RAJA BASHIR AHMAD KHAN (CHAIRMAN): --In this appeal Order No. Seen meem/8126-27/89, dated 8-12-1989 and Order No. Seen meem/7077--7132/89, dated 26-10-1989 have been challenged.
2. The brief facts of the case as stated in the memorandum of appeal are that the appellant was approved as a candidate Naib-Tehsildar on 4-9-1976. He completed his training on 28-7-1977 and was appointed as Naib-Tehsildar on 12-12-1983. All respondents except respondents Nos. 3 and 5 were approved candidates Naib-Tehsildars. They completed their training and were appointed to the posts of Naib-Tehsildars. Respective dates of approval as candidates, completion of training and appointment as Naib-Tehsildar are given below: -- S.No Name Date ofapproval candidate Date of as completion of training Date of appointment as Naib-Tehsildar 1.
Abdul Aziz Zargen 3-7-1976 31-8-1977 26-3-1079 2.
Ch. Muhammad Hussain 14-4-1976 29-12-1976 13-8-1984 3.
Syed Zulfiqar Hussain Shah 17-10-1976 23-8-1978 31-10-1984 (on 7-10-1980 appointed by Custodian in his own Department).
4.
Muhammad Ghazi Khurshid 17-12-1973 13-2-1975 3-11-1984(on 5-4-1976 appointed by custodian in his own Department).
5.
Abdul Qayyum Niazi Not approved Did not complete any training.
3-11-1984 (on 18-4-1981 appointed by custodian in his own Department).
6.
Kh. Javed Iqbal 1-1-1981 29-3-1982 3-2-1983 7.
Abdul Qayyum Khawaja 1-1-1981 24-3-1982 3-2-1983 8.
Muhammad Ghazan 1-1-1981 25-1-1982 3-2-1983
3. Respondents Nos. 3 to 5 were excluded from` the list of approved candidates on 12-8-1981 under the order of Revenue Commissioner. Respondent No. 6 was not an approved candidate Naib- Tehsildar. He did not undertake any training of Revenue work. Seniority lists were prepared and published by the Commissioner at different times to which some of the Naib---Tehsildars submitted their objections. A final seniority list was circulated by Commissioner Revenue on 5-2- 1986. An appeal against the final seniority list was preferred before the Secretary, Revenue by Saleem Akhtar Awan, Naib---Tehsildar against fifteen Naib-Tehsildars. Appellant and respondents were not made party in that appeal. Another appeal was also filed by Ch. Muhammad Hussain respondent No. 3 who was placed at serial No. 55 in the seniority list claiming that he be placed at serial No. 20. Secretary Revenue dismissed the appeal of Ch. Muhammad Hussain but at the same time directed that the copy of his order in service appeal of Saleem Akhtar Awan and the seniority list prepared thereunder may be attached with this decision and be sent to the appellant (Ch. Muhammad Hussain). The seniority list was issued by Secretary, Revenue on 26-10-1989 which reached the appellant on 29-10-1989. The appellant filed an application/objections for correction of the seniority list in accordance with the judgment/order of Secretary, Revenue dated 26-10-1989.
The application/objections were rejected without having been considered vide order dated 8-12- 1989.
4. The respondents have controverted the facts stated in the memorandum of appeal. They have also stated in their written statements that the appeal is barred by limitation.
5. We have heard the learned counsel for the parties and have also carefully gone through the record. The learned counsel for the appellant has, during the course of his arguments, stated that the appellant without pressing on with his appeal against respondents Nos. 2, 7 to 10 only seeks remedy against respondents Nos. 3 to 6. In view of the statement of the learned counsel at the bar the appeal shall be treated as having been withdrawn as against respondents Nos. 2, 7 to 10.
