TAJ OIL INDUSTRIES LIMITED Versus BENGAL OIL MILLS LTD.

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑ Appellant Mr. Mian Muzaffar Ahmad has preferred this appeal against the order of acceptance of his resignation from the post of a Judicial Member, Income Tax Appellate Tribunal; vide notification dated 22‑8‑1984 issued by the Ministry of Law and Parliamentary Affairs (Law Division).

2. The appellant was appointed as a Judicial Member of the Income Tax Appellate Tribunal, on selection by the Federal Public Service Commission, vide notification dated 26‑3‑1984. On his appointment as such, he was posted at Peshawar. He assumed charge of the post there on 3‑4‑1984. He made an application dated 15‑4‑1984 to the Secretary, Ministry of Law and Parliamentary Affairs (Law Division) that he may be posted at Lahore else he would not be in a position to continue the service, as he was permanent resident of Lahore and his wife was serving as Assistant Professor in the College for Women those and he had two infant daughters to look after. He was informed under letter dated 23‑4‑1984 that his request for posting at Lahore could not be acceded to, in the public interest. He made another application dated 29‑4‑198,4 for his posting at Islamabad, if not at Lahore, on the grounds stated earlier. He also stated therein that in case his posting at Islamabad was not possible, then his application may be treated as resignation from service relieving him of his obligations from the date of the application. He was informed, under letter dated 8‑5‑1984, that his request for posting at Islamabad would be considered when there would be an occasion for doing so. He was further informed that in case he was not inclined to continue in service, he could submit a formal resignation application. He submitted an application dated 23‑5‑a 984 to the President of Pakistan, through the Chairman, Income Tax Appellate Tribunal, Karachi, that his request for posting at Lahore or Islamabad was turned down by the Ministry and he was unable to continue in service at Peshawar and he was, therefore, submitting resignation from service and requested to be relieved with effect from 24‑5‑1984. About a week thereafter, he made an application dated 31‑5‑1984 to the Secretary, Establishment Division, in continuation of his resignation application dated 23‑5‑1984 that his ‑posting in Punjab at Lahore may be considered. He was informed by letter, dated 11‑6‑1984 from the Law Division that his request for posting at Islamabad and Lahore could not be acceded to at that stage and he must join duty at Peshawar and his request for posting at Islamabad and Lahore would be considered when there could be an occasion therefor. He was further informed that if he desired to resign, he should do it without any strings. Acknowledging the receipt of that letter, he submitted his resignation under letter dated 3‑7‑1984. Summary on his resignation application was submitted to the President through the Establishment Division on 11‑7‑1984. The Establishment Division submitted the Summary to the President on 30‑7‑84. The President approved the proposal for the acceptance of the resignation of the appellant on 1‑8‑1984. Notification of the acceptance of the resignation was issued on 22‑8‑1984. In the meantime, the appellant made representation dated 16‑8‑1984 to the President against refusal to his posting at Lahore or Islamabad. His representation was marked to the Establishment Division from the CMLA Secretariat on 21‑8‑1984 and a copy of the forwarding letter was sent to him. He corresponded with the Secretary, Establishment Division on the subject by letter dated 7‑11‑1984, inviting reference to the forwarding letter from the CMLA Secretariat dated 21‑8‑1984. He made another representation to the President of Pakistan on 5‑1‑1985 requesting that he may be appointed against the post of Judicial Member Income Tax Appellate .Tribunal, from Punjab quota. He also made an application dated 13‑1‑1985 to the Secretary, Establishment Division,on the same subject, alleging that he had tendered resignation under pressure by the Secretary, Ministry of Law and Parliamentary Affairs, as to find way for the appointment of Mr. Amjad Ali, an officer in that Ministry, and the resignation tendered by him in such circumstances had become inoperative. He yet made another application dated 22‑3‑1985 to the Secretary Establishment Division that he may be allowed to resume duty. Ultimately, he preferred this appeal on 30‑4‑1985 with the prayer that the respondent Government may be directed to enforce the terms and conditions of the appointment of the appellant by treating his resignation of no legal effect.

