Dr. MUHAMMAD SALEEM MIRZA, INCHARGE, DISTRICT HEALTH DEVELOPMENT
This matter concerns a petition for leave to appeal against an order of the Punjab Service Tribunal, which had dismissed the petitioner's appeal against a transfer order on the grounds that it was premature, as the statutory ninety-day waiting period following a departmental representation had not elapsed. The core legal question was whether a civil servant is barred from approaching the Service Tribunal when a departmental authority, by refusing to forward a representation through the proper channel, effectively prevents the exhaustion of departmental remedies within the statutory timeframe. The Supreme Court observed that the Director, Health Services, created an anomalous situation by filing the petitioner's representation rather than forwarding it, thereby obstructing the petitioner's access to administrative redress. Consequently, the Court, by consent of the parties, converted the petition into an appeal and directed the petitioner to submit the representation directly to the Secretary, Health Department. The Court held that the Secretary must decide the representation within fifteen days, during which time the impugned transfer orders remain suspended, ensuring the petitioner's right to seek administrative remedy is not defeated by procedural obstruction.
- Can a civil servant approach the Service Tribunal if a departmental authority refuses to forward a representation through the proper channel before the expiry of the statutory ninety-day period?
- Does the refusal of a departmental authority to forward a representation constitute a rejection that allows a civil servant to seek judicial intervention?
- Is the ninety-day waiting period for departmental remedies applicable when the departmental authority fails to process the representation?
- Section 4, Punjab Service Tribunals Act 1974
' MUNIR A. SHEIKH, J.---Leave to appeal is sought against the order, dated 12-8-1998 of the Punjab Service Tribunal through which the appeal of the petitioner against the order dated 14-7-1998 of his transfer has been dismissed as not maintainable having been filed without waiting for the statutory period of 90 days to elapse since the making of departmental representation.
2. The facts of the case briefly stated are that the Secretary, Health Department, Government of the Punjab on 14-7-1998 issued order for the transfer of the petitioner. The petitioner made representation against the same on 15-7-1998. Since according to the rules/instructions, it was to be routed through proper channel, therefore, the same was submitted to Director, Health Services, Multan Division, Multan for onward transmission to the Secretary, Health Department, Government of the Punjab but instead of forwarding the same to the Secretary, he passed an order that the same could not be forwarded at the stage and as such was filed. The petitioner filed appeal before the Service Tribunal which has been dismissed through the impugned order dated 12-8-1998 as aforementioned.
3. It may be mentioned that Director Health Services on 16-7-1998 issued an order for the transfer of respondent No,4 to the post from where the petitioner had been transferred. The operation of the order dated 14-7-1998 of the transfer of the petitioner was suspended by the Service Tribunal during the pendency of the appeal, therefore, the Director Health Services in compliance therewith on 31-7-1998 withdrew the order dated 16-7-1998 of the transfer and posting of respondent No,4 as a consequence of which as admitted by learned counsel for both the parties, today, the petitioner is still holding the said post from where he was transferred through order dated 14-7-1998. Even after the dismissal of his appeal by the Service Tribunal, no fresh order has been issued.
4. Learned counsel for the petitioner submitted that the petitioner was debarred under the instructions/rules to approach directly the Secretary, Health Department through representation as it was required that the same was to be routed through proper channel, therefore, the representation made by him to the Secretary through Director, Health Services, who instead of forwarding the same to the Secretary, declined to do so and filed it, therefore, he was not required in these circumstances to wait for 90 days as under the law if a representation is rejected by the departmental authority before the expiry of period of ninety days, the aggrieved civil servants could approach the Service Tribunal as the period of ninety days in the maximum period which is provided under the law to approach the Service Tribunal which would be applicable in case the departmental authority fails to pass any order on the departmental appeal/representation within the said period which principle is not applicable in this case.
5. In this case, an anomalous situation was created by the Director, Health Services by not forwarding the representation of the petitioner to the Secretary, Health Department. The order of not forwarding the representation of the petitioner by the Director, Health Services is not under the rules appealable before higher authority and the petitioner was, thus. Debarred to challenge the said order of the Director, Health Services.
6. The petitioner in these circumstances on the one hand was held to have been debarred from seeking remedy from the Service Tribunal due to the said conduct of the Director Health who acted in haste by filling the vacancy created by the impugned transfer order of the petitioner, dated 14-7- 1998 by posting respondent No,4 against the said post on 16-7-1998.
7. Learned counsel for both the parties in these circumstances agree that the petitioner may be allowed to send a copy of the said representation directly to the Secretary, Health Department who may be directed to decide the same within fifteen days from the receipt of this order till then, the operation of the orders dated 14-7-1998 and 16-7-1998 may be suspended.
8. By consent, this petition is converted into appeal and the same is disposed of in the terms that a copy of representation made by the petitioner to the Secretary, Health Department through Director Health shall be made directly/sent by him to the Secretary who shall decide the same within fifteen days from the date of the receipt of this order and in the meantime, operation of the orders dated 14-7-1998 and 16-7-1998 shall remain suspended.