6. The learned counsel for respondents has vehemently argued that the present appeal is hopelessly time-barred. Appellant in para. No. 6 of his memorandum of appeal has stated that the seniority list was issued by the Revenue, Secretary on 26-10-1989 which reached the appellant on 29-10-1989. Appellant filed this appeal on 28-12-1989 which under section 4 of Azad Jammu and Kashmir Service Tribunal Act could be filed within thirty days of the communication of the impugned order. Appellant alongwith his appeal filed an application for condonation of delay/extension of limitation. At the time of admission of the appeal it was decided by the Tribunal that the matter of limitation would be settled during the regular hearing. The arguments of the learned counsel for respondents is that appellant could file this appeal within thirty days of the date of communication of this seniority list whereas he approached this Tribunal on 28-12-1989 after consuming considerable time in pursuing his review application. The appeal therefore, is liable to be dismissed. On the other hand it is submitted by the learned counsel for the appellant that appellant genuinely believed that Revenue Secretary had jurisdiction to review his order and appellant consumed some time in pursuing 'his remedy in a wrong forum and in the circumstances the time spent in the wrong forum can be excluded and delay in filing the appeal beyond limitation can be condoned. The learned counsel for respondents has relied on 1983 PLC (C.S.) 256 Fida Muhammad Rathore v. Azad Government and others. On behalf of appellant his counsel has relied upon 1984 PLC (C.S.) 991, Muhammad Iqbal v. Superintendent of Police City, Lahore and another and 1977 PLC.
77. In Fida Muhammad Rathore's case the Supreme Court disallowed the prayer for condonation of delay on the ground that the second review petition was not permissible and the appellant, in his own wisdom chose to file the same before the Government, thereby wasting practically nine months in pursuing the same. Due diligence and care could make him alive of his wrong action and thus save him to follow the wrong cause. The authorities cited by the learned counsel for appellant are not helpful to appellant for the reasons that in first case relied by him the delay was caused due to bona fide mistake of the counsel and in the other reported case the delay was caused on account of confusion in the mind of the appellant as to remedy against his discharge from service. In the instant case the delay is not due to any mistaken advice of counsel or any confusion in the mind of appellant as to the remedy. Appellant has stated in his application that he submitted review application before the Secretary, Revenue under the genuine impression that he had the jurisdiction to correct his own mistakes. In order to resolve the matter it seems proper that all the aspects of the case be examined. It is an admitted fact that the seniority list of Naib-Tehsildars was revised-in view of the appeals of saleem Akhtar Awan and Ch. Muhammad Hussain. The appellant was not a party in those two appeals. It is a settled principle of lawn that a party cannot' be condemned unheard and order passed in his absence is not binding upon him. Reference may be made to 1987 SCM R 899 and 1988 SCM R 620.
In 1987 SCM R 899 it was held as under: -- "There is however, no denying the fact that the appellants and respondents Nos. 6 to 39 were necessary parties in the appeals filed by respondents Nos. 3 and 4 but since they were not impleaded as such, therefore, any action taken or order made in their absence which adversely affected their interest could not at all affect their right and they would not be bound by it. Therefore, there would be no hurdle in the way of the appellants and respondents Nos. 6 to 39 to take up the matter of their seniority qua respondents Nos. 3 and 4 before the departmental authority and get it determined afresh."
In 1988 SCM R 620 similar view was expressed and it was held that appellant not being a party to appeals disposed of by Service Tribunal, decisions in appeals would not be binding on him and could not in any way prejudice his rights. It may also be noted that the Appointing Authority of Naib-Tehsildars is Revenue Commissioner and he was only competent authority to determine the inter se seniority of Naib-Tehsildars. The Appellate Authority (Revenue Secretary) in exercise of its powers could only amend the seniority list to the extent of those Naib-Tehsildars who were contesting parties in abovementioned two appeals. The general practice is that whenever a 'seniority list is prepared objections are invited from all concerned persons and the matter is resolved after giving opportunity of being heard to all concerned. Appellant in the circumstances must have genuine impression that Revenue Secretary had authority to review his decision and to correct the seniority list. In this background of the case we have to decide whether there is a sufficient cause for condonation of delay in filing appeal. Sufficient cause is a question of fact and.
If any party could satisfy the Court that there was justification for not filing appeal within the prescribed period the Court can condone the delay. The application of section 5 of Limitation Act has been dealt by Supreme Court of Azad Jammu and Kashmir: in PLD-1983 Supreme Court (AJ&K)
25. Mr. Justice Abdul Majid Malik while reviewing various authorities on the question of limitation held as under: -- "The object of law of limitation is to regulate the course and manner for providing relief or remedy, where substantive rights are pressed in litigation. The restriction of time limit, is an outcome of public policy. Public policy to limit the time for bringing an action or claim before Tribunal is adopted in the legal system of all civilised States. Whereas, the Laws of Limitation in one sense are objective, when strictly construed, so as to lead to disastrous results, destroying valuable vested rights, for no fault or negligence of, a party, may result in negation of the object. The Legislature wisely laid down exceptions in suitable cases. Provisions of section 5 are one of those exemptions.
