Justice (R) Sayed Zahid Hussain, Chairman.--By means of order dated 29.10.2015, the appellant, Dispenser (BS-06), was transferred from Postal Dispensary to utilize his service as L.D.0 (BS-07). He made a representation there-against that he was a professional Dispenser with requisite qualification and experience, his posting as LDC at the Dte-General, PPO, Islamabad, was in violation of law and that being a Dispenser, he had to serve in the Medical Centre and not in the Administrative Offices. He thus prayed for cancellation of his posting. After receiving no response to his departmental representation, he has preferred this appeal under Section 4 of the Service Tribunal Act, 1973.
2. The respondents have submitted para-wise comments, opposing the appeal, inter-alia, that the cadre of the appellant has not been changed and his services were being utilized as LDC due to shortage of the staff. It is also contended that the departmental representation/application of the appellant has been rejected.
3. The learned counsel for the parties have been heard.
4. The learned standing counsel contends that since the departmental representation/application of the appellant has been rejected by the competent authority, this appeal which was filed prematurely, is liable to be dismissed for the reason that a fresh cause of action has accrued in favour of the appellant with the rejection of his departmental representation/application.
5. In response to this objection, the learned counsel for the appellant has drawn our attention to the order dated 09.11.2015 whereby the representation of the appellant was rejected and contends that it is not a speaking order at all and that neither the appellant was heard nor departmental order rejecting the departmental representation contains any reason whatsoever.
6. Though the appeal was filed, while the departmental representation was still pending, the same stand rejected vide communication dated 09.11.2015 addressed to the appellant. It reads as follows: "Subject: TRANSFER/POSTING TO THE ORIGINAL POST IN PARENT UNIT.
' Reference: Your application dated nil on the subject noted above.
' The competent authority has regretted to accede to your request on the above noted subject.
You, are hereby directed to obey orders and report for duty immediately.
Sd/- (Abdul Haleem Arian)
Assistant Director (Admin)
Mr. Shah Gul, Dispenser, Medical Dispensary, Directorate General, PPO, Islamabad".
7. The perusal of the above would show that it merely conveys to the appellant about the rejection of his representation, it cannot be termed an order as it contains no reason whatsoever. Not only that it is bereft of reference to any of the -.Grounds stated in his representation; it is a non- speaking order.
8. Suffice it to observe that when a departmental appeal/representation is filed by a civil servant, the departmental authority concerned is duty bound to consider the same objectively and if minded to reject the same, to record reasons for doing so and to pass a speaking order and inform the person concerned so that he may seek remedy if so desired in accordance with law. Section 22 of the Civil Servant Act, 1973 provides for right of appeal or representation. Its sub-section (2) is as follows: "2. Where no provision for appeal or review exists under the rules in respect of any order or class of Orders a civil servant aggrieved by any such order may within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order".
9. Thus where no right of appeal or review is provided for the redress of grievance the civil servants is given the right to make a representation before the next authority above, the authority which made the order. It is a statutorily recognized inter-departmental remedy. It is not less important than the right of appeal or review as provided by subsection (1) of Section 22 of the Act. Therefore, when a representation is made by the civil servant it need to be considered with open and independent mind by the authority concerned and pass a speaking order thereon. Such a duty to record reasons is also cast upon the departmental authority under Section 24A of the General Clauses Act, 1987 which reads as follows: "24-A. Exercise of power under enactments.---Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order of issuing any direction under the power conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or as the case may be the direction to the person affected prejudicially". [underlined for emphasis].
10. In this context reference may be made to 1998 SCM R 2268 (Messrs Airport Support Service vs. The Airport Manager, Quaid-eAzam International Airport, Karachi and others) wherein with reference to Section 24-A of the General Clauses Act, 1987, it was held that it "declares that where a statute confers a power to make any order or to give any direction to any Authority, office or person, such would be exercised reasonably, fairly justly and for the advancement of the purpose of'the enactment. What is more, the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, an affectee may demand the necessary reasons, which, in response, would be furnished". In another case, 2010 SCM R 511 (Secretary Ministry of Health, Government of Pakistan, Islamabad and another vs. Dr. Rehana Hameed and others) it has been observed by the Honorable Supreme Court of Pakistan that "after addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to redress the grievances of the citizens/their sub-ordinates with reason as law laid down by this Court in Messer Airport Services case 1998 SCM R 2268. We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fair-play and social justice. Therefore, public functionaries are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise". In yet another case, 2010 SCM R 1475 (Messer United Woolen Mills Ltd. Workers' Union vs. Messer United Woolen Mills Ltd.) it was held that "it is pertinent to mention here that even the public functionaries are duty bound to decide the case after application of mind, after addition of Section 24-A in the General Clauses Act, as law laid down by this Court in various pronouncements. See Messrs Airport Support Services v.
The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCM R 2268".
11. That being the legal position obtaining in such like situation, the legality of the above order is to be judged in the above context. Since the order reproduced above does not contain any reason it does not meet the requirement of law and can neither be sustained nor such an approach can be countenanced.
12. In view of the above, we consider it appropriate that the departmental representation of the appellant is considered afresh and heard by affording opportunity of audience/hearing to the appellant and decided in a just and fair manner and in accordance with law within a period of two months.
13. The appeal is disposed of accordingly with no order as to costs.