' ZIA MAHMOOD MIRZA, J---This appeal by leave of this Court filed by Government of the Punjab through Secretary (Services), Services, General Administration and Information Department and Punjab Public Service Commission, through its Chairman, is directed against the order of Lahore High Court, Lahore dated 3-2-1992 dismissing their appeal (ICA No,29/92) on the ground of limitation.
2. Facts necessary for the disposal of this appeal, briefly stated, are that the Punjab Public Service Commission held competitive examination and Viva Voca test etc. For selection to fill 22 posts of Civil Judges, one of which was reserved for disabled persons and the allocation of remaining 21 posts was made as follows:--
(a) 4 posts to be filled on merits on all Punjab basis.
(b) 12 posts for Zone-I comprising districts of Lahore, Gujranwala, Multan and districts Faisalabad, Toba Tek Singh, Sargodha, Khushab and Rawalpindi.
(c) 5 posts for Zone-II comprising Divisions of Bahawalpur, D.G. Khan, and districts of Attock, Jhelum, Chakwal, Jhang, Bhakkar and Mianwali.
3. Against 22 vacancies, the Commission recommended only 19 candidates for selection as no suitable candidate was available against the disabled seat and only 3 candidates qualified for 5 seats reserved for Zone-II. Respondent Muhammad Saleem was declared successful by the Commission but was not recommended for selection by reason of the quota system aforenoted.
He, therefore, filed a constitutional petition in the Lahore High Court seeking a direction to be issued to the appellants to fill in the vacant seats allocated to Zone-II, on merit basis and appoint him as Civil Judge "as he is qualified for the said post". The learned single Judge vide judgment dated 7- 12-1991 allowed the constitutional petition and directed the appellants "to fill in the vacant seats on all Punjab basis on merits from amongst the successful candidates."
4. Feeling aggrieved, the appellants filed an Intra-Court Appeal which was dismissed by the learned Division Bench on the ground of limitation holding that it was "admittedly barred by four days and no reasons whatsoever have been pleaded to explain each day's delay, which cannot be condoned on the vague ground that the appellants entered into correspondence with litigating departments and the Solicitor, Government of the Punjab and therefore, they could not file the appeals within time. The appellants were careless and grossly negligent in filing the appeals within time. Clearly, the Government cannot be treated differently from the private litigants on the question of limitation under section 5 of the Limitation Act."
5. We have heard the learned Assistant Advocate-General for the appellants and the respondent Muhammad Saleem who has appeared in person. It has not been denied that the Intra-Court Appeal was barred by four days but the learned Assistant Advocate-General has sought to explain that copy of the order of the learned single Judge dated 7-12.1991 was received by the department concerned on 16-12-1991. It was submitted to the Deputy Secretary (Admn.) SGA & I Department/Additional Chief Secretary on 17-12-1991. The file was received back in the Section concerned on 21-12-1991 whereafter a letter was sent to the Solicitor, Government of the Punjab on 23-12-1991 to solicit his advice for filing Intra-Court Appeal which advice/sanction was received on 4-1-1992. According to the learned counsel, the delay in filing the appeal occurred on account of negligence of two officials in the office of the Solicitor who have since been punished for their negligence. In the circumstances, learned counsel relying upon a judgment of this Court reported in 1975 SCM R 352 has contended that the delay in filing the IntraCourt Appeal should have been condoned. We find no force in this contention for the simple reason that the plea as has been raised before us by the learned Assistant Advocate-General was not taken as such in the High Court. The case cited by him is, therefore, of no help to him because the delay therein was relatable to the petition for leave to appeal filed in this Court and it was condoned by this Court accepting the plea taken by the Government/Petitioner. It may pertinently be observed that the plea not raised before the High Court cannot be permitted to be raised for the first time before this Court nor can leave be granted on a ground not urged in the High Court. This is so because the matter of condonation of delay lies within the discretion of the Court or the authority before whom it is agitated and exercise of this discretion cannot be interfered with unless it is found to be illegal or arbitrary. In the present case, the High Court gave good reasons for declining to condone the delay. It held that the ground taken by the appellants in their application under section 5 of the Limitation Act that they could not file the appeal within time as they had entered into correspondence with litigating departments and the Solicitor was quite vague and reliance was also placed on a judgment of this Court repeated in 1990 SCM R 1059 wherein it was held that "It is a well-settled principle of law that under section 5 of the Limitation Act, delay of each day is to be explained" and further that, the Government cannot be treated differently than a private litigant on the question of limitation under section 5 of the Limitation Act. Discretion exercised by the High Court proceeded on correct appreciation of factual and legal position. It, therefore, does not call for any interference by this Court. It may be stated that even before us, learned counsel appearing for the appellants has failed to explain each day's delay. According to the respondent, the papers were received in the office of the Advocate-General on 6-1-1992 and the appeal was filed on 9-1- 1992 but no explanation whatsoever has been offered for the delay of these days. Yet another circumstance pointed out by the respondent is that although the Intra-Court Appeal when filed was barred by time, the appellants did not care to apply for condonation of delay and it was only after the office had raised an objection that the application for condonation of delay was filed and that too on 2-2-1992.
6. Upshot of the above discussion is that the exercise of discretion by the High Court in refusing to condone the delay is not open to any exception and consequently, the High Court rightly dismissed the appeal as time-barred. This appeal, therefore, fails and is dismissed but with no order as to costs.