The rule of interpretation is that exemptions are construed liberally to advance the cause of substantial justice. The section contemplates and gives wide discretion in construing what is `sufficient cause. The imperative restriction is that the discretion has to be exercised judicially and not in arbitrary or capricious manner.
7. The aggrieved person is allowed to seek relief from the Courts as a matter of public policy but at the same-time exceptions have been laid down to make the litigants careful and vigilant for getting their disputes settled in time. The law of limitation prescribed some of such exceptions.
Whenever there is a bar of limitation it is the proper course for the Courts to give liberal interpretations to the question of limitation and decide the case in a manner, which may advance the object of dispensation of justice. The appellant has said that under a genuine impression he filed review petition before the Secretary, Revenue who decided the review petition, vide order dated 8-12-1989 and he filed this appeal on 28-12-1989 which shows that he approached this Tribunal within twenty days, of the rejection of his review petition. In this period of twenty days he might have taken some time to obtain the copies of the impugned order etc. The appellant has filed an affidavit in support of his application for condonation of delay. He has declared in the affidavit that the review application was made under the honest and genuine, belief that the authority issuing the seniority list was competent to correct the mistakes occurring therein. The contents of this affidavit have not been controverted by respondents. In view of the decision of Supreme Court of AJ&K in Civil Appeal No. 50 of 1992 Ghulam Muhammad Sumsam v. Secretary, Local Government and others the application for condonation of delay supported by an affidavit is to be taken true, and the application has to be accepted. The authority relied upon by the learned counsel for respondents in the case of Fida Muhammad Rathore the Supreme Court disallowed the prayer for condonation of delay on the ground that the second review petition was not permissible and the appellant, in his own wisdom chose to file the same before the-Government thereby wasting nine months in pursuing the same but at the same time the Supreme Court was pleased to observe as under: -- "It is significant that the petitioner has not even filed any application for condonation of delay before the Service Tribunal and even here the application is not supported by any affidavit showing the appellant's bona fides. Even otherwise condonation of delay is exclusively within the province of the Service Tribunal and refusal to exercise the discretion in favour of the appellants in this case does not suffer from any legal infirmity calling for our interference."
8. In Fida Muhammad Rathore's case the appeal was filed after 9 months. There was no application for condonation of delay. In the instant case the appellant has filed an appeal soon after the rejection of his review application. He has submitted an application for condonation of delay, which is duly supported by an affidavit, which remains unrebutted. Taking all these factors into consideration we are of the view that it is in the interest of justice that the delay in filing appeal may be condoned and the appeal may be decided on merits.
9. The main attack on behalf of the appellant on the impugned orders is that seniority list prepared and issued in accordance with the decision of respondent No. 1 in Saleem Akhtar Awan's appeal wherein it was clearly laid down that seniority is to be counted from the date of approval/selection of a candidate Naib-Tehsildar. It may be stated that the order of Revenue Secretary and the seniority list prepared thereunder were a subject of an appeal before this Tribunal and also with the Supreme Court of Azad Jammu and Kashmir Supreme Court in Civil Appeal No. 22 of 1993 Saleem Akhtar Awan v. Azad Government and others while confirming the decision of the Service Tribunal declared that the seniority of a Naib-Tehsildar is to be determined from the date of his first appointment in the Revenue Department as Naib-Tehsildar and the service rendered by him outside the Revenue Department cannot be considered. We propose to decide the question of inter se seniority of appellant and respondents Nos. 3 to 6 in light of the law declared by the Supreme Court and the facts stated by the parties in their pleadings. In para, 1 of the memorandum of appeal the appellant has stated that he was appointed as Naib-Tehsildar on 12-12-1983. This date of appointment of appellant as Naib---Tehsildar has been admitted by all the answering respondents. The appellant has given service particulars of respondents in para. 2 of the memorandum of the appeal. In reply to contents of para. 2 of the appeal respondents Nos. 5 and 6 have stated that they were appointed as Naib-Tehsildar by the orders of Custodian dated 5-4-1981 respectively. The appointment made by the Custodian was regularised by the Government vide Notification No.S&GAD/A-25(49)/84, dated 22-5-1984. From the contents of para. 2 of written objections