' JAVED IQBAL, J.---This is a Constitutional petition preferred on behalf of Dr. Haji Muhammad Soomro under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:-- "It is prayed that in consideration of above learned Court may be pleased:--
(A) (i) to declare that impugned orders of termination and superseding order of retirement respectively, dated 3rd July, 1994 and 3rd August, 1994 have been passed without lawful authority;
(ii) declaring that petitioner was holding a substantive appointment as Medical Officer in Residential College/School, Loralai.
(iii) to declare that order of Principal, dated 20th of April, 1994 treating petitioner as probationer is without lawful authority;
(B) (i) learned Court may further be pleased to issue appropriate directions, both mandatory had prohibitive, for reinstatement of petitioner with all past service benefits.
(ii) Costs of petitioner also claimed.
2. Briefly stated the facts of the case are that petitioner was appointed as Medical Office (B-17) in Model Residential Public School, Loralai, which since has been upgraded to that, of Balochsitan Residential College Loralai, after having approval of Chairman Board of Governors as provided in Balochsitan Model Residential Secondary Schools Ordinance, 1983 (Ordinance XVII of 1983). His services were to be governed by Efficiency and Discipline Rules of Government of Balochsitan, and the relevant Regulations. The petitioner was relieved from P.I.D.C. Harnai Woolen Mills with effect from 25th of April, 1992 and an amount of Rs,1,05,326.21 was deposited as Pension contribution by P.I.D.C. The petitioner's conduct and performance was not found satisfactorily and after initiation of disciplinary action and issuance of show-cause notices, the petitioner was relieved from services vide Notification of even number, dated 3-7-1994 which was subsequently modified vide Notification of even number, dated 3-8-1994 and petitioner was retired from service. Being aggrieved petitioner filed Representation/Appeal to Government of Balochistan, Governor Balochistan and Chief Minister Balochistan, but no decision whatsoever was made. Appeal, however, could not be filed before Service Tribunal as in identical case it was held that Residential College Loralai being body incorporate established under the provision of Ordinance XVII of 1983 as such it was beyond the competency of Service Tribunal to get the grievance of the petitioner redressed.
3. It is mainly contended by Mr. Muhammad Aslam Chishti, Advocate on behalf of petitioner that since petitioner was holding substantive appointment as such the impugned orders of termination and retirement are illegal, arbitrary and have been passed without lawful authority, as his service could not have been terminated without following the prescribed procedure as enumerated in Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. It is next contended that the impugned order of retirement has been issued by Secretary Education, while he was not appointing authority of the petitioner and as such it carries no legal sanctity as the appointing Authority was Chairman Board of Governors. Mr. Muhammad Aslam Chishti, Advocate has referred to the appointment letter of petitioner wherein it was made clear that the petitioner's services were to be governed and regulated by Efficiency and Discipline Rules and Regulations as approved by the Board of Governors. It is urged with vehemence, that Principal Residential College, Loralai, was neither competent Authority nor notified as authorised officer under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, as such the issuance of show-cause notice and constituting of Enquiry Committee were not only illegal but without lawful authority. It is argued that no reasonable opportunity was afforded to petitioner to defend himself properly and orders were passed summarily without observing the requisite formalities being mandatory in nature. Mr. Muhammad Aslam Chishti, Advocate remained critical of the orders passed by Secretary Education being tainted with mala fides, as such the same are liable to be set aside, as having been passed in excess of jurisdiction. It is also mentioned that Principal has no authority to issue letter, dated 20-4-1994 whereby the petitioner was treated as probationer. It is next contended that in view of the Provisions as contained in Regulation XII-2 of aforesaid Regulation, 1988, as the services of confirmed member can be terminated only by the Authorities specified in the Regulation.
