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Civil Petition No. 20‑K of 1985, decided on 12th February,1986.
Constitution of Pakistan (1973)‑‑
‑‑Art. 212(3)‑‑Service Tribunals Act (LXXI of 1973), S. 4‑‑Appeal before Service Tribunal‑‑Limitation‑‑Service Tribunal evolved a theory of continuous wrong in cases of adverse orders passed against civil servants and if that principle was accepted then period of limitation prescribed for filing appeal to Service Tribunal would be completely out of place‑‑Such aspect and other submissions made in support of petition deserving consideration‑‑Leave to appeal granted.
S. Shahudul Haq, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 12th February, 1986.
This is a petition for leave to appeal from the judgment of Federal Service Tribunal, dated 25‑10‑1984 by which appeal of respondent was allowed with the result that the order of reversion passed against him was set aside and it was declared that he shall be entitled to the payment of pay for N.P.S. 11 from the date he resumes the duty of Accounts Assistant in the Office of the Senior, Accounts Officer, International Telecommunications, Karachi not with standing his unlawful reversion.
2. Mr. S. Shahudul Haq, learned counsel appearing in support of the petition submits that since' no valid ground for the condonation of the delay in filing of the appeal before the Federal Service‑ Tribunal were made out, the respondent's appeal ought to have been dismissed as time‑barred. In this behalf, learned counsel referred to the following portion of the judgment of the Tribunal:‑
"A preliminary objection regarding limitation was raised on behalf of the respondent‑Department by contending that the appeal being barred by time is liable to be dismissed. It is to be seen that, according to the appellant, he took the order, dated 1‑12‑1983 (communicated to him on 3‑12‑1983) as implied rejection of his departmental appeal. . He should have, therefore, filed appeal before this Tribunal by 2‑1‑1984 while the present appeal was filed on 29‑2‑1984 with an application for condonation of delay. It was urged by the appellant that he considers the appeal to be in time as the wrong done to him and impugned in the appeal is a continuous wrong and, therefore, the cause of action subsists. The contention is not without substance. In any case, in the face of bounden obligation of the respondent‑Department to satisfy itself the claim of the appellant for payment of his due salary, the plea of limitation is of little importance. In our view, therefore, the delay is excusable and is condoned."
Learned counsel submits that the Tribunal has misconstrued the legal position regarding the condonation of the delay under the provisions of section 5 of the Limitation Ant, in that, a wrong order by itself provides the reason for the condonation of the delay. It is further submitted that the Tribunal also fell into an error by holding that the impugned order amounted to a continuous wrong, and, therefore, a "cause of action" filing of appeal against it subsisted.
3.It seems that the Service Tribunal has evolved a theory of continuous wrong in the cases of adverse orders passed against civil servants, and if this principle is accepted, then the period of limitation prescribed for filing an appeal to the Service Tribunal will be completely out of place.
4. This aspect, and the other submissions made in support of the petition deserve consideration. We, therefore, grant leave and allow the petition.
5. Appeal to be heard on the present record at a very early date. It is however open to the parties to file additional documents, if any.
M. Y. H. Leave granted.
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