MUHAMMAD ASHFAQ vs MEMBER (REVENUE) BOARD OF REVENUE, PUNJAB;

' MIAN HAMID FAROOQ, J.---Shahnaz Kausar, the petitioner, claiming to be the widow of Muhammad Ashfaq (deceased), through the present petition, under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the judgment dated 1-12-2004, whereby the Punjab Service Tribunal, Lahore (Tribunal) dismissed her application C.M. No, 600 of 2004 in appeal No,56 of 1991.

2. Muhammad Ashfaq, the (deceased) husband of the petitioner, was serving as junior clerk in the office of the defunct Deputy Commissioner Sargodha, when he was dismissed from service, vide order dated 21-6-1986. He challenged his dismissal order before the appellate authority i.e, the Commissioner Sargodha Division, who allowed his appeal and Muhammad Ashfaq was reinstated.

The said order was assailed before the Board of Revenue and the Member Board of revenue, vide order dated 29-12-1990, restored the order of Deputy Commissioner. Muhammad Ashfaq, filed the appeal against the order passed by Member Board of Revenue before the Tribunal. During pendency of the appeal Muhammad Ashfaq died and upon the statement of the learned counsel of Muhammad Ashfaq, informing the Tribunal that Muhammad Ashfaq had died, the Chairman of the Tribunal, vide order dated 20-8-1991, disposed of the appeal as having abated. It appears from the record that on 31-7-2004, the legal heirs of Muhammad Ashfaq filed the application C.M. No,600 of 2004 for restoration of appeal and recalling of order dated 20-9-1991 together with an application for condonation of delay. The learned Chairman of the Tribunal after hearing the parties found that he has no power to review the order and the application has been filed after the lapse of 13 years and dismissed the application, vide judgment dated 1-12-2004, hence the present petition.

3. Learned counsel for the petitioner contended that there was sufficient cause to condone the delay in filing the application before the Tribunal as the petitioner resides in far long of Sargodha, she is a Pardanasheen lady and she is supporting the minor children. He has further submitted that notwithstanding the death of Muhammad Ashfaq, it was incumbent upon the Tribunal to decide his appeal on merits, as it entails financial consequences to the family of the deceased. Learned Additional Advocate-General, while relying upon the judgment reported as Muhammad Nawaz, Special Secretary, Cabinet Division, through his legal heirs v. Ministry of Finance, Government of Pakistan, through its Secretary, Islamabad 1991 SCM R 1192, stated that right of appeal, under the Service Tribunals Act, has been given to a civil servant and such a right can neither be availed nor the appeal could be continued by the legal heirs of a deceased civil servant.

4. We have heard the learned counsel for the petitioner as well as the learned Additional Advocate General and examined the available record. It is evident from the above narrative that the appeal filed by the deceased civil servant abated on 20-8-1991 and the present petitioner filed the application on 31-7-2004 i.e, after the lapse of 13 years. The reasons, canvassed by the learned counsel, for condonation of delay are not sufficient, within the parameters of law, to condone this inordinate delay of 13 years, while the settled law on the subject is that it is incumbent upon a litigant -to explain the delay of each and everyday for not approaching the Court of law within the prescribed period of limitation. The application filed by the petitioner, which otherwise, was A not maintainable, was barred by 13 years, there was no sufficient cause to condone the delay and the learned Tribunal rightly refused to condone the delay for the reasons stated by it.

5. As regards the merits of the case, admittedly, Muhammad Ashfaq died during pendency of his appeal, which was filed against his order of removal/dismissal from service, thus the then Chairman when informed about the death of Muhammad Ashfaq was justified in law in passing the order of abatement of appeal. Furthermore the case of Muhammad Nawaz (ibid) relied upon by the learned Law Officer is a complete answer to the stance taken by the learned counsel for the petitioner, in which it has, inter alia, been held that a right of appeal under the Service Tribunals Act, 1973 has been given to a civil servant and there being no provision in Service Tribunals Act, 1973 to provide any remedy to the successors-in-interest. It appears appropriate to reproduce para 5 from the case of Muhammad Nawaz (ibid), which is apt to the facts and circumstances of the present case and reads as under:-- "5. We have heard Mr. Muhammad Bilal, Advocate for the appellants and Hafiz S. A. Rehman, Advocate for the respondent. The learned counsel for the appellants contended that the question involved in this is one of refund of salary in connection with the re-fixation of pay in service, therefore, the proceedings for the recovery of the emoluments alleged to be recoverable, initiated by the predecessor-in-interest of the appellants did not abate. The Service Tribunal, therefore, was fully competent to adjudicate upon the matter. This contention has, however, no merit. A 'civil servant' has been defined in section 2(b) of the Civil Servants Act, 1973. A right of appeal under the Service Tribunals Act of 1973 has been given to a civil servant aggrieved by any final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service. The appellants admittedly are the legal heirs of the deceased civil servant and there being no provision in the Service Tribunals Act, 1973 to provide any remedy to the successors-in-interest of a civil servant, the learned Tribunal, in our view, was correct in holding that the appeal before it stood abated and the same is hereby maintained."

6. We are not satisfied that any substantial question of law of public importance within the parameters of law is involved in this case. Thus no case for grant of leave is made out under Article 212(3) of the Constitution of the Islamic Republic of Pakistan.

7. In the above perspective, we have examined the judgment of the Tribunal and find that the Chairman of the Tribunal rightly dismissed petitioner's application on the ground of limitation as well as on merits. We see no ground/reason to interfere in the said judgment, which is hereby maintained.

8. For the foregoing reasons, the present petition is devoid of merits, hence stands dismissed and leave to appeal is refused.