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Case No. 910/1159 of 1984, decided on 2nd March, 1986.
Per Sardar Abdul Jabbar Khan, Chairman and Abdul Hamid, Member (Majority View)‑‑
‑‑‑Art. 15‑‑Punjab Service. Tribunals Act (IX of 1974), S. 4‑‑Bar of jurisdiction Representation of Civil Servant rejected by Martial Law Administrator‑‑Effect‑‑Bar of jurisdiction created under Art. 15, Provisional Constitution Order, 1981, held, would operate only against those orders which were passed by Governor/M.L. A. under provisions of Martial Law Regulations or Martial Law Orders‑‑Matter of civil servant not dealt with either under Martial Law Regulation or under Martial Law Order but dealt with under Service Rules would not attract bar of jurisdiction.
P L D 1947 P C 344 p. 358; P L D 1979 Kar. 300 p.306 (Paras. 14 and 15); 1982 S C M R 33; P L D 1963 S C 382 p. 400; PLD 1964 SC 572; 1984 S C M R 289; 1983 S C M R 765; 1984 P L C (C.S.) 452; 1985 S C M R 946; 1984 C L C 119; 1984 Part of C L C; 1983 P L C (CS) 31; Pervaiz Akhtar v. Inspector General of Police 1982 C L C 1693; Muhammad Naseeb v . Inspector General of Police 1984 P L C (CS) 643; Fazal Karim v. Government of Punjab 1983 P L C (CS) 214; 1980 S C M R 148; A I R 1924 Mad. 396; 1984 C L C 1286; 1984 C L C 1523; P L D 1975 Lah. 524; P L D 1969 S C 322; A I R 1942 OUDH 447; 1981 P L C 618 at 621; 1981 P L C 662; 1985 P L C 852; 1984 PLC
962; 1984 P L C 52; P L D 1975 S C 331; P L D 1977 S C 599; 19713 S C M R p. 367; P L D 1975 Lah. 825; 1983 P L C 905; A I R 1954 Mad. 19; N L R 1982 Lah. 147; 1982 C L C 711; P L D 1982 Lah. 384; P L D 1982 Lah. 831; P L D 1967 Lah. 938; P L D 1965 Dacca 231; 1984 S C M R 289 ref.
‑‑‑Fatima Jinnah Medical College‑‑Status of‑‑By virtue of M.L.R. No. 118, Fatima Jinnah Medical College, held, stood vested in Government with effect from 1‑9‑1972‑‑Notification is‑sued on 1‑7‑1980 was only issued to clear doubts thereof.
‑‑Resignation by civil servant‑‑Effect of‑‑Resignation from service once tendered by civil servant, and accepted by Government, held, could not be re‑opened under normal conditions‑‑However, resignation tendered under mistaken view of law could not be equated with resignation in ordinary circumstances.
P L D 1963 S C 382; P L D 1947 Pirvy Coiuncil 344; P L D 1964 S C 572; P L D 1979 Kar. 300; 1982 S C M R 33; 1985 S C M R 1394 p.1396; 1984 S C M R 289; P L D 1983 S C 765; 1984 S C M R 286; 1984 PLC (C.S.) 452; 1985 S C M R 946 ref.
‑‑‑ Resignation‑‑Tendering of‑‑Both Government and civil servant under mistaken belief considering Fatima Jinnah Medical College as private institution at time of resignation of employee‑‑Government getting verdict from High Court that said Medical College was Government institution since 1‑9‑1972‑‑Employee on knowledge of such fact approaching Governor for withdrawing of resignation submitted earlier‑‑Employee, held, would be entitled to status having been lost under mistaken belie of such employee as well as of Government‑‑Such lost status of employee had to be restored by Government itself whereas employee would be under no obligation to make specific and separate claim for same‑‑Bar of limitation of filing appeal would not be attracted in circumstances.
P L D 1969 SC 322; P L D 1971 S C 791 p. 811; P L D 1969 SC 322; 1982 S C M R 95; 1981 P L C (C.S.) 618 and 1981 P L C (CS) 662 ref.
Per Mian Faiz Karim, Member II (Minority View)‑‑
‑‑‑Ss. 4 & 9‑‑Appeal‑‑Filing of, beyond prescribed period‑‑Voluntary resignation and acceptance of same by Government‑‑Final representation to Authority for withdrawing of resignation rejected in 1979‑‑Appeal filed by employee in 1984, held, would be beyond limitation‑ Circumstances of case would not justify condonation of delay.
P L D 1947 P C 344 p. 358; P L D 1979 Kar. 300 p.306; 1982 SC M R 33 and P L D 1963 S C 382 ref.
‑‑‑ Resignation from service‑‑Submission of resignation by employee being own creation, such employee, held, could not be treated as aggrieved of his own decision‑‑Employee having no right of appeal could not seek remedy.
‑‑‑ Word "resignation", meaning of‑‑Resignation, held, would mean "to give up office, employment etc."‑‑Such resignation made without any trace of compulsion would not entitle employee to claim superior status subsequently over other employees having been recruited after taken over of College by Government‑‑Resignation submitted by employee would be final and closed matter.
P L D 1964 S C 572 ref.
‑‑‑ Resignation of employee‑‑Employee resigning from Government service in order to seek employment in particular institution and getting same on permanent basis‑‑Such employment after takeover of institution by Government, held, could not be reversed without lending power to Government through Service Tribunal or through High Court for setting aside posting by Governing body after taken over of institution by Government, on ground of mistake of law.
‑‑‑No mistake attributed to administration in seeking resignation of employee‑‑Such employee resigning of his own accord at his own initiation‑‑Recalling of resignation at such late stage, held, would create complications, hardships and anomalies as about fifty employees attaining seniority over years after resignation of employee would be losing vested right without fault of their own.
D.M. Awan, Masud Ahmad Riaz, Counsel for Appellant. Sh. Ghias Muhammad through Riaz Anwar Counsel for Respondents Nos. 6, 41, 42 and 57. A.G. Humayun, District Attorney for Respondents Nos. 1 and 2.
Respondent No. 7 in Person.
Maqsood Hussain for Respondent No. 14.
Nayyar lqbal Ghauri, counsel for Respondent No. 23.
Khalid Ranjha Counsel for Respondents Nos. 29, 41 and 57. Sajjad Hussain Counsel for
Respondents Nos. 31 and 50.
Fayyaz Ahmad Counsel for Respondent No. 44.
.--‑‑Dr. Muhammad Latif Chaudhry, Professor of Opthalmology Fatima Jinnah Medical College, Lahore, has filed this appeal a/s 4 of the Punjab Service Tribunal, Lahore, in which he has impleaded the Government of the Punjab through Secretary to Government of the Punjab, Health Department, Lahore, Chief Secretary, SGA & I Department, Government of the Punjab, Lahore, and Messrs Dr. Mukhtar Ahmad Chishty and 55 others as per list annexed with the appeal, as respondents.
2. By virtue of this appeal he has prayed that‑‑
(a) Appeal may be accepted;
(b) In view of the peculiar situation it may be declared that the appellant has been in Government service continuously since 15‑9‑1967, and that he has been Professor of Opthalmology since 24‑4‑1975;
(c) The impugned orders, dated 14‑5‑1975 and 19‑5‑1975 may be set aside;
(d) The respondents Nos. 1 and 2 may be directed to fix the seniority of the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor, vide notification, dated 24‑4‑1975, under the Rules and Law.
3. It may be mentioned at the very outset that out of contesting respondents Nos. 3 to 58 as per list attached with the appeal, only Mr. Sajjad Hussain, Advocate on behalf of contesting respondents Nos. 31 and 50, Mr. Maqsood Hussain, Advocate on behalf of respondent No. 14, Sh. Ghias Muhammad, Advocate through Mr. Riaz Anwar, Advocate on behalf of respondents Nos. 6, 41, 42 and 57, Dr. Khalid Ranjha, Advocate on behalf of respondents Nos. 29, 41 and 57, Ch. Fayyaz Ahmad, Advocate for respondent No. 44, Mr. Nayyar lqbal Ghauri, Advocate for respondent No. 23, appeared on behalf of their respective clients whereas respondent No. 7 appeared in person. Similarly ex parte proceedings were deemed to have been taken against all other contesting respondents who did not associate with the proceedings of this case.