4. Raja M. Afsar, Advocate appeared on behalf of Principal and strenuously controverted the position as canvassed by Mr. Muhammad Aslam Chishti, Advocate by arguing that the Residential College has been established by the Government of Balochsitan in pursuant to an Ordinance promulgated by Governor of Balochistan in 1983 and Institution is being governed by its own Regulation and it is not mandatory to follow the procedure as prescribed in Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 in letter and spirit. It is next contended that after completion of all the necessary legal formalities and affording proper opportunity of hearing the petitioner was retired from service on account of misconduct and inefficiency. It is also argued that staff of the Institution is neither recruited on the recommendations of Public Service Commission, nor on ad hoc basis by the Education Department, Government of Balochistan, but a Selection Committee has been constituted in this regard. Raja M. Afsar, Advocate also pointed out that a Regulation concerning the disciplinary matters has already been promulgated and disciplinary action was initiated and finalized after having completion of the requirements. It is also contended that the performance of the petitioner was not above board, who started either availing of leave or remained absent without any information or permission to leave the station and his conduct was timely brought to the notice of Secretary Education on 27th May, 1994. It is also explained that Balochistan Residential College Loralai is an Institution where all the developments of the students are recorded in accordance with the procedure of the Institution and primarily the petitioner was responsible for maintaining good health, record of the students and also annual physical development record as per cumulative record of the College, which duty was assigned by the Principal but he did not care about it and failed to take any notice about his job description. It is argued that neither the students nor the teacher and parents were satisfied with his work and conduct, and as such under Compelling circumstances he was retired from service after affording him sufficient time for improving his work and conduct, but instead of doing the needful, petitioner always attempted to challenge the authority of Principal and indulged himself in unnecessary correspondence only to put the college Administration in trouble. Raja M. Afsar, Advocate contended that a show-cause notice was issued under the instructions of the Secretary Education Department, Government of Balochistan, who is a member of Board of Governors, but no reply whatsoever was given in due course of time and an attempt was made to get the Attendance Register from the possession of the concerned Officer for misuse. It is also argued that as per Regulation of Institution, the service of, petitioner was terminated after having the approval of competent Authority as it was in the interest of smooth administration of the College as the irresponsible Officer like petitioner could not be allowed to perform his duties half heartedly and in a careless manner as it may affect the prestige and exemplary discipline of the Institution. Raja M.
Afsar, Advocate further contended that the petitioner could have moved the appropriate Appellate Forum for redressal of his grievances, and as such the Provisions as contained under Article 199 of the Constitution cannot be invoked.
5. Mr. Yaqoob Khan Yousafzai, Advocate-General appeared on behalf' of Government of Balochistan and Board of Governors and followed the arguments as advanced by Raja M. Afsar, Advocate with addition that the academic standard of the Institution must be maintained.
6. We have carefully exam med the respective contentions, as adduced, on behalf of petitioner and respondents in the light of relevant provisions of law and available record. We have also examined carefully the powers and jurisdiction of the Principal, who shall be the Chief Executive and Administrative and Academic Head of the College responsible for execution of the decision of the Board and run Institution in accordance with the rules and by-laws framed by the Board from time to time. The Principal shall have the power to appoint/suspend/terminate/or dismiss the staff from B-1 to B-16 in accordance with the rules. It is, thus, crystal clear that in so far as Principal of the Institution is concerned it is beyond his jurisdictional ambit, to remove any employee having B-17, but however, disciplinary action can be initiated by the Principal on account of misconduct. In so far as selection and appointment against approved post of B-17 and above are concerned the Executive Committee is competent to do so comprising of Secretary, Education Department Government of Balochistan, being its Chairman and 5 others members, meaning thereby that Executive Committee being appointing Authority can take suitable action in case of misconduct.
The following procedure has been prescribed for termination and dismissal which is reproduced hereinabelow for ready reference:-- "(XII) Termination and Dismissal.--(1) During probationary period
8. The Balochistan Service Tribunal after considering an identical case held that, "We are of the clear view that since the appellant had been directly recruited by the Principal of the College which is a private Institution and the appellant has never been in service of the. Government nor he has gone to join College on deputation from any Government Department, as such he is not a Civil Servant, therefore, this appeal being incompetent is accordingly dismissed. "In the light of abovementioned discussion it can be inferred that the petitioner, who was neither appointed by Provincial Government of Balochistan nor through Public Service Commission of Balochistan, is not civil Servant as such his terms and conditions of service cannot be regulated or governed by Balochistan Civil Servants Act, 1974 or Rules framed thereunder specially when the College is being run by separate Ordinance and Regulations. It was, thus, not incumbent for the authority to appoint 'Authorized Officer' by adopting a prescribed procedure as enumerated in Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992.
9. It is remarkable to note that the staff of the Institution is neither recruited on the recommendation of Public Service Commission nor on ad hoc basis by the Education Department, Government of Balochistan but a separate Selection Committee has been constituted for this purpose, as such the question of applicability of Efficiency and Discipline Rules, formulated by Government of Balochistan does not arise on this score too. We have also focused our attention to the appointment orders of petitioner which is reproduced hereinbelow for ready reference:-- ."APPOINTMENT ' Consequent upon the approval of the Chairman Board of Governers Model Residential Public School Loralai under section 8(2)(d) of the Balochistan Model Residential Public School Ordinance, 1983, Dr. Haji Muhammad son of Muhammad Usman Soomro is hereby appointed as Medical Officer in B-17 alongwith all the allowance admissible under the rules.
2. His services will be governed by the Efficiency and Disciplinary Rules of the Government of Balochistan, and Regulations as approved by the Board of Governors Model Residential Public School Loralai.
