The instant writ petition has been filed with the following prayer:- ?In view of the above submissions it is humbly prayed that the respondents may kindly be ordered / directed for decision of her departmental appeal as early as possible?.
2. The relevant facts of the case for the decision of the instant writ petition are that the petitioner was serving as a Charge Nurse at Benazir Bhutto Hospital, Rawalpindi. She applied leave for one year on 22.3.2013 to the Director General Nursing, without pay from 05-4 2013 to 05-4-2014. A show cause notice dated 19-02 2014 was served upon her under The Punjab Employees Efficiency, Discipline and Accountability Act, 2006 for being absent from duty w.e.f.
05-4-2013. She submitted a reply to the same on 14.4.2014 through which she explained that she had applied leave for one year; that the Director Finance, R.M.C./Allied Hospital issued leave entitlement as EOL without pay and that the Medical Superintendent, Benazir Bhutto Hospital, Rawalpindi, forwarded her leave application along with the leave certificate to the competent authority for its approval but the reply from the competent authority was not received. Moreover, she also claimed that the reminders were issued by the Medical Superintendent, Benazir Bhutto Hospital, Rawalpindi for sanctioning of the said leave. It is also noted that through this reply she had stated that she did not know the process of long leave. She requested that she be granted leave and sought permission to join her duty at Benazir Bhutto Hospital Rawalpindi w.e.f. 05-4-2014. In view of the above, she was given personal hearing on 12-6-2014. The competent authority noted that she could not give any plausible reason of her absence, therefore, she was compulsorily retired from the government service w.e.f. 05-4-20 13, vide order dated 19-7-2014.
The record appended with the instant writ petition shows that she filed a departmental appeal dated 12-9-2014. It needs to be noted that under Section 16 of the Punjab Employees Efficiency , Discipline and Accountability Act, 2006 the departmental appeal has to be filed within thirty (30) days from the date of communication of the order .
The said appeal as annexed with the petition does not say a word about the date on which the said order dated 19- 7-2014 was communicated to the petitioner , therefore, it seems that the departmental appeal itself was time barred.
In any case, thereafter , the petitioner applied to the Chief Minister 's Office, Punjab and a direction was issued by the said of fice on 31-10 2014, for appropriate action, as per the rules and policy .
3. The learned counsel for the petitioner stated that the appeal of the petitioner is still pending and that she cannot approach the Service Tribunal without the decision of her departmental appeal, therefore, respondent No. 1 be directed to decide the same. In order to substantiate his arguments he relied upon the cases reported as:-
(i) S. H. M. Rizvi and 5 others versus Maqsood Ahmad and 6 others (PLJ 1982 S.C. 24) = S. H. M. Rizvi and 5 others versus Maqsood Ahmad and 6 others ( PLD 1981 S.C. 612 ).
(ii) Abdul Bari Khadim versus Govern ment of Balochistan through Chief Secretary and 3 others (2016 P.L.C. (C.S.) 177 ); &
(iii) Sultan Khan and others versus Public Functionaries ( 2009 P .L.C. (C.S.) 77 ).
4. He further contended that the show cause notice was based on misconceived information, otherwise it is evident that she was on earned leave for one year which had been properly approved by the authority .
5. No other issue was raised / argued by the learned counsel for the petitioner . However , in view of the above, he prayed that a direction be issued to respo ndent No. 1 for decision of the departme ntal appeal as early as possible, so that, the petitioner gets a final order in her hands and this will enable her to approach the Service Tribunal by way of filing an appeal under Section 4 of the Punjab Service Tribunals Act, 1974.
6. The learned counsel for the petitioner was confronted with the provisions of Section 4 of the Punjab Service Tribunals Act, 1974 to explain how constitutional jurisdiction could be exercised at this stage to rescue the petitioner from the time limit prescribed in the said Section for filing of an appeal before the said Tribunal. In response to the above noted issue, he referred to the above noted judgments wherein the courts had either given directions for decision on departmental appeals or it was held that the relevant authorities should decide the cases pending before them.
7. Heard. Record perused.
8. In order to appreciate the issue at hand, it is imperative to consider the relevant provisions of the Punjab Service Tribunals Act, 1974:- ?4. Appeal to Tribunals.-- (1) Any civil servant aggrieved by any final order , whether original or appellate, made by a departmental authority in respect of any of the terms and conditi ons of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate T ribunal, whichever is latter prefer an appeal to the T ribunal - Provided that --
(a) when an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;?
The above noted statutory provision clearly provides for the timeline that needs to be followed by an aggrieved civil servant in respect of any adverse order passed / made by a departmental authority , in respect of his terms and conditions of service.
9. Turning to the case law submitted by the learned counsel for the petitioner , it is clear that all these cases do not support the contentions of the learned counsel, as noted below:-
(i) S. H. M. RIZVI AND 5 OTHERS VERSUS MAQSOOD AHMAD AND 6 OTHERS (PLD 1981 S.C. 612) [THE SAME JUDGMENT HAS BEEN REPORTED AS PLJ 1982 S.C. 24].