4. Brief facts of the case are as under:‑‑
The appellant after obtaining various qualifications from the Punjab University as well as from abroad, was selected on the recommendations of the West Pakistan Public Service Commission and appointed as Assistant Professor of Opthalmology in King Edward Medical College, Lahore, by the Governor of West Pakistan w.e.f. 15‑9‑1967. Appellant was confirmed as such w.e.f. 26‑11‑1968 by order, dated 18‑5‑1971. On 17‑5‑1973, respondent No. 1 ordered that appellant be deputed to Fatima Jinnah Medical College, Lahore, for appointment as Professor of Opthalmology. It was also provided therein that terms and conditions to be offered to the appellant on deputation to the said Institute might be communicated after the approval of the Executive Body of the said Institute. Later on in October, 1973, vide letter Annexure D, such terms and conditions were issued. According to conditions (i) and (iii) the appellant's posting at Fatima Jinnah Medical College, Lahore, was treated to be 'on deputation' as if Fatima Jinnah Medical College, Lahore, was a non‑Government Institution. By operation of M.L.R. 118 the said Institution stood transferred w.e.f. 1‑9‑1972, in the name of the Government and thus consequent upon the said notification, this became a fulfledged Government Institution. At the end of 1974, there was a move for the appellant's repatriation to his parent Department on the ground that he was working in a non‑Government Institution. This move was strongly resisted by the Principal, Fatima Jinnah Medical College, Lahore, vide letter, dated 5‑12‑1974, and it was recommended that on his promotion the appellant might be allowed to stay in the said College. The appellant was recommended on the basis of his seniority as Assistant Professor to be promoted as Professor and his case was placed before the Provincial Selection Board of the SGA & I Department, which duly approved the appellant for promotion as Professor. These recommendations were also accepted by the Governor and by notification, dated 24‑4‑1975, the appellant was promoted as Professor of Ophthalmology in N.P.S.‑19 in the regular cadre of the Health Department. In part II of that notification on his promotion as Professor the appellant was posted at Quaid‑e‑Azam Medical College, Bahawalpur, against an existing vacancy where the appellant took over on 29‑4‑1975. Later on the Governing Body of the Fatima Jinnah Medical College decided to fill the post of Professor of Ophthalmology by direct recruitment according to the rules of that Institution. The appellant was selected for appointment as Professor by the Governing Body as well. The appellant submitted an application, dated 29‑4‑1975 to the Government that in case he was selected for the post of Professor at Fatima Jinnah Medical College, then he may be relieved from Government service. He was duly selected but a condition was placed by the said Governing Body that he has to resign from Government service in order to join the said Institution. Consequently the appellant submitted resignation, vide his letter, dated 19‑5‑1975, in the following terms:‑‑
"I have been offered a permanent post as Professor of Ophthalmology at Fatima Jinnah Medical College, Lahore. I, therefore, tender my resignation from the Government service."
It was accepted by letter, dated 19‑5‑1975. After joining the said Institutions the appellant submitted a representation, dated 7‑7‑1975, addressed to the Minister for Health, Annexure L, in which he submitted that his resignation may be reconsidered and he may be kept at Fatima Jinnah Medical College for a further period of 5 years and also recounted his service which he rendered in the said Institution earlier. The appellant was told, vide letter, dated 3‑5‑1976, vide Annexure M, that his representation addressed to the Minister for Health, stood rejected. The appellant submitted another representation Annexure '0', dated 29‑4‑1978, which was on the same lines and was also rejected, vide letter, dated 24‑2‑1979, Annexure 'P'.
5. The question of determination of the correct legal status of the Fatima Jinnah Medical College, and Sir Ganga Ram Hospital became the subject matter of judicial scrutiny in a writ petition filed by Dr. M.H. Randhawa, Associate Professor of Fatima Jinnah Medical College, Lahore.
The single Bench of Lahore High Court held that it was not a Government owned Institution and it did not stand taken over under the provisions of M.L.R. 118. The decision of learned Single Bench was challenged in I.C.A. and learned Division Bench comprising Mr. Justice Saad Saood Jan and Mr. Justice Ubaidullah Khan, vide their judgment, dated 15‑8‑1983, reversed the judgment of the learned Judge in the Chamber and clarified that this institution stood taken over by the Government w.e.f. 1‑9‑1972, under para. 4 of M.L.R. 118. Immediately after the said judgment was so delivered the appellant became aware of his status, so he filed an application to the Governor of Punjab to reconsider his case in view of the said judgment and also filed this appeal before us.
6. It will be useful to mention the status of contesting respondents at this stage. Dr. Syed Wasif Mohyuddin, Dr. Abdul Jalil Daula and Dr. Riaz Muhammad Mahju, Dr. Muhammad Khalil Rana and Dr. Muhammad Yasin Durrani, respondents Nos. 29, 41, 42, 57 and 58, respectively, joined the Department as Assistant Professors much later than the appellant. They were promoted as Professors of Ophthalmology on 29‑4‑198fl‑ 29‑4‑1980, 29‑4‑1980, 1981 and 1983, respectively. With regard to Muhammad Munirul Haq, it may be observed that he belongs to the same batch and according to the merit assigned by the Public Service Commission, the appellant was placed senior to Dr. Muhammad Munirul Haq in the cadre of Assistant Professors. Thereafter the appellant was promoted as Professor of Ophthalmology w.e.f. 24‑4‑1975, whereas, the respondent Dr. Munirul Haq was promoted as Professor of Ophthalmology on 9‑1‑1976. With regard to other respondents who were working in other Institutions it may be submitted that they were promoted much later than the appellant.
7. We have heard the learned counsel for the appellant as well as learned counsel for the contesting respondents as well as learned District Attorney assisted by the representative of the Department on behalf of Government, and have perused the entire record of this case carefully with their assistance.
8. Learned Counsel for the appellant have submitted that when the appellant was firstly sent on deputation to Fatima Jinnah Medical College, Lahore, and later on resigned from service to fulfil the condition for his employment in the said Institution as a fulfledged Professor of Ophthalmology, the legal status of Fatima Jinnah Medical College was not clear to Government whereas by operation of M.L.R. 118, the said Institution had already been taken over by the Government w.e.f 1‑9‑1972. It has been forcefully argued that the Government in the Health Department was quite oblivious of M.L.R. 118 as the legal effect of the said M . L. R . 118 would be that service of the Fatima Jinnal Medical College, Lahore, was also a Government service. In this manner even the period of deputation of the appellant earlier than hi appointment as Professor of Ophthalmology in 1975, would be a period in Government service. It has been further argued that had the Health Department been clear about the correct position then the appellant would have been allowed to continue as such in Fatima Jinnah Medical College, Lahore, and there was no question of his repatriation back to the parent Department. Similarly in these circumstances there would have been no question of recruitment of the appellant as a direct recruit to the post of Professor of Ophthalmology in said Institution and in these circumstances, his resignation, which he was forced to tender, would be under a mistaken belief that the said Institution was a non‑Government Institution and if the state of the said Institution would have been clear to him, he would have hardly resigned from the said job. He has also referred to the background of this case and has submitted that actually all this was done through a strong political lobby in order to dislocate appellant and to disturb his seniority to favour the next junior namely Dr. Muhammad Munirul Haq. To elaborate this argument, he submitted that these facts are supported by the event that the post of Professor at Quaid‑e‑Azam Medical College, Bahawalpur, remained vacant till an additional post was created at King Edward Medical College, Lahore, and Dr. Muhammad Munirul Haq, junior to the appellant was accommodated thereby promoting him as Professor of Ophthalmology in King Edward Medical College, Lahore. Learned Counsel for the appellant has very much relied on the judgment of Division Bench of Lahore High Court as well as Memorandum of Appeal filed by Government before the said Court during the hearing. It was the judgment of Mr. Justice Gul Muhammad Khan. It has been submitted by the learned counsel for the appellant that whereas the Government had taken a stand before this Tribunal that in fact the Government took over the Institution since 1980 but it has been categorically stated before the ICA Bench that this Institution was taken over by the Government by virtue of M.L.R. 118, para. 4 since1972. He has further relied on the judgment of this Tribunal passed in the case of Dr. Khalida Usmani, in which this Tribunal, following the judgment of Division Bench of Lahore High Court, has held that Fatima Jinnah Medical College stood vested in Government since 1972 by virtue of M.L.R. 118, which was a supra law. In support of his contention that all acts done since 1972, after the Fatima Jinnah Medical College stood vested in Government, legal effect and, therefore, the appellant would be considered to be Government service as Professor of Ophthalmology since 1975 under all circumstances, he has relied on P L D 1947 Privy Council 344 at page 358, P L D 1979 Kar. 300 at page 306 (Paras. 14 & 15), 1982 S C M R 33. According to him the gist of these rulings are that when all are under a mistake, there was neither stopple nor waiver, nor acquiescence. Learned Counsel for the appellant have also relied on P L D 1963 S C 382 at page 400, PLC 1994 S C 572 to show that no one should be prejudiced due to the mistakes of the Government. All technicalities have to be avoided. He has: further relied on 1984 SCMR 289 and 1983 S C M R 765 to show that an option given by a civil servant against the law which was then prevalent cannot operate against him. According to him if status of a Government servant is restored by operation of law then the mere fact that the appellant had not done anything for the restoration of his status will not go against him. Similarly he has relied on 1984 S C M R 286, 1984 P L C (C S) 452 of Federal Service Tribunal, Case No. 309/728 of 1984 decided by Punjab Service Tribunal. on 21‑11‑1984 in case of Muhammad Bashir Sh. v. Secretary, C & W Department and Case No. 449/992 of 1984, decided by P.S.T. in re. Hamid Ali Baig Mirza v. Secretary S.G.A. & I Department Punjab, Government, to indicate that decision of a Court is applicable to all civil servants including those who were not party to such a decision although their case might have been decided long ago. It is the Government's own duty to apply the revised judgment of the Court to identical similar cases if such a Government servant makes a representation. In these cases the civil servants concerned made representations to the Departments concerned after a long period of the decision of the Courts and ultimately filed appeals to the Service Tribunals which were accepted on the basis of new judgments of the Courts.