3. The appeal is directed not only against the Federal Government through the Secretary, Ministry of Justice and Parliamentary Affairs and the Secretray, Establishment Division, but also against Mr. Amjad Ali who was appointed as a Judicial Member, Income Tax Appellate Tribunal against the vacancy caused due to acceptance of resignation of the appellant. They have resisted the appeal. In written objections filed by the Ministry of Justice and Parliamentary Affairs, on behalf of the Federal Government, the grounds advanced by the appellant have been refuted. The plea of the appellant that his resignation was involuntary have been emphatically denied. The respondent No.3 has put up though resistance to the appeal and denied the allegations that the appellant's resignation was manoeuvred in order to find way for him to be appointed as a Judicial Member, Income Tax Appellate Tribunal. He has raised legal objections that the appeal is not only time barred but is also not maintainable as the requirement of section 4 of the Service Tribunals Act, 1973 of filing a departmental appeal was not fulfilled. .L:

4. The grounds urged by the learned counsel for the appellant at the hearing of the appeal may be summarised as under:‑

(1) That the appellant did not have any intention to resign nor was submission of resignation application a voluntary act on his part, rather it was an involuntary act under pressure and was conditional in nature. Reliance was placed on a case cited as 1980 P L C (C.S.) 139.

(2) That the resignation application submitted under pressing circumstances was withdrawn before its acceptance was notified and withdrawal of resignation could be permitted even after its acceptance. Reliance was placed on the cases reported in P L D 1985 Kar. 75; 1984 C L C 231; 1984 P L C (CS) 435; P L D 1985 SC 178; and 1986 P L C (CS) 447.

(3) That the notification of acceptance of resignation dated 22‑8‑1984 was void ab initio as it was made with retrospective effect. Reference was made to the instructions published in ESTACODE 1983 edition, at S.Nos. 16 and 17, at page 258. Reliance was placed on the cases reported in P L D 1953 Lahore 259; P L D 1961 SC 454; P L J 1969 SC 430 and P L D 1974 SC 284.

(4) That the acceptance of the resignation application was bad in law as it was addressed to the Secretary, Ministry of Justice and Parliamentary Affairs, who was not the competent authority. Reliance was placed on a case reported in P L D 1966 SC 105. Reference was also made to the instructions published in . ESTACODE 1983 edition vide S. No. 15 at page 258.

(5) That the appellant was selected against a post of regional quota for Punjab and his posting at Peshawar was uncalled for and he was forced to, tender resignation on account of his posting outside the region. Reference was made to the instructions published at S.Nos. 29 and 31 at pages 59 and 60 in ESTACODE 1983 edition.. Mr. Khurshid Ahmad, Advocate representing the respondent No.3, Mr. Amjad Ali, took lead in projecting the case of the respondents. He contended that:

(1) the appellant tendered unqualified resignation on personal reasons and did not withdraw it before its acceptance and he did not have locus standi to retract it. He has placed reliance on the cases reported in P L D 1971 Lah433;1981CLC107;and1981SCMR841.

(2) the appellant did not have legitimate ground for claiming posting at Lahore or Islamabad and protesting against his posting at Peshawar.

(3) the appellant did not have any cause of action against the appointment of the respondent No.3 as a Judicial Member of the Income Tax Appellate Tribunal.

(4) the appeal is time barred.

(5) the appeal is incompetent on account of non‑compliance of section 4 of the Service Tribunals Act, 1973, as no departmental appeal/representation was filed. He cited P L J 1989 SC 133 (Sic) and 1986 S C M R 30 as the supporting authorities.

6. The learned counsel for the Federal Government, Mr. Harz Tariq Naseem, adopted the arguments advanced by the learned counsel for respondent No.3. He cited the cases reported in 1985 SCMR 177; and 1989 S C M R at pages 646, 864 and 1271, on the ground that the appeal is time barred.

