MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of Court, is directed against an order passed by the Service Tribunal on 16-5-1997, whereby the appeal filed by Sardar Khurshid Hussain, respondent No, 1, was accepted.
2. The necessary facts, giving rise to the present appeal, are that according to the appellant he has been serving in the Police Department since April, 1963, when he was inducted into the said service in the rank of Assistant Sub-Inspector while the respondent was recruited as Head Constable Surveillance Staff in 1971, wherefrom he arranged his transfer to the Reserve Police on 1-1-1974. He further arranged his transfer from Reserve Police to the Regular Police on 19-4-1978 in the rank of Sub-Inspector. The respondent contested the seniority of one Raja Muhammad Latif Khan and Raja Muhammad Razzaq, Police Inspectors, who were already serving in the Regular Department but he ultimately failed on account of a judgment delivered against him by this Court. The respondent then according to the appellant turned around and misstated before the Authorities that he was transferred to the Regular Police Service against his wishes whereas the fact of the matter is that he himself manoeuvred to be transferred to regular service from Reserve Department and knowingly allowed his lien in the Reserve Police to lapse. Through the Notification dated 5-10-1992 the respondent was promoted as D.S.P. Rangers with effect from 19-9-1992. In this order it was made clear that order would simply give him only the pecuniary benefits and that he would stand junior to appellant as well as other D.S.Ps. who were promoted in that rank on 19-11-1991. The aforesaid Notification dated 19-11-1991 was never challenged by the respondent in due course of time and since then it had become final. The respondent manoeuvred to get Notification dated 5- 10-1992 amended vide Notification dated 16-1-1994, which forms Annexure ' E' of the paper-book. On the basis of this Notification dated 16-1-1994, the appellant's rights were adversely affected. The appellant filed a representation against respondent which was accepted by the Government and the order was set aside. The order of the Government was challenged by respondent Sardar Khurshid Hussain before the Service Tribunal and the Service Tribunal accepted the appeal and set aside the order passed by the Government in favour of appellant. The Service Tribunal observed that representation filed by the appellant before the Government was time-barred inasmuch as notification, against which representation was filed, was issued on 16-1-1994, while representation was filed on 13-9-1994.
3. It was vehemently contended by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellant, that Notification of 16-1-1994 was never communicated to his client and that the representation against it was filed immediately after obtaining the knowledge about the existence of the said notification. The learned counsel strenuously contended that representation was within time from the date of knowledge as was proved before the Authority through an affidavit. The learned counsel also maintained that the Departmental Authority was in fact convinced that appellant's representation was not time-barred and the delay, if any, in filing the representation shall be deemed to have been condoned. Thus, according to the learned counsel for the appellant the Service Tribunal was not justified to take a different view and to observe that the representation was clearly barred by limitation.
4. To meet the preliminary objection raised by the learned counsel for the respondent, Mr. M.
Tabassum Aftab Alvi, that the appeal filed by appellant was clearly .barred by limitation, the learned counsel submitted that the judgment under appeal appears to have been written on 16-5- 1997 but the same was not conveyed to the appellant. However, it was conveyed to the other respondents in the appeal on 21-5-1997. According to the learned counsel even if the period of limitation is counted from this date the appeal according to him has been filed within time. The petition for leave to appeal was filed on 24-7-1997. The application for getting the copy of the judgment was moved on 12-7-1997, and the said copy was prepared and supplied to the appellant on 22-7-1997. Thus, it took 11 days to get the relevant copy of the judgment, By deducting these 11 days the appeal was within time and as such it was not barred by limitation, submitted the learned counsel.
5. In reply Mr. M. Tabassum Aftab Alvi and Sardar Rafique Mahmood Khan controverted the arguments advanced by the learned counsel for the appellant by submitting that the present appeal was time-barred and liable to be dismissed. The learned counsel contended that judgment under appeal was announced on 16-5-1997 but the appeal was filed on 24-7-1997 which was clearly barred by limitation. The learned counsel strenuously argued that the representation filed by appellant before the Government was also barred by limitation and the learned Service Tribunal rightly observed it as being barred by limitation. According to the learned counsel for respondent the appellant did not file the copy of memorandum of appeal alongwith the petition for leave to appeal within time and annexed the same much after the period of limitation had elapsed as such the appeal entailed dismissal.
6. After hearing the learned counsel for the parties and perusing the record the first point which requires resolution is as to whether the present appeal has been filed within time. It was recorded in the impugned order that the parties may be intimated of the judgment, however it transpires that the result of proceedings was not conveyed to the appellant. It was, however, conveyed to the other respondents in the appeal before Service Tribunal on May 21, 1997. The application for getting the copy of the judgment was moved by the appellant on 12-7-1997 and the same was delivered to him on 22-7-1997. The appeal was filed on 24-7-1997 and if we exclude the 11 days spent in getting the copy of the impugned judgment from the period of limitation the appeal is filed well within the period of limitation, therefore, the contention of the learned counsel for the respondent that appeal was not filed within time, being devoid of any legal force, is hereby repelled.
7. Another objection raised by the learned counsel for the respondent is that the appellant did not file the memorandum of appeal at the time of filing of petition for leave to appeal and it was filed later on when the period of limitation had already elapsed. According to the learned counsel under Order XIII rule 3, sub-rule (1)(ii) of the Supreme Court Rules it was a requirement under law that the appellant should have lodged alongwith the judgment and order sought to be appealed from a copy of grounds of appeal or application before the Service Tribunal, thus the failure on the part of the appellant to do so provided a sufficient ground for the dismissal of appeal. For the resolution of the . aforesaid objection it is deemed expedient to reproduce Rule 3, sub-rule 1(ii) of Order XIII of the Supreme Court Rules which reads as under:-- "3. (1) The petitioner shall lodge at least four copies of---(i) his petition for special leave to appeal; (ii)the judgment and order sought to be appealed from together with grounds of appeal or application before the High Court and the order of the High Court refusing grant of certificate under section 42(11) of the Constitution, if any, one copy of which shall be certified to be correct; (iii)xxxx xxxx xxxx xxxxxxxx (iv)xxxx xxxx xxxx xxxxxxxx The bare reading of Order XIII, Rule 3, sub-rule (ii) makes it abundantly clear that this rule in fact applies to the cases where the judgment and order sought to be appealed from relates to the High Court and not to the Service Tribunal.
