MUHAMMAD ASLAM vs WAPDA and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.--- This petition has been filed for leave to appeal against the judgment dated 12-12-2003 passed by Federal Service Tribunal, Lahore in Appeal No,514(L)(C.S.) of 2003.

2. It is to be noted that petitioner has been non-suited firstly for the reasons that the appeal filed before the Department was barred by time and secondly the memo. Of appeal was not signed by the petitioner in terms of Rule 6(F) of the Service Tribunal (Procedure) Rules 1974.

3. Learned counsel for the petitioner while arguing the case on the point that the departmental appeal was not dismissed on limitation but on merits contended that the Tribunal should not have non-suited the petitioner on this score as law laid down by this Court in the case of Anwarul Haq v.

Federation of Pakistan through Secretary, Establishment Division Islamabad and 13 others 1995 SCM R 1505 would not be attracted. It may be noted that we have gone through the decision of the departmental authority, according to which the appeal filed by him was rejected. Therefore, the presumption would be that it has been rejected both on limitation as well as on merits. Besides it is well-settled in the case Anwarul Haq (supra) that if departmental appeal is not filed within the statutory period the appeal before the Tribunal would not be competent. Relevant para. Is, therefore, reproduced hereinbelow:--##TE# "The learned counsel for the petitioner frankly conceded before us that after redesignation of the post he has been performing his official functions as Assistant Executive Engineer. The Tribunal was, therefore, right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time-barred. Reliance was also rightly placed by the learned Tribunal on the judgment of this Court in the case of Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) that when an appeal before the departmental authority was time-barred, the appeal before the Tribunal was also incompetent on the account."

3. The above view was reiterated by this Court in the cases of (i) Dr. Anwar Ali Sahto and others v.

Federation of Pakistan and others PLD 2002 SC 101 (ii) State Bank of Pakistan v. Khyber Zaman and others 2004 SCM R 1426 and (iii) N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCM R 453.

4. Since the petitioner has been non-suited for non-filing of the appeal within time, therefore, without dilating on other grounds which prevailed upon the Tribunal we are not inclined to grant leave, to appeal in view of the above settled legal position.

5. Thus for the foregoing reasons we see no force in the petition, which is dismissed, and leave declined.##TE#