2012 P L C (C.S.) 1311
[Balochistan High Court]
Before Mrs. Syeda Tah ira Safdar and Jamal Khan Mandokhail, JJ
JAMAL -UD-DIN
Versus
CHIEF JUSTICE, BALOCHISTAN HIGH COURT through Registrar
Service Appeal No.1 of 2010, decided on 7th May, 2012.
Balochistan Civil Servants (Appeal) Rules, 1983 ---
----R. 5 ---Balochista n Civil Servants (Efficiency and Disciplinary) Rules, 1992, R.14 ---
Reversion ---Departmental representation ---Limitation ---Appellant had challenged the
notification whereby he was reverted from the post of Senior Civil Judge to the post of
Judicial Magistra te on the ground that he had no knowledge of the proceedings against him
and he had been condemned unheard ---Burden of proof ---Departmental representation
submitted by the appellant was refused on the ground that it had been filed beyond the
prescribed per iod---Validity ---Period provided for submitting a representation/departmental
appeal to the Departmental Authority was sixty (60) days as per Balochistan Civil Servants
(Appeal) Rules, 1983 ---Appellant's application, after the exclusion of the provided per iod of
sixty days, was submitted five months beyond the said provided period ---Appellant had to
show reasonable cause on basis of which the delay so occurred could be condoned; he had
only taken the plea that he had no knowledge about the impugned orders however, the burden
was exclusively on him to establish his respective plea ---Contents of the appellant's
representation stated no reason for the delay ---Contradictory stand had been taken by the
appellant on the date of him acquiring knowledge of impugned orders ---Representation filed
by the appellant was beyond the prescribed period and the delay was without any reasonable
cause or any ground for condonation of delay ---Appeal was dismissed.
Shamsuddin for Petitioner.
Azizullah Khilji, A.A. -G. for Resp ondent.
Date of hearing: 10th November, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The appellant Jamaluddin through instant appeal
assailed the order dated 21st July, 2009, whereby he was reverted, and his promotion was
withheld for a period of t hree years. He questioned the order on the ground that the impugned
order is contrary to the principles of natural justice. Because, it was never communicated to
him, rather he was kept in dark. Further the disciplinary proceedings though initiated against
him, but its fate was never communicated to him. Rather, in the month of March, 2010 for the
first time he got knowledge about the penalty imposed on him. In the circumstances his case
was not time -barred, therefore, required to be decided on merits. It w as further contended that
he had been serving from the last ten years, and during all these years performed his duties to
the best of his abilities, therefore, the order of reversion without even hearing him is nullity in
the eves of law. Because, no one c an be condemned unheard, and an opportunity of hearing
was required to be given to him. Further, in view of the facts the punishment awarded to him
is harsh, therefore, not sustainable. It has been prayed that the order dated 21st July, 2009 be
set aside, and he be promoted according to the seniority with all back benefits.
2. During course of arguments the learned counsel for the appellant contended that the
disciplinary proceedings were held without observing the relevant Rules, while the
Authority also exercised powers of Authorized Officer in violation of the Rules, which
makes all the proceedings of no legal effect. It was further his arguments that the
observations made by the honorable Supreme Court in t he judgment were mere
observations in a judicial order, therefore, needs no action on administrative side.
Despite the same, the proceedings were held, and an adverse order was made, which
was against the spirit of natural justic e, therefore, cannot remain in field. The learned counsel
further argued that the appellant while observing the High Court Rules and Orders, conducted
the proceedings, and did not record the confessional statement. Because, it is provided therein
that conf essional statement of an accused person cannot be recorded after the office hours.
Therefore, no illegality was committed by him. The learned counsel urged that the error
committed by the appellant, during course of a judicial proceeding, and of not a seri ous
nature, nor there was any mala fide on his (appellant) part, therefore, the punishment awarded
to him was harsh in the circumstances. While replying to the arguments the learned
Additional Advocate -General (A.A. -G.) was of the view that there is no ill egality in the
impugned order, while the proceedings held against the appellant were in accordance with the
relevant law, and the Rules applicable in the matter, therefore, needs no interference.
