ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --The facts of this appeal are that the appellant Mrs. Nasrin Temur wife of Capt. Temur Sultan of Pakistan Navy, was appointed as Teacher in the OPF Girls College, Islamabad by order dated 18th August, 1991. According to the terms and conditions of her appointment, she was placed under probation for two years and her services were liable to be terminated during the probationary period without any notice. Her services were terminated by order dated 17th May, 1992 and she was relieved accordingly. She filed appeal on 18th May, 1992 to Mr. Safdar Hussain Kazmi, Chairman, Board of Governors/Secretary, Labour, Manpower and Overseas Pakistanis Islamabad. Her appeal was accepted and reinstatement order, with all consequential benefits, was passed by order dated 4th August, 1992 which was issued under the signatures of Mr. Raham Gul Section Officer, Manpower and Overseas Pakistanis Division, Government of Pakistan, Islamabad, but she was not allowed to join by the Principal, OPF Girls College. The appellant 'filed a Writ Petition No. 1029/93 in the Lahore High Court, Rawalpindi Bench, with the prayer that respondent No. 2, i.e. The Principal, OPF Girls College, Islamabad may be directed to act upon the order dated 4th August, 1992 passed by Chairman, Board of Governors and she may be allowed to take over the charge. In the meantime, the reinstatement order dated 4th August, 1992 was withdrawn by Minister for Labour, Manpower and Overseas Pakistanis by order dated 26th September, 1992. Accordingly, the writ petition was withdrawn by the appellant on 14-11- 1993. The appellant after withdrawing her Constitutional petition from the Lahore High Court made a departmental appeal on 3-12-1993 to the Prime Minister of Pakistan which remained un- responded and finally she preferred this appeal before the Tribunal on 3-4-1994 under section 4 of the Service Tribunals Act, 1973.
2. We have heard Mr. Zamiruddin Ahmad, the learned counsel for appellant at length. It was argued that reinstatement order passed by the Chairman, Board of Governors was valid and the subsequent order passed by the Minister for recalling the earlier order was illegal and be set aside and the appellant be reinstated into service with all back benefits. He submitted that services of the appellant have been terminated by incompetent authority without assigning any reason.
3. Mr. MN. Rizavi, the learned counsel appearing for the OPF Girls College has raised legal objections -- firstly that under Rule 5(x), Board of Directors is the appellate authority in service and other matters relating to the College and the appellant has not filed any departmental appeal to the appellate Authority, therefore, this appeal is not competent under section 4(1) of the Service Tribunals Act, 19'73 -- secondly, the Secretary, Manpower and Overseas Pakistanis Division, being the Chairman, Board of Governors, was not competent to have set, aside the order passed by the Vice-Chairman, who was the appointing authority in this case. It is submitted that order of termination was passed by the competent authority and is not without jurisdiction. He also argued that the appeal is time-barred, as the appellant filed writ in Lahore High Court where she prayed that order of Chairman, Board of Governors be implemented and she be allowed to join, and it was not a bona fide exercise being a wrong forum, as her remedy was before the Service Tribunal.
4. The OPF College, Islamabad was set up under the Resolution issued in the Gazette of Pakistan, Extraordinary, dated 9th August, 1988 and is managed by the Board of Directors, and this Resolution was duly approved by the President. Under the Resolution No. 5, the Board of Directors is competent to delegate its powers to Chairman or any other authority and the respondents have placed on record a copy of such order dated 10th June, 1991 where under the Vice-Chairman is the appointing authority in respect of the Teachers. The appellant was appointed as Teacher by the Vice- Chairman and her services were also terminated by him, therefore, it cannot be said that the order of termination was without lawful authority. The appellant was appointed on probationary period of two years and it was during the probationary period that her services were terminated and no notice was required for dispensing with her services. On this we rely on a decision of the Supreme Court reported in 1990 SCM R 1510 (Syed Tahir Hussain Shirazi v. Government of Punjab).
