' CH. MUHAMMAD ARIF, J.----Appellant Idris Ahmed Rizwani' was initially appointed as Energy Specialist (Fuel) in BPS-19 on contract basis for a period of two years with effect from 13-4--1986 in the Energy Planning and Development Division vide notification, dated 28-4-1986. It was in February, 1988 that his case was referred to the Federal Public Service Commission (FPSC) for short and, vide communication, dated 15-3-1988 the FPSC accorded approval to the extension in his appointment on ad hoc basis, as a very special case for a period of six months with effect from the date of expiry of his contract period. It was also made clear to him vide order, dated 22-3-1988 that on the expiry of the said extended period, his services shall stand terminated without any notice.
2. Vide notification, dated 6-6-1989, the appellant was again appointed as Energy Specialist in the same Division on contract basis for a period of one year. This appointment was later extended up to 31-5-1990 vide notification, dated 10-12-1989. However, the Planning and Development Division sent a summary for the Establishment Secretary on 9-5-1990 soliciting appellant's ad hoc appointment to the post of Deputy Chief (Fuel) in BPS-19. In view of the Establishment Division's Notification No.9/1/73- Dv, dated 18-5-1980 and after the approval of the Competent Authority, he was appointed as Deputy Chief (Fuel) Energy Wing on ad hoc basis on 22-5-1990 vide notification, dated 9-6-1990 for a period of six months or till the availability of FPSC nominee, whichever is earlier.
3. However, before the expiry of the initial period of ad hoc appointment of six months, the FPSC did not agree to the-proposal on the ground that he did not fulfil the requisite condition of maximum age limit and qualifications and as such, he was not eligible for appointment as Deputy Chief in relaxation of the Rules. The FPSC advised the Planning and Development Division to terminate the appellant's services forthwith as they were made irregularly.
4. The matter was again referred to the Establishment Division which confirmed that ".. The relaxation in age as permissible under the Rules up to ten years was agreed while approving the ad hoc appointment of Mr. I.A. Rizwani, as Deputy Chief (BPS-19)". This position was brought to the notice of the FPSC by the said Division but the Commission remained adamant in its earlier view.
Consequently, the services of the appellant were terminated with immediate effect vide notification, dated 19-10-1991. On the same date, the appellant filed a departmental appeal to both, Secretary, Establishment Division and Secretary, Planning and Development Division. A representation was also made by the appellant to the Chairman, FPSC on 24-11-1991 for reconsideration of his case for relaxation of age but his such request was turned down by the Commission vide their communication, dated 19-12-1991.
5. The appellant then made a complaint before the Wafaqi Mohtasib on 30-12-1991 which was disposed of on 26-5-1992, directing him to seek remedy from the competent Court of law.
6. Appellant made Appeal No.425(R) of 1992 before the Federal Service Tribunal, Islamabad, hereinafter' referred to as the Tribunal, on 8-11-1992 with the following prayers:-- "(i) The mala fide and arbitrary advice of respondent No.1 vide letter, dated 5-9-1991 in not giving the advantage of the age relaxation rule to the petitioner while employed on contract basis in Government service be declared null and void and unjust, and of no legal effect by declaring the petitioner to be entitled to the been fit of the age relaxation rule, being a Government servant.
"(ii) The respondent No.2 be directed to rescind the impugned Notification, dated 19-10-1991, issued upon the wrongful advice of respondent No.1 being based upon erroneous interpretation of age relaxation rule.
"(iii) The petitioner be considered in Government service at the time of filing application for the purpose of age relaxation rule, who would have continued in it, had his ad hoc service not been illegally terminated upon the wrongful advice of respondent No.1 in October, 1991."
' The Tribunal attended to the case of the appellant in all its facts and came to the following conclusions:--
(1) That the challenge to order, dated 19-11-1991 on 8-11-1992 was beyond time and his explanation of pursuing his alleged remedy before the FPSC and Wafaqi Mohtasib is not tenable in view of this Court's judgment in the case of Bashir Ahmed v. Government of Pakistan (1985 SCMR 335).
(2) That the FPSC was right in concluding that the appellant was not only overage at the time of his ad hoc appointment but also not possessed the requisite qualification of coal technology and was, therefore, ineligible for the same.
' Penultimate paragraph of the impugned judgment, dated 18-9-1993 reads thus:-- "9. Since the appellant had served several years on contract as well as on ad hoc and he is being rendered ineligible now to hold any post in Government Department having reached the age of disqualification for entering the Government service, we leave it to the Department to consider his case on humantarian grounds for absorption against any post equivalent to the one he held before coming in appeal to this Tribunal."
7. Leave Grant Order, dated 11-4-1994 reads thus:-- "After hearing the learned counsel for the petitioner we grant leave inter alia to consider whether termination is void ab initio having not been passed by competent authority and if so, what is its effect on the question of limitation. As it is a service matter, the main petition may be listed at an early date."
8. Dr. Danishwar Malik, learned Advocate Supreme Court appearing in support of this appeal criticised the impugned judgment in relation to limitation as also allegation of lack of qualifications. According to him, his client had been pursuing his remedies before the FPSC as also the Wafaqi Mohtasib (Ombusman) with due diligence and even this Constitutional Petition bearing Writ Petition No.129 of 1993 before the Lahore High Court, Lahore was withdrawn by him on 19-3- 1994 on account of the pendency of C.P.S.L.A. No.600 of 1993, out of which the present appeal has arisen, and by reserving his right to file a fresh one subject to the decisions of this Court in the said C.P.S.L.A. No.600 of 1993.
9. Contrarily, Mr. Maulvi Anwar-ul-Haq, Deputy Attorney-General for Pakistan, has vehemently supported the judgment of the Tribunal in its entirety and submitted that the appellant is himself to blame for not challenging the action taken by the FPSC before the appropriate forum.
10. We have considered the arguments addressed at the bar and are not inclined to the view that the appellant was entitled to any indulgence in the matter of condonation of delay in making resort to Appeal No.425(R) of 1992 on account of any mistaken advice. It appears that appellant's Constitutional petition bearing Writ Petition No.129 of 1993, made against the present appellants as- also the FPSC etc. Was withdrawn by him on 19-3-1994 as below:-- "Learned counsel for the petitioner seeks permission to withdraw the writ petition and reserves his right to file a fresh one subject to the decision of the Supreme Court in a petition for leave to appeal No.600 of 1993 filed by him. The writ petition is disposed of as withdrawn."
' As mentioned above, leave to appeal was granted in C.P.S.L.A. No.600 of 1994 on 11-4-1994 and photo copy of order, dated 19-3-1994 passed in Writ Petition No.129 of 1993 by the Lahore High Court, has been produced in Court by Dr. Danishwar Malik, learned counsel for the appellant.
Appellant was on the right rails in challenging the vires of the action/order of the FPSC before the High Court. Admittedly, he withdrew Writ Petition No.129 of 1993 on 19-3-1994 by reserving his right to file a fresh petition subject to the decision of this Court in C.P.S.L.A. No.600 of 1993. He is still within his right to resurrect the cause before the Appropriate Forum even now.
11. The above are the reasons for our short order of even date which reads thus:-- "For reasons to be recorded later on, the appeal is dismissed with no order as to costs with the observation that the appellant is free to approach the High Court according to law."