3. Through instant appeal the appellant has challenged the order dated 21st July, 2009,
but from the contents of the main appeal appears that the appellant in fact challenged the
Notification No.2330/VI.M -46/Admn: dated 27th July 2009, whereby he had been reverted
from the post of Senior Civil Judge to the post o f Judicial Magistrate. According to the
appellant in the month of April, 2010 he acquainted with the fact that some judicial officers
were regularized, while he (appellant) had been ignored, therefore, he moved an
application on 26th February, 201 0 with the prayer for granting him promotion, and re -
calling of the order, whereby he had been reverted. But, his request was turned down by the
Authority through order dated 31st March, 2010, only on the ground of limitation. Further
copy of the order dat ed 21st July, 2009 was enclosed with the mentioned letter, which
disclosed the fact of imposing of penalty against him. The main plea of the appellant was to
the effect that he was condemned unheard and the impugned order was not timely
communicated to him . Therefore, the application/representation made by him was not time -
barred, and in view of the fact the order dated 31st March, 2010, whereby his departmental
representation was rejected, was not proper, rather it was required to be decided on merits.
4. As the representation submitted by the appellant was refused only on ground that it
has been filed beyond the provided period, therefore, before going into merits of the case this
point is to be addressed. Section 5 of the Balochistan Subordinate Judicia ry Service Tribunal
Act 1989 (Balochistan Act -VI of 1989) will be relevant. Whereby the provided period for
filing an appeal before the Tribunal is thirty (30) days from communication of order to the
member of subordinate judiciary. But an exception is pro vided in clause (a) of the Proviso,
which reads as under: ---
"Provided that (a) Where an appeal, review of representation to departmental authority is
provided under the Balochistan Civil Servants Act, 1974, or any rules against any such orders
no appeal shall lie to a Tribunal unless the aggrieved person has preferred an appeal or
application for review representation to such departmental authority and a period of ninety
days has elapsed from the date on which such appeal, application or representation w as so
preferred."
5. In present case the proceedings against the appellant were held under the provisions
of the Balochistan Civil Servants (Efficiency and Disciplinary) Rules, 1992, and the penalty
was imposed against him thereunder. Rule 14 or the Balo chistan Civil Servants (Efficiency
and Disciplinary) Rules, 1992, is relevant, which provides a right of appeal to Departmental
Authority, by an aggrieved person. The Rule reads as under: ---
"14. Appeal. --- (1) A civil servant on whom a penalty is impose d shall have such right of
appeal to the authority specified in the Balochistan Civil Servants (Appeal) Rules, 1983.
Provided that, where the penalty is imposed by order of the Chief Minister, there shall be no
appeal but the civil servant may apply for review of the orders.
(2) Every appeal shall be preferred, processed and disposed of in the manner laid down in
the Balochistan Civil Servants (Appeals) Rules, 1983."
6. The period provided for submitting an appeal to the Departmental Authority, under
the Balochistan Civil Servant (Appeal) Rules, 1983 is within a period of sixty (60) days of
the communication of the order appealed against. Rule -5 of the Balochistan Civil Servants
(Appeal) Rules, 1983 is relevant, which reads as under: ---
"5. (1) Every person preferring an appeal shall do so separately and in his own name.
(2) Every appeal preferred under these Rules shall contain all material statements and
arguments relied upon by the appellant, shall contain no disrespectful or improper language,
and shall be complete in itself.
(3) Every appeal shall be submitted through the Head of the Office to which the appellant
belongs or belonged.
(4) Every appeal shall be submitted within a period of sixty days of the communication of
the order appealed against."