9. With regard to the point of limitation it has been submitted that the judgment of the High Court, Lahore pronouncing the correct status of Fatima Jinnah Medical College was reported in January, 1984 and it came to his knowledge in July, 1984, when he made representation. After waiting for 90 days he filed the present appeal within next 30 days. However, in the above quoted decided cases the successful appellants before the Service Tribunals had represented many years after the decision of the Service Tribunal concerned and then filed appeals in Service Tribunal on expiry of 90 days which were accepted. He has relied on 1985 S C M R 946, in which 12 years delay was ignored by the Punjab Service Tribunal and it was approved by Supreme Court of Pakistan on the ground that the pleas raised by the Government were "technical and procedural". He has also relied on 1984 C L C 119, wherein correct legal status of Fatima Jinnah Medical College was determined as Government Institution.
10. On the other hand elaborate written statement on behalf of Dr. Muhammad Munirul Haq, respondent No. 6, has been filed, in which a number of preliminary objections have been taken as well as merits of the case have also been elaborated in favour of respondents Dr. Munirul Haq and others. Learned Counsel for the respondent after adopting the said written statement on behalf of respondent No. 6 have relied on various written statements filed by the other respondents and have submitted that the appeal was liable to be dismissed on the following legal as well as factual grounds:‑‑
(1) That the appellant filed a representation before the Martial Law Administrator, Zone 'A' which was rejected by him, vide letter, dated 24‑2‑1979, with the observations:‑‑
"resignation once tendered and accepted cannot be withdrawn. It is, therefore, regretted that your request contained in the above petition cannot be accepted to."
In view of the above, it has been submitted that this Court has no jurisdiction to set aside the order of Martial Law Administrator ns it constituted a bar under Article 15(2) of Provisional Constitutional Order, 1981.
(2) That the appeal is directed against the notification No. S.O. (Admn. I)‑1/79‑73, dated 19‑5‑1975 by which the resignation of the appellant was accepted by the Governor of Punjab, therefore, the appeal having been filed after about 91 years on 12‑11‑1984, was hopelessly time‑barred and liable to be dismissed on this score alone.
(3) Assuming, without conceding, that plea with regard to judgment of the High Court as ground of condonation is valid, the appeal was filed beyond the prescribed period of 30 days even after the delivery of the said judgment on 15‑8‑1983 and its publication in January, 1984 part of C L C. According to the learned Counsel the appeal was filed, on 12‑11‑1984 is still hopelessly barred by time. Reliance has been placed on Supreme Court judgment in case of Hamad Raza v. Government of Pakistan (C.P.S.L.A. No. 1350 of 1980). It has been further submitted that even the decision of Division Bench of Lahore High Court in the case of Dr. Khalida Usmani who was serving in Fatima Jinnah Medical College was well known to all the staff members including the appellant, therefore, the delay cannot be condoned.
(4) That even the necessary answering respondents were not impleaded in the appeal so filed before this Tribunal and were impleaded after the appellant was directed to do so, therefore, the period of limitation would run against the appellant vis‑a‑vis the respondents.
(5) The appeal of the appellant was hit by law of estoppel as by his conduct in questioning the non‑Governmental status of Fatima Jinnah Medical College in view of the fact that he had himself been treating the same as private Institution which is obvious from his own conduct by accepting the service on deputation in the said Institution and later on resigned from Government service, when he was asked by the Governing Body of Fatima Jinnah Medical College to do so.
(6) Fatima Jinnah Medical College was functioning under the Governing Body registered under the law. Its corporate character remained intact despite promulgation of M.L.R. 118 notwithstanding the vesting of college in Government under M.L.R. 118. According to the well settled interpretation of the expression "Vest", its connotation is not fixed and it depends upon the context in which it is used. Having regard to the context, vesting cannot operate to convert Fatima Jinnah Medical College into a Government Institution for all purposes as divorced, from its corporate character, since in the context the word vest is readily understandable as referring to overall supervision of Government without disturbing its separate identity and corporate character. In this view of the matter, the staff working in Fatima Jinnah Medical College has a separate identity/cadre itself and is not part of the general cadre of Government Medical College, thus the appellant can only claim seniority within the cadre of Professors of Fatima Jinnah Medical College and not otherwise.
11. Learned Counsel for the respondents has vehemently argued that once a resignation has been tendered and accepted it becomes a transaction past and closed and in no circumstances the subject matter of such resignation can become subjudice before any Court of law. For this he has relied on 1983 P L C (C S) 31 ‑ Pervaiz Akhtar v. Inspector‑General of Police, 1982 C L C 1693 and 1984 P L C (C S) 643 ‑ Muhammad Naseeb v. Inspector‑General of Police and 1983 P L C (C S) 214 Fazal Karim v. Government of Punjab, 1980 S C M R 148 and A I R 1924 Mad. 396. It has been further argued that one has to choice and cannot pick and chose according and fancy. According to the learned counsel for the respondents the appellant was fully aware of what he was doing and he chose resign from Government service in order to join a more lucrative job at Fatima Jinnah Medical College as he wanted to stay in Lahore. For this he has relied on 1984 C L C 1286 Division Bench Ruling of Lahore High Court, 1984 C L C 1523 and P L D 1975 Lah. 524.
12. Learned Counsel for the respondents has relied on P L D 1969 S C 322 to show that the decided cases cannot be reopened on the basis of judgment of superior Courts and such transaction became past and closed. It has been further submitted that new exposition of law by the superior Courts, if appealed against had become time‑barred. For this he has relied on A I R 1942 Oudh. 447, 1981 P L C 618 at 621 and 1981 P L C 662. Similarly, the case of Hamad Raza decided, by the Supreme Court of Pakistan in CPSLA No. 1350/80. At this juncture it has been submitted that the appellant failed to straightway come_ before this Tribunal when he was aware of the judgment of the Division‑ Bench of the Lahore High Court by which the status of the Fatima Jinnah Medical College Lahore, was determined, but he instead filed a representation to the Governor, on 15‑7‑1984 and then waiting for 90 days for filing appeal before this Tribunal was not tenable in law. For this he has relied on 1985 P L C 852, 1984 P L C 962 and 1984 P L C 52.
13: With regard to the argument of the learned counsel for the appellant that no limitation runs against a void order it was submitted that the acceptance of resignation was not void as the Government had the authority to accept the same because the order is only void when the authority passing the same had no jurisdiction to pass it or passed in access of his jurisdiction. For this he has relied on P L D 1975 S C 331, P L D 1977 S C 599, 1978 S C M R 367 and P L D 1975 Lah. 825. It has been vehemently argued that the order passed by the authority under the rules cannot be declared void and for this he has relied on 1983 P L C 905.
14. Dr. Khalid Ranjha, learned counsel for the respondents has also raised the plea of estoppel and has submitted that the appellant was estopped by his own conduct and where circumstances show that he did it consciously then, no right of appeal was available. For this he has relied on A I R 1954 Mad. 19, N L R 1982 Lah. 147, 1982 C L C 711, P 1, D 1982 La‑h. 384, P L D 1982 Lah. 831. Learned Counsel has further submitted that a person who has left the Government service was not an aggrieved party as by his own request he stood relieved from Government service, therefore, he was not eligible to file appeal before this Tribunal. For this he has relied on P L D 1967 Lah. 938, as well as P L D 1965 Dacca 231. While concluding his arguments learned counsel for the respondents have drawn the distinction between the present case and case of Moharram Ali reported as 1984 S C M R 289 and have submitted that the same is distinguishable and cannot be followed in the present case.
15. We have given our anxious thought to the arguments advanced by the parties and have perused the record of this case carefully. with the assistance of the parties. The crux of the arguments and counter arguments of the parties can be summed up as under:‑‑
(i) Whether the appellant after resigning his post in 1975, will retain the status of a civil servant i.e. Professor of Ophthalmology due to the fact that by judgment of Division Bench of Lahore High Court, it has been declared in 1984, that Fatima Jinnah Medical College was taken over lock, stock and barrel by the Government under M.L.R. 118 supra law and to all intents and purposes, and it is to be treated as Government Institution from 1‑10‑1972.
(ii) The second question would be as to whether the appellant stood estopped by his conduct to ask for his revival of status which he lost in 1975, as he failed to agitate the same before any Court of law. Similarly would he be entitled to take benefit of the judgment which came into existence at the behest of some other party in which the status of Fatima Jinnah Medical College was so determined.
(iii) Whether the mistaken belief of the appellant about the status of Fatima Jinnah Medical College will absolve him from the act of resignation, which he so tendered under the said belief.
(iv) Fourthly, whether the present appeal of the appellant is hit by law of limitation and inordinate delay of 91 years is condonable.
(v) Lastly, does an appeal lie against the order of M.L.A. by which his representation was so rejected.
16. We will first of all deal with last issue, so framed by us, as this issue figured on the top of the written statement filed by Messrs Sfi. Ghias Muhammad and Riaz Anwar, Advocates on behalf of Dr. Muhammad Munirul Haq, respondent. It has been contended that the appellant was barred under Article 15 of the Provisional Constitutional Order, 1981, as his representation stood rejected Administrator. We have examined this preliminary objection and find the same impressive. The fact of the matter is that under the Provisional Constitutional Order, 1981; operated only against those orders, which were Governor/M.L.A, under the provisions of Martial Law Regulations (M.L.R.) or Martial Law Order (M . L . 0.) . In this case no Martial Law Order was attracted, because' the resignation was not dealt with either by the Martial Law Order or Martial Law Regulation. The order which was passed in the case of the appellant was passed under the Service Rules. The mere fact that while communicating the order, it was conveyed that the same has been rejected by Governor/M.L.A., would not mean that said order has been passed by Martial Law Administrator under Martial Law Regulation or Martial Law Order. In this manner, we have no hesitation to repel this preliminary objection as being without any force.
