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Appeal No. 187 of 1974, decided on 11th December 1977.

Ss. 4 & 5‑Government servant‑Dismissal‑Appeal‑Limitation Two alternatives available to aggrieved civil servant, either to file appeal on expiry of 90 days after filing departmental appeal or to wait till final order passed by Department on appeal‑Appellant choosing to file appeal against order‑Period of 90 days to be exclud ed while computing period of limitation as otherwise appellant required to file appeal within 30 days of order‑Appellant to file appeal within 120 days against original ordor in case he does not wish to wait till order pass‑.d on his departmental appeal‑Original order passed on 8‑5‑74‑‑No reply having been received about depart mental appeal, appellant filing appeal before Tribunal on 5‑11‑74, i.e., about 6 months after original order‑Appeal having not been filed within 120 days, held, time‑barred by 57 days and no application for condonation of delay having been made appeal dismissed.

This is, an appeal against the order dated 8‑5‑1974 passed by the Inspector‑General of Registration, Sind forming the dismissal of the appellant from service. The appellant preferred an appeal against that order but it was not disposed of within a period of 90 days and therefore an appeal was filed against the original order on 5‑11‑1974.

Today an application was presented by Mr. Thakurdas partner of Mr. Kishanchand for adjournment on the ground that Mr. Kishanchand is out of Hyderabad having gone to Lahore to attend the jurist conference. We have considered the request and perused the record whereby we have found that this case was adjourned for 26 times and out of them 19 times the appeal was adjourned either on the application made by Mr. Kashanchand or the appellant as well as his counsel who were absent. Mr. Thakurdas partner of Mr. Kishanchand, is available and therefore he is competent to argue the case. It seems clear to us that indirect tactics are being adopted, adjournments are sought on one or the other grounds. It is rather strange to notice that although the appeal was filed in November 1974 and 3 years have elapsed but the appeal is still pending for the aforesaid reasons. We therefore see no justification to allow the adjournment. Consequently the application is rejected.

Coming to the merits of the case, the appeal is to be disposed of on the ground of limitation alone and it is not necessary to deal with the various pleas which have been agitated in the appeal. For the purpose of limitation, the relevant provision is embodied in section 4 of the Sind Service Tribunals Act, 1973. It reads as under:‑

"4. Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within twelve months or the establishment of a Tribunal whichever is later), prefer an appeal to the Tribunal having jurisdiction in the matter Provided that‑

(a) where an appeal, review or representation' to a departmental authority is provided under the Sind Civil Servants Act, 1973 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred and

(b) no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade ; and .

(c) subject to the provisions of section 6, no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.

From the mere perusal of the section, it is clear enough that the appeal against any final order whether original or appellate can be filed within a period of 30 days of the communication of the order to the aggrieved employee. This is subject to. the condition that if any appeal, review or representation to the higher authority is provided under the Sind Civil Servants Act, 1973 or any rules than no appeal can be filed before the Tribunal ,unless aggrieved person has first availed of any of the aforesaid remedies and 90 days are allowed to expire.

It is further clear that there are two alternatives available to the aggrieved civil servant. Either he can file an appeal against the original order of the expiry of 90 days after he has filed departmental appeal, review or representation or he can wait till the final order by the Department is passed on the appeal, review or representation as the case may be. It therefore follows that in case the appellant chooses to file appeal against the original order then the period of 90 days shall be excluded while computing the period of limitation as otherwise he was required to file an appeal within 30 days of the order. It therefore follows that he must file appeal within a period of 120 days against the original order in case he does not wish to wait till the order is passed on the Departmental appeal, review or repre sentation.

Coming to the appellant's case it is plain enough that the original order was passed on 8‑5‑1974 and having received no reply about the departmental appeal which he has filed, he filed the appeal in this Tribunal on 5‑11‑1974 i.e. nearly 6 months after the original order. Since the appeal was not filed within the period of 120 days, it is time barred by 57 days. No application for condonation of delay has been made.

In the result the appeal is time barred and is dismissed.

Appeal dismissed.

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