it is clear that respondents Nos. 5 and 6 were brought on the I strength of Revenue Service vide the abovementioned Government Notification dated 22-5-1984. Respondent No. 4 has also filed written statement. The written statement is an exact copy of the written statement of respondents Nos. 5, 6 and 9. This respondent has said nothing about his own version. It is, therefore, declared that the date of appointment of respondent No. 4 is 31-10-1984. Respondent No. 3 has not admitted para. 2 of the memorandum of the appeal but on the documents which he attached with his written statement as DA/3/1, DA/3/2 and DA/3/12 it is proved that he was appointed as Naib- Tehsildar in the Revenue Department on 13-8-1984. From the above facts it becomes evident that appellant and respondents Nos. 3 to 6 entered, the service of Revenue Department as Naib- Tehsildars on permanent basis on 12-12-1983, 13-8-1984, 31-10-1984, 3-11-1984 and 3-11-1984 respectively. Respondents Nos.4, 5 and 6 were initially appointed as Naib---Tehsildars in the Department of Custodian and their services were merged in the Revenue Department from the date of their initial appointment in the Custodian Department with all service benefits. The question could be raised as to whether this Government Notification was just and equitable but we find that this question was never raised by the appellant and we have no other' option except to declare that these respondents shall be deemed to have entered the service in Revenue Department from the date of their initial appointment in the Custodian Department. Despite of our view that respondents Nos.4 to 6 entered the Department from the date of their appointment in the Custodian Department it is not possible for us to hold that these respondents are senior to appellant for the reason that the appellant was declared senior to respondents in the seniority list issued by the Revenue Commissioner on 5-2-1986. Appellant was entered at serial No. 51 and respondents were assigned serial Nos . 55, 57, 58 and 59. It is stated by respondents No. 6 that he filed objections before the Revenue Commissioner against the seniority list. Revenue Commissioner determined the inter se seniority of Naib-Tehsildars and issued the final list. This list had attained finality and it could not be reviewed by the Revenue Commissioner. It could only be disturbed or amended by competent Appellate Authority. Respondent No. 6 did not file any appeal against this list. Respondents Nos.4 and 5 also did not challenge this list before the Appellate Authority. The seniority list have become final as for as these respondents are concerned. Supreme Court in Civil Appeal-No. 24 of 1993 Syed Aftab Shah Gherdezi v. Azad Government and others declared as under: -- 'The legal position is clear on this point. The seniority list of the Revenue Commissioner was prepared by him in exercise of the authority vested in him by law and an appeal is provided against that determination. Only respondent Saleem Akhtar Awan filed appeal against the order of the Revenue Commissioner and there is force in the argument that it is only Saleem Akhtar who should have been given benefit by the Revenue Secretary and he could not fix the inter se seniority of the respondents before him. However, the fact remains that the Revenue Secretary while re- fixing the seniority in the appeal filed with him was also exercising authority vested in him by law, and if a Naib-Tehsildar wanted to get rid of any adverse effect caused by his order the only course open for him was to challenge the order by filing appeal before the Service Tribunal. Those who failed to file appeal before the Service Tribunal allowed the order to attain finality with the result that it cannot be reopened so far as they are concerned. The fact that the order or any part of it may be wrong or bad in law by itself does not provide a legal ground for re-opening it. This principle is equally applicable to the appellant who did not file appeal against the order passed by the Revenue Commissioner. He has also to suffer the legal consequences to which we will be adverting at the proper stage.---
10. The respondents Nos.4 to 6 did not challenge the seniority list of Revenue Commissioner and without an appeal and in absence of the appellant and also withholding the opportunity of personal hearing the Revenue Secretary had no authority to amend the list and assign the appellant a junior position in the seniority list. Respondent No. 3 did file an appeal before the Revenue Secretary, which was rejected but at the same time the Revenue Secretary assigned senior position to respondent No. 3 as against appellant.
11. From the above discussion and in view of the facts of the case it is hereby declared that the Revenue Secretary exercised his authority in wrongful manner.
12. In light of the above discussion, we allow this appeal set aside the impugned orders to the extent of the rights of appellant and direct that the seniority position of appellant and respondents Nos. 3 to 6 as determined by the Revenue Commissioner be restored and the impugned seniority list be amended accordingly. No order as to the costs.