1993 PLC(CS) 94

MUHAMMAD ANWAR KHAN Versus PRIME MINISTER , M. Bilal

Citation1993 PLC(CS) 94

CourtFederal Service Tribunal

Judge(s)Syed Ally Madad Shah, Chairman and Misbah Ullah Khan, Member Dr. MUHAMMAD ANWAR KHAN

SYED ALLY MADAD SHAH (CHAIRMAN) : ‑‑Appellant Dr. Muhammad Anwar Khan has preferred this appeal in respect of his promotion and consequential seniority as Consultant Surgeon, Pakistan Ordnance Factories Hospital, Wah Cantt.

2. The facts in the background are that the appellant obtained Degree in M.B.,B.S. from the King Edward Medical College, Lahore in 1963. He obtained fellowship of the Royal College of Surgeons (FRCS) Edinburg (UK) in 1968. He served at various Hospitals in the U.K. for about eight years. He was appointed as Surgical Specialist in BPS‑18 on contract/officiating basis at the POF Hospital, Wah Cantt. with effect from 27‑‑`8‑1973. His appointment, as such, was regularised by order dated 16‑5‑1974. He was promoted as Surgical Specialise (B‑19) with effect from 25‑5‑1977. The respondent No. 4, Dr. Mrs. Fawzia Qadeer was also serving as a Medical Officer (B‑18) in the General Cadre at the same Hospital since 3‑6‑1972. She obtained Diploma in MCPS in 1977. She was redesignated as Pathologist (B‑18) with effect from 6‑4‑1977. She was promoted as officiating Pathologist (B‑19) with effect from 30‑5‑1977. but was later reverted to B‑18 on 17‑12‑1977. She preferred an appeal before this Tribunal against her reversion and claimed promotion with effect from 30‑5‑1977 and her claim was upheld by the Tribunal. She was accordingly appointed in the Specialists cadre of Pathologists (B‑19) on 4‑1‑1983. In December, 1987, three posts in the Specialists cadre in B‑20 were created by the POF Board. The Promotion Board, at its meeting held on 3‑7‑1988, considered for promotion four Specialists, namely Dr. Sajjad Hussain, Eye Specialists; Dr. Khurshid‑uz‑Zaman, Medical Specialist; Dr. Mrs. Amtus Sami, Pediatrician; and Dr. Muhammad Anwar Khan (the appellant), Surgical Specialist The Board approved promotion of Dr. Sajjad Hussain, Dr. Khurshid‑uz‑Zaman and Dr. Muhammad Anwar Khan, the appellant, for the three posts and the respondent No. 4 was thus excluded. The approved candidates, named above, were promoted to BPS‑20 vide Daily Order Part II No. 3318/1, dated 14‑7‑1988. On certain complaints against recommendations made by the same Promotion Board in respect of promotions of Engineers, another Board headed by the Minister of State for Defence was constituted. The respondent No. 1 made an application that the specially constituted Board headed by the Minister of State for Defence may also reconsider the promotions of the Specialists Doctors. This time too, the respondent No. 4 was not approved for promotion while the promotion of the appellant and other two candidates was approved. The recommendations of the reconstitute Board were submitted to the Prime Minister through the Establishmed Secretary. The prime Minister trade order excluding the name of the appellant and instead making order for promotion of the respondent No. 4 in the Specialists cadre. The decision of the Prime Minister was communicated to the POF Board by the Ministry of Defence under order dated 22‑5‑1990. The appellant immediately filed writ petition before the High Court and obtains order of status quo but his petition was dismissed on 21‑11‑1990 for want jurisdiction. In the meantime, the appellant had made representation/review petition to the Prime Minister on 16‑6‑1990. He made another representation/review petition to the successor Prime Minister on 30‑8‑199. Ultimately, the appellant filed this appeal on 26‑11‑1990 for setting aside try order of his reversion and maintaining the order of his promotion with consequential benefits.

