1. WAJIHUDDIN AHMED, J.---Through a short order, passed on 1-10-1996, we had dismissed this petition. Recorded below are our reasons for such order.
2. This Constitutional petition was brought here on 9-9-1993. The petitioners maintain that they are holding positions as Assistant Controllers of Examinations with the respondent No. 1 Board. They say that the Board of Secondary Education, Karachi., had to prepare a separate seniority list for each group of civil servants discharging similar duties and performing similar functions and that in such service there are three different cadres vii. Administrative Services (Non-technical) Combined Cadre, Accounts Services Cadre and ex-Cadre. They say that at one the Resolution No. 12 was passed by the Chairman of the various Boards of Intermediate and Secondary, Education in the Province of Sind according to which uniformity in the recruitment rules of the Boards had been brought about. In such resolution the post of Accounts Officer was shown as an ex-Carde post which, avowedly, would equally apply to the post of Assistant Secretary (Accounts), that post being synonymous with the post of an Accounts Officer. Drawing comparison, they maintain that the post of Assistant Secretary (Accounts), is to be found in the Karachi Board alone whereas similar functions are performed by Accounts Officers in the other Boards of the Province of Sind. The Board in its comments admits that the resolution aforesaid was passed on 28-9-1988, but states that the same had not been adopted by it.
3. Coming to the precise grievance of the petitioners, they say that because the respondent Board did no prepare separate seniority lists for the various cadres and such transpired for mala fide reasons, the petitioners were by-passed and, inter alia, the respondent No.2 was promoted he currently holding the post of Deputy Secretary.
4. While this petition was pending, the Sind Service Tribunals, (Amendment) Act, XXXI of 1994, was promulgated on 16-1-1995 and as a consequence thereof, service in a "corporation" was declared to be service of the Province and every person holding a post in a Corporation, not being a p person on deputation, for the purposes of the Sind Service 'tribunals Act, was deemed to be a civil servant. "Corporation" was defined in the amending statute to mean "a corporation or institution set up or established by a provincial enactment". This being the amended state of law, it can hardly be disputed that the respondent No. l Board of Secondary Education Karachi, is one such proportion and its employees have acquired that status of civil servants.
5. The only question which remains to be seen is as to how pending proceedings are to be dealt with.
6. Mr, Anwar Hasan Pasha for the petitioners has pointed out that whereas Section 3-F, inserted in the Sind Service Tribunals Act by the amending Act, provides for abatement of "all suits, appeals or applications relating, to the terms and conditions of service of a person holding a post in a corporation" pending before the commencement of the amending statute and confers a right to every party in such a suit, appeal or application to prefer an appeal to the Tribunal within 90 days of the commencement of the amending Act, there is no corresponding provision for abatement of at pending Constitutional petition. The learned counsel is mistaken. There is an obvious reason for non-mention of a Constitutional petition because a Constitutional petition is merely termed an application in Article 199 of the Constitution. When applications have been made to abate, the category includes Constitutional petitions as well. The same result has been achieved before. The Sind Service Tribunals Act, 1973 is a statute mandated try Article 217 of the Constitution and as held by a Full Bench of this Court in Abdul Bari's case (PLD 1981 Karachi 290) Constitutional petitions petition the the of the enactment of the parent legislation were hit by clause (2) of Article 212 of the Constitution. As to this, however, it has been urged that because in terms of the proviso to Article 212(2), no request had been made by the Provincial Assembly of Sind in the form of a resolution and the Parliament has not acted by extending the provision of clause (2) in relation to the amendatory law, Ahdul Bari's case Itself does not apply. Such argument also is not well-founded because there had been a requisite resolution of the Provincial Assembly in the context of the 1973 statute and the Parliament, in response, had extended the provisions of clause (2) in Article 212 of the Constitution to the "Tribunal". No further need thus arises for a repeat exercise because the Tribunal is already there and all that has happened is a mere extending of its jurisdiction in cases covered by the amendment.
