' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Dr. Muhammad Sohail Akhtar Qureshi was appointed as Medical Officer in BPS-17 on 15th June, 1990 in the Pakistan Institute of Medical Sciences (PIMS) and was posted in the Department of Psychiatry. He was charge-sheeted on 1-6-1994. The allegations against the appellant are that on the day of incident i,e, 31-51994 he asked Dr. Farooq Akhtar, Assistant Director for cancellation of transfer of one ward boy Multan Khan from Medical Officers'
Hostel. On the refusal of Dr. Farooq Akhter, it is alleged that the appellant slapped on his face at about 2-00 p.m. In front of?He Executive Director's office in presence of a number of employees of PIMS. An inquiry was conducted and the appellant was found guilty of the charge. Finally, by order dated 26-6-1994, he was dismissed by the Executive Director, PIMS. The appellant filed appeal to the Secretary, Ministry of Health on 17-7-1994, which remained unresponded. He then filed this appeal before the Tribunal on 23-11-1994.
2. When the appeal fixed on 1-12-1994 for preliminary hearing, Mr. Raja Muhammad Asghar Khan, Advocate requested for time to file amended memo. Of appeal and he filed amended appeal on 19-12-1994, alongwith the application for condonation of delay under section 5 of the Limitation Act.
3. At the time of regular hearing, the learned counsel for the respondents, at the very outset, raised preliminary objection that since the appeal is time-barred, therefore, the question of limitation may be decided first before proceeding on merits. On the other hand, the learned counsel for the appellant has taken the point of jurisdiction that the order of dismissal has not been passed by the competent Authority and, therefore, the question of limitation is not attracted. We, therefore, process to dispose of these two legal objections first. In the first instance, we have to decide the competency of the Joint Executive Director for initiating proceedings and passing the dismissal order. The contention of Mr. Raja Muhammad Asghar Khan, Advocate is that with the pronouncement of the Hon'ble Supreme Court in a case reported in PLD 1990 SC 612 (Mrs. M.N.
Arshad v. Miss Naeema Khan) all the organisations set up under Resolution have been declared amenable to jurisdiction of the Tribunal and their employees are civil servants for all purposes and for the purpose of Service Tribunals Act, 1973, therefore, as such all employees of PIMS are civil servants and their appeals are being entertained by the Tribunal. The employees of PIMS having been declared civil servants, therefore, the competent Authority for initiating disciplinary proceedings and passing the impugned order is the Ministry of Health in the case of the appellant and the order passed by the Executive Director is ab initio void and cannot sustain. There is no doubt that prior to the pronouncement of the Supreme Court the appeals of the employees of PIMS were not being entertained on the point of jurisdiction, but these employees are amenable to the jurisdiction of this Tribunal. But the PIMS has got its own statutory rules passed and framed by the competent authority whereunder the appointments and promotions are still being made under those rules and after being declared civil servants for the purpose of jurisdiction of the Tribunal, the statutory rules applicable in the PIMS have not been repealed and even the Government has not applied the Civil Servants (Appointment, Promotion and Transfer) Rules applicable to the Federal Government to employees of PIMS, therefore, we do not agree with the learned counsel for the appellant to that extent. Moreover, the appointment of the appellant was also made by the Executive Director, PIMS under the prevailing rules. In the identical circumstances, in Model Educational Institutions of Islamabad, which were being run by the Board of Governors under their own rules and in 1990 they were declared civil servants in view of the judgment of the Supreme Court reported in PLD 1990 SC 612 and the Tribunal was given jurisdiction but those Educational Institutions were being governed by their own rules till Government framed New Appointment., Promotion, Recruitment Rules, 1993 and by declaring them civil servants, the rules applicable to them cannot ipso facto be repealed as the Federal Service Tribunal has got the jurisdiction in respect of the employees who are working in connection with the affairs of the Federation and to that extent the appellate jurisdiction vests with the Tribunal but Recruitment Rules of civil servants are not applicable. If the proposition of the appellant is considered then all the appointments of the Medical Officers are to be made by F.P.S.C. And the very appointment of the appellant made 'by the Executive Director PIMS would also become illegal. Therefore, the objection of the appellant is accordingly repealed. It may also be observed that the appellant filed appeal to the Secretary, Health Division, who is the next higher authority, against the order passed by the Executive Director, otherwise he should have preferred appeal to the Establishment Secretary of the Prime Minister of Pakistan.