3. The respondents have resisted the appeal. They have taken preliminary objections that the appeal is not maintainable and it is also time barred: They have stated that the respondent No. 4 joined POF Hospital as GDMO on 13‑8‑1962. She, did 52 weeks' course for Specialization in Pathology. The post held by her was redesignated as Pathologist (B‑19) in April, 1977 and she was given promotion as officiating Specialist Pathologist (B‑19) with effect from 30‑5‑1977 and she was promoted as Surgical Specialist (B‑19) with effect from 14‑12‑1977. It is further stated in the written objections that the respondent No. 4 was again given officiating promotion as Pathologist Specialist (B‑19) with effect from 4‑8‑1983 and as Pathologist Specialist (B‑19) on temporary basis with effect from 23‑4‑1984. They have also further stated that the promotion of the respondent No. 4 to B‑19 was ante ‑dated to 30‑5‑1977 on the decision of the Federal Service Tribunal. The respondents 1 to 3 have also stated that the respondent No. 4. was not considered for promotion by the Promotion Board in its meeting held on 3‑7‑1988 as she did not come on the seniority list of Specialists cadre (B‑19) at that time, and she was again considered for promotion on 9‑4‑1989 in pursuance of the decision of the Tribunal in Appeal No. 346(R)/84, but she was not approved for promotion for want of higher Post‑graduate Degree/qualification, while the appellant was recommended for promotion to BPS‑20. They have taken the plea that the promotion of the respondent No. 4 was approved by the competent authority. The respondent No. 4 has filed written objections separately. She has contended that she was senior to the appellant and that contention was upheld by the Tribunal. She has advanced the plea that a post of Specialist in BPS‑20 is a selection post and the competent authority may promote any person considered most suitable and that was done in her case. She has also raised the grounds of non‑maintainability of the appeal and its being time‑barred.

4. The first and foremost ground agitated against the appeal is that of limitation. The learned counsel for respondent No. 4 emphatically urged that the question of limitation may be determined first. The learned counsel for the parties were, therefore, heard on the question of limitation.

5. The order impugned by the appellant was made known on 22‑5‑1990 as contained in under order No. 2/5/89/DP‑8, dated 22‑5‑1990 from the Defence Production Division to the CAO, POFs Board, Wah Cantt, intimating, inter alia, that the competent authority had not approved the promotion of Dr. Muhammad Anwar Khan (the appellant) and had promoted Dr. Sajjad Hussain, Dr. Khurshid‑uz‑Zaman and Dr. Mrs. Fowzia Qadeer (the respondent No. 4). The appeal filed on 26‑i1‑1990 is apparently time‑barred. However, it involves the question of condonation of delay. The case of the appellant is that he, on knowing that he had not been approved for promotion by the Prime Minister, immediately filed a writ petition before the High Court and obtained order of status quo under the bona fide belief that he could not get interim relief from the Service Tribunal. According to him, he also made a departmental representation/review petition to the Prime Minister on 16‑6‑1990 and also made another representation/review petition to the successor Prime Minister on 30‑8‑1990. After dismissal of his writ petition for want of jurisdiction on 21‑11‑1990, he preferred this appeal on 26‑11‑1990. The appellant has, therefore, urged that the intervening period is condonable as he had pursued his remedy before the High Court under bona fide belief that his remedy lay with the High Court and not with the Service Tribunal for the reason that decision of the authority in respect of fitness or otherwise of a person for promotion is not amenable to the jurisdiction of the Service Tribunal. Such a question was agitated in several cases before the Supreme Court and the learned counsel for the appellant placed reliance on the following cases:‑

1972 SCMR 23, PLD 1974 SC 22, PLD 1975 SC (AJ&K) 131, 1981 SCMR 433, PLD 1983 SC 385, PLD 1991 SC 1, PLD 1991 SC 226, PLD 1960. Lah. 801 and 1985 PLC (CS) 8.