7. The issue for determination is whether the appellant's resignation was validly accepted and he ceased to be in the Government service. The undisputed facts, stated in some detail at paragraph 2, briefly stated, are that the appellant was selected by the Federal Public Service Commission as a Judicial Member of the Income Tax Appellate Tribunal against regional quota for the Province of the Punjab and was appointed vide notification dated 26‑3‑1984. He was posted at Peshawar where he assumed charge of the post on 3‑4‑1984. On 15‑4‑1984, he made representation for his posting at Lahore and indicated therein that he would not be able to continue in the service unless he was posted at Lahore. During the same month, he made another representation dated 29‑4‑1984 for his posting at Islamabad; if he could not be posted at Lahore. He stated in that representation that in case his posting at Islamabad was not possible, it may be treated as his application for resignation from service and he may be relieved from the date of the application. He was informed that he could not be accommodated as desired by him. He then submitted an application dated 23‑5‑1984 to the President of Pakistan that his request for posting at Lahore and Islamabad was turned down and he was unable to continue in service at Peshawar and he was submitting his resignation from service and requested to be relieved with effect from 24‑5‑1984. He was informed by letter dated 11‑6‑1984 by the Law Division that his request for posting at Islamabad and Lahore could not be acceded to. He, therefore, submitted his resignation application on 3‑7‑1984. The matter of his resignation was processed by the Law Division and the requisite Summary was submitted to the President, through the Establishment Division, on 11‑7‑1984. The Establishment Division submitted the Summary to the President on 30‑7‑1984. The President was pleased to accept the resignation of the appellant on 1.‑8‑1984. Notification thereof was issued on 22‑8‑1984. The process of the acceptance of the resignation stood thus completed. The appellant has, however, contended that he had withdrawn his resignation application by submitting an application to the President on 16‑8‑1984, a photostat copy whereof has been filed as Annex.G/2, at page 35 of the memo of appeal. 1t is reproduced below:‑

"To

The President of Pakistan

Rawalpindi.

Your Excellency

(1) I was constrained to submit my resignation on 3‑7‑1984 from the post of Judicial Member, Income Tax Appellate Tribunal of Pakistan in terms of the advice contained in Law Division's letters No. F.27 (1) 84 All (A), Islamabad, May R, 1984 and No. F.27 (1) 84 All, Islamabad June 11, 1984. Copies attached.

(2)The break‑up of the three posts advertised in the Press on 10‑6‑1983 was: one ‑ merits; one ‑ Punjab; one N.W.F.P. A practising Advocate from Karachi, selected against the Punjab seat and was posted at Peshawar on 26‑3‑1983. A gentleman, who belonged to Peshawar was selected against the NWFP seat. The vacant seat of Islamabad was kept in reservation for him as he intended to join after some months. The selections were made by the Federal Public Service Commission in February, 1984.

(3) When I applied for my selection for this post, the two dominant considerations that served as motive to part with my respectable legal practice spreading over 27 years, were the profound faith in your Excellency's Government; and the Govt. Rules, which prescribed that husband and wife in service are to be posted at one station.

My wife is Assistant Professor in Lahore College for Women, Lahore, with 27 years service. There are two adopted small daughters, the only children, aged now one year nine months and nine months. All of them are located at Lahore.

(4) My requests that I be posted at Lahore or Islamabad, because inter provincial transfer in her case was not possible, was turned down. Many other genuine facts, which necessitated my requests for posting at Lahore or Islamabad, remained foreign to their sympathy. The vacant post of

Islamabad, however, remained in reservation.

(5) The denial of this concession, in the perspective of the background, deserves consideration from your Excellency to exclude the conceivable hypothesis that secret attempts have worked to frustrate my selection by the Federal Public Service Commission.

I beg to remain your Excellency's.

Most obedient servant,

SD/‑ MIAN MUZAFFAR AHMAD,

49‑Tariq Block,

New Garden Town, Lahore.

Dated: 16‑8‑1984.

It has been urged on the basis of the aforesaid application that the appellant had withdrawn his resignation before its acceptance was notified and he was deemed to have continued to be in service. Reference in this respect has been made to O.M. No. 8/13/69‑F.1, dated 3‑1‑1970 read with O.M. No. 6/9/79‑D.1, dated 19‑6‑1979 published at S.No. 19 at page 259 of the ESTACODE 1983 edition, reproduced belows‑

"Sl.No.19: Withdrawal of resignation by Government servants.‑ The question whether resignation once tendered by a Government servant before completion of 25 years qualifying service may be allowed to be withdrawn before or after its acceptance by the competent authority has been under consideration in the Establishment Division.

