ABDUL RAZZAQ A. AHAHIM (CHAIRMAN). ---The facts of this appeal are that the appellant Syed Faqir was working as Site Attendant in the Department of Archaeology and was posted at Takht Bai. He was charge-sheeted on the allegations that on 12th March, 1988 Mr. Michal Bran Director of Field Research Historical Geography, Mugha-I, Lahore visited Takht Bai alongwith his wife. During their visit, Mr. James who was also with them went ahead to see the upper portion of the site while Mr. Michal Brand also decided to see the upper portion of the site and left -his wife at Monastery and asked the Chowkidar (the appellant) to look after his wife. In the absence of Mr. Michal Brand and others, the appellant asked the lady that he would show her the lower dark chambers of the site. She went with him in the lower chamber. On the way back through this dark area, the Chowkidar (the appellant) grappled the lady, fondling her all over in the process and then tried to push her into one of the little dark cells. Mr. Michal filed complaint with department and the departmental proceedings were started against the appellant. He was suspended and served with charge-sheet to which he replied and proclaimed his innocence. Finally, by order, dated 22nd February, 1989, he was dismissed from service. He filed Constitutional Petition No. 2047/91 in the Peshawar High Court. The petition was withdrawn on 19-1-1992 with permission to file appeal before the N.-W.F.P. Service Tribunal. Thereafter, the appellant preferred appeal before the N.-W.F.P. Service Tribunal bearing No. 50 of 1992 and it was disposed of by order dated 29-7-1992, with the observations that the appellant being a Federal employee could seek remedy before the Federal Service Tribunal. Accordingly, he filed this appeal.
2. This appeal was dismissed due to non-prosecution by order dated 3-x-1992 and it was restored on 12-1-1993. It again came up for preliminary hearing on 1-4-1993 but again there was no appearance by or on behalf of the appellant and the appeal was dismissed for non-prosecution.
The appellant made a Miscellaneous Petition No. 61/93 for restoration of appeal and it was fixed for hearing. The appeal was restored and the learned counsel appearing for the appellant was asked to make his submissions for preliminary hearing of appeal, for the purpose of admission and he advanced his arguments.
3. Before adverting to merits of the case, there are two legal points, which are to be disposed of.
The first point is of limitation. The impugned order in this case was passed in February, 1989, and according to the appellant, he had not received that letter. He filed Constitutional Petition No. 2047/91 before the Peshawar High Court. As is evident, that petition was disposed of as withdrawn by the High Court on 19-1-1992, and the order reads as under:-- "During the course of arguments it transpired that the petitioner should have better approached the N. W.F.P. Service Tribunal first in order to seek the relief as he has prayed for.
In this context, the learned Counsel for the petitioner sought permission to withdraw this petition.
He is allowed to do so. The petitioner may, if so desired, take up his case before the N: W.F.P. Service Tribunal and the delay in filing it, if any, shall be deemed to have been condoned."
The appellant moved the N: W.F.P. Service Tribunal on 26-2-1992 by filing Appeal No. 50 of 1992. The appeal was decided on the point of jurisdiction on 29-7-1992. The period spent for seeking remedy before the Peshawar High Court and the N: W.F.P. Service Tribunal, in the circumstances stated above, is condonable, but the delay in filing this appeal before this Tribunal on 26-9-1992 i.e. After 60 days of disposal of appeal by N: W.F.P. Service Tribunal remains unexplained in the condonation application. The N: W.F.P. Service Tribunal announced its decision on 29-7-1992 the appellant ought to have come to this Tribunal within a reasonable time and that could be thirty days, but the appeal has been filed after a lapse of about two months from the date of announcement of the decision. The appellant was all along represented by an Advocate and he was fully conscious of about the points of jurisdiction and the limitation. As the delay from 29-7-1992 till the filing of this appeal remains unexplained in the condonation application, therefore, application for condonation of delay is rejected and the appeal is clearly time-barred.
4. The second point is the status of the appellant. In the appointment order of the appellant, it is clearly mentioned that his appointment was an contingent paid' employee in B-1. The contention of the learned counsel for the appellant is that in the order of appointment, the time scale and other conditions of service have been given. As such, he is a civil servant. We are sorry we cannot agree with his submissions as the conditions are always attributed to employees of contract service as well as contingent paid. He was not only contingent paid but temporary. The definition of civil servant' is given in clause (b) to subsection (1) of section 2 of the Civil Servants Act, 1973, but under sub-clause (ii), the following persons are not `civil servants'.
(ii) A person who is employed on contract, or on work-charged basis or who is paid from contingencies; In view of the provisions of law, the appellant not being a civil servant, cannot invoke the jurisdiction of this Tribunal, as under section 4 of the Service Tribunals Act, 1973, appeal can only be filed by an aggrieved `civil servant' and as such this appeal is not maintainable before this Tribunal.
5. For the reasons staled above, the appeal on both the legal points fails and is consequently dismissed in limine.