Find a Lawyer

Appeals Nos. 252 to 254 of 1984, decided on. 29th September, 1985.

‑‑‑S. 4‑‑K.S.R., Vol. II, Art 49‑‑Appeal to Tribunal‑‑Maintainable against final order original or appellate‑‑Civil servant aggrieved of revision order availing of remedy of review‑‑Review petition rejected‑ Rejection of review petition‑‑Final order for purposes of appeal before Tribunal‑‑Subsequent application neither entertain-able nor order passed on such application can be made basis of appeal before Tribunal‑‑Order passed on such subsequent application‑‑Not Final Order within meaning of S.4‑‑Civil servant having exhausted departmental remedy of review petition subsequently making application after about 6 years to be dealt with on precedent created under judgment of Supreme Court on case of another collegue and such application rejected by Government‑‑Rejection of such subsequent application, in circumstances, held, not final order for purposes of appeal before 'tribunal hence appeal dismissed us not maintainable‑‑...Tribunal however, observing that Executive Authority' would be at liberty to give equal treatment to appellant in view of judgment of Supreme Court and it would be a fit case for reconsideration by Government to redress grievance of appellant.

1981 P L C (C.S.). 82 and 1979 P L C (C.S.) 25 held not applicable.

1980 P L C 400 ref.

P L D 1978 S C 96; .1974 S C M R 95 and 1982 C L C 1306 distinguished.

Bashir Ahmad u: i.‑G.P., Punjab 1982 P L D 151; Khalid Mahmood v . Home Secretary, Punjab 1982 P L C (C.S.) 461; Abdul Waheed Qureshi v. Government of Punjab 1984 P L C ,(C;S..) 55 and P L 1) 1985 S C 309 rel.

Khawja Muhammad Saeed for Appellants.

S.Mansoor‑ul‑Hassan Gillani for Respondent.

‑‑The above‑cited three appeals. are against three different Government orders but the points involved in these appeals which need determination by the Tribunal, are common, therefore,‑ they shall be disposed‑off through this single judgment. ‑The facts of the cases are briefly as under:‑‑.

1. Mr. Sabir Hussain was promoted as section Officer, subject to the approval of Public Service Commission, vide Government order No. Admin/26697‑‑702/76, dated 29‑12‑1976 and vide Government order No. 3047‑42, dated 12‑2‑1973 was required to undergo a training in the Federal Government Secretariat, Training Institute at Rawalpindi. He could not qualify the prescribed examination of than Institute; and consequently, he was reverted .to his previous post vide Government order No. Admn. 1590,8‑16/77, dated 14‑13‑1977. He moved a review petition before the Government, which was also dismissed. He also came up with an appeal before the Service Tribunal but his appeal, dated 11‑7‑1978 was dismissed, by the Service Tribunal, on 13‑12‑‑1978.

One Mr. Muzaffar Waffa, another reverted Section Officer whose appeal was also dismissed by the Service Tribunal went up in an appear before the Supreme Court of Azad Jammu & Kashmir, against the judgment of this Tribunal, in. his case and his appeal was accepted by the Supreme Court of Azad Jammu & Kashmir; on 18‑2‑1984, whereby, his reversion from the post of Section Officer 'was set aside.

The appellant; Sabir Hussain, submitted a representation to the Govt. on 25‑3‑1984 against Govt. order dated 14‑12‑1977 and prayed that benefit of the decision of Supreme Court in the case of Mr. Muzaffar Waffa who was also reverted by the Govt on an identical ground of failure in the examination, .be extended to him and his reversion order may also be set aside, in view of the "obiter dicta" of the Supreme Court, in the aforesaid judgment. The Government rejected his miscellaneous applications, vide No. A‑I(42)/84, dated 11‑7‑1984.

