SHER BANNOO Versus DIRECTOR OF EDUCATION, SARGODHA DIVISION

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑MSt. Sher Bannoo has filed this appeal under section 4 of the Punjab Service Tribunals Act in which she has impleaded the Director 'of Education Sargodha Division, Sargodha, the District Education Officer, Sargodha, the Punjab Province, through Collector, Sargodha District Sargodha and the Government of the Punjab through Secretary Education, Lahore as respondents. This appeal is directed against the order, dated 18th October, 1977 of respondent No. 2 whereby the services of the appellant were terminated.

2. By virtue of this appeal it has been prayed that the impugned order be set aside as being illegal, without lawful authority and as well inoperative.

3. Brief facts of the case are that the appellant was appointed as J. V. Teachress in Government Girls Primary School Kalra against vacant post, vide Order No. 252/E‑2, dated 24th November, 1973. At the time of her appointment the appellant's age was 45 years and thus was about 21 years overage. The appellant after appointment in 1973 made number of representations to the competent authority for relaxation of her age but the same was not relaxed. When the appellant received impugned order, dated 18th October, 1977 by which service of the appellant were terminated being aggrieved against this order the appellant filed suit in the Court of Civil Judge, Sargodha on 15th November, 1977 which was dismissed by the learned Civil Judge on 19th April, 1980 holding thereby that the case may be sent for hearing to the Punjab Service Tribunal and Civil Court has got no jurisdiction. Hence this appeal.

4. The learned counsel for the appellant on behalf of the appellant has submitted that the impugned order was passed without any show cause notice and .no opportunity has been offered to the appellant to explain her position before the termination of service of the appellant which was against the fundamental principle of justice. It has been further submitted that it was the duty of the Government to relax the age of the appellant and this matter has caused grave injustice to the case of the appellant. The learned counsel has also made grievance that the case of the appellant was not covered by M. L. instruction 21 which was issued on the 8th day of August, 1977. On the other hand the learned District Attorney has taken stand that the appellant had no business to go to the Civil Court when the Punjab Service Tribunal was functioning and there fore, the appeal of the appellant is hit by Law of Limitation and, thus hopelessly time‑barred. It has been further argued that the appointment of the appellant was on temporary basis and also by being overage b5 21 years she could not be retained in service. With regard to the relaxation of age limit it has been submitted it is always prerogative for the Government Authority to relax or to refuse the same.

5 We have given our anxious thought to the contention raised before us and first of all we will deal with the legal objection pertaining to Law of Limitation. We have taken into consideration the relevant dates which are as under;

Impugned order was passed on 18th October, 1977 and the appellant reached before this Tribunal on 10th November, 1980. Civil Court decision was made on 19th April, 1980. The dates so given above will show that the appeal is time‑barred by almost 3 years. If we do not count the period so spent by the appellant before the civil Court the decision of the civil Court being of 19th April, 1980 the appeal is still time‑barred by 7 months even if that period is condoned. We are of the considered opinion that the appellant has given no cogent reasons as to why she went to the civil Court when the Service Tribunal was in existence. No body can be allowed to seek a forum of his own choice and then come and tell the tribunal that the period so spent there be condoned for the purpose of limitation. Even the date of decision of the civil Court is 7 months earlier to the date of the appeal so filed before us. Therefore, the appel lant case is hit by the law of limitation in either case. We uphold the objection raised by the learned District Attorney that the appeal is barred by time. With regards to the merits of the case it would be sufficient to say that the appointment order of the appellant speaks that the appoint ment was on temporary basis subject to the relaxation of the age limit. In the present case the Government has not relaxed the said limit, there fore, the appointment of the appellant can be terminated without notice to her at any time. She accepted appointment with the condition so laid 8 down therein. Therefore, she is not entitled to make grievances against the said termination so made by the departmental authority.

Therefore, we dismiss the appeal as being time‑barred as well as being without any merits. However, the parties will bear their own costs.

M. I. Appeal dismissed.