MUHAMMAD KHURSHID KHAN (CHAIRMAN).-Messrs Anwarullah, Viqar Ali Mirza, Mumtaz Akbar, Murid Abbas, Faqir Muhammad, Abdur Rehman, Muhammad Abdul Haq Afandi and Masihur Rehman, who are appellants before us, were recruited as lecturers in the Frontier Regions (Centrally Administered Areas of the North-West Frontier Province) under the control of the Central Government. They were being paid out of the funds of the, Central Government.
2. In 1966, the administrative control of the Colleges in the Frontier Regions, was transferred to the Government of West Pakistan, Home Depart--ment. On 6th June 1969, the Governor/Martial Law Administrator of the Province of West Pakistan, while accepting recommendations of the Services and General Administration Department, was pleased to order that the cadre of the lecturers of Frontier Regions be amalgamated with the cadre of lecturers of Peshawar Region. The combined seniority list of the lecturers of the settled Areas of the North-West Frontier Province and the former Frontier Regions could nit, however, be prepared till 10th of April 1972, when the Governor/Martial Law Administrator, North-West Frontier Province, passed an order, which is contained in Annexure `C' and is reproduced below for easy reference:-
The Martial Law Administrator/Governor, North-West Frontier Province, in consultation with the Ministry of Home, Kashmir Affairs, States and Frontier Regions (States and F. R. Division) and Ministry of Education, Government of Pakistan is pleased to order that the cadre of Lecturers/Assistant Professors of "Tribal Areas be amalgamated with that of Settled Areas with immediate effect and that the joint seniority list be prepared in accordance with the dates of continuous service in Class II of these officers.
(Sd.) Nawabzada Muhammad Ayub Khan, Secretary to Governor, N. W. F. P.
3. The decision reproduced above was communicated to the Principals of Government Colleges under whom the appellants were then serving. It appears that on coming to know of this decision, the appellants represented to the Provincial Government claiming that in view of the Scheme framed under Regulation 1 of 1969, they were to be absorbed in the Provincial Cadre on the basis of continuous length of service, and that the preparation of combined seniority list in accordance with the date of continuous service in Class II as contained in the decision dated 10-4-1372, was in violation of the Scheme framed under the said Regulation. This representation seems to have been turned down by the Provincial Government with the result that the appellants served the Government with a notice dated 24-7-1972 under section 80 of the Code of Civil Procedure, through Mr. Zahurul Haq Bar-at-Law, Peshawar. The Government declined to accept the demand put forth by the appellants in their notice and vide their decision contained in No. Estt. (SOEI) 5-4/71 (E), dated 23-2-1973, informed Mr. Zahurul Haq that the case having already been decided by the Government after careful consideration and in consultation with the concerned departments, the Government regrets not to reopen it. Feeling aggrieved, Mr. Anwarullah and his seven colleagues, named above, filed the present appeal before this Tribunal challenging the decision of the Provincial Government dated 10-4-1972, with the prayer that the Provincial Government be directed to prepare a joint seniority list on the basis of the principle of continuous length of service: as laid down in the Integration Circular dated 25-11-1955 and Regulation No. 1 of 1969.
4. The respondent, namely, the Government of North-West Frontier Province, came forward to contest the appeal on merits ac well as on technical grounds:
5. A preliminary objection with regard to the present appeal being barred by the Law of Limitation was raised by the Government Pleader appearing on behalf of the respondent. It was contended by him that by means of this appeal, the appellants intend to challenge the validity of the, decision dated 10-4-1972 and that the said decision having been communicated to the appellants more than thirty days before the institution of the present appeal the appeal was liable to dismissal on the ground of limitation. In reply, the learned counsel for the appellants contented himself by saying that the bar of limitation could not stand in the appellant's way and that they had a vested right to get the impugned decision declared as null and void.
6. After hearing the learned counsel on either side at some length as also after going through the record and the relevant provisions of law carefully, the conclusion we have arrived at, is that the preliminary objection raised by the Government Pleader has ample force and must, therefore, prevail.