8. The cases referred by the learned counsel for the respondent Allah Ditta and others v. Sher Ahmed and others (1993 SCR 325) and Muhammad Ameen Shah v. Mehtab Din and another (PLD 1996 SC (AJ&K) 11) being civil appeals against the judgments and decrees passed by the High Court are distinguishable and have no relevancy to the case in hand.
9. Since we have reached the conclusion that Order XIII, rule 3, sub-rule (1)(ii) of the Supreme Court Rules has no application in the instant case, therefore, in our view the appeal filed in absence of memorandum of appeal before the Service Tribunal annexed with the petition for leave to appeal in this Court does not entail dismissal.
10. The Service Tribunal at the time of passing the impugned order did not advert to the merits of the case and felt it advised to accept the appeal filed by the respondent on a technical ground that representation filed by the appellant before the Government was barred by limitation. The case of the appellant on merits precisely is that he was promoted as D.S.P. on 19-11-1991, whereas respondent Sardar Khurshid Hussain was far more junior to him and though respondent No, 1 was promoted as D.S.P. Rangers with effect from 19-9-1992 but the order of his promotion was clear that it would simply give him the pecuniary benefit and he would stand junior to the appellant as well as other D.S.Ps. who were promoted in that rank on 19-11-1991. The Service Tribunal accepted the appeal of respondent on the ground that in the representation moved before the Government it was not averred by the appellant that he filed his representation from the date of knowledge of the notification adversely affecting his interest. At this stage we deem it proper to reproduce paras. 1 to 3 of the concise statement filed by Muhammad Yousaf, Ex-Special Assistant to the former Prime Minister of Azad Jammu and Kashmir which read as under:-- "1. That the respondent No,3 was functioning as Special Assistant to the Prime Minister of Azad Jammu and Kashmir, in the year 1994 and 1995, when the appellant filed a Departmental Appeal before the Prime Minister of Azad Kashmir. The said appeal was marked to me for hearing and processing whereupon I in the capacity of Special Assistant to the Prime Minister for Appeals expressed my tentative view in terms of note on the file regarding the fact that the said appeal seemed to be time-barred ex facie. This note dated 5-1-1995, was yet to be got approved/countersigned by the Prime Minister after hearing the parties when the appellant appeared before me and satisfied me through an Affidavit that the impugned Seniority List was neither published nor communicated to him any time and that he after getting the knowledge of the same filed the appeal without any further delay.
2. That on being satisfied about the fact, I summoned the parties and called for the record as well as the Departmental comments on the same.
3. That after hearing the parties, perusal of the record and taking into consideration the Departmental stand on the subject, I was convinced that a grave miscarriage of justice and maladministration was carried out in the matter as a result of which the respondent No,1, obtained unlawful gains at the cost of the genuine rights of the appellant consequently the recommendation dated 25-3-1995. (Annexure 'G') was made which culminated into the Notification dated 29-8-1995. (Annexure 'H') after the approval of the Prime Minister. "
The above extract of the concise statement shows that the representation made by the appellant and the affidavit alongwith it was also under the consideration of the Departmental Authority. The Departmental Authority in our view was fully conscious of the limitation period having been elapsed but in view of the contents of the affidavit and the fact that in its view the notification was neither published nor communicated to the appellant thus it condoned the delay and decided the case on merits. It was specifically observed by the Departmental Authority that it was convinced that a grave miscarriage of justice and maladministration was carried out in the matter as a result of which respondent, Sardar Khurshid Hussain, obtained unlawful gains at the cost of genuine rights of the appellant.
11. In a case reported as Muhammad Yousaf v. Member, Board of Revenue and 6 others (1970 SCM R 170) it was observed at pages 171 and 172 in a following manner:-- "It is correct that the appeal was barred by time but it cannot be said that the learned Collector was not conscious of this fact. The question of limitation was specifically brought to his notice and in spite of that he allowed the appeal of the said respondents. In these circumstances the view of the High Court that the learned Collector, by deciding the appeal on merits, has impliedly condoned the delay appears to be quite correct. The decision of this Court in case of Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) lays down that the authority concerned,should be conscious of the question of limitation before deciding the proceedings pending before it."
In the case of Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) it was observed at page 172 in the following words:-- "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits."
12.Respectfully following the dictum laid down in the aforesaid authorities we are of the view that at the time of decision of representation the authority was conscious of the proceedings being out of time thus by deciding the controversy on merits it impliedly condoned the delay. The extract of the concise statement filed by the Special Assistant to the Prime Minister is also supportive of the fact that the authority keeping in view the facts and circumstances of the case and the affidavit filed by the appellant and the comments submitted by the department it impliedly condoned the delay and in those circumstances it was not justified by the Service Tribunal to dismiss the appeal merely on technical ground of limitation without adverting to the merits of the case. In this view of the matter since the Service Tribunal has not expressed any opinion on the merits of the case, therefore, a remand order will serve the ends of justice.
13.In view of what has been stated above, by accepting the appeal we set aside the impugned order of Service Tribunal and remand the case to the Service Tribunal for deciding it afresh on merits in accordance with law.