After disposing of the said preliminary objection we will now look into the judgment of Division Bench of the Lahore High Court, as well as our own judgment in case of Professor Dr. Khalida Usmani of F.J.M.C., which will be the bed rock of appellant's case to settle as to what was the status of Fatima Jinnah Medical College, Lahore, at the time when the Governing Body of the said Institution called upon this he has relied on 1983 P L C (C S) 31 ‑ Pervaiz Akhtar v. Inspector‑General of Police, 1982 C L C 1693 and 1984 P L C (C S) 643 ‑ Muhammad Naseeb v. Inspector‑General of Police and 1983 P L C (4; S) 214 ‑ Fazal Karim v. Government of Punjab, 1980 S C M R 148 and A I R 1924 Mad. 396. It has been further argued that one has to accept the result of his own choice and cannot pick and chose according to his own whim and fancy. According to the learned counsel for the respondents, the appellant was fully aware of what he was doing and he chose to resign from Government service in order to join a more lucrative job at Fatima Jinnah Medical College as he wanted to stay in Lahore. For this he has relied on 1984 C L C 1286 Division Bench Ruling of Lahore High Court, 1984 C L C 1523 and P L D 1975 Lah. 524.
12. Learned Counsel for the respondents has relied on P L D 1969 S C 322 to show that the decided cases cannot be reopened on the basis of judgment of superior Courts and such transaction became past and closed. It has been further submitted that new exposition of law by the superior Courts, if appealed against had become time‑barred. For this he has relied on A I R 1942 Oudh. 447, 1981 P L C 618 at 621 and 1981 P L C 662, Similarly, the case of Hamad Raza decided by the Supreme Court of Pakistan in CPSLA No. 1350/80. At this juncture it has been submitted that the appellant failed to straightway come before this Tribunal when he was aware of the judgment of the Division Bench of the Lahore High Court by which the status of the Fatima Jinnah Medical College Lahore, was determined, but he instead filed a representation to the Governor, on 15‑7‑1984 and then waiting for 90 days for filing appeal before this Tribunal was not tenable in law. For this he has relied on 1985 P L C 852, 1984 P L C 962 and 1984 P L C 52.
13: With regard to the argument of the learned counsel for the appellant that no limitation runs against a void order it was submitted that the acceptance of resignation was not void as the Government had the authority to accept the same because the order is only void when the authority passing the same had no jurisdiction to pass it or passed in access of his jurisdiction. For this he has relied on P L D 1975 S C 331, P L D 1977 S C 599, 1978 S C M R 367 and P L D 1975 Lah. 825. It has been vehemently argued that the order passed by the authority under the rules cannot be declared void and for this he has relied on 1983 P L C 905.
14. Dr. Khalid Ranjha, learned counsel for the respondents has alsc raised the plea of estoppel and has submitted that the appellant was estopped by his own conduct and where circumstances show that he did it consciously then, no right of appeal was available. For this he has relied on A I R 1954 Mad. 19, N L R 1982 Lah. 147, 1982 C L C 711, P L D 1982 La‑h. 384, P L D 1982 Lah. 831. Learned Counsel has further submitted that a person who has left the Government service was not an aggrieved party as by his own request he stood relieved from Government service, therefore, he was not eligible to file appeal before this Tribunal. For this he has relied on P L D 1967 Lah. 938, as well as P L D 1965 Dacca 231. While concluding his arguments learned counsel for the respondents have drawn the distinction between the present case and case of Moharram All reported as 1984 S C M R 289 and have submitted that the same is distinguishable and cannot be followed in the present case.
15. We have given our anxious thought to the arguments advanced by the parties and have perused the record of this case carefully _ with the assistance of the parties. The crux of the arguments and counter arguments of the parties can be summed up as under:‑‑
(i) Whether the appellant after resigning his post in 1975, will retain the status of a civil servant i.e. Professor of Ophthalmology due to the fact that by judgment of Division Bench of Lahore High Court, it has been declared in 1984, that Fatima Jinnah Medical College was taken over lock, stock and barrell by the Government under M.L.R. 118 supra law and to all intents and purposes, and it is to be treated as Government Institution from 1‑10‑1972.
(ii) The second question would be as to whether the appellant stood estopped by his conduct to ask for his revival of status which he lost in 1975, as he failed to agitate the same before any Court of law. Similarly would he be entitled to take benefit of the judgment which came into existence at the behest of some other party in which the status of Fatima Jinnah Medical College was so determined.
(iii) Whether the mistaken belief of the appellant about the status of Fatima Jinnah Medical College will absolve him from the act of resignation, which he so tendered under the said belief.
(iv) Fourthly, whether the present appeal of the appellant is hit by law of limitation and inordinate delay of 91 years is condonable.
(v) Lastly, does an appeal lie against the order of M.L.A. by which his representation was so rejected.
16. We will first of all deal with last issue, so framed by us, as this issue figured on the top of the written statement filed by Messrs Sh. Ghias Muhammad and Riaz Anwar, Advocates on behalf of Dr. Muhammad Munirul Haq, respondent. It has been contended that the appellant was barred under Article 15 of the Provisional Constitutional Order, 1981, as his representation stood rejected by Martial Law Administrator. We have examined this preliminary objection and do not find the same impressive. The fact of the matter is that bar created under the Provisional Constitutional Order, 1981; operated only against those orders, which were passed by Governor/M.L.A. under the provisions of Martial Law Regulations (M. L. R ) or Martial Law Order A (M.L.O.). In this case no Martial Law Order was attracted, because the resignation was not dealt with either by the Martial Law Order or Martial Law Regulation. The order which was passed in the case of the appellant was passed under the Service Rules. The mere fact that while communicating the order, it was conveyed that the same has been rejected by Governor/M.L.A., would not mean that said order has been passed by Martial Law Administrator under Martial Law Regulation or Martial Law Order. In this manner, we have no hesitation to repel this preliminary objection as being without any force.
After disposing of the said preliminary objection we will now look into the judgment of Division Bench of the Lahore High Court, as well as our own judgment in case of Professor Dr. Khalida Usmani of F.J.M.C., which will be the bed rock of appellant's case to settle as to what was the status of Fatima Jinnah Medical College, Lahore, at the time when the Governing Body of the said Institution called upon the appellant to join as Professor of Ophthalmology. What we find is that Dr. M.H. Randhawa made a grievance against the recommendation of Vigilance Commission which had treated Fatima Jinnah Medical College as a Government Institution and had made recommendation in favour of Dr. Khalida Usmani, to count her service rendered during the of 1971‑72 towards her experience, which was ultimately counted her seniority. Learned Judge accepted the plea of Dr. Randhawa held that the Governor had no jurisdiction to take into consideration the recommendation of the Vigilance Commission as the said Fatima Jinnah Medical College was not a privately owned Institution in the year 1972 and thus the impact of para. 4 of M.L.R. 118 was not attracted to the same. Aggrieved against this judgment in Chamber, the Government as well as Dr. Khalida Usmani filed appeal before Division Bench of the said Court in I.C.A. and Their Lordships of the said Division Bench consisting of my Lords Mr. Justice Saad Saood Jan and Mr. Justice Ubaidullah Khan, came to the conclusion that the order of the Single Bench was liable to be set aside and held that the said Institution was a privately managed body and stood taken over by the Government after the promulgation of M.L.R 118 from 1‑9‑1972. The relevant portion is as under:‑‑--
"Though in consideration for providing the sinews of war the Government could legitimately look to the Society to meet its demands in respect of admissions of certain categories of students as also to give weight to its views and directions for spending the financial grants in proper manner and to have its officers and nominees on the Governing Body yet legally the actual management was in the hands of the Society through its executive committee and governing body because all orders were passed and signed by the executive committee, governing body of the persons authorised by them; the Government itself did not pass orders. The Society all along preserved its entity and in the eye of law it alone could be said to manage and run the college. The Society being not Government or Municipal Committee, Cantonment Board or other local authority, the College would be taken to be 'privately managed college' within the purview of the Regulation according to whose provisions it would be deemed to have automatically vested in the Government on the 1st day of September, 1972. It may be mentioned that no separate notification by the Government for vesting the College in the Government was necessary to be issued. Notification No. S.O. (P&P)‑12/5‑79, dated 1st July, 1980, issued by the Government of the Punjab on the 1st July, 1980, simply refers to the vesting of the College in the Government from the 1st September, 1972, under para. 4 of the Regulation. No inference can be drawn from the notification that the college did not vest in the Government on the 1st day of September, 1972. Having so vested it would conform to the description of 'Agency' as defined in section 2(ii) of the Punjab Administrative Vigilance Commission Ordinance, 1979, and consequently the Commission and the Governor had the jurisdiction to take the impugned action and the orders passed pursuant thereto by the Governing Body would be lawful and immune from the scrutiny of this Court in writ jurisdiction. On this view of the matter both the appeals are accepted and the decision of the learned Single Judge is reversed resulting in the dismissal of respondent No. 1's writ petition."
Similarly this matter came before this Tribunal when Dr. Khalida Usmani filed an appeal before it for her seniority from the date of her appointment viz. 23‑8‑1971, and this Tribunal in following the judgment of Lahore High Court, held that her service from 1‑9‑1972 onward would be taken as service in the Government Institution, as the said Institution stood vested in Government since the said date.