The appellants, Mr. Muzaffar Hussain Kazmi and Qazi Abdul Rashid were promoted as Section Officer on the basis of the recommendations, of the Selection Board, vide Government order No. Admn. 2908‑45/77, dated 13‑2‑1977. Through the same order, approval for their deputation for three months' training at the Federal Government Secretariat, Training Institute, Rawalpindi was also accorded and in the same order, it was made imperative that they will successfully complete the training failing which, they will be liable to reversion. These two officers failed to pass the examination of the Training Institute and were consequently, reverted vide Government Order No. Admin. 15871‑15884, dated 14‑12‑1977. Against this order, the review petition of Muzaffar Hussain Kazmi was dismissed vide Government Order No. S&GAD/12623‑29/79, dated 31‑5‑1979 and review petition of Qazi Abdul Rashid was also dismissed vide Government Order No. Admin. 2990‑96/80, dated 12‑2‑1980.

Following the course adopted by Mr. Sabir Hussain, these two officers also moved miscellaneous applications to the Government for the benefit of the decision in the case of Mr. Muzaffar Waffa, for their restoration to the posts of Section Officer, by setting aside their reversion order, dated 14‑12‑1977. The representation of Mr. Muzaffar Hussain Kazmi, dated 24‑4‑1984 was dismissed by the Government vide No. Admin. A‑I (58)/84 dated 23‑7‑1984 and representation of Qazi Abdul Rashid, dated 24‑4‑1984 was also dismissed by the Government, vide No. Admin. A‑I (106)/84 dated 23‑7‑1984.

Objection has been taken by Mr. Manzoor‑ul‑Hassan Gillani, Advocate with regard to the competency of the appeals. He has cited 1981 P L C (C.S.) 82, 1979 P L C (C.S.) 25 and 1980 P L C 400(s) in support of his contention.

The points involved in the above appeal are:‑‑

(a) Whether the orders challenged by the appellants are the final orders, within the meaning of section 4 of the Service Tribunals Act, 1975

(b) Whether the appeals are competent, in circumstances of these cases

In this respect, the relevant provisions of Service Tribunals Act, 1975 embodied in section 4, are reproduced below:‑‑

"4. Appeals to Tribunal.‑‑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 including disciplinary matter, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."

In view of these provisions, appeal to this Tribunal lies against the final order original or appellate whereby' terms and conditions of any civil servant are violated or interpreted to his disadvantage. In the appeal, before us, it is to be determined whether the orders challenged by the appellants were the final orders, in the matter of their reversion or those orders which were passed on 14‑12‑1977 and confirmed in process of the review petitions of the appellants were final. The reversion of the appellants was ordered through two different Government orders passed on 14‑12‑1977. Article 49 of the K.S.R., Vo1.II Appendix II, provides the remedy of review in such cases. Following the course available they preferred the review petitions and all the review petitions of the appeals were dismissed. Qazi Abdul Rashid and Muzaffar Hussain Kazmi preferred no appeal before th le Service Tribunal, therefore, the orders passed in the process of review were final in their cases because further remedy after disposal of review petition, through a second application before the Government is not available. In the matter of Mr. Sabir Hussain, who came with an appeal to the Service Tribunal, the order passed by the Service Tribunal, dismissing his appeal on 13‑12‑1978, also became final, because he preferred no appeal in the Supreme Court.

There is no provision of law under which the appellants can challenge those final orders before the Service Tribunal, by making subsequent applications to the Court after the lapse of the period of limitation. The cause for an appeal before the Tribunal accrues to a civil servant., when a final order is passed by the Government or any departmental authority, whether the order is original or appellate and in case of original order, after the appropriate remedy before the departmental authority is exhausted, and a period of 90 days has elapsed, since the filing of appeal or the review petition. Any successive application or miscellaneous representation does not give any cause of appeal to the appellants before this Tribunal, because these are not the remedies provided by law. Once the matter is closed by availing oft the remedy before departmental authority, through an appeal or review, as provided by the relevant service rules, the subsequent applications are not entertain-able by the Government or any other departmental authority nor order passed on such applications can be made a basis of appeal before the Tribunal. The orders passed on the miscellaneous applications are not the final orders within the meaning of section 4 of the Service Tribunals Act.