2.The following decisions have been taken in consultation with the Ministry of Finance:‑

(i) Withdrawal of resignation before acceptance: In case Government servant withdraws resignation before it is accepted by the competent authority, the resignation should be deemed to have been withdrawn.

(ii) Withdrawal of resignation after its acceptance but before it becomes effective (i.e. before the Government servant concerned is relieved): It should be open to the authority accepting the resignation to allow the Government servant concerned to withdraw the resignation on the merits of the case.

(Authority:‑ O.M. No. 8/13/69‑F.1, dated the 30th January, 1970 read with O.M. No. 6/9/79‑D.1, dated the 19th June, 1979)."

The O.M. reproduced above visualises two situations in respect of withdrawal of resignation viz. one that of withdrawal of resignation before acceptance; and another that of withdrawal of resignation after its acceptance but before it becomes effective (i.e. before the Government servant concerned is relieved). In this case, the first question is whether the resignation submitted by the appellant was ever withdrawn. The appellant indicated the intention of resigning from the post he was appointed to from the very beginning when he submitted an application dated 15‑4‑1984 within a fortnight of his assuming charge of the post, for his posting at Lahore. He went on reiterating the threat of his leaving the job in subsequent correspondence. He submitted his unconditional resignation on 3‑7‑1984. As a second thought, perhaps, he submitted an application dated 16‑8‑1984 to the President reproduced above. He did mention that he had submitted his resignation application on 3‑‑7‑1984 but he did not state that he was withdrawing his resignation, although he made fervent appeal to the President for consideration for his posting at Lahore or Islamabad. To concede maximum benefit to the appellant of this application that it was an attempt on his part to save his service despite the submission of his resignation, the question arises whether it was withdrawal of resignation before or after its acceptance by the President. It is not disputed that the President was pleased to accept his resignation on 1‑8‑1984 and there is on the record the order of the President on the Summary submitted to him. However, the contention is that the acceptance of the resignation was complete when the notification of its acceptance was issued on 22‑8‑1984. No rule or order has been cited in support of this proposition. Unless there is a specific rule or order etc. that no order shall be effective until it is notified, the order takes effect from the date it is made. In the absence of any such rule or order, the acceptance of the resignation of the appellant became effective on 1‑8‑1984 when the President was pleased to accept it. The appellant's case, therefore, fell in clause (ii) of paragraph 2 of O.M. dated 30‑1‑1970, read with O.M. dated 19‑6‑1979, reproduced above. His application dated 16‑8‑1984 was forwarded from CMLA Secretariat to the Establishment Division on 21‑8‑1984 and it was endorsed to the Law Division on 19‑9‑1984. By this time, the appellant had relinquished charge of the post and the acceptance of his resignation had become fait accompli.

8. The learned counsel for the appellant, relying on a decision of this Tribunal in the case of Abdul Jabbar Khan Vs. Pakistan through Council of Islamic Ideology and two others, reported in 1984 P. L C (CS) 435, urged that the acceptance of the resignation had not been complete until intimation of the acceptance of the resignation was communicate to him, but the facts in that case were distinguishable. The appellant in that case Mr. Abdul Jabbar Khan was an employee of the Council of Islamic Ideology. He addressed a letter to the Chairman, Council of Islamic Ideology on 2‑12‑1982 in which he expressed his desire to leave the service of the Council and requested that his‑ resignation may be accepted with effect from 17‑12‑1982. The Chairman of the Council made order on the file on 2‑12‑1982 that the resignation should be accepted. However, the order of the acceptance of his resignation was not conveyed to him by the office but he was asked to deposit the amount outstanding against him before his resignation could be accepted. He submitted an application dated 8‑12‑1982 that he was withdrawing the letter of his resignation. He was informed that he could not withdraw his resignation which had already been accepted. This aspect of the case agitated before a Bench of this Tribunal was dealt with, as under, in para 4 of the judgment:‑

