Major (Retd.) ABDUL WAHEED KHAN Versus FEDERAL SERVICE TRIBUNAL

ORDER

NASIR ASLAM ZAHID, J .‑‑‑This petition has been filed by petitioner Major (Recd) Abdul Waheed Khan seeking leave against the 'Judgment dated 21‑4‑1999 of the Federal Service Tribunal dismissing his appeal. We have heard Mr. Ali Akbar, learned Advocate Supreme Court for the petitioner, Mr. S. Tariq Ali, learned Standing Counsel for the Federal Government, and Mr. Marian Bhatti, Assistant Manager, Law Department, Pakistan Steel Mills Corporation for Steel Mills, and with their assistance, referred to the relevant record.

2. Appeal of the petitioner has been dismissed as time‑barred. Petitioner was aggrieved by the order of his reversion dated 21‑7‑1992. He filed a representation dated 28‑7‑1992 on which no orders was passed. Thereafter, according to the petitioner, he filed repeated representations and finally by order dated 31‑12‑1998 his departmental appeal was dismissed and he approached the Federal Service Tribunal on 20‑1‑1999 by filing an appeal within 30 days of the order of the departmental appellate authority.

The Tribunal .has held that where there is right of appeal it implies one such right and not its repeated exercises and as the order relied upon by the petitioner for extension of limitation was not referable to the first representation/appeal but to a subsequent one, right of appeal under section 4 of the Service 'tribunals Act came to an end with the filing of the first representation/appeal and expiry of period prescribed under section 4 of the Act.

3. There is nothing on the record of this petition that any order was hissed/communicated to the petitioner on the representation made by the petitioner in 1992 against his reversion. However there are later representations including one dated 26‑11‑1998 which are termed as second appeals by the Tribunal but as reminders representations by the petitioner on which order was passed by the competent authority and communicated to the petitioner through memo. dated 31‑12‑1998 which read as follows:‑

"Subject: RESTORATION OF PROMOTION AS D.G.M.

This has reference to the representation dated 26‑11‑1998, regarding your fitness for promotion in the grade of D.G.M. against the reversion order dated 21‑7‑1972.

(2) It is to inform you that the Competent Authority after careful examination of your representation for promotion to the post of Deputy General Manager reversed vide letter dated 21‑7‑1992 has rejected your request as it does not conform to merit. However, you may invoke such legal' remedies that may be available to you, in this regard."

4. Mr. S. Tariq Ali, learned Standing Counsel for the Federal Government, very frankly submitted that apparently the appeal of the petitioner before the Tribunal was not time‑barred inasmuch as on the initial representation made in 1992 there was no decision by the competent authority and the order communicated on 31‑12‑1998 is the first communication of the decision of the competent authority and the appeal having been filed on, 20‑1‑1999 the same is apparently within tune. However, Mr. Marian Bhatti, Assistant Manager, Law Department, Pakistan Steel Mills Corporation, submitted that neither the Tribunal gave Ay opportunity to Pakistan Steel Mills Corporation to place on record the documents to show that perhaps decision was taken on the initial representation of the petitioner and if that is so the 19ter representations was of no effect and here also notice was received by Pakistan Steel Mills Corporation only yesterday and record could not produced. According to Mr. Manan Bhatti, record might show that initial representation of the petitioner was responded by the Management.

5. Reference may be trade to the judgment of this Court in the case of Firdos Ali v. Secretary Establishment Division (1997 SCMR 1160). Paras 2 and 3 of the reported decision are read as follows:‑

"(2) The order which aggrieved the appellant with regard to his seniority was passed on 4‑11‑1984. He filed a departmental appeal against it the same month on 29‑11‑1984. The Tribunal has taken the view that immediately after filing the departmental appeal he should have come to the Service Tribunal within 120 days available to him. The departmental appeal itself was disposed of on 2‑5‑1990 and the appellant filed the Service Appeal before the Tribunal on 30‑5‑1990.

(3) Section 4 of the Service Tribunals Act by express words confers a right on the civil servant to appeal against the original or the appellate order of a departmental authority. This right cannot be abridged to only original order and not the appellate order. From the date of the appellate order i.e. 2‑5‑1990 the appeal filed within thirty days before the Service Tribunal was within time. The appeal could not be dismissed as time -barred.

In the present case also even if the impugned order of reversion is dated 21‑7‑1992 but for the first time the competent authority rejects the representation in 1998, the petitioner's appeal before the Tribunal filed within 30 days of such order of reversion by the departmental appellate authority will be in time. In case, however, any, representation of the petitioner was earlier rejected by the departmental authority, another order by the departmental authority passing a similar rejection order on a second representation will not extend the period of limitation.

6. In the circumstances, we convert this petition into appeal, allow the same, set aside the impugned judgment and remand the case to the Federal Service Tribunal for fresh decision. The parties will be given opportunity to place all documentary evidence on record as they may desire. Fresh decision will only be taken on the question of limitation in case Pakistan Steel Mills Corporation places on record documents showing earlier rejection of any representation of the petitioner preferred in 1992 and communication of such order to the petitioner. In such eventuality if the Tribunal comes to the conclusion that the appeal is barred by time, the Tribunal may not take any decision on merits. Otherwise the Tribunal will dispose of this cases on merit.

There shall be no order as to costs.

Q.M.H./A‑235/S Case remanded.