6. The learned counsel for the respondents 1 to 3 contended that the appellant chose a wrong forum by filing writ petition and the time occupied in pursuing writ petition did not afford condonation of delay in filing appeal before the Tribunal. He pointed out that the appellant was conscious of the jurisdiction of the Tribunal as that question was agitated in Appeal No.346(R)/84 between the same parties decided on 9‑3‑1989. He also contended that even if the appellant had to approach the High Court for obtaining stay order, he could have preferred appeal before the Tribunal after expiry o f 90 days of the filing of the departmental appeal/representation but instead of doing so, he filed Intra Court Appeal in the High Court against the decision that the High Court did have jurisdiction and he was pursuing that appeal even after the filing of this appeal. The learned counsel for respondent No. 4 also reiterated the same argument and added that pursuing the Intra Court Appeal before the High Court amounted to contumacious delay in preferring the appeal and he relied upon a case reported in PLD 1984 SC (without quoting page number). He also contended that the cases relied upon by the learned counsel for the appellant were distinguishable and he cited the cases reported in PLD 1958 Lahore 959; 1989 SCMR 144; PLD 1990 SC 622 and 1991 PLC (C.S.) 224.

7. The facts mentioned above do indicate that the exclusion of the name of the appellant from the list of the promotees involved the question of his fitness for promotion. It is laid down under section 22 of the Civil Servants Act, 1973 providing for right of appeal or representation that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Similar bar is contained in second proviso to sub‑rule (1) of Rule 4 of the Civil Servants (Appeal) Rules, 1977. There is also bar to the jurisdiction of the Tribunal in respect of an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher grade. In such a situation, the appellant could be in a dilemma as to from which forum, whether the Service Tribunal or the High Court, he could seek relief from against the order of the Prime Minister not approving him for promotion. He filed writ petition before the High Court without delay. His writ petition was dismissed on 20‑11‑1990 for want of jurisdiction. He preferred this appeal on 26‑11‑1990 challenging the order contained in letter dated 22‑5‑1990. Thus, the period for determining the question of limitation ranges between 22‑5‑1990 and 26‑11‑1990 and the duration comes to 217 days. He could prefer departmental appeal within thirty days from the date of the original order as per sub‑rule (4) of Rule 5 of the Civil Servants (Appeal) Rules, 1977. He made representation/review petition to the Prime Minister on 16‑6‑1990. He had to wait decision thereon for 90 days from 16‑6‑1990 and that period expired on 14‑9‑1990. He could prefer appeal within the next thirty days which expired on 14‑10‑1990. The appeal filed on 26‑11‑1990 was, therefore, delayed by 41 days. Of course, the appellant has stated that he had made second representation/review petition to the successor Prime Minister on 30‑8‑1990 but second representation/review petition did not extend the period of limitation as calculated above. The writ petition filed by the appellant was dismissed on 20‑11‑1990 and the copy was delivered to the appellant on 21‑11‑1990 and this appeal was filed on 26‑11‑1990 i.e. on the 5th day of the dismissal of the writ petition. Thus, only a period of 41 days needs to be explained.