17. We will now advert to the stand of the Government vis- -vis the status of Fatima Jinnah Medical College which has been challenged by the learned counsel for the appellant as self contradictory .The Government Respondent has taken a stand before us that Fatima Jinnah Medical Government institution by operation of law under M.L.R.118 in 1972.In ground 5 of the I.C.A., it was stated as under:------
"That the view of the learned Single Judge respecting the plea that the Provincial Government for the first time itself took over the administration by issuance of a notification, dated 1‑7‑1980, is untenable. It is respectfully submitted that this notification was only issued to clear any doubt in the minds of people and even if these are admitted for the sake of arguments even then the inaction on the part of the Government would not change the meaning of law. There is no estoppel against law and the law would have its course irrespective of the consequence, which would follow. This being the position, the Fatima Jinnah Medical College stood vested in the Provincial Government Automatically by virtrie gf M.L.R. 118 in 1972."
On the other hand what we find is that before this Tribunal, during the pendency of this appeal, the Government has taken a summer sault and has once again reiterated the view of the Single Judge, which they themselves vehemently challenged before the Division Bench of the Lahore High Court in I.C.A. so quoted above. This being the situation we have no hesitation to hold that Fatima Jinnah Medical College E by virtue of M.L.R. 118 stood vested in Government w.e.f. 1‑9‑1972 and notification of 1‑7‑1980, was only issued to clear any doubt in the mind of people and it has no effect other than the said purpose.
18. After settling this issue by holding that Fatima Jinnah Medical College stood vested in government since 1‑9‑1972 and was to all intents and purposes a Government Institution, the question would be whether the appellant, who resigned his post in 1975 will still retain the status of civil servant, despite his resignation, which was accepted and according to the respondents became past and closed transaction. It will be useful to mention at this stage that it is no body's care that Dr. Muhammad Latif Chaudhry is not senior to all the respondents. It is admitted on record that he is one step senior to Dr. Muhammad Munirul Haq as Assistant Professor according to the recommendation of the Public Service Commission and the merit assigned by the said forum, whereas he is far senior to other respondents as Assistant Professor because when he became Assistant Professor, they were not born in the service cadre. It .is also established that he was appointed as Professor on 29‑4‑1975 and Dr. Muhammad Munirul Haq was promoted as such on 9‑1‑1976. The rest of the respondents were promoted much later. It was only when a post fell vacant in the Department of Ophthalmology in Fatima Jinnah Medical College in the year 1975, that the appellant applied for the same under the misconception that the said Institution was privately managed Institution and also when so selected by it, he resigned from Government post when he was asked to do so by the said Governing Body of the Institution. His resignation was accepted, vide letter, dated 19‑5‑1975. The case of the appellant before us is that if he would have known that Fatima Jinnah Medical College was Government Institution, he would have hardly resigned from the Government post as that would have been an exercise in redundancy. It has been further pleaded on his behalf that at that particular juncture the Government as well as Governing Body including the appellant were under misconception of law as well as facts about the correct status of Fatima Jinnah Medical College, therefore, his resignation and its acceptance stood vitiated by operation of law. It has been vehemently argued before us that all the hurdles so being advanced in the way of the appellant's basic right will have no force of law and would not vitiate his genuine claim as settled from time to time by the Superior Courts of this country.
19. To examine this crucial issue, we have perused with respect PLD 1963 S C 382 in re: Imtiaz Ahmad v. Ghulam Ali which has been relied upon by the learned counsel for the appellant and reproduce relevant portion as under:‑‑
"I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them, I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the for‑ and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
I am unable to place the mistakes committed by the Administration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well known saying that the act of Court will not prejudice. anybody. I do not see why the principle of this maxim does not apply to the .whole machinery of the Administration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped. If the mistake of the Election authorities is like a misfortune why are elections set aside on the ground of irregularities committed by the officers who conduct the elections Why does not the law regard these irregularities like events which have happened and cannot be helped It cannot be the intention of the law that rights of persons should be affected by the mistake committed by public officers."
In view of this clear dictum of his Lordship Mr. Justice B.Z. Kaikaus as he then was, we now refer to P L D 1947 P C 344. Their Lordships of the Privy Council on coming across a matter, which arose due to mistaken belief of the real legal position of the estate observed as under:‑‑
"it, therefore, appears that the distinction which exists between the two positions as a matter of law was not fully appreciated by the defendant or his predecessor. This is further indicated by the different answers which the defendant gave in the Subordinate Judge's Court when subjected to cross‑examination at the hands of the plaintiff's advocate. In the learned Subordinate Judge's judgment are detailed these answers, and their Lordships agree with his conclusion, based on the explanation given of his conduct by the defendant in his deposition, that he continued the management on the same lines as the Court of Wards and had no idea of the real legal position of the estate when he entered on the management. But apart from it, the conduct of the defendant is legally material only if it could lead to an estoppel, acquiescence or waiver. But, as the learned Subordinate Judge points out, no such questions could arise on the evidence in the case. Clear issues were raised on these points, they were all decided against the plaintiffs; the High Court, in the view it took, did not go into these matters; and there has been no argument addressed to their Lordships on these questions.
As the learned Subordinate Judge points out, admissions which have been made under a mistake as to the true legal character of the estate will not operate to create an estoppel or
acquiescence. No one was misled into doing any thing to his detriment as a result of, this mistaken view. There was no representation, no acting on it, no misleading, and no change of position on such representation. When all are under a mistake, there is neither estoppel nor waiver nor acquiescence."
Similarly, a matter came before their Lordships of the Supreme Court of Pakistan reported in P L D 1964 S C 572, when it was found that the appellant in that case was trying to undo the transaction of the sales and to get back the property in an attempt to take advantage of his own fraud. Their Lordships observed as under:‑‑
"This conduct on their part would contravene the well‑known principle embodied in the Legal Maxim "Nullus Commodum capere potest de injuria sua propria (Co. Litt. 148(b) (No man shall take advantage of his own wrong)."
This principle was further enunciated by Their Lordships of the Karachi High Court in P L D 1979 Kar. 300 and by Their Lordships of the Supreme Court of Pakistan in their verdict reported as 1982 S C M R 33, that there would be no acquiescence or waiver by conduct in case when there was a misconception of law.
20. All these rulings so cited above although do not pertain to any service matter, yet the terms of law so settled by Their Lordships clearly indicate as under:‑‑ ,
(1) When every body is under mistake of law, then there is neither estoppel nor waiver nor acquiescence.
(2) No man shall take advantage of his own wrong.
(3) The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights.
(4) That mistake of administration cannot be allowed to destroy the basic rights.
We have also taken pains to look into the law where the service matter was involved. In 1985 S C M R 1394 at page 1396, the appellant Syed Sultan Shah was denied the right of pay on the basis that Fundamental Rule 17 did not permit the right of pay to persons who did not perform the duty of the post. Their Lordships held that the said rule was a general law, which must prevail in all the cases, but it was not applicable in that case because of the fact that it was due to Government's own wrongful act that he was denied the right of promotion and the consequential right of pay. Relevant portion is given below:‑‑
"Undoubtedly this is a general law which must prevail in most of the ordinary cases. However, it cannot be invoked or pressed into service for justifying or partly justifying a wrongful act. Courts will not permit the denial of the benefit if it is found or is traceable to the wrongful act of the party itself."
In another service case cited as 1984 S C M R 289 Moharram Ali was an employee of the Education Department in the year 1962, when the Lawrence College, Ghora Gali, where he was serving, by an Ordinance placed under the administrative control of Board of Governors. A safeguard was provided to the existing Government servants that in disciplinary matters they will not be dealt with by the Board of Governors. However, by a subsequent notification of 15‑9‑1962, the then Government of West Pakistan abolished the Government cadre and all the employees were required to execute agreement with the Board of Governors that they would not claim any compensation for loss of service under the Government. Similar agreement was executed by Moharram Ali. However, on reconsideration in 1965, Government deleted the above notification of 15‑9‑1962. Moharram Ali did not move any application to Government or Board of Governors for restoration of his status but he continued serving under the Board of Governors. In pursuance of the aforesaid agreement with the Board of Governors, he drew his pension and gratuity in respect of service rendered by him under the government. At a later stage he was removed from service by the Board of Governors. which order was challenged by him before this Tribunal. This Tribunal held that as said Moharram Ali had accepted the earlier notification, dated 15‑9‑1962, and drew his pension and other benefits, therefore, subsequent notification of May, 1965, restoring the status of Government servant, would not be applicable to his case and his case should be a case of past and closed transaction. He challenged the decision of the Tribunal in appeal before the Supreme Court of Pakistan and it was held by their Lordships of the Supreme Court of Pakistan that the effect of notification, dated 7‑5‑1965, was that the cadre was restored and all service rights of the employees including the status as Government servant was also restored. It was particularly held that Their Lordships were unable to agree with the view taken by the Tribunal that since the appellant Moharram Ali did not move for restoration of his service he ceased to be a government servant. It was further held that the act of Moharram Ali in drawing his pension and gratuity did not prejudice his status as Government servant. Consequently his appeal was accepted and his status as civil servant was also accepted by their Lordships of the Supreme Court of Pakistan despite lapse of more than 12 years.