7. It may be stated at the very outset that the limitation for the filing of appeals by the civil servants before the Service Tribunal is governed by section 4 of the North-West Frontier Province Service Tribunals Act, 1974 (hereinafter to be called the Act) which provides that a civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter. It will be seen that under section 4 of the fact, the limitation commences to run from the communication of the final order to the civil servant concerned. The factum of the date of such communication ought to be proved by direct evidence which can ordinarily be made available to the Tribunal. This would not, however, mean that in the absence of such an evidence the Tribunal is prevented from looking into other facts and circumstances brought on the record of the case to find out the date of the communication of such order. In the instant case the decision dated 10-4-1972 seems to have been communicated to the appellants by their respective Principals and thereafter, the representation submitted by them to the Provincial Government was also rejected. The decision taken by the Provincial Government upon this representation also appears to have been communicated to the appellants. Although there is nothing on the record of this case as to the date on which the decision upon the said representation was taken and communicated to the appellants, yet one thing, is clear, and that is that the representation must have been rejected, and its result communicated to the appellants, before 24-7-1972. This is obvious from the fact that the appellants took an extreme stop of issuing notice to the Government under section 80 of the Civil Procedure Code and that could only be in consequence of the rejection of their representation. In the circumstances, the period of limitation to file the present appeal can safely be taken to run from 24-7-1972. But even if this aspect of the matter is not taken into account, it will not make any material difference inasmuch as the appellants cannot wriggle out of the position that their notice dated 24-7-1972 under section 80 of the Civil Procedure Code was replied to by Government on 23- 2-1973 and the reply contained last and final word on the part of the Government. The communication of this reply to the appellants would certainly make the Period of limitation run against them. The letter containing the reply, was addressed to Mr. Zahurul Haq, Bar-at-Law, who was engaged by the appellants for taking necessary proceedings against the Government. It seems to have been despatched on 23-2-1973. The Advocate being stationed at Peshawar, the letter-must have reached him by 28-3-1973 at the latest. Needless to say that the communication of a decision to the Advocate engaged by a person for the purpose tantamount to its communication to his client and on this principle, the communication of the decision contained in the letter dated 23-2-1973 to Mr. Zahurul Haq Advocate fall would amount to its communication to the appellants. This being the case, the commencement of the period of limitation for filing the present appeal could in no case be postponed beyond 1-3-1973 with the result that the last date for filing the appeal could not be later than 31-3-1973. The appeal was, however, filed on 17-4-1973, i. e. With a delay of seventeen days.
8. With regard to the condonation of delay for preferring an appeal beyond the period of limitation, it is settled law that in order to have the benefit of section 5 of the Limitation Act, which has been made applicable to the appeals before the North-West Frontier Province Service. Tribunals, it is the duty of the appellant to explain delay for every day that elapses beyond the period allowed by the law for filing appeals and he is bound to show that there has been no negligence, in action or want of bona fide on his part before he can claim the extension of the. The appeal out of the the must show on the face of it the reason for delay and there must be a prayer for the condonation of delay before the Court or Tribunal, as the case may be, may consider the explanation with a view to the exercise of discretionary powers under section 3 of the Limitation Act. In the instant case, the appellants have neither submitted an application for the condonation of delay nor have they explained the delay for preferring the appeal beyond the period of limitation provided by the Act.
Even the counsel for the appellants, during the course of his arguments, could not account for the delay and merely contented himself by saying that the bar of limitation could not stand in the applicants' wan to enforce their right. In this view of the matter, there cannot be the slightest doubt about the fact that there was no sufficient ground for preferring this appeal beyond the period of limitation.
9. For the reasons stated above, we are of the opinion that the present appeal was barred by limitation and that there was no sufficient ground for the condonation of delay in preferring the appeal beyond the period of limitation. The result, therefore, is that the appeal fails and is hereby dismissed. In view of the dismissal of appeal on technical ground, we leave the parties to bear their own costs.