GULBAZ KHAN (CHAIRMAN).---Muhammad Younus Khan was aggrieved of orders dated 8th/15th May, 1995, whereby his promotion as Senior Cameraman (Group-7), with effect from 28-3-1993, was annulled, order dated 29-11-1997, whereby his departmental appeals/representations dated 23-2-1997, 26-8-1997 were rejected, and order, dated 16-12-1997 wherein his representation dated 28-10-1997 was not accepted by the Competent Authority.
2. The appellant joined as Apprentice Cameraman in the Pakistan Television Corporation Limited vide letter dated 28-1-1974. He was granted move-over to Group-6, with effect from 1-7-1987 and subsequently formally promoted to Group-6. He was placed in Group-7 by move-over, further allowed pay 'n Group-8. He was given officiating charge of the post of Chief Cameraman vide order dated 14-2-1995. Office order dated 8th/15th May, 1995 was issued by the respondent department, and it was observed in the said order that the order of promotion of the appellant from the post of Cameraman, Group-6 (holding Group-7) to Senior Cameraman (Group-7), with effect from 28-3-1993 had been passed without following the procedure laid down in P.T.V. Service Rules and that it was an unlawful order. The said order was annulled and the statutes quo ante vis- a-vis the appellant's seniority and Group restored.
3. The appellant filed Writ Petition No,617 of 1995 on 17-5-1995 in the Lahore High Court, Rawalpindi Bench, through Dr. G.S. Khan, Barrister-at-Law, Advocate, High Court and Mr. Khalid Munir Ahmed Malik, Advocate. Interim relief was granted to the appellant and order of status quo was passed.
During the pendency of writ petition, the appellant filed representation on 23-2-1997, addressed to the Managing Director, P.T.V., wherein he made request for fixation of his pay in Group-8. He made another representation on 26-8-1997, with a prayer for The withdrawal of order, dated 8th/15th May, 1995, whereby he was reverted. The writ petition remained pending from May, 1995 till 28-10-1997.
On the said date, Dr. G.S. Khan, Advocate for the petitioner made a statement before the High Court for the withdrawal of writ petition in order to seek remedy before the proper forum by appropriate proceedings. In view of the statement of the said learned counsel for the petitioner, the writ petition was dismissed, on 28-10-1997, as withdrawn. With reference to representations of the appellant dated 23-2-1997 and 26-8-1997, referred to above, the appellant was informed vide letter dated 29-11-1997 that his writ petition having been dismissed on 28-10-1997, the office order dated 8th/15th May, 1995 issued by P.T.V. regarding his seniority, pay and other status in the substantive post Pay Group-6 in the Production Cadre stood good for his service career. The record shows that the appellant made a representation on 28-10-1997 and it was replied on 16-12-1997, stating that the request of appellant was considered but not accepted by the Competent Authority. After receiving the said reply, the appellant filed appeal, on 23-12-1997 under section 4 of the Service Tribunals Act, 1973, alongwith miscellaneous petition for condonation of delay, through the same learned counsel Dr. G.S. Khan Barrister-at-Law and Mr. Khalid Munir Ahmed Malik, Advocate High Court.
4. The learned counsel for the appellant was asked if the appeal had been filed within the prescribed period of limitation. The learned counsel stated that Writ Petition No,617-S of 1995 was filed against the impugned order in, the High Court, Rawalpindi Bench, on 17-5-1995, which was admitted and interim relief of status quo was also granted; that after the withdrawal of the writ petition, a representation was made to the respondents and on receiving the reply dated 16-12- 1997, the present appeal was filed within thirty days of rejection of the departmental appeal. It was also pointed out that the representations of the appellant dated 23-2-1997 and 26-8-1997 were answered on 29-11-1997. and if the period of limitation was counted from that order, the appeal was filed within thirty days of that order. It was also contended that the departmental appeal had not been dismissed on the point of limitation and thus the delay, if any, was deemed to have been condoned by the departmental Appellate Authority.
5. The contentions of the learned counsel for the appellant have been considered. The writ petition, as mentioned earlier, had been filed by Dr. G.S. Khan and Mr. Khalid Munir Ahmed Malik, Advocates.
The present appeal, alongwith the application for condo nation of delay, has also been filed by the same Advocates. It is mentioned in Paragraph 3 of the application for condonation of delay that the bona fide of the petitioner was obvious from the fact that the appellant/petitioner was advised by a very senior and competent counsel to go to the Humble High Court. It was also mentioned in the application that the petitioner had been following his remedy in accordance with prevailing law in a bona fide manner. In para. 4, it was stated that relevant law was amended in the meantime providing new forum to the appellant/petitioner before this Tribunal. The appellant took position in para. 5 of the petition that the appeal before the Tribunal had been filed within thirty days of the passing of the impugned appellate order, which was passed subsequently giving new and fresh cause of action to the petitioner.
6. The impugned order was passed on 8/15th May, 1995. The appellant was a civil servant on the said date. It is clearly laid down in section 2(1)(b) of the Civil Servants Act, 1973 that a person who holds a civil post in connection with the affairs of the Federation is a civil servant. In view of the definition given under section 2(1)(b) of the Civil Servants Act, 1973, the appellant was a civil servant. Our view receives support from cases titled Mrs. M.N. Arshad and others v. Miss Naeema Khan and others, reported in PLD 1990 SC 612; Saeed Rabbani v. Director-General, Leather Industry Development Organisation (PLD 1994 SC 123); and Chairman, Pakistan Broadcasting Corporation v.