7. In present case though the appellant challenged the order dated 21st July, 2009, but as
per contents of the memo. of appeal he questioned the order/Notification dated 27th July,
2009, whereby some posting, and transfer orders had been made. The name of the appellant
appears at serial No.6, wherein it has been mentioned that he has been transferred from the
post of Senior Civil Judge Dera Allah Yar, and reverted to his original post as Judicial
Magistrate, and thereby transferred to Kohlu. The appellant only called into question order of
his reversion as Judicial Magistrate, and prayed for his promotion. He only referred to some
disciplinary action taken against him on the observations made by Honorable Supreme Court
in a judgment. It was his c ontention that he had been condemned unheard, while no
opportunity of hearing was given to him. But the papers attached with the appeal negates the
same. He though questioned Notification No.2330/VI.M -46/Admn: dated 27th July, 2009,
which is in resp ect of transfer, and posting of judicial officers. But he also attached
copy of the order dated 21st July, 2009. The perusal of the order reveals that during
disciplinary proceedings show -cause notice was issued for the appell ant, and on submitting
reply, final show -cause notice was also issued, which was duly replied by him. The
proceedings were held while exercising powers under the Balochistan Civil Servants
(Efficiency and Disciplinary) Rules, 1992, and penalty was imposed in terms: ---
"... major penalty of reversion from the post of Senior Civil Judge ( on which post he
was promoted on officiating basis) to that of Judicial Magistrate as provided under section
4(b)(i) of the Balochistan Civil Servants (Ef ficiency and Disciplinary) Rules, 1992, in
addition to withholding his three years future promotion, as provided tinder rule 4(a)(ii) of
the E&D Rules... -"
8. In this respect a Notification No.2328/PF/Admn: was issued on 27th July, 2009,
which was also m arked to the appellant, but he (the appellant) neither questioned this
Notification, nor annexed copy thereof with the instant appeal. It is further observed that in
the application/ representation submitted by the appellant dated 26th July, 2010, the fact s
about taking of disciplinary action, and the penalty imposed upon him are nowhere
mentioned. Rather, the appellant only asserted that he was unluckily reverted to his original
post vide Notification No.2330/VI.M -46/Admn: dated 27th July, 2009, thereby pr ayed for re -
calling of the order of his reversion. His request was disallowed by the Authority through
order dated 31st March, 2010, being time barred, which is questioned through instant appeal.
The provided period for submitting a representation/ departm ental appeal to the Departmental
Authority is sixty (60) days as per the Rules 1983, but the appellant submitted the application
after lapse of nearly seven (07) months. Therefore, after exclusion of provided period of sixty
(60) days, the application was submitted after lapse of five (05) months beyond the provided
period. It was the appellant, who had to show a reasonable cause on basis of which the delay
so occurred can be condoned. The appellant only took the plea of ignorance thereby
contended that he had no knowledge about the impugned orders, therefore, was unable to
approach the Authority within the provided period. The burden was exclusively on the
appellant to establish his respective plea. But, the contents of his representation states no
reason a bout the delay occurred in filing of it. But in the instant appeal the appellant
described his date of knowledge to the extent of Notification 2330/V1.M -46/Admn: dated
27th July, 2009 as month of April, 2010. As far as second Notification dated 2328/PF/Adm n:
dated 27th July, 2009, is concerned, the date of his information is described as March, 2010.
A contradictory stand has been taken. In addition according to his own contention he filed
application, thereby challenged order of his reversion, and also for his promotion on 26th
February, 2010. Keeping in view both the contentions it appeared that the appellant submitted
the application even before getting knowledge of the order, whereby penalty was imposed on
him, which is not only illogical, but cannot be relied upon. Because it is practically
impossible that a member in service remained ignorant of his transfer and posting order for a
period of six or seven months, and continued his service on his previous post during
this period without any obj ection from any side. Even otherwise it was not his case in instant
appeal, nor before the authority.
9. Apart from the mentioned facts it is worth to be noted that though the appellant was
working as Senior Civil Judge (B -19) by virtue of Notification d ated 15th April 2008. But in
fact his appointment at the post was not result of promotion on regular basis. Rather he was
appointed to the post "purely on officiating basis" this does not confer him any right to claim
regular promotion or seniority as Seni or Civil Judge being a stop gap arrangement. In view of
the facts the appellant was never promoted to the rank of Senior Civil Judge, therefore, there
was no occasion of his reversion, rather in fact he was posted on his original post by the
impugned Notif ication, which does not amount to a penalty.
10. It is painfully observed that the there is complete concealment of facts on the part of
the appellant. He not only tried to deceive the Authority to obtain a favourable order, but also
misstated the facts before this Tribunal. The mala fides on the part of the appellant are very
much apparent from contents of the appeal, and the representation. In view of the same he
deserves no leniency.
I1. In view of above discussion the representation submitted before the Departmental
Authority was filed beyond the provided period, that too, without any reasonable cause.
Furthermore, there is complete failure on part of the appellant to make up a ground for
condonation of delay. Furthermore, though both the Notificatio ns issued on even date, but the
Notification No.2330/VI.M -46/Admn: followed Notification No.2328/P/Admn:, but the
subsequent Notification failed to disclose the fact as poorly drafted, but no benefit of the
same can be extended in favour of the appellant, due to his own conduct.
There are no merits in the appeal, which is hereby dismissed.
K.M.Z./32/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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