21. Similarly in case of Ahmad Jan Khan, P L D 1983 S C 765, we find that the said Ahmad Jan Khan himself gave a written option to the Federal Government that on his appointment with the Federal Government he would not claim any deputation allowance. Subsequently, he was reverted by the Federal Government to the Punjab Government and on his reversion to Government of Punjab, he lodged a claim of deputation allowance on the plea that option giver. by him was in the context of the decision of Federal Government that he would be absorbed in the service of the Federal Government and for that reason he would not claim any deputation allowance. He contended that since the Federal Government subsequently changed the decision and refused to absorb him in the Federal Government and for that reason he should be deemed to be on deputation. His contention was accepted by this Tribunal as well as Their Lordships of the Supreme Court of Pakistan, It was held by their Lordships as under:‑‑
"The learned Judges of this Court who heard the petitioner appear to have been impressed by the soundness of the reasoning of the Tribunal and observed that the Central Government letter, dated 4‑2‑1964, which tempted the respondent to opt for that Government and not to claim Deputation Allowance, because he would be absorbed permanently there and that" if the temptation of permanent absorption had not been given then it is most probably that nobody would have opted for Central Government." The fact that option made by the staff was to be treated as 'final' also implied that' the question of their reversion to Provincial Government was not at all contemplated, In any case context in which decision to disallow deputation allowance had been made in 1973, was no longer relevant on the change of policy in 1973."
22.In case of Muhammad Latif reported as 1984 S C M R 286, we find from the facts of the case as elaborated in that judgment that Muhammad Latif was promoted as Clerk Grade‑1I in 1958 and his another colleague joined in 1964. The rule of seniority applied by P.W.R. was a notional date of appointment giving earlier date of entry in the Grade. Another colleague of Muhammad Latif filed appeal before the Service Tribunal which succeeded but Muhammad Latif was not a party to that litigation. He applied to the Department that on the basis of the judgment of the Federal Service Tribunal, his seniority should also be revised, but the Department refused to do so by objecting that his "seniority stood determined by an order of 1967 and respondent No. 1 could not re‑agitate the matter". After filing representation in the Department, he approached the Federal Service Tribunal, which held that their earlier judgment should be followed in determining the seniority of Muhammad Latif. Against that decision the Chairman, Pakistan Western Railway filed appeal and "contended that matter was past and closed having been determined in 1967 and the petitioner is now agitating against it. He could not be considered to be a person aggrieved by the determination of seniority in the manner in which it had taken place. He could not for the same reason, be given the benefit of litigation to which he was not a party." Their Lordships of the Supreme Court of Pakistan held as follows:‑‑
"The earlier decision with regard to the same establishment given by the competent tribunal was determinative of the rules to be applied The benefit of it could not be denied to respondent No. 1, on the sole ground that he was not a party to the litigation because it was declaratory of the rules of seniority applicable to the establishment. Respondent had sought from the Department correction of the seniority in accordance with the rules and the refusal of the petitioner afforded him a good ground for preferring appeal to the Tribunal, which he did successfully. We find no merit in the petition which is dismissed "
Similar view was taken in 1984 P L C (C S) 452 in case of Mushtac Hussain v. Ministry of Finance and also by us in appeal No.309/728 of 1984, decided on 21‑1.1‑1984 in case of Muhammad Bashir Sh. v. Secretary, Communication and Works Department, Punjab, and case No. 449/992 of 1984 in re: liamid Ali Beg Mirza v. Secretary, SGA & I Department, Punjab. In 1985 S C M R 946, Their Lordships of Supreme Court were pleased to ignore delay of 12 years and the judgment of this Tribunal was upheld by the Supreme Court of Pakistan on the ground that "pleas raised by the Government, were technical and procedural. "
23. The case of the respondents on the other hand is mainly based firstly on the point that the resignation once tendered and accepted, cannot be re‑opened again, and secondly that the change of law bye the Superior Courts of the country will not affect the transaction past and closed and only would be prospective in nature. We have no dispute with the first contention that the resignation once tendered and accepted cannot be re‑opened but only when the same is given under the normal conditions. But once it is established on record that the said resignation was tendered under a mistake in view of law by the employer as well as by employee, the same cannot be equated with the resignation in the ordinary‑ circumstances. In the present case, it is the Government itself, which had stated before the Division Bench of Lahore High Court that Fatima Jinnah Medical College had become for all intents and purposes, a Government Institution since 1‑9‑1972 and the latter notification of 1980, was nothing but to clear the doubt, therefore, the resignation tendered by the appellant in this case was due to the mistake of Government itself, which at that relevant time, despite the operation of law was persisting that Fatima Jinnah Medical College was a Private Institution, and the appellant if he had to join the said Institution, he would be under obligation to resign from Government C service, as if the service with Fatima Jinnah Medical College was not at Government service. The same mistake was being committed by the Governing Body of the Fatima Jinnah Medical College, Lahore, which also was under a mistaken belief. It was not necessary for them to further select the appellant, for the post of Professor, as if his selection for the same pest by the Provincial Selection Board and Governor, was not sufficient. The said Governing Body was victim of the mistake of Government and that is why they insisted that it was pre‑requisite for the appellant to join the said Institution after resigning from Government service, which he was holding at that relevant time. In view of ‑this peculiar circumstances of the case and the law laid down so cited above, we are of the considered opinion that the resignation of the appellant was not a resignation in normal circumstances and this would be no resignation in the eye of law, as he was for all intents and purposes, a civil servant on account of un‑controverted fact that on 1‑9‑1972 the said Fatima Jinnah Medical College had become a Government Institution by operation of law, by virtue of M.L.R. 118, which was a supra law.
24. With regard to the second contention of the learned Counsel for the respondents that the declaration by the Division Bench of the Lahore High Court when Dr. Khalida Usmani went in appeal against the judgment of Single Judge in Chamber, would not be operative retrospectively and if at all, it has any effect, it would be prospective in nature. Learned Counsel for the respondents have relied on P L D 1969 S C 322 and P L D 1971 S C 791 at page 811. We have perused these two judgments with respect and find that in P L D 1969 S C 322, the Income Tax Authorities had decided the case in accordance with the law but subsequently they issued a fresh show‑cause notice to the assessees concerned for revised assessment in view of the judgment of Supreme Court of Pakistan. This was not approved by their Lordships on the ground that with the earlier final decision of the case was a past and closed transaction. The decision in that case is distinguishable because the original orders passed by the Income‑tax Authorities were not held to be contrary to the law which was then in existence. In the instant case the main point is that neither the Governing Body of Fatima Jinnah Medical College nor the Health Department were conscious of the correct legal status of the Fatima Jinnah Medical College and they did not apply the provisions of M.L.R. 118 to this Institution though it was supra law. Similarly in P L D 1971 S C 791, at page 811, the main question in this case was as to the nature of Estates taken by a female in evacuee property on migration to Pakistan, as to whether it was a limited estate which will devolve upon her own heirs or heirs of the last male owner. In the concluding para it was held by their Lordships that the said judgment will not entitle the Settlement Authorities to re‑open the mutations against which n(‑b appeals have been filed and which have become final. The law laid down in this case rather supports appellant's case because he has throughout been agitating against the orders of Government and at no stage he accepted the decision of Government. This being the facts of the case, we have no hesitation to hold that this authority is not attracted to the present case of the appellant, where no law has been changed by the verdict of Division Bench of Lahore High Court in Khalida Usmani case as by virtue of the said judgment, it has been declared that Fatima Jinnah Medical College, had become a Government Institution since 1‑9‑1972 and the persons so serving in it, were to be treated civil servants of the Government and therefore, Dr. Khalida Usmani's service in the said Institution from the said date, would be counted towards Government service, as such we find no force in the contention of the learned counsel for the respondents that some new law has been settled by the case of Dr. Khalida Usmani particularly, when we find that it was Government itself, which has agitated the judgment of Justice Gul Muhammad Khan delivered in Chamber in the form of I.C.A. before the Division Bench of Lahore High Court and has itself averred that the Fatima Jinnah Medical College was a Government Institution for all intents and purposes from 1‑9‑1972, by virtue of M.L.R. 118. Much has been said by the learned counsel for the respondents about the conduct of the, appellant that he remained silent for all these years and did not agitate for restoration of his status till the decision in' case of Dr. Khnlida Usmeni and has relied for this on 1982 S C M R 95, 1981 PLC (CS) 6IH find 1981I' I. C (C S) 662 and other judgments of this Tribunal wherein this Tribunal did not condone the delay, when it found that persons were guilty of laches and remained silent for long period of time to agitate his claim. We are afraid we cannot apply the maxim of these rulings in the case of the appellant as stated in the earlier part of our judgment in detail that the appellant cannot be a wiser than the Government itself as the Government was under a mistaken view of law, and was treating Fatima Jinnah Medical College, as a private Institution at the time when the appellant tendered resignation, therefore, the silence on the part of the appellant, cannot be considered an act of waiver, acquiscence or estoppel. It was only when the Government itself agitated before the Division Bench of the Lahore High Court and got a verdict from the said forum that Fatima Jinnah Medical College was Government Institution since 1‑9‑1972, that the appellant became aware of the situation and his first reaction was toy approach the Governor at once i.e. 15‑7‑1984, and apprised him of the changed context and when he did receive no answer from the said authority he chose the recourse to approach this Tribunal. The act of the appellant is fully in accordance with the law laid down in the above quoted case reported as 1984 S C M R 286, the case of Muhammad Latif which we have discussed at length in the earlier part of our judgment, as well as in the other case of parallel nature so mentioned by us alongwith the case of Muhammad Latif. In the present case, the appellant Dr. Muhammad Latif Chaudhry is asking what was his since 1975, and nothing more. What we are restoring to him, is his status which he lost due to his resignation which he tendered under mistaken belief of law and due to mistaken belief of his employer i.e. Government. Following the judgment of Their Lordships of the Supreme Court of Pakistan in Moharram Ali case, so referred in the earlier part of our judgment, we hold that such lost status had to be restored by the Government itself and appellant was under no obligation to make al specific and separate claim for the same. On the other hand none of the frights of the respondents are being taken away, as stated earlier because all of them are admittedly Junior to the appellant. When there is question of substantial justice involved, which lies in favour of the appellant, we do not hesitate to overrule and repel technical and hyper technical objections which have been so raised by the respondent vis‑a‑vis limitation, in view of the law so settled down by Supreme Court of Pakistan in P L D 1963 S C 382.