We are supported in our view on the point by an earlier decision of this Tribunal, in the case of Sheikh Mahmood v. Azad Government 1984 P L C (C.S.) 1629, wherein it has been held as under (at page 1645):‑‑

"The appellant, thus had the right to file an appeal against the aforesaid order of the Government or any final order passed by its on his application for review against the same but the impugned order, dated 10th November, 1981 cannot be considered by any stretch of imagination, to be final order of the competent authority made on his review petition against the order of his retirement which in fact is only an office memorandum issued in reply to the office memorandum received by the Chief Secretary of the Azad Kashmir Government."

It is also observed on page 1646:‑‑

"It needs hardly any mention that office memorandum is not a Government order and it caused for correspondence between various departments and for conveying information not amounting to an order of the Government to attach departments and subordinate authorities. In this view of the matter, it is not a final order as alleged by the appellant, made by the competent authority pertaining to the' terms and conditions of his service as is visualized by section 4 of the Act providing right of appeal against the same before the Service Tribunal."

Again on the same page, it has been held:‑‑

"The case of the appellant himself, as made out in para. 7, of the memorandum of appeal, is that he had made his first representation against his retirement order on 28th May, 1976 (Annexure 'H') which was rejected vide order, dated 5th January, 1977 (Annexure 'J') and that his subsequent second, third, fourth and fifth representations were also rejected vide orders, dated 1st March, 1977 (Annexure 'G'), 24th November, 1977 (Annexure 'T') 17th November, 1980 (Annexure 'Y') and 10th September, 1981 (Annexure 'AA') respectively. Thus in the light of the above stand taken by the appellant, the final order passed on his representation against the order of his retirement would be considered to be one made on 5th January, 1977 and not the one passed on any of his subsequent representation made by him after his rejection of his first one. The appeal of the appellant, is, therefore, also not competent against the so‑called Government order impugned in this appeal as the same is not final order of the competent authority which can only be made the subject of appeal before the Service Tribunal under section 4 of the Act."

The case‑laws cited by Mr. Manzoor‑ul‑Hassan Gillani viz. in the appeals, wherein the remedy provided before the departmental authorities was not availed of and the appeals were held not maintainable. These are thus not applicable to the cases before us. We could not find third authority quoted by him at page 400 of the P L C 1980.

The learned counsel for the appellant argued that the appellants should be given the benefit of the decision in the case of Muzaffar Waffa. We are constrained to remark that our legal system does not permit us to make such an order, without a course of action, brought before us in due course of law, i.e., by way of appeal against a final order. The law helps the vigilant and not the negligent. Had the appellant persued all the available remedies in the Courts, they would have been definitely benefited, but they cannot reap the fruit of the labour put in by Mr. Muzaffar Waffa. A farmer although owning a very fertile place of land but keeping it unploughed cannot reap a harvest, which can be reaped by a person who ploughs the land, puts the seeds in it and then labours hard in the field for whole of the season. Similarly a person though possessed of a very valuable right of cause of action, but not resorting to the requisite remedies at the appropriate stage in the proper form cannot get a relief by a course of action not provided by law.

The learned counsel for the appellant has made reference to the following authorities, namely P L D 1978 S C 96 and 1974 S C M R 45 and 1982 C L C 1306. These authorities relate to the view of judgment by the High Court, thus these are not applicable to the cases in hand. In those cases, it was held that the High Court could review its judgment on the ground that the same was contrary to the law earlier declared by the High Court. So, in a case the judgment could be reviewed where a precedent of the superior Court contrary to such judgment existed at the time of that judgment. In the case before us, the decision of the case of Muzaffar Waffa delivered on. 28‑2‑1982 was not in existence, when the case of Mr. Sabir Hussain was decided by this Tribunal on 13‑12‑1978, therefore, that would not mark a ground for review of the case. Apart from this, the cases before us are in the form of appeals against the orders passed .by the Government, on the miscellaneous applications of the appellants before the Government. The question of review in the circumstances does not arise when no case was decided by this Tribunal in matter of. Qazi Abdul Rashid and Muzaffar Hussain Kazmi nor there is any review petition by Mr. Sabir Hussain before us.