7. The learned counsel for the petitioners next urged that because the acts of commission and omission complained of in the petition impinge upon the principles of natural justice and smack of mala fides jurisdiction of this Court, in the circumstances, retrains intact from administering appropriate relief. It is no doubt true that a mala fide at is not an at recognised by law and an order transgressing the rules of natural justice is a void order, such matters attracting the jurisdiction of the Court. Even so only a discretion to interfere remains as found in Shakeel Ahmad v. Federation of Pakistan, 1995 PLC (C.S.) 1221, and Shakeel Ahmad v. Federation of Pakistan, 1995 PLC (C.S.) 1226.
8. Seeing ex facie that complicated questions of fact are involved in the dispute, which can best be decided on proper evaluation, we refrain from continuing to entertain this petition.
9. At this stage, another important question of law was raised by learned counsel for the petitioners and that pertained to a possibility of the petitioners, prospective appeal before the Tribunal being thrown out on the ground of limitation as obviously a period of more than 90 days has elapsed with in which an appeal could be taken to the Tribunal in terms of section 3-F of the amended law.
10. Subject to what we have said above, even if we assume that any limitation for approaching the Tribunal within 90 days of the promulgation applies, there are certain other aspects which the petitioners in their appeal may take advantage of. Such are for frequent occurrence.
11. In the first place, it will be seen that the basic period of limitation for approaching the Service Tribunal is postulated in section 4 of the Sind Service Tribunals Act, 1973 as elaborated by proviso (a), which section and proviso are in these terms:-- "4. Appeals to Tribunals. ---Any civil servant aggrieved by an 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 30 days of the communication of such order to him or within twelve months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter: Provided that--
(a) Where .An appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, or any rules, against any such order, no anneal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation were so preferred and
(b) .............
12. (c)..............
13. (Emphasis supplied.)
14. The quoted provision would indicate that to different periods of limitation are mentioned to the body of the section and "within" such periods the relevant appeals can be preferred in the Tribunal.
15. On the other hand, proviso (a) precludes and appeal to the Tribunal altogether "where an appeal, review or representation to a departmental authority is provided ....", unless the aggrieved civil servant has preferred due appeal, application for review or representation to such departmental authority and "a period of 90,days has elapsed from the date on which such appeal, application or representation was so preferred". Thus while the train provision speaks for the relevant periods within which an appeal may be taken to the Tribunal, the proviso postulates efflux of a period of 90 days after which alone an appeal can be so taken. This implies that in the cases covered by the proviso while there is a prohibition to go to the Tribunal, there is no limitation whatever. In other words, an appeal can be preferred before the Tribunal in the cases falling` under the proviso at any the after the period of preclusion namely, of 9011 days has elapsed. This provision, which becomes enabling only after the efflux of 90 days, is not a provision of limitation at all. Limitation in such cases would come into play only when the relevant departmental appeal, review or representation culminates with a "final order". Then the affected civil servant would be saddled with a limitation to appeal to the Tribunal "within 30 days of the communication of such order to him". There are a number of judgments which, however, have treated the period of 90 days in the proviso as virtually a period of limitation and in some a further period of 30 days has been added after the efflux of such 90 days, spelling out a requirement for a person covered by the proviso to go to the Tribunal within, in effect, 120 days, but these judgments, very respectfully, appear to be per incuraim inasmuch as a disabling provision has been thereby circumscribed with limitation of a further period of 30 days, irrespective of the fact whether the departmental appeal, review or representation has been decided. In our humble view, since the departmental appeal, review or representation is made obligatory in terms of proviso (a), the making of it and efflux of 90 days therefore only removes a disability to go to the Tribunal and no further period of limitation is provided thereafter unless and until the appeal, review or representation, as the case may be, is decided, which being the position, limitation would then emerge under the main body of the section, restricting the aggrieved civil servant to approach the Tribunal by way of appeal within 30 days aforesaid from the date of communication of such order in appeal, review or representation as the case may be. That would be the "final order" under section 4.
