WAPDA and 2 others vs MUHAMMAD HUSSAIN GUL

ORDER

1. ' SAEEDUZZAMAN SIDDIQUI, J.---The petitioners have sought leave to appeal against the Order of Service Tribunal Islamabad, dated 29-9-1992, whereby service appeal filed by the respondent against his termination from service was accepted and he was directed to be re-instated in service without monetary benefits for the period he remained out of job but allowing that period to be counted towards the length of service.

2. ' The learned counsel for the petitioners, WAPDA, contended before us that the respondent was an ad hoc employee and as such his termination from service before confirmation could not be challenged before the Service Tribunal. It is also contended by the learned counsel that the appeal before the Service Tribunal was time-barred by 22 months and the delay could not be condoned in the circumstances of the case.

3. ' On merits, the learned Tribunal found that the appointment of the respondent as Revenue Officer though was made on ad hoc basis but the condition of the appointment clearly stated that his appointment could be terminated in case he was not found suitable by the Selection Board or he failed to pass/qualify written test for the post of Revenue Officer. The initial appointment of the respondent was made on 8-12-1986 as Revenue Officer in power wing on ad hoc basis for 6 months. This appointment was subject to the following conditions:-- "2. This appointment is temporary and purely on ad hoc basis subject to his qualifying the written test for R.O. And approval of Selection Board for appointment of Revenue Officers. In case he is not found suitable by the Selection Board, his ad hoc appointment will be liable to termination."

4. ' The period of appointment was extended for 4 months on 17-6-1987 and then for another 6 months on 1-10-1987. Finally the period f appointment was extended vide letter dated 16-5-1988 until declaration of result and approval of the respondent by the Selection Board, WAPDA, Lahore. It is not disputed before us and it was also conceded before the Service Tribunal that the respondent not only passed written examination prescribed for the post of Revenue Officer but his appointment was also approved by the Selection Board, WAPDA, Lahore. In these circumstances, the learned Tribunal rightly reached the conclusion that there was no other condition attached to the ad hoc appointment of the respondent, except that on his successfully passing the test and having been selected by the Selection Board, WAPDA, he was entitled to regular appointment in terms of his appointment letter. No exception, therefore, could be taken to the order passed by the Service Tribunal on merits.

5. ' With regard to the other contention of the learned counsel for the petitioners that the appeal before Service Tribunal was time-barred, the tribunal condoned delay in filing the appeal on the following considerations:-- "(4) The learned counsel for the appellant does not claim that the appeal was filed within time.

6. However, an application for condonation of delay has been filed under section 5 of the Limitation Act, 1908. In this application it is contended that the time spent in pursuing the remedy before the Lahore High Court deserved to be excluded. The reason given by the appellant in his own words is that he has wrongly been advised by his counsel to file the writ petition in the High Court despite the fact that the proper forum for his grievance was the Service Tribunal.

(5) Normally wrong advice of counsel is not a good excuse. However, since the question of High Court and the Service Tribunal had been the subject-matter in numerous cases and there had been difference of opinion as well, we think that application for condonation of delay should be treated with leniency. Most of the lawyers are not conversant with service laws and ordinarily WAPDA employees would have been allowed with the deficiency of civil servant if amendment under section 17 of the WAPDA Act had not been made. The different text books even have failed to carry out the amendment in the Act which can mislead a lawyer. It has been held in so many cases by the Supreme Court itself that as far as possible technicality in service matters should be avoided. Taking into consideration all these facts, therefore we inclined to condone the delay and exclude the time spent in pursuing the remedy before the High Court. It is ordered accordingly."

7. The above reasoning given by the learned Service Tribunal in condoning the delay in filing the appeal do not suffer from any legal infirmity, so as to call for interference by us with the discretion exercised by the Tribunal in the case. We, therefore, find no merit in this case. Petition is dismissed.

8. Leave to appeal is refused.