SHAHABUDDIN vs CHAIRMAN, WAPDA and others

1. ' QAZI MUHAMMAD FAROOQ, J.---This appeal, by leave, is directed against the judgment, dated 18- 10-1993 of the learned Federal Service Tribunal, hereinafter referred to as the Tribunal, whereby the appeal filed by appellant Shahab-ud-Din for grant of move-over to BPS-19 from a particular date was dismissed.

2. Relevant facts, in brief, are that the appellant had joined WAPDA as Assistant Accountant on 3-2- 1964 and was promoted as Budget and Accounts Officer (BPS-17) with effect from 22-5-1974. He earned further promotion as Senior Budget and Accounts Officer (BPS-18) on 17-5-1984 and was allowed move-over to BPS-19 with effect from 1-12-1991 by order, dated 10-3--1993. He made a representation on 29-3-1993 with the prayer that the effective date of move-over may be shown as 1-12-1986 but the same was turned down by the competent authority and the order was communicated to him through a letter, dated 19-7-1993. Feeling aggrieved, he filed an appeal before the Chairman, WAPDA, Lahore on 3-8-1993 but it was rejected on 16-9-1993. Thereafter, he filed an appeal on 14-10-1993 before the Tribunal, but the same was dismissed as time-barred on 18-10-1993. Hence, this appeal.

2. Leave to appeal was granted to consider whether the appeal of the I A petitioner before the Tribunal was barred by time It was contended by the learned counsel for the appellant that the appellant was well within his right to file an appeal before the Chairman, WAPDA against the order dismissing his representation, therefore, the appeal before the Tribunal was not time-barred and in any case the delay was condonable. Reliance was placed on Israr Ahmed Khan v. Government of N.-W.F.P. and others (1990 SCM R 1356).

3. The learned counsel for the respondents, on the other hand, submitted that the appeal before the Tribunal was badly barred by limitation as the prescribed period of thirty days is to be counted from 19-7-1993 when the first representation made by the appellant was rejected and not from 16- 9-1993 when his second representation was dismissed. It was further submitted that the appellant had not sought condonation of delay in any manner.

4. Admittedly, the first representation made by the appellant on 29-3-1993, against the order, dated 10-3-1993, was rejected on 19-7-1993. He was thus obliged to file an appeal before the Tribunal within a period of thirty days but instead of filing an appeal he made a second representation which was rejected on 16-9-1991 A second representation or departmental appeal has not been envisaged either by section 22 of the Civil Servants Act, 1973 or the Civil Servants (Appeal) Rules, 1977, therefore, the prescribed period of limitation for filing an appeal before the Tribunal is to be reckoned from the date of dismissal of the first representation or departmental appeal made by the aggrieved civil servant. The appeal was thus rightly held to be time-barred by the Tribunal.

5. Adverting to the authority cited by the learned counsel for the appellant we find that in that case also the aggrieved civil servant had made two representations and the appeal was time-barred but the objection that the second representation by way of review was not competent was overruled and delay was condoned with the following observations:-- "But the dispute is not that the second representation by way of review was not competent. The question, on the other hand, is whether if under a bona fide mistaken view of the law this was done and the bona fides are apparent inasmuch as the same mistaken view was also shared by the Government, whether this was not a fit case for condonation of delay? We think it was. The learned Service Tribunal appears to have exercised its discretion not in accordance with law in refusing to condone the delay."

6. However, the appellant cannot draw any premium from the cited authority as it is distinguishable on two striking grounds. First, the second representation made in that case was a review petition seeking clarification of the order whereby the first representation for expunction of the adverse remarks was rejected. Secondly, in that case a prayer for condonation of delay was duly made before the Tribunal at the hearing of the appeal. Needless to mention that in the present case the appellant had neither moved an application for condonation of delay nor made a prayer in respect thereof before the Tribunal at the hearing of the appeal.

7. In any event, interference is not warranted as the case does not involve a substantial question of law of public importance within the contemplation of Article 212(3) of the Constitution.

8. ' For the foregoing reasons, the appeal is dismissed. No order as to costs.