' MUHAMMAD AYUB KHAN (MEMBER).---The appellant while posted as Manager (P&S) PECO, Kot Lakhpat, Lahore, filed Appeal No:384(L) of 1997 on 23-7-1997 wherein the appellant agitates that he tendered his resignation under the Voluntary Separation Scheme (herein called Scheme) on 25-8- 1996 and again on 22-2-1997 submitted to respondent No,2 Managing Director, PECO, 6-Ganga Ram Building, The Mall, Lahore with a request to release the appellant and his application was forwarded by respondent No,2 to Respondent No,1 i,e, Chairman, S.E.C. Saeed Plaza, Blue Area, Islamabad vide his application (Annexure-B) available at page 9 of the appeal file and the latter was pleased to accept his resignation under the scheme by order dated 10-4-1997 (copy Annexure C) advising therein respondent No,2 to release the appellant immediately and pay his dues under the scheme. Meanwhile the Corporation is taking up the issues with the Privatization Commission for reimbursement of the money under the Scheme. However respondent No,3 directed him to submit an undertaking by letter dated 5-5-1997 (copy Annexure-D) but the needful was not done by the appellant. In absence of any provision to this effect vide his reply dated 8-5-1997 (copy Annexure E). In pursuant to his request to provide a copy of undertaking, the needful was done reported by respondent No,3 (copies Annexures F & F/1) but scrutiny of Annexure F/1 indicates that no doubt on the face of it, there is a document with heading "Undertaking " , but it is blank form not signed by the appellant Muhammad Iqbal Bhatti, Manager, PECO. There does exist signatures in front "witness" but with no designation or seal of the signatory from which, it appears, that the appellant came to know about invitation of options under the scheme and according to him the "undertaking was not a requirement under the scheme" as it was not done in cases of Mr. Shahid Hasnat, Deputy General Manager and Sardar A.M. (Pur) and others.
2. It is further alleged at para.5 of the appeal that the appellant has been pursuing the matter time and again through various representations, verbally and not in writing but no adequate heed was given to him and ultimately respondent No,3 vide order dated 24-6-1997 (copy Annexure-H) informed the appellant that: "The competent Authority of SEC has not acceded to your request to release you under VSS at this stage. You are, therefore, advised to focus your attention on your job assignments as the chapter of your VSS has been closed."
' This in nutshell is averment by the appellant in his appeal.
3. The respondents have hotly contested the appeal and have denied vehemently all the averments agitated in the appeal. So much so, that serious point for non-filing of a departmental appeal in form of preliminary objections Nos,1 and 2 has been made to the effect that the appeal was incompetent and liable to be dismissed on the point of limitation and incompetency. On merits of the appeal, it has been positively stated that applications were invited under the Scheme vide Notice No:AIR-III dated 7-3-1994 and the last date for receipt of applications was August, 1994 which was further extended upto 31-8-1994 but the appellant had failed to apply under the Scheme. However, he had submitted an application under the scheme on 25-8-1996 almost after expiry of about two years and by that time the Scheme was no longer in existence, though the case of the appellant was time barred yet on sympathetic and compassionate grounds the appellant was asked to submit undertaking in the month of April when the appellant was to attain the age of 58 years but by that time he was not eligible for consideration when the benefit was not admissible and hence the question of its acceptance did not arise. Copy of the Scheme dated 7-3-1994 is available on the file having been annexed by the respondents to their parawise comments/documents and as per para.1 of it, applications were invited from persons having rendered minimum service for eight years which was considered essential as per Para.3 thereof the people/persons' having rendered maximum service for 58 years would be eligible for gratuity, dues and 12 months basic pay or basic pay of remaining service, whichever is less. The paras. Nos,1 and 3 of the Voluntary Separation scheme dated 7-3-1994 are reproduced hereunder:{{URDU TEXT}}
4. According to this notice dated 7-3-1994 the last date for receipt of applications was 20-3-1994 which date was extended up to 23-4-1994 by notice dated 18-4-1994 and again for covering up certain left out desirous persons, still the date was extended upto 31-8-1994 by notice dated 22-8- 1994 and this was the last extended date upto to which the petitions under this Scheme were to be filed and thereafter the doors of justice for filing petitions were closed.
5. While adverting to the parawise comments of the respondents one finds that respondents have stated in para.2 (on merits) that "the appellant had submitted his resignation on 22-2-1997 to respondent No,2 which was forwarded to respondent No,1. It will not be out of place to mention here that at the time when the request of the appellant was made, funds from the Privatization Commission had been fully utilized for the purpose," for meeting the claims of other incumbents who had filed their petitions well within time at the earliest (inclusive of the extended period) and for this reason respondent No,1 never accepted the resignation of the appellant under the Scheme as per Para.3 of the comments and again in para.4 of the appeal, it has been stated that a letter was issued by the respondent company whereby the appellant was asked to submit an undertaking on the sole ground that the appellant never applied for the Scheme in response to first notice of 7th March, 1994 but his request was received on 25-8-1996, when the funds from Privatization Commission had already been utilized and there was no funds available from the Privatization Commission for utilization under the Scheme and due to this reason the respondent company agreed to relieve the appellant subject to availability of necessary funds from the Privatization Commission and in case of non-availability of funds, it was clearly mentioned in that event the appellant was to retire from service normally for which an undertaking was essential.
Copy of the undertaking is available at Annexure-F which has already been referred to above having been found blank. In respect of case of Mr. Suhail Hasnat, D.G.M., the Privatization Commission had agreed in writing to arrange for the funds but due to financial constraint the funds could not be arranged by the Privatization Commission and so was the case of Mr. Iqbal Bhatti.
6. It is further stated in para.5 of the comments that the appellant had already attained the age more than 58 years and, as such, as per essential condition No,3, under the Scheme dated 7-3-1994 he was not eligible, more-so when failed to apply under the Scheme by the last extended date expired on 31-8-1994.
7. It was vehemently pleaded before us that since the appellant has failed to file departmental appeal, hence his appeal was incompetent under section 4(1) proviso (a) but scrutiny of the record does not show filing of such appeal and the Honourable Supreme Court of Pakistan, while remanding the case for de novo decision by judgment dated 24-4-1998, has specifically directed to examine this aspect of the matter. The respondents in support of their objections have placed reliance on PLD 1996 SC 845 and 1979 SCMR 626
8. If at all his appeal dated 25-8-1996 and again on 22-2-1997 is considered then these are too much belated in view of the last extended date fixed as 31-8-1994 and in this view of this situation the departmental appeal/petition appears to be hopelessly time-barred. In fact the appellant neither opted the Scheme nor for that matter filed a formal application within limitation. But on the contrary he had submitted a resignation reportedly under the Scheme on 25-8-1996 and again on 22-2-1997. The .Application was submitted to respondent No, 2 as per para.2 of the appeal which has already been mentioned earlier, Either of the two whether resignation or application (which can also be considered as an appeal) are hopelessly time barred in the light of the extended period for inviting applications under the Scheme by 31-8-1994, the last extended date. It has been held in PLD 1990 SC 951 that where a departmental appeal is time barred the service appeal becomes incompetent and also time barred whereas the service appeal in this case was also filed extremely belated on 23-7-1997.
9. As a sequel to the aforesaid discussion this appeal, appearing to be hopelessly time-barred, fails both on merits and on point of limitation under the Scheme in the absence of any valid option, under the Scheme within the requisite period of limitation and as such he is deemed to retire from service on attaining the age of superannuation and as such, his appeal is hereby dismissed leaving the parties to bear their own costs.
10. A copy of this judgment shall be sent to all concerned.