
Ordinance, 1959 against the respondent was concerned. The Commissioner had no authority whatsoever to pass any order on respondent's appeal.
10. It may be pointed out that prior to 14-5-1959 rule 6 of the Public Conduct (Scrutiny) Rules, 1959 was as under:-- "6. Where the finding is against the person concerned a copy of the finding and the recommendation shall be furnished to him forthwith and he shall be entitled within fifteen days of the receipt thereof to appeal against it to the appointing authority."
' This rule however, was amended on the 14th of May, 1959 and the following was added: "Or where the appointing authority is the Chairman or Member of the Committee which recorded the finding, then the appeal shall lie to the next higher authority instead?
11. It would be seen that prior to the said amendment Deputy Commissioner being the appointing authority of the respondent was competent to hear the appeal even though he was the Chairman or member of the Screening Committee which recorded the recommendation against the respondent. Subsequent amendment in the Rules could not operate with retrospective effect. The power to hear such appeals was conferred on the Commissioner with effect from 14-5-1959 and not before. In this view of the matter the Commissioner could not pass any order on the appeal preferred by the respondent prior to 14-5-1959 which had effectively been disposed of by the Deputy Commissioner vide order dated 28-4-1959.
12. There is sufficient evidence on record to arrive at a safe conclusion that the Commissioner had not passed any order on 28-6-1959. It appears that after 14-5-1959 i.e, after the amendment of rule 6, the Deputy Commissioner had sent the appeal of the respondent to the office of Commissioner where the Assistant Commissioner (General) dealt with it. The record shows that on the said appeal he had prepared a note (Exh. P.6) and marked it to the Commissioner for further orders.
There is nothing on record to show that the said note had ever been laid before the Commissioner for approval or he had passed any order on it. The said note is not even initialled by him. P.W. 2 Abdul Majeed, General Assistant, Commissioner's Office, Bahawalpur in his statement before the trial Court had clearly stated that the Commissioner had not passed any order on the note Exh. P. 6 prepared by the A.C.G. Order Exh. P. 3 which was communicated to the respondent is also not signed by the Commissioner. In these circumstances, it can reasonably be presumed, that the Commissioner had not made the order dated 28-6-1959 whereunder the respondent was compulsorily retired. The learned District Judge therefore, was perfectly justified in holding that the Commissioner had not passed any order dated 28-6-1959 and the order dated 29-6-1959 of the compulsory retirement of the respondent was illegal, void and inoperative.
13. In view of the above discussion there is no merit in this appeal which is dismissed with costs.