25. Before parting with this case, we will also like to dispose of objection No 6 so raised by the learned counsel for the respondents, wherein i; has been claimed that despite the promulgation of M.L.R. 118, notwithstanding the vesting of Fatima Jinnah Medical College in Government under M.L.R. 118, the College did not lose its corporate character which remained in tact and thus it would be wrong to say that Fatima Jinnah Medical College had become a Government Institution for all intents and purposes. Secondly, even if it is held that the College did vest in Government yet the Fatima Jinnah Medical College being a separate identity/cadre, therefore, would not be a part of general cadre of Government Medical Colleges and in view of this situation the appellant would only claim seniority within the cadre of said Institution. With regard to the first part of the objection. it would be sufficient to say that this matter stood conclusively decided by the Division Bench of the Lahore High Court so referred to above, and, therefore, it will be an exercise in futility to discuss the issue any further So far as the second part of this objection is concerned, it is established on record that the appellant Dr. Muhammad Latif Chaudhry was brought on General Cadre of the Health Department as Assistant Professor as well as Professor, therefore, to say that he was on the strength of the Fatima Jinnah Medical College, would be absolutely contrary to the facts. .
26. In the light of the detailed discussions of law as well as facts' of this case, we are of the considered opinion that the appellant Dr. Muhammad Latif Chaudhry, was a civil servant working as Assistant's Professor of Ophthalmology from 15‑9‑1967 and was deputed to work in year 1973 to Fatima Jinnah Medical College, which was a Government Institution for all intents and purposes, by virtue of M.L.R. 118. The act of Government by sending him to the said Institution on deputation, was an act in redundance, because a civil servant cannot be sent on deputation with another Government Institution. We also further find that his resignation was also under a mistaken belief of law, because i he resigned from his job at the behest of the Governing Body of the Fatima Jinnah Medical College, also suffering from the same belief due to mistake of Government, to join the Institution, which was a Government Institution and if he had known the real status of Fatima Jinnah Medical College, he would not have done the same. This being our conclusion on the strength of law so laid down by the Supreme Court of Pakistan as well as other superior Courts of this country cited in the earlier part of our judgment, we proceed to accept the appeal, set aside the impugned orders and hold that the appellant has been in Government service continuously since 15‑9‑1967 and that he has been Professor of Ophthalmology since 24‑4‑1975, and direct respondents Nos. 1 and 2 to fix the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor, vide notification, dated 24‑4‑1975, under the Rtes and Law. There will be no order as to costs.
.‑‑I have perused with respect the Judgment so delivered by the learned Chairman and learned member I of the Punjab Service Tribunal but I do not agree with the same. I will give the detailed reasons separately.
.‑‑Before giving the reasons of disagreement over the judgment so delivered by learned Chairman and Member‑I, I need not repeat the facts and points urged by learned counsels for the appellant and replied by learned District Attorney for Respondents Nos. 1 and 2 and learned counsels for the contesting respondents which have been so elaborately and lucidly mentioned in the judgment recorded by the learned Chairman. However, it would be proper to reproduce the prayer of the appellant contained at page 14 of the amended appeal supplemented by the main points of learned counsels for the appellant and learned counsels for the contesting respondents as follows: ‑‑
(a) Appeal may kindly be accepted.
(b) In view of the peculiar situation it may kindly be declared that the appellant has been in Government service continuously since 15‑9‑1967 and he has been Professor of Ophthalmology since 24‑4‑1975.
(c) The impugned orders, dated 14‑5‑1975 and 19‑5‑1975 may very kindly be set aside.
(d) The respondents Nos. 1 and 2 may kindly be directed to fix the seniority of the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor, vide notification, dated 24‑4‑1975 under the Rules and law.
2. The learned counsel for the appellant's contention is that the appellant was compelled to resign, and at the time of the resignation it was not in his knowledge that the Fatima Jinnah Medical College stood already nationalised under M.L.R. 118. The learned counsels for the appellant further stated that the nationalisation of the F.J.M.C. was known to him only after delivery of the judgment by learned High Court in the case of Dr. Khalida Usmani v. Dr. Randhawa and others (Intra‑Court Appeal No. 340 of 1981, decided on 15‑8‑1983). The learned counsels for the appellant concluded at the belated stage of the arguments on the strength of the written statement of the Government that the Government had taken a different (conflicting) stand during the hearing of the appeal of Dr. Khalida Usmani in which the plea of the Government was that the F.J.M.C. stood nationalised under M.L.R. 118 since 1972.
3. The learned counsels for the contesting respondents opposed the appeal and to start with raised preliminary objection that the appeal is grossly time‑barred. In this respect they added that even after the pronouncement of the judgment of Dr. Khalida Usmani on 15‑8‑1983 the appellant did not file the appeal promptly before the Punjab Service Tribunal rather he filed the instant appeal on 12‑11‑1984. Page 11 of the 'Principal' judgment mentions that the judgment of learned High Court came into knowledge of the appellant in July 1984 and then he filed the representation followed by this appeal whereas the learned counsels for the contesting respondents while relying on several judgments over the limitation stressed that Dr. Khalida Usmani's case was presumed to be in the knowledge of the appellant as he was serving in the Institution. Beside that it was published in January, 1984 C L C 119. As such there was no scope for acceding to the request I the appellant regarding condonation of the delay. The learned counsels for the appellant relied upon several judgments of the learned Supreme Court as well as the Punjab Service Tribunal regarding filing time barred appeals. The learned counsels for the contesting respondents specially relied upon the judgment of Honourable Supreme Court in the case of Hamad Raza v. Government of Pakistan (C.P.S.L.A. No. 1350 of 1979) . The learned counsel for the appellant on merits and the prayer of the appellant opposed the same on the ground that no specific order was impugned. Secondly, the impugned orders, dated 14‑5‑1975 of the Principal, F.J.M.C. were actually not orders rather they were the offers of the post of a' Professor of 'Ophthalmology' at F. J. M. C. , Lahore which the appellant coveted and incidentally the Principal has also not been impleaded as a party. The learned counsels for the contesting respondents concluded their arguments that the appellant had tendered resignation consciously in his own interests because he wanted to stick to F.J.M. C. and did not wish to serve with the Government even at King Edward Medical College, Lahore much less at Quaid‑e‑Azam Medical College, Bahawalpur where he was posted as Processor 'Ophthalmology' on promotion.
4. Keeping the above facts and legal issues in view I would first deal with the preliminary objections of the learned counsels for the contesting respondents whether the appeal is time‑barred In this respect it may be stated that undisputedly after voluntary acceptance of the resignation of the appellant and subsequent repeated representations of the appellant regarding his withdrawal of the resignation of the appellant to the Government of the Punjab, Health Minister and Martial Law Administrator, the same were rejected, vide Annexures 'M', 'N' and 'P' of the amended appeal. As such the case so far as the government was concerned stood finally closed on 24‑2‑1979, when rejection of his final representation addressed to the M.L.A. was communicated to him. The appellant, however, did not file any appeal before the Punjab Service Tribunal against the above rejection of his representations. As regards the plea of the appellant that for the purposes of his departmental representation as well as his appeal before the Punjab Service Tribunal stood revived after decision of Dr. Khalida Usmani case the judgment of learned High Court was delivered on 15‑8‑1983. The said appeal was related to the F.J.M.C. where the appellant was already serving since long. He is so posted even at present. As such it is presumed that the appellant was very much in the knowledge of the judgment of Dr. Khalida Usmani and its impact over the Institution and the appellant. The said judgment was also published in January, 1984, C L C 119. It would be very relevant, to quote the esteemed observations of the Honourable Supreme Court C.P.S.L.A. No. 1350/80 in the case of Hamad Raza v. The President of Islamic Republic of Pakistan etc. relied upon by learned counsel for the contesting respondents in which the following
observation were made:‑--
"He, therefore, filed an appeal forthwith alongwith an application under section 5 of the Limitation Act. The Service Tribunal while dealing with the application under section 5 of the Limitation Act held as follows:‑‑
"We are not at all convinced with the arguments for the short and simple reasons that assuming the appellant has a right to come to the Tribunal in the light of the Supreme Court Judgment, he should have come to us within a shortest possible time from the announcement of the judgment which appeared in the Pakistan Times, dated 9th February. 1980 or at the least after the publication of the Supreme Court Judgment in P L D March ''issue 1980.