"During the course of the hearing, a plea was taken on behalf of the respondent‑department that, although the appellant did submit a note on 8th December, 1982 withdrawing his resignation letter, this note was received after the Chairman had passed orders accepting the resignation and, therefore, the appellant could not be given the benefit of the rule under which withdrawal of resignation before its acceptance has to be allowed automatically. We are afraid, we are unable to accept this stand of the department because of the simple reason that, in the eye of law, the acceptance of resignation cannot be treated to have taken place merely because the Chairman had made a note to this effect on the application of the appellant or on the relevant file before the receipt of the letter withdrawing the resignation. From the departmental file, ass well as from the despatch register, it is clear that the notification, accepting the resignation of the appellant with effect from the forenoon of the same date, was not issued to the appellant before 15th December, 1982. The resignation cannot, there fore, be deemed to have been accepted earlier than this date. But, because the appellant had submitted his note withdrawing his letter of resignation on 8th December, 1982 and the same had been put up to the relevant authorities on the same date, we hold that it was incumbent on the relevant authority to treat the resignation as withdrawn immediately when the said note was received in the office. We are clearly of the view that there was no justification for the department to deny to the Appellant his right, to withdraw his letter of resignation:'

The distinguishing features between that case and the present case are that the appellant in that case had tendered his resignation on 2nd December, 1982 with effect from 17th December, 1982 i.e. from a subsequent date and he had withdrawn it before the target date could reach and the acceptance of his resignation was subject to his depositing a large sum of money outstanding against him; whereas in this case, the appellant had submitted his resignation application with effect from the day he made the application and it was accepted before the appellant made a representation to the President for his posting at Islamabad or at Lahore without stating that he was withdrawing the resignation already tendered by him. We are unable to subscribe to the view of the learned Members of the Bench which decided the aforesaid appeal of Mr. Abdul Jabbar Khan that acceptance of the resignation did not attain finality until it was notified. We were not shown any rule or order nor could we come across any such rule or order that acceptance of resignation becomes effective only after it is notified. In our opinion, the action of acceptance of the resignation attains the finality the moment the order is made by the competent authority unless it is desired to be effective from a future date. In support of this taken by us, reference may be made to a decision of the Lahore High Court in the case of Abdur Rashid Khan v. Election Tribunal/District and Sessions Judge, Sahiwal and others, reported in 1981 C L Cat page 1047, holding that resignation from membership had become operative from the day the Member had resigned and not from the date of issue of notification. In our view, the proposition of the operation of an order from the date o0notification holds field only where the law provides that a particular action would be effective from the date of its notification; and in other cases an order becomes effective from the date it is made unless the order itself indicates that it would be operative from any future date.

9. The other grounds agitated in respect of the acceptance of the resignation may also be referred to. One of the grounds urged by the learned counsel for the "appellant was that the appellant did not have any intention of resigning from the post nor was it a voluntary act on his part but he had done it under pressure exerted by the Secretary, Ministry of Justice and Parliamentary Affairs and reliance was placed on a case of A.R. Azar v. Pakistan, through Railway Board, PWR, Lahore, reported in 1980 PL C (CS)

139. In the reported case, there was evidence of the pressure brought on the railway employee Mr. A. R. Azar, for seeking retirement from service. In the instant case, the appellant has made wild allegations that he was put under pressure by the Secretary, Ministry of Justice and Parliamentary Affairs for tendering resignation. The events mentioned above do reveal that it was the dormancy of the appellant that he should be posted at the place of his choice else he would not render service.