Naseer Ahmed (1995 SCM R 1593). Filing of writ petition before the High Court was clearly barred under Article 212 of the Constitution and it has been repeatedly held by the Supreme Court that in view of the clear bar as contained in Article 212 of the Constitution, the writ petitions in the matters relating to the terms and conditions of service of the civil servants before the High Courts are not maintainable. We can conceive the idea for a moment that Dr. G.S. Khan, who is a very senior counsel, was not aware of this correct legal position. Notwithstanding this fact, writ petition had been filed by Dr. G.S. Khan and Mr. Khalid Munir Ahmed Malik, Advocates, the order of status quo having been passed on the same day: the writ petition remained pending for more than two year and five months. The impugned order had been passed on 8/15th May, 1995. The appellant could file departmental appeal within thirty days of the impugned order. Instead of filing the departmental appeal, the A appellant had chosen to file writ petition which was dismissed as withdrawn 'on 28-10-1997. The two representations made by the appellant on 23-2-1997 and 26-8- 1997, answered on 29-11-1997, and the representation dated 28-10-1997, replied on 16-12-1997, would in no way extend the period of limitation. The period of limitation would start from 8/15th May, 1995. The first and second departmental representations, dated 23-2-1997 and 26-8-1997 were made after a period of more than one year and five months. These belated representations, dated 23-2-1997 and 26-8-1997 were answered on 29-11-1997 and the third one dated 28-10-1997 was rejected on 16-12-1997. The departmental appeal and appeal before the Tribunal are hopelessly time-barred. There was no conscious application of mind by the Appellate Authority on the point of limitation and thus the appellant cannot legally urge that the delay in filing the departmental appeals/representations shall be deemed to have been condoned by the Appellate Authority. Since there was no conscious application of mind on the point of limitation by the appellate authority, placing reliance on cases titled Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) and Chairman PIAC v. Nasim Malik (PLD 1990 SC 951), we hold this contention is not worth consideration. As regards the contention of the appellant that he was following his remedy in accordance with the prevailing law in a bona fide manner on the advice of a very senior and competent counsel, we are constrained to hold on the basis of various authorities that the said plea could not be considered. The mistake of a counsel in approaching a wrong forum due to gross negligence, carelessness, without due diligence and caution has been discussed in case titled Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others, as reported in PLD 1983 SC 385. Divisional Bench of Lahore High Court while disposing of the above referred appeal made observations that "under section 14 of the Limitation Act, indulgence can only be granted in case of a mistake or error committed by a reasonable and prudent man exercising due diligence and caution. Where the mistake of the learned counsel is unaccountable and the result of the highest carelessness and a total lack of due care and attention, the said conduct cannot be a ground of relief under section 14 of the Limitation Act. As to the applicability of section 5 of the Limitation Act it was pointed out that a mistake arising from gross negligence committed without any real excuse and which would have been averted by proper inquiry cannot constitute a sufficient cause to extend limitation." After making the said observations the High Court dismissed the appeal as well as the application for condonation of delay. The order of the High Court was challenged in the Supreme Court and their hardships observed..." This, indeed, is a dilemma to which there is no entirely satisfactory answer. The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable and prudent man despite exercising due deligence and caution might have committedly-Where, however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence and caution before moving the said wrong forum, the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence. If such a remedy is exercised more frequently and counsel made to pay for their careless and negligence which results in such grave losses to their clients, some amelioration in the situation is possible...".
7. Similar view has been taken in case titled Mst. Mehmooda Begum and others v. Major Malik Muhammad Ishaq and others, reported in 1984 SCMR 890. It was held in the said authority that it was a case of gross negligence of law on the part of the counsel and as such it cannot be regarded as an ill-advice and for this reasons if the client had suffered, he could seek redress against counsel but such ground would not prevail for condo nation of delay.
8. It has held in the case titled Bashir Ahmed v. Government of Punjab (1985 SCM R 333) that ignorance of law or negligence on the part of a counsel does not provide a good ground for the condo nation of delay and the client has to seek a redress against the counsel.
9. In another case titled as Ch. Muhammad Sharif v. Muhammad Ali Khan (1975 SCM R 259), it was held that it was a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence on his part. It was further held that the High Court was clearly right in refusing to condone the delay and no valid ground was made out to interfere. The High Court had exercised its discretion in accordance with sound judicial principles.
Civil Petition for Leave to Appeal was dismissed.
10.Yet in another case titled Muhammad Tufail Danish v. Deputy Director, F.I.A.(1991 SCM R 1841), it was held that a wrong advice of the counsel does not extend the period of limitation. In the cited case, the Tribunal had not condoned the delay. The petition for Leave to Appeal was dismissed on the ground that the appeal filed beyond the period of limitation was rightly dismissed by the Service Tribunal.
11. In the case titled Ajmal Khan v. Ishtiaq Ahmed and others (1997 SCM R 1167), the Supreme Court observed that the Service Tribunal took the correct view of the matter in holding that petitioner's appeal dated 18-4-1991 before the Departmental authority was itself time-barred and that the petitioner's recourse to the remedies before Wafaqi Mohtasib and the Peshawar High Court could not be said to be bona fide and the Service Tribunal rightly dismissed the appeal as such.
12.We cannot, even for a moment, think that senior counsel Dr. G.S. Khan was not aware that the appellant was a civil servant and that under a bona fide mistake, writ petition had been filed before the High Court. The appellant was a civil servant before the addition of section 2-A in the Service Tribunal Act, 1973, which amendment came into force on 10-6-1997.
13.For the reasons stated above, we hold that the time spent by the appellant in pursuing remedy before wrong forum on the advice of Dr. G.S. Khan, Advocate, cannot be given for ,he purpose of filing departmental appeal or Service Appeal. Not only the departmental appeal but the appeal filed before us is also hopelessly time-barred. The appeal, along with application for condo nation of delay, is dismissed in limine.