3. He is directed to report for duty not later than 25th April, 1992.
' By The Order of the Chairman Board of Governors Model Residential Public School Loralai.
' Prof: Muhammad Anwer Khetran, Secretary Education.
' Dated the 22nd Marach, 1992."
10. The contents of above reproduced order are indicative of the fact that the appointment was made in pursuance of the provisions as contained in section 8(2)(d) of the Balochistan Model Residential Public School Ordinance, 1983, by the Chairman Board of Governors and his services are to be governed by the Efficiency and Discipline Rules, Government of Balochistan and Regulation as approved by the Board of Governers. The application of Regulation in governing the terms and conditions of the services of petitions by no stretch of imagination can be excluded altogether as appointment was made under the Provisions of Balochistan Model Residential Public School Ordinance, 1983, and not under Balochistan Civil Servant Act. The status of Civil Servant which has its -own peculiar feature cannot be conferred upon the petitioner on the sole ground that a mention was made about Efficiency and Discipline Rules in appointment order.
11. The record made available to us, is silent as to whether the disciplinary proceedings regarding petitioner were placed before Board in accordance with the prescribed precedure or not? It is also remarkable to note that petitioner at first instance was relieved from services and subsequently he was retired. How this conversion was made and by whom is also not clear? The Appeal/Representations made by the petitioner are pending without decision. No doubt that show- cause notice was issued and due opportunity to consult the record was also given, but the question as to whether the prescribed procedure was followed or not is yet to be answered. Even for the sake of arguments, if it is admitted that discretion was exercised by the competent Authority in retiring the petitioner, but it hardly needs any explanation that discretion vested in any functionary irrespective of the fact who is who, is to be exercised judiciously and not in an arbitrary and fanciful manner. Where a procedure has been . Prescribed that should be followed in letter and spirit till any exemption is provided.
12. We have also examined prescribed procedure for termination and dismissal in the Regulation which has been reproduced in the preceding paragraphs of this judgement. A close scrutiny would indicate that the Principal is only competent to issue show-cause notice and make recommendation for termination or dismissal. It is thereafter, for the Board of Governors to listen to the case of Staff Members and decide in accordance with Rules and Regulations. It is noteworthy and seems quite astonishing that no right of appeal has been given against termination or dismissal. But the provided right of appeal only deals with light punishment' awarded by the Principal. In the said background the responsibility of the Board is increased to perform its function with care and caution to listen to the case of responded. The appellant submitted the present appeal on 2-2-1998 alongwith the application for condonation of delay.
5. Objections were filed by the respondent department. It was vehemently urged that the present appeal was hopelessly time-barred and there was no reasonable or satisfactory ground for condoning this inordinate delay. It was also urged that the appellant was civil servant and he did not approach the Labour Court in good faith, hence, he is not entitled to condonation of delay.: As,regards the merits, it was stated that the appellant was guilty of serious misconduct and had misappropriated huge amount for which he had been validly punished by the competent Authority. It was also submitted that the appellant was given all opportunities for defending himself. The respondents placed on. Record several explanation letters issued to the appellant.
According to the respondent department he was rightly punished and proper penalty imposed.
6. There is no dispute about the fact that the appellant was a civil servant at the relevant time.
Legally, he could not approach the N.I.R.C. His remedy was before the - Federal Service Tribunal.
Where a person seeks remedy before a wrong forum he is not entitled to the condonation of delay unless he proves that he had sought remedy before the wrong forum in good faith. Being a civil servant, he sought remedy before a wrong forum. There is nothing on record to show that he sought remedy in good faith. Delay in filing the appeal can be condoned only when the appellant explains delay reasonably and satisfactorily. The impugned order had been passed on 6-8-1994.
The appellant had filed departmental appeal on 26-9-1994 After waiting for ninety days and not having received any reply to the departmental appeal, he could seek remedy within next thirty days before the Federal Service Tribunal. In the present case, the appellant filed petition before the N.I.R.C. Even before filing the departmental appeal. He had filed petition before the N.I.R.C. On 10-8- 1994 whereas he filed departmental appeal on 26-9-.1994. The appeal filed by the respondent department was accepted on 8-7-1997, by the Full Bench of NIRC. Since the remedy was not available to the appellant before N.I.R.C., the appellant is not entitled'to the condonation of delay.
His petition for condonation of delay is, accordingly, dismissed. The impugned order had been passed on 6-8-1994 against which the appellant filed departmental appeal on 26-9-1994. The appellant could file appeal before the Tribunal the latest on 25-1-1995. The present appeal is hopelessly time-barred and is dismissed leaving the parties to bear their own costs.
7. Parties be informed