We also considered this aspect, whether the present appeals by Muzaffar Hussain Kazmi and Qazi Abdul Rashid could be considered as the appeals against the order of their reversion passed on 14‑12‑1977 but we feel that it cannot be done. In these appeals, although that order has also been attached and is sought to be vacated, yet the appeals are filed after lapse of more than 6 years after the passing of original order and about 4 years after passing of the orders on their review petitions. They remained silent for several years and now the decision in the case of Mr. Muzaffar Waffa persuaded them to reagitate the matter, which had already been finally closed. The orders challenged by them through the present appeal are not the final orders rather these orders have been passed in response to the miscellaneous application, which were presented subsequent to the close of their matter in the regular proceedings. The fresh orders also cannot be made the basis for the extension of time as observed in 1982 P L C 151, 461 and 1984 P L C 54. The aforesaid two authorities also support our view with regard to the finality or otherwise of the orders.

In the case of Bashir Ahmad v. I.‑G.P., Punjab 1982 P L C 151, it has been held at page 153 as under :‑‑

"It is a settled law that if a person chooses at his own whim and fancy to keep in filing representations to keep the limitation alive such like representations do not grant him his concession and the time is to be counted for the purpose of limitation from the date of the final order. In this case, as stated above the final order would be of the I.‑G.P., dated 7th February, 1979 only.

In the light of the above discussion, we are in accord with the learned District Attorney that the appeal of the appellant is hopelessly time barred and is liable to be dismissed on this score only."

In the case of Khalid Mahmood v. Home. Secretary, Punjab 1982 P L C (C.S.) 461, it has been observed as under on page 462:‑‑

"We have heard the appellant. We are afraid that his appeal is against the bar of limitation and must be dismissed as such. His appeal to the D.I.‑G. was rejected on 7th November, 1977. This was the final order in the case of the appellant. Even if limitation is counted from the date when the I.‑G. Police turned down the mercy‑cum‑revision petition on 4th October, 1978 there is a long delay to be explained between that date and the date of institution of this appeal in the Tribunal: i.e., 12th April, 1981. The appellant submitted that he had spent this time in making further representation to the I:‑G: Police which were reportedly turned down on 12th February, 1979 and 22nd September, 1979. We are afraid, we cannot accept this manner of keeping his right alive; it is not permitted by any law or even by stretching compassion, to reasonable limits. The appellant has not even bothered to file an application for condonation of delay."

In the case of Abdul Waheed Qureshi v. Government of Punjab 1984 P L C (C.S.) it has been held (at page 55) as under:‑

"It is also a well‑established principle of law that once an order has become final and a civil servant has exhausted his legal remedy he cannot be allowed to extend period of limitation in his favour by filing unnecessary review /representations at the authority which has already closed his case."

The reported case P L D 1985 S C 309 with regard to limitation and the effect of representation based on a number of authorities supports our view expressed hereinbefore.

We also looked into the provisions of section 21 (2) of Civil Servants Act 1976, which deal with the representations, but it also does not help the appellants because .the representation can only be made against the order passed by any authority subordinate to the Government and not in respect of the order passed by the Government itself.

Since the appeals are not competent, we cannot proceed to determine the points relating to the legality of the orders of their Reversion passed on 14‑12‑1977 or of the subsequent orders as those have become final.

The upshot of the above discussion is that the present appeals not having been preferred against the final orders effecting their terms and conditions, are not maintainable; therefore; ail these three appeals are dismissed.

Before parting with the judgment, we feel that the original orders passed in their, cases on 14‑12‑1977 and the subsequent orders passed in review in their cases were not justified in view of the finding of the Supreme Court, in the case of Mr, Muzaffar Waffa v. Azad Government, who has been restored to his post of Section Officer. The Executive Authority is, however, at liberty to give an equal treatment to the appellants, in view of the judgment of the Supreme Court. In our view these are the fit cases, wherein the Government may reconsider the matter and the appellants' grievance can be partly redressed by the Government, if they are considered afresh for the promotions on realising that the orders passed earlier in their cases were not lawful, as declared by the Supreme Court.

We make no order as to the costs in the present appeals which 'stand dismissed. '

A.E.

Appeals dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.