LAHORE HIGH COURT, LAHORE through Registrar vs NAZAR MUHAMMAD

' AJ'MAL MIAN, C.J.---By this common judgment we intend to dispose of the above three appeals, which have been filed with the leave of this Court against the orders dated 17-5-1995 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore established under the Subordinate Judiciary Service Tribunal Act, 1991 (Act XII of 1991) whereby on the statement of the then learned Advocate-General, Punjab, the appeals of the respondents were accepted and the termination orders of the respondents' services were set aside.

2. The brief facts are that the respondents were inducted into Subordinate Judiciary in the year 1989. Their services were terminated while they were on probation. They filed appeals before the Punjab Subordinate Judiciary Service Tribunal, which were allowed on 17-5-1995 for the aforesaid reasons. It appears that after the passing of the order under appeal, the High Court issued the posting orders in respect of the respondents in October 1995. It further seems that the matter was taken up by the Administration Committee on 28-10-1996. In the meeting it was resolved to file petition for leave to appeal whereafter the above petitions for leave to appeal were filed on 1-4- 1997, which were time-barred by 625 days in which leave was granted.

3. In support of the above appeals, Mr. Malik Muhammad Azam Rasool, learned counsel appearing for the Lahore High Court has vehemently contended that since the impugned order dated 17-5- 1995 was without jurisdiction inasmuch as it was founded on the concession of the learned Advocate-General, Punjab, who had no authority to make the concession on behalf of the High Court, this Court should condone the delay of 625, days. In support of his above submission, he has referred to the case of Ch. Manzoor Elahi v. Federation of Pakistan and others reported as PLD 1975 SC 66 in which delay of 208 days was condoned as question of interpretation of President's Order No, 11/1961 was involved with reference to Article 225 of the Constitution of 1962. On the other hand, Mr. Raja Muhammad Anwar, learned Sr. ASC appearing for the respondents, has referred to the case of Commissioner of Income-Tax v. Rais Pir Ahmed Khan reported as 1981 SCM R 37 wherein it has been held that the fact that various authorities were examining the matter with a view to deciding whether or not to file appeal, was not sufficient ground for condonation and that Government cannot claim to be treated in any manner differently from an ordinary litigant . The same view was taken in the case of Government of the Punjab through Secretary (Services), SGA&ID, Lahore and another v. Muhammad Saleem reported as PLD 1995 SC 396 and the case of Federation of Pakistan through Secretary, Ministry of Foreign Affairs and 5 others v. Jamaluddin and others reported as 1996 SCM R 727.

4. The latest view seems to be that the Government cannot be treated differently than an ordinary litigant while considering the question as to whether sufficient cause has been shown for the condonation of delay under section 5 of the Limitation Act. In the present case, the ground advanced cannot be said to be sufficient. Admittedly, two learned Judges of the Lahore High Court were the Members of the Tribunal which passed the impugned order dated 17-5-1995. It is also an admitted position that in October, 1995 the posting orders were issued pursuant to the above order of reinstatement. In any case, the High Court had the knowledge of the above order in October 1995, but even then no action was taken within a reasonable period. Petitions for leave were filed after nearly one and a half years from the date of posting orders.

5. It was vehemently urged by Mr. Malik Azam Rasool that the case involves legal questions of public importance inasmuch as it will affect the independence of judiciary if it is conceded that the Government had the authority to make concession on the relevant date i.e, 17-5-1995 in spite of the enforcement of the Punjab Judicial Service Rules, 1994. In our view, the above apprehension of the learned counsel for the appellant is not well-founded. We are inclined to agree with him that on 17- 5-1995 the then learned Additional Advocate-General should not have conceded to the above order without taking instructions from the High Court which was directly involved and after the enforcement of the Punjab Judicial Service Rules, 1994, it had become appointing authority and, therefore, the question whether the respondents were to be reinstated or not was within the domain of the High Court and not within the power of the Provincial Government. However, this does not affect the question of limitation. The appeals are dismissed as time-barred.

6. We inquired from the learned counsel for the appellant as to the performance of the respondents after re-joining. He has made certain submissions which we are not inclined to incorporate in the order. However, it will suffice to observe that nothing will come in the way of the High Court if it comes to the conclusion that disciplinary action is warranted against any of the respondents on account of his conduct. There will be no order as to costs.