The Services Appellate Tribunal after examining the reason given by the petitioner for the delay rejected it. It's reasonableness cannot be questioned for the reason that the petitioner with his background and experience could not have remained oblivious of the Court decisions which were widely published. His only source of information could not be confined to a 'friend' in Lahore similarly affected. The Tribunal in concluding so, acted in accordance with probabilities of the situation and its exercise of discretion is not liable to interference on the legal plane.
As regards discrimination every case proceeds on its own, facts, particularly so where specific explanation peculiar to each' case is required to be examined. The identity of facts so necessary for establishing discrimination is wanting."
5. Resultantly it would be stretching it too far in the favour of the appellant that according to page 11 of the principal judgment then appellant came to know about the decision of Dr. Khalida Usmani case, in July, 1984 and filed the representation with the Government on 15‑7‑1984 followed by the appeal before the Punjab Service Tribunal on 12‑11‑1984. The appeal is, therefore, time barred in my opinion and liable to be dismissed on this score only.
6. Now, I would deal with other points mentioned in the prayer of the amended appeal as well as raised by learned counsel for the appellant and learned counsels for the contesting respondents as under:‑‑
It may be stated that the so‑called impugned order, dated 14‑5‑1975 (Annex‑J of amended appeal) is a letter of the Principal, F.J.M.C. addressed to the appellant for offer of the post of 'Ophthalmologist'. Likewise the so‑called impugned order, dated 19‑5‑1975 (Annex‑K of the amended appeal) is letter of the appellant to the Government for tendering his resignation for the said post. The learned counsel for the contesting respondents objected that neither they were specific orders nor they were impugned orders. Furthermore they were the appellant's own creation and he could not be treated as aggrieved of his own decision. The learned counsels for the contesting respondents also objected that the appellant no matter he did not implead the Principal as a party but he has not been able to disclose that he had any right for this appeal before he could seek its remedy. 1 am inclined to agree with the contention of the learned counsels for the contesting respondents.
7. The appellant has attached copy of the letter, dated 17‑5‑1973 of the Government (Annex‑C of the amended appeal), vide which while he was Assistant Professor of King Edward Medical College was posted as Professor of Ophthalmology in place of Dr. Raja Mumtaz who was repatriated to the parent department. The appellant besides the elevation also enjoyed deputation pay of 20 , vide Annexure 'D' of the appeal. The appellant or for that matter anybody else should have no doubt that he was the employee of the Punjab Government and was only on deputation with the F.J.M.C. As such, neither the appellant nor the Principal of F.M.J.C. could compel the Government for the extension of the service on deputation after the Government had expressly informed that he was being recalled and going to be promoted in the parent department, vide Annexure F of the amended appeal. It is understood that the Principal never requested the substitute of the appellant and only insisted for his posting.
8. After the attempt of the Principal and the appellant for extension of the deputation period failed the appellant was promoted and posted at Quaid‑e‑Azam Medical College, Bahawalpur. Presumably with mutual arrangement between the appellant and the Principal, F.J.M.C. the appellant submitted an application (Annex‑H) to the Secretary Health with a request that his application may be forwarded to the Principal, F.J.M.C. for the posting as Professor of Ophthalmology and added that he may be relieved after he is selected. Subsequently, he was offered the post by the Principal, F.J. M. C. vide letter, dated 14‑5‑1975 (Annex. J) which speaks that he resigned from the Government service. Obviously, he could not be employee of the Government as well as F.J.M.C. at the same time. The appellant submitted an application, dated 19‑5‑1975 (Annex‑K) tendering his resignation forthwith as he had been offered a permanent post at F.J.M.C.
9. As mentioned in the preceding pars. the appellant on his own accord and sweet will without any coercion or inducement requested for the resignation rather indicated his desire to resign when he before actual request for resignation got his application forwarded for the posting with the F.J.M.C. The resignation in its ordinary meaning o the Dictionary means 'To give up office, employment etc.' The Government acceded to his request and accepted his resignation.
After acceptance of the resignation and his selection and appointment with F.J.M.C. as an after thought as already stated above he tried to retract. While making this swing in his application, dated 7‑7‑1975 (Annex. L) addressed to the Minister Health mentioned simple reason that he resigned for the appointment at F.J.M.C. The appellant requested that his resignation may be reconsidered and kept for deputation for further 5 years at F.J. M. C. To call it a fantastic request would be an understatement, because not only he wanted his resignation to be reconsidered but also wanted his retention for five years at F.J.M.C. When this request was rejected he filed another representation to the Martial Law Administrator Zone 'A', on 29‑4‑1978 and introduced new grounds namely that he was‑ compelled to resign. His application was rejected. The plea of compulsion was also stressed by learned counsels for the appellant and accepted in the principal judgment of this appeal.
I regret to state that the resignation was made by the appellant) without any trace of compulsion on the side of the Punjab Government. 1 As regards the condition of the resignation in the letter, dated 14‑5‑19751 (Annex‑J) of the Principal, F.J.M. C. for offering the post it was not only normal and necessary but in fact the appellant had already communicated his request to be relieved from the Government service when he got forwarded his application for the post through the Secretary Health, vide letter, dated 29‑4‑1975 (Annex‑H). In this manner no compulsion even on the side of the Principal, F.J.M.C. exists. The worst case is that if it was a compulsion vide letter, dated 14‑5‑1975 (Annexure 'J') of the Principal, F.J.M.C. why the appellant submitted resignation on 19‑5‑1975, vide Annex‑K. I may also add that the appellant' or any employee does not require to give any reasons for tendering resignation and the reasons given by appellant in the letter (Annex‑H) followed by formal resignation (Annex‑K) speak against the appellant that the resignation was voluntary and without any compulsion.
The judgment of learned High Court, Lahore, in the Intra‑Court Appeal Case of Dr. Khalida Usmani 1984 C L C 119 does not alter the position concerning the resignation of the appellant. For instance if the appellant had resigned and did not join any service could he claim the withdrawal of his application A regards the appellant his vacancy is deemed to be filled by the Government after his resignation and if the appellant had not resigned the Government job there was no bar for the Governing Body of F.J.M.C. to appoint Professor of Ophthalmology who may not be a Government servant previously. The said judgment of the learned High Court has not set aside the recruitments and appointments made by the Governing Body of F.J.M.C. after 1972 assuming that the college stood vested with the Punjab Government under M.L.R. 118. In my opinion for the purposes of the posting of the appellant at F.J.M.C. after resignation from the Government service should be treated as if he was never a Government servant. He cannot claim a superior status over the other employees of M the F.J.M.C. who were recruited after 1972 the year in which under M.L.R. 118 it supposed to be vested with the Punjab Government. For the present even now their special status is identified no matter the Institution stands nationalised.
The plea of the appellant seems to be cryptic that since the F.J.M.C. stands nationalised since, 1972, therefore, he did not require to resign for the posting at F.J.M.C. But the questions are could the appellant as of right claim for his retention and posting at F . J. M. C. Could the Government be precluded to post him elsewhere The answer is obviously in the negative. As such in my opinion unlike his predecessor Dr. Raja Mumtaz the appellant was sticky and for his own interest he wanted at all costs to remain posted at F.J.M.C. He made a well planned decision on material grounds like the George VIth who on the sentimental grounds for clinging to his foreign wife made a historical decision of the abdication of British Throne (Kingship). Consequently in the resignation is final and a closed matter.
10. Before I conclude, I may also cite the observations made by learned Chairman and the learned Member‑I in para. 20 page 28 of the judgment of this appeal as follows:‑‑
"All these rulings so cited above although do not pertain to any service matter, yet the terms of law so settled by Their Lordships clearly indicate as under:‑‑
(1) When every body is under mistake of law, then there is neither estoppel nor waiver nor acquiescence.
(2) No man shall take advantage of his own wrong.
(3) The proper place of procedure in any system of administration of Justice is to help and not to thwart the grant to the people of their rights.
(4) That mistake of administration cannot be allowed to destroy the basic rights."
11. Dealing them seriatem in light of the facts recorded above my views are as under:‑‑
(i) In the case of the appellant there was no mistake of law because the appellant wanted his posting on all costs at F.J.M.C. and he achieved it by resignation from the Government service and posting with F.J.M.C. on permanent basis. This cannot be 0 reversed without lending power to the Government through this Tribunal or through the learned High Court for setting aside) the posting by the Governing Body after 1972 on ground of mistake of law.
(H) This point speaks against the appellant that he should not take advantage of his own wrong even if he considers it a wrong, which is actually not the case. It is understood that no other person can be blamed for self‑inflicted injuries rather in cases of attempted suicide, the person making such attempt is implicated under section 309, P.P.C.
(iii) In principle this view is correct but it has to be judiciously exercised because the appellant has not justified for the stated help much less at the cost of the rights of the contesting respondents. After all why should the seniority of contesting respondents 3 to 58 be effected and sacrificed for the sake of the appellant by permitting him to withdraw the resignation or to treat him in the Government service even after acceptance of his resignation on 19‑5‑1975, vide Annex‑R of the amended appeal
(iv) As already stated so far as the appellant is concerned there is no mistake on the part of administration as he achieved his desire for posting at F.J.M.C. which he could not do without tendering his resignation on his own initiation.
It is likely to create complications, hardship and anomalies through the implementation of the respected judgment of this appeal. Hence in view of the above facts the appellant's case fails on ground of being time‑barred as well as on merits.
MAJORITY VIEW OF TRIBUNAL
The appeal is accepted by majority judgment.
A. A. Appeal accepted.
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