The events also indicate that the appellant did not render any service but he proceeded on leave immediately on his assuming charge at Peshawar and made repeated representations for his posting at Lahore or at Islamabad on the ground that his family was settled at Lahore and he indicated even in his first representation for transfer that he would tender resignation unless his request was acceded to. The appellant has alleged that he was put under pressure to tender resignation as the Secretary, Ministry of Justice and Parliamentary Affairs was interested in bringing the respondent Nr. 3 Mr. Amjad Ali, on the post he was appointed to. It is on the record that Mr. Muhammad Azam Khan vas selected and appointed to the post vacated by the appellant and it was later that Mr. Amjad, Ali was selected and appointed to the post of a Member of the Income Tax Appellate Tribunal. 1t follows that the allegations by the appellant against the Secretary, Ministry of Justice and Parliamentary Affairs are frivolous and vexatious. There was no taint of pressure on the appellant for tendering resignation but he was not inclined to serve unless he was posted at the place of his choice and the resignation was accepted at his voluntary Fequest. Reference in this behalf may be made to a case of identical nature viz. Abdul Oadeer v.Province of Balochistan, reported in 1981 SCMR at page 841, wherein the Supreme Court approved the decision of the Balochistan Service Tribunal (Quetta) that the resignation tendered by the petitioner Abdul Qadeer on the ground that either he may be transferred to a place where‑medical aid was available for the treatment of his ailing wife and if that w6re not possible, his resignation may be accepted, was not a conditional resignation and it was rightly accepted. In the instant case, the appellant repeatedly tendered his resignation in the representations he had made for his posting at Lahore or Islamabad for his convenience and, therefore, it was an act of volition that he tendered his resignation which was accepted in normal course. It was also urged by the learned counsel for the appellant that the appellant was selected for a post in the regional quota for Punjab and, therefore, he should have been posted in Punjab and not in N: W.F.P. and reference has been made to the instructions published at S. Nos.29 and 31 at pages 59 and 60 of. the ESTACODE 1983 edition. The instructions under both the Serial Numbers do not relate to the issue raised by the appellant. The argument is fallacious on the face of it for the simple reason that if the postings are made region‑wise, as advocated on behalf of the appellant, the idea of the All‑Pakistan Civil Service shall stand frustrated as every candidate would desire to be posted in his own region. This argument does not appear to be sound.

10. Another ground advanced against the acceptance of the resignation application was that it was addressed to the Secretary, Ministry of Justice and Parliamentary Affairs, who was not the competent authority but the competent authority was the President, and reliance was placed on a case of A.K. Fazlul Qadir Choudhry v. S. Shahnawaz and others reported in P L D 1966 S C 105. The appellant resorted to making representations and tendering resignation addressed to the Secretary, Ministry of Law and Parliamentary Affairs as well as to the President. In his first application to the Secretary, Ministry of Law and Parliamentary Affairs dated 15‑4‑1984, he indicated that he would not be able to continue in service unless he was posted at Lahore. He addressed second application dated 29‑4‑1984 to the same Secretary reiterating his request for his transfer from Peshawar and in the alternative tendering resignation with effect from the date of the application. Thereafter, he made an application dated 23‑5‑1984 to the President of Pakistan that he was tendering resignation from service and he may be relieved from the following day thereof viz. 24‑5‑1984 on the grounds that he was not‑being accommodated at Lahore or Islamabad, the places of his choice. Shortly thereafter, he made an application dated 31‑5‑1984 to the Secretary, Establishment Division for his posting at Lahore. He was informed from the Ministry of Law and Parliamentary Affairs under letter dated 11‑6‑1984, with reference to this application dated 23‑5‑1984 addressed to the President of Pakistan and the other application dated 31‑5‑1984 addressed to the Establishment Secretary, that his request for posting at Islamabad or Lahore would be considered when there was an occasion. for doing so. He was further informed that if he desired to resign, he could do it without any strings. Ultimately, he submitted unconditional resignation dated 3‑7‑1984 and he forwarded it to the Secretary, Ministry of Law and Parliamentary Affairs under forwarding letter dated 3‑7‑1984. His resignation application was submitted to the President through the Secretary, Establishment Division in accordance with the Rules of Business and the President was pleased to accept it. There was absolutely no legal flaw in the acceptance of his resignation. He had actually submitted his resignation application to the President direct on 23‑5‑1984 and E it was a reiteration thereof that he submitted unqualified resignation on 3‑7‑1984. Ministry of Law and Parliamentary Affairs is the administrative Ministry of the Income Tax Appellate Tribunal which is its Attached Department and the matter had to be processed through the said Ministry. The case relied upon by the learned counsel for the appellant involved different facts. It was a case of resignation by a Member of the National Assembly. The latter of resignation was addressed to the President rather than to the Speaker of the National Assembly, as required by the Constitution of Pakistan. It was held by the Supreme Court that the letter of resignation was not addressed to the proper authority and acceptance of resignation by the Speaker on such a letter was not "approved. Herein, it is a question of a civil servant tendering resignation to the Head of the State through his administrative. Ministry and it was in accordance with the relevant rules and there was no illegality or irregularity in acceptance of the resignation tendered by the appellant.