16. In this view of the matter, since apparently the petitioners' departmental representation dated 15- 2-1993 is still pending, the petitioners may approach the Tribunal at any the without any fear or apprehension but always within 30 days of the decision of the representation if and when such decision is communicated to them. This is because the "final order" in the case may still have to be passed on the abatement of the petition may not yet open up the way to the Tribunal.
17. The difficulties generated from the above said decisions, interpreting proviso (a) in section 4 of the Service Tribunals Act, 1973, seem to have been counter-acted by the Supreme Court in S.M.H. Rizvi v.
18. Maqsood Ahmed, PLD 1981 SC 612, which holds that in cases where a civil servant faces procrastination or contumacious refusal in passing of the final order, a Constitutional petition would lie for seeking a direction to decide the departmental appeal, review or representation, as the case may be, preferred to satisfy the requirement of such proviso. Encountering delay in the disposal of the relevant appeal, application for review or representation beyond 90 days, the period of preclusion for a service appeal and even beyond a further period of 30 days, customarily interpreted to be the limitation arising under the proviso, a direction may thus be sought and issued under Article 199 of the Constitution. Pursuant to such direction, as and when the applicable appeal, application for review or representation is decided and the decision communicated, the aggrieved party may, implicitly, within 30 days thereof, approach the Tribunal by way of the requisite service appeal. The dictum in the case of S.M.H. Rizvi thus, in a sense, overtakes the referred judicial interpretations. In the view, however, that we respectfully take, even that may not be necessary if the rule of limitation is applied in the manner discussed.
19. Independently of the foregoing, another impediment, again of frequent occurrence, encountered in relation to service appeals consists of applying thereto the various provisions in the Limitation Act.
20. That may also be germane here. Such arises upon the conventional interpretation of section 29 of the Limitation Act. That section runs thus:-- "29. Saving---(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of Limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal for application by any special or local law:
(a) the provision contained in section 4, sections 9 to IS and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869) .
(4) Sections 26 and 27 and the definition of 'easement' in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the the being extend." (Underlining added)
21. Again, there is a good deal of case-law pertaining to special statutes providing their own limitations and it has been repeatedly held that because such periods of limitation arc "different from the period prescribed therefore by the First Schedule" to the Limitation Act, only section 3 of that Act applies and section 4, sections 9 to 18 and section 22 apply only to the extent to which they are not expressly excluded by the special or local law. With respect, the provisions of the Limitation Act, apart from section 3, are excluded only if the relevant special or local law prescribes a period of limitation for a suit, appeal or application contemplated by it, which is "different" than that provided for the same in the First Schedule to the Limitation Act. This, in turn, implies that a period of limitation was already, notionally or otherwise, postulated for the relevation suit, appeal or application under the special or local law in terms of such First Schedule but the especial or local law proceeded to prescribe a "different "period therefore. Judicial precedents, additionally and alternatively,' (not without difficulty) lay down that the period may also be "different" if a similar suit, appeal or application, as postulated in the special or local law, carried a dissimilar period in the Schedule to the Limitation Act. As to similarity in the periods of limitation in the Limitation Act and a special law the leading judgment is Hatim Ali v. Zulekha Bibi, PLD 1964 Kar.. 399, followed in Mansoor Hussain v. Mureed, PLD 1974 Note 132 at p.193 and Jamila Subhan. Fateh v. Zahoor Fatima, PLD 1977 Kar.. 749. Regarding dissimilarity in limitations the principal decision is reported as Murtaza Khan lqtada Khan v. Allah Rakhi Begum, 1981 CLC 568, inter alia, endorsed in Abdul Ghaffar v. Mumtaz, PLD 1982 SC 88 and Alba Industries v. Haroon, 1985 CLC 2622. In ' , therefore, to exclude the relevant provisions of the Limitation Act under section 29 of that Act, it would always be necessary to find whether the First Schedule to the Limitation Act had already, implicitly or otherwise, envisaged a period of Limitation for the (like) suit, appeal or application under the special or local law.