4. The next objection is that the limitation raised by the respondents. The impugned order of dismissal of the appellant was passed on 26-6-1994. The departmental appeal was filed on 17-7- 1994 and according to law, the appellant was supposed to file appeal before the Tribunal within thirty days after the expiry of 90 days waiting period, on or about 15-11-1994 but he preferred this appeal on 23-11-1994, i,e, 8 days late, and alongwith the memo. Of appeal there was no application for condonation of delay, and it was only filed alongwith the amended memo. Of appeal on 19-12- 1994. This delay has been admitted in the affidavit for condonation of delay, therefore, this controversy is not disputed. The reason given by the appellant for this delay is that on 13-11-1994, the appellant received a telephonic message about the accident of his father in which his leg was broken and he had received other serious injuries, he rushed to Lahore to see his ailing father whose condition was precarious. He has stated that his father remained under treatment in the Services Hospital, Lahore from 15th to 22nd November, 1994 during which period the appellant's presence was necessary to safe his life being a Doctor. He has stated that the condition of his father became normal on 22-11-1994 and he hurriedly came to Islamabad and submitted appeal to the Tribunal on 23-11-1994. He has also taken the ground that since the impugned order of dismissal is illegal, incompetent and void, therefore, there is no question of limitation. He has relied on the cases in 1987 SCM R 1119 and PLD 1992 SC 825, and in support of his submissions, he has filed certificate from Services Hospital, Lahore. On the other hand, the respondents in the objections have refuted the contentions of the appellant, inasmuch as that the discharge ticket of the patient Mulazam Hussain Akhtar annexed With the application for condonation of delay has not been issued neither by the Emergency Department or Orthopaedic Department and hence the discharge certificate is bogus. In support, a letter from the Medical Superintendent, Services Hospital, Lahore dated 16-1-1995 has been annexed.
5. The only ground for condonation of delay is the accident of the father of the appellant. Under the rules, the appellant was supposed to file appeal before the Tribunal within 120 days from the date of filing the departmental appeal. The admitted position is that during 117 days he did not care to engage a counsel or file appeal and when only two days were left, i,e, 13th and 14th November, 1994, according to him he received a telephonic message and rushed to Lahore and his father was discharged on 22-11-1994 and he came back and appeal was filed on the next day i,e,. 23-11-1994 in person and this he could do earlier when he was so vigilant that on reaching Islamabad on 22-11- 1994, he presented the appeal before the Tribunal on 23-11-1994. It was not obligatory that he should wait unnecessarily for 120 days and when his departmental appeal was not decided within 90 days, he ought to have filed appeal before this Tribunal without wasting even a day and 30 days' period is a grace period and in our view the appellant was supposed to file appeal on or about 15-11-1994. It may also be observed that while submitting appeal before the Tribunal on .23- 11-1994, he did not file application for condonation of delay, duly supported by an affidavit, as required under Rule 8 of the Service Tribunals (Procedure) Rules, 1974, which reads as under:- "8. Where an appeal is presented after the period of limitation prescribed in the Act, it shall be accompanied by a petition supported by an affidavit setting forth the cause of delay."
' The affidavit which he submitted also showed that it was of 22-12-1994 and amended Memo. Of appeal was 19-12-1994. The medical certificate pressed in aid for seeking condonation shows that Mulazam Hussain Akhtar was admitted on 13-11-1994 and was discharged on the same day i,e, 13- 11-1994. It is stated in the certificate that he went to Orthopaedic Professor Nasir Akhtar, whereas the discharge certificate is signed by Medical Officer/Registrar, Services Hospital, whose name is also not clear. It is nowhere stated that Mulazam Hussain Akhtar, the father of the appellant, was admitted as indoor patient and remained in the hospital up to 22-11-1994, and on the contrary it shows that he went and was discharged on the very day and was also advised bed rest for 3 weeks, which was to end in the first week of December, 1994, and the appellant cannot get condonation on this plea when in the comments the Medical "Subject: Verification of Discharge Ticket.
' Reference your letter No, 1-4/95 (DED)IH, dated 11-1-1995.
' It is submitted that the enclosed discharge ticket of the patient with the name of Mulazam Hussain Akhtar has not been issued neither by the Emergency Department nor by the Orthopaedic Department, hence the discharge ticket is BOGUS."
(Sd.)
' Medical Superintendent, Services Hospktal, Lahore."
' We have no reason to disbelieve this letter from a responsible 'officer like Medical Superintendent.
We are of the view that the appellant has not come with clean breast and the medical certificate produced by the appellant does not inspire confidence and cannot be relied upon for commuting period of limitation. Accordingly, the application for condonation of delay is rejected. The appeal is clearly barred by limiaition and without going into the merits of the case, we dismissed the appeal as such, with costs.