11. For the reasons recorded above, we come to the conclusion that the resignation of the appellant was a voluntary act on his part and its acceptance was in accordance with law.

12. The respondents have raised two legal objections of limitation and non -maintainability of the appeal. Dealing with the question of limitation first, the appellant's prayer in the memo. of appeal is that the respondent Government may be directed to enforce the terms and conditions of his appointment by treating his resignation of no legal effect. The service of the appellant stood terminated by acceptance of his resignation by the President on 1‑8‑1984 notified vide notification dated 22‑8‑1984, and the appeal was riled on 30‑4‑1985 without submitting review application and it is, therefore, miserably time‑barred. However, the learned counsel for the appellant contended that the appellant had made an application dated 5‑1‑1985 to the President and it constituted as the view application. The appellant did make reference in the application the notification dated 22‑8‑1984 of acceptance of his resignation and stated that the order was communicated to him many days later. He made a grievance in the application that Mr. Amjad Ali, who was not eligible, was appointed as the Member of the Income Tax Appellate Tribunal against Islamabad post and requested that the Ministry of Law and Parliamentary Affairs may be ordered to act in terms of the requisition made to the Federal Public Service Commission and appoint him against the post for which he was selected, but his selection was treated against N: W.F.P. post. By this application, the appellant did not seek review of the order of acceptance of his resignation but he opened a new chapter of seeking appointment against a post in the Income Tax Appellate Tribunal on the basis of his previous selection. The learned counsel appearing for the Government contended that the application dated 5‑1‑1985 did not constitute a review application and even otherwise it was a time barred application. The learned counsel for the appellant urged that no time limit is prescribed for making review application. The learned counsel for the Government referred to subsection (1) of section 22 of the Civil Servants Act, 1973 which provides that where a right to prefer an appeal or making an application for review in respect of any order relating to the terms and conditions of his service .is provided to a civil servant under any rule applicable to him such appeal or application shall, except as may otherwise be prescribed, be made within thirty day of the date of such order. In the absence of any period provided in the Appeal Rules for making review application, the period for submitting review application was thirty days and the application dated 5‑1‑1985 did not advance the appellant's case against the order of acceptance of his resignation. The application dated 5‑1‑1985 was apparently a device to make out a case for invoking the jurisdiction of the Tribunal. The appointment of the respondent Mr. Amjad Ali in the Income Tax Appellate Tribunal against a post for Islamabad at a subsequent stage did not have any link with the order of acceptance of resignation tendered by the appellant. The appellant has submitted application for condonation of delay, wherein he has stated that he had submitted an application dated 16‑8‑1984 to the President in respect of involuntary submission of his resignation and he received a letter dated 21‑8‑1984 that his application was forwarded to the Establishment Division and he remained under the impression that his resignation would stand withdrawn F and he was taken aback when he came across a notification dated 16‑12‑1984, whereby the respondent Mr. Amjad Ali was appointed as a Member of the Income Tax Appellate Tribunal at Islamabad and he then made representation dated 5‑1‑1985 and awaited reply thereon for 90 days and thereafter filed the appeal and the delay, if any, may be condoned. The facts stated in the condonation application do not furnish satisfactory explanation for condonation of so much delay in prefering the appeal. The appeal is, therefore, hopelessly time barred.

13. The other ground of non‑maintainability of the appeal is based on the ground that no departmental remedy of appeal/review was availed of. The order of the acceptance of the resignation of the appellant was made by the President and, therefore, only review could lie against that order. The appellant's contention is that he did prefer review application on 5‑1‑1985. It has been mentioned and discussed above that it did not seek review of the order of acceptance of the resignation. Thus, the order dated 1‑8‑1984 of the President reflected in the notification dated 22‑8‑1984 became the final order for filing appeal before the Tribunal, and the appeal is not hit on the ground that it is not maintainable for want of making review application against the said notification.

14. Consequent to the findings arrived at above that there is no merit in appeal and it is also time barred we dismiss the appeal, with no order as to costs.

M.Y.H./544/Sr.F Appeal dismissed.

THE END