22. Thereafter, it should be required to be been whether a period "different" than that already prescribed was visualized in the special or local law. It is only then that the provisions, other than section 3 of the .Limitation Act, wholly or in par., would stand excluded. Under many a special or local laws that is not the position. These laws enact usually their own periods of limitation, without any similar period having been postulated or anticipated in the First Schedule to the Limitation Act.
23. Such periods cannot be "different" within the meanings of section 29 (ibid). Notwithstanding the contrary opinions, amongst others, in Canara Bank Ltd. v. Warden Ins. Co. Ltd., AIR 1953 Bombay 35 and Elahi Bux v. Chief Administrator. 1970 Law Notes 358 (SC) when the Limitation Act did not provide limitation for even a matter similar to that in a special or local law, it can hardly be construed that such a law provided anything "different" than that in the Limitation Act. One can be "different" from another only if the other subsists or has subsisted in the past to support such a comparison. Comparison cannot be between something which has sprung into being and another which was never there. The exclusion, in those situations, of the various provisions of the Limitation Act, therefore, would not be warranted and such provisions, 'except the express exclusions, if any, in section 4, sections 9 to 18 and section 22, would continue to apply with full force and effect.
24. It remains to be said that the Limitation Act consolidates the law relating to Limitation etc., though limitation alone is relevant for our purposes here. It extends to the whole -of Pakistan. It applies to all Courts. Section 5 of the Sind Service Tribunals Act elevates the Tribunal to the status of a Civil Court for the purpose of deciding an appeal thereunder and arms it with powers under the Code of Civil Procedure. Besides, for appeals to the Tribunal an independent and not a "different" period than in the First Schedule to the Limitation Act is envisioned. It is a new jurisdiction to which a previously unknown appeal lies. Correspondingly, a, appeals to the Supreme Court against the Tribunal's decisions lie not under the Service Tribunal Act but tinder Article 212(3) of the Constitution, without specifying any limitation, but implicitly attracting the Limitation Act. The Limitation Act should, therefore, have applied to appeals under the Service Tribunals Act by its own force. Even so, section 3, postulating suo motu dismissal of an appeal, if beyond the, would not have applied because the period of limitation under the 1973 statute was not provided in the Schedule to the Limitation Act. That, however, should have posed no difficulties because, in any case an appeal beyond the would intrinsically be liable to dismissal.
25. It is perhaps because of the aforesaid conventional interpretation, Per Incuriam in our respectful view that the Legislature, in relation to the Sind Service Tribunals Act, had to resort to the artifice of an amendment whereby section 6-A was inserted in such enactment per Sind Act IX of 1974.
26. Sections 5 and 12 of the Limitation Act were thus extended to appeals under the Service Tribunals Act, 1973. Here also another mistake occurred. Pursuant to the referred case-law itself only section 5 needed to be invoked and section 12 in the Limitation Act already applied, even according to the conventional view, because that was never excluded by section 29 above quoted.
27. We have deliberately dealt with this aspect of the matter because a question may well-arise whether or not, for the purposes of a service appeal the period consumed, by the petitioners in this Court may or may not be excluded in terms of section 14 of the Limitation Act, on account of the petitioners having unsuccessfully pursued the Constitutional remedy albeit diligently and in good faith. Now, section 14 of the Limitation Act, even as it stands, would not have applied to cater relief in the present category of cases. This is notwithstanding the view we take of the matter. Section 14 extends relief only when a suit or an application is delayed because of pursuing another remedy in another forum, not having jurisdiction, in spite of diligence and bona fide of the pursuit. By definition in the Limitation Act itself, a suit does not include an appeal to which (before the Tribunal), thus, the benefit cannot be extended Even so, because section 5 of the Limitation Act applies. The principle in section 14 of that Act can be resorted to for seeking condonation, if delay occurs. Thus, if the petitioners were to encounter a plea of bar on the ground of limitation, they may in the view we take of the matter, even fall back on the broad rule in section 14 of the Limitation Act, which would apply to their case much as section 5 of the same Act should, on a party of reasoning and even under the aforesaid 1974 amendment.
28. Subject to the foregoing, this petition is dismissed, leaving the petitioners to pursue such on the remedies as be available to them under law.