8. Section 7 of the Service Tribunals Act, 1973 provides that the previsions of sections 5 and 12 of the Limitation Act, 1908 shall apply to appeals under the Act. The appellant has sought condonation of delay on the basis of the provisions of sections 5 and 14 of the Limitation Act. Section 5 of the Limitation Act provides that any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which the section may be made applicable by or under any enactment for the time being in force, may be admitted after the period of limitation prescribed therefore when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring an appeal or making application within such period. Section 12 of the Limitation Act provides for computation of period of limitation, such as exclusion of the day from which the period of limitation is to be reckoned, the time required for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed etc. Section 14 of the Limitation Act envisages the exclusion of the time in reckoning the period of limitation occupied in prosecuting with due diligence a proceeding founded upon the same cause of action and prosecuted in good faith before a Court of law but lacking jurisdiction. But since section 14 of the Limitation Act has not been made specifically applicable to the appeals before this Tribunal, the question of delay is to be determined within the purview of sections 5 and 12 of the Limitation Act. Section 5 of the Limitation Act, if construed in its wider sense, the eventuality contemplated under section 14 of the Limitation Act may also furnish sufficient cause for extension in the period of limitation envisaged under the former section. In the instant case, the appellant ventured to file writ petition in the High Court for obtaining stay order against the threat of his immediate reversion and also fearing that he may not be able to seek remedy from the Tribunal against the decision of the competent authority on his fitness for promotion. The situation that the appellant had to meet with was such that he had to choose one of the alternatives of either approaching the High Court for immediate relief or seeking relief from the Tribunal and he chose the first alternative. It was not his individual decision but he had engaged a lawyer who filed writ petition on his behalf. His writ petition was entertained and status quo order was made and his writ petition was dismissed after its maintainability was questioned by the respondents. He had not involved himself in negligence in preferring this appeal after the dismissal of his writ petition as would be evident from the events mentioned above. Of course the respondents have contended that the appellant insisted upon challenging the order of his reversion before the High Court as he preferred Intra‑Court Appeal before the High Court against the decision of the Single Bench of the same High Court dismissing his writ petition on the ground of lack of jurisdiction, despite the fact that it was indicated in the order of the High Court that the jurisdiction in his case lay with the Tribunal. By pursuing remedy against the dismissal of the writ petition, the appellant did not necessarily involve himself in being negligent in pursuing his remedy before this Tribunal as he preferred appeal before the Tribunal within reasonable time of five days of the dismissal of the writ petition. It has been discussed above that he was quite uncertain as to which could be the forum for seeking relief against the decision of the departmental authority regarding fitness for promotion as a civil servant and he invoked Constitutional jurisdiction of the High Court and he preferred appeal before this Tribunal soon after the verdict of the High Court that the matter lay within the jurisdiction of the Federal Service Tribunal.

9. Adverting to the decisions of the High Courts and the Supreme Court, relied upon by the learned counsel for the parties, the learned counsel for the appellant has placed reliance on the cases cited as PLD 1960 Lahore 801; 1972 SCMR 23; PLD 1974 SC 22; PLD 1975 (SC) (AJ&K) 131; 1981 SCMR 433; PLD 1983 SC 385; PLD 1991 SC 1 and PLD 1991 SC 226. The learned counsel for the respondents has placed reliance on the cases reported in PLD 1958 Lahore 959; 1989 SCMR 144 and PLD 1990 SC 622. Amongst the cases cited by the learned counsel for the parties, referred to in paragraph 6 ante, in the cases reported in PLD 1958 Lahore 959; PLD 1960 Lahore 801; 1972 SCMR 23; PLD 1975 SC (AJ&K) 131; PLD 1983 SC 385 and PLD 1991 SC 1, delay in pursuing the remedy before wrong forum on wrong advice or under bona fide belief and without negligence on the part of the party was condoned. It was only in the cases reported in PLD 1958 Lahore 959 and 1988 SCMR 1354 that delay on account of choosing a wrong forum under wrong advice of the Advocate tendered without due care was not condoned. The other cases cited by the learned counsel are not applicable to the facts of this case. It would thus appear that where a party pursues remedy before a wrong forum without indulging in negligence and carelessness, the delay in filing the proceedings before the competent forum was found condonable. In the instant case, the appellant seems to have first invoked the jurisdiction of the High Court under the bona fide belief that his remedy lay there and not before the Service Tribunal and, therefore, the delay in preferring the appeal before this Tribunal is condoned.

10. Consequent to the aforesaid finding that the appeal is not liable to be dismissed as time‑barred, the matter may come up for regular hearing on merits in due course.

A.A./746/Sr.F Delay condoned.