5. Rule 5(x) of the Resolution provides that the Board of Directors shall act as an appellate authority in service and other matters relating to the College. The admitted position is that the appellant did not file any appeal to the Board of Directors, but she had chosen to go to the Chairman. It is argued that the Chairman in the case of emergency under Rule 6(3) had taken this action and was competent to do so. Rule 6(3) has been relied upon which reads as under: "In the event of any emergency requiring immediate action, the Chairman may take such section on behalf of the Board as he may deem fit but the action so taken shall be reported to Board in its neat meeting.
The appellant against the termination order made an appeal to an incompetent authority, i.e. The Chairman, Board of Governors and it was at his behest that the termination order was set aside and the appellant was reinstated in service vide order, dated 4th August, 1992, and the order passed by an incompetent person was as void ab initio and without lawful authority. The Chairman, Board of Governors assumed the powers of appellate authority, although there was no emergency, and even if he had passed such an order, the matter was supposed to have been placed before the appellate authority, i.e. The Board of Directors for their approval. This having not been done, the provisions of Rule 6(3) were not available to Chairman, Board of Governors.
Moreover in the order, Chairman has nowhere stated that he took action under Rule 6(3), on the contrary he has disposed of appeal for which he was not competent. Rule 6(3) relates to interim action.
6. With regard to limitation, it may be observed that the impugned order of termination was passed for the first time on 17-5-1992 which was set-aside by order dated 4th August, 1992, and this order was subsequently cancelled by letter dated 26th September, 1992. Prior to this, the appellant had filed Writ Petition No. 1029/93 in the Lahore High Court, Rawalpindi Bench, and finally it was withdrawn by the appellant and such order was passed by the Lahore High Court on 14-11-1993.
After withdrawal of appeal, the appellant did not come to this Tribunal but made an appeal to the Prime Minister of Pakistan on 3-12-1993, which was not provided by law as under the Rules the Prime Minister of Pakistan does not figure as appellate authority, but on the other hand, as already stated, the Board of Directors is the appellate authority, and the appellant never filed any appeal to the Board of Directors. Therefore, the appeal filed before this Tribunal on 3-4-1994 is clearly barred by limitation. However, the appellant has filed an application under Rule 8 of the Service Tribunal (Procedure) Rules, 1974, for condonation of delay. The grounds taken in the application are that the appellant had made all the applications and appeals m time to the competent appellate authority and that the appeal is not time-barred, but by way of abandoned caution, she has filed application for condonation of delay. We are not satisfied with this explanation. As already observed, the appellant soon after her reinstatement in service, went to Lahore High Court, Rawalpindi Bench in a writ petition, for seeking direction to take charge of the post, but she withdrew the writ petition and instead of coming to this Tribunal, made an appeal to the Prime Minister, which was not provided by law, and after the expiry of 90 days waiting period, preferred this appeal before the Tribunal. The appellant had been pursuing remedy before a wrong forum, which was not provided by law, and as such there are no good grounds for condonation of delay, and the application is rejected,, and the appeal is liable to be dismissed on the point of limitation.
7. For the reasons recorded above, the app al fails on legal grounds as well as on merits, and is accordingly dismissed wig costs.
8. Before parting with this judgment, we have come across a decision of the Supreme Court reported in 1994 SCM R 958 (Tanvir Iqbal Siddiqi v. The Principal, Overseas Pakistanis Foundation
(OPF) Girls College, Islamabad), wherein it has been held that the Foundation is not a department of the Federal Government and does not perform the functions in connection with the affairs of the Federation within the meaning of Article 199 of the Constitution. But as stated earlier, OPF College has been created by a Resolution and as held in the case of Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612), the autonomous bodies created by Resolution, its employees are civil servants and amenable to the jurisdiction of this Tribunal and perhaps, the question of OPF College being creation of Resolution and the case reported in PLD 1990 SC 612 was not before High Court.
However, since the respondents in the comments, have conceded that OPF College employees are civil servants, we therefore, refrain from making any observation in this regard.