It may be noted that there is a misprint in the citation regarding the page. The correct citation is PLJ 1982 Supreme Court 36.
In this case the issue before the Apex Court was that whether the appeal before the Service Tribunal had been pre- maturely filed or not. The Hon'ble Supreme Court of Pakistan after taking into consideration the facts and circumstances of the case, while setting aside the judgment of the Service Tribunal, dismissed the service appeal, finding it incompetent. That case related to a seniority list to which objections had been filed. The covering letter that circulated the seniority list clearly stated as follows:- ?The seniority list is circulated amongst the officers concerned, who are requested to acknowledge its receipt. Objection, any, may please be filed by the 8 May, 1976 at the latest. No objection shall be entertained if received after prescribed date."
The respondent therein, filed an objection to the said list on 4-05-1976 and after waiting for ninety days he filed an appeal before the said Tribunal, treating the seniority list dated 21-4-1976 to be the final order within the meaning of Section 4 of the Service Tribunal Act. The Tribunal concluded that the said list had become final within the meaning of sub-section (1) of Section 4 of the Service Tribunals Act, 1974. The Honourable Supreme Court of Pakistan held that:- ?Right of appeal has been conferred by subsection (1) of section 4 only against a ?final order whether original or appellate". A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words ?whether original or appellate" in the enacted law itself."
The Honourable Supreme Court of Pakistan further held that:- ?The proviso (a) to subsection (1) of section 4 of the Service Tribunal Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Services Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substitutive order. The object of it all appears to be to encourage, ensure and emphasize the redress of service grievances within the departmental hierarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under section 4 of the Service Tribunal Act."
In view of the above noted circumstances the Honourable Supreme Court of Pakistan observed that:- ?It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order , as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants."
10. The above noted case does not support the contentions of the learned counsel for the petitioner for the reason that the petitioner in the instant case does have the original order with her and under the provisions of the Clause
(a) of the proviso of sub-section (1) of Section 4 of the Punjab Service Tribunals Act, 1974 she was required to approach the Service Tribunal within one month of the expiry of 90 days, after having filed the departmental appeal. Unfortunately, she has approached this Court in the year 2018 and now seeks a direction to the respondent, Chief Secretary Punjab to decide the departmental appeal of the petitioner which she had filed on 12- 9-2014. The Hon'ble Supreme Court of Pakistan in the above noted case had also observed that the aggrieved person is to wait for a reasonable time to seek constitutional remedy for a direction to the departmental authority to perform the duty enjoined upon it by law. It needs to be noted that this was so said by the Apex Court for the reason that there was no final order eithe r "original" or "appellate" with the civil servants who were parties to that case.th
(ii) ABDUL BARI KHADIM VERSUS GOVERNMENT BALOCHIST AN THROUGH CHIEF SECRET ARY AND 3 OTHERS (2016 PLC(CS) 177)
In this case a direction was sought for the decision of the appeal filed by the petitioner so that he could approach the Balochistan Service Tribunal by filing a service appeal for recovery of his salary etc. The learned Balochistan High Court while allowing the petition directed the competent authority to decide the appeal of the petitioner, within one month and noted as follows:- ?6. The point of limitation though agitated by both the counsel for the petitioner and the Assistant Advocate-General, but as the only effective order prayed in the petition pertains to issuance of a direction to the concerned authority for making a decision on appeal pending before it, thus there is no need to go into merit of the case and record findings on maintainability of the petition with reference to the provisions containing the stipulated period for filing of an appeal before the Service Tribunal. This issue left for decision of the Service Tribunal, the relevant forum.?
I, very humbly and with all due respect to that learned court, tend to disagree with the same for the reason that there would be no question of limitation left for the Tribunal to decide, as an aggrieved civil servant has to approach the Service Tribunal within the stipulated period of 30 days. Even if his appeal is not decided he has to approach the said Tribunal within the prescribed period. If such a direction is issued while exercising constitutional jurisdiction and in compliance thereof the competent authority decides the departmental appeal/representation / review , as the case may be, then a new lease of life is given to the civil servant, which would result into defiance of the statutory law. As a consequence of the direction issued by that Honourable Court, the Service Tribunal could only decide the case on merits and not on the issue of limitation. On the other hand, another consequence of such a direction having been given may result into multiplicity of litigation. In case of non- compliance by the departmental authority , in the face of such a direction, the petitioner may file a contempt petition.
Confronted with such a situation, the Departmental authority will either have to comply with the direction or face the consequences under the law of contempt. On the other hand, it may challenge the same before the Apex Court.
This clearly is not the intention of the governing law .
(iii) SULTAN KHAN AND OTHERS VERSUS PUBLIC FUNCTIONARIES (2009 PLC (CS) 77)
In this case the departmental appeal of the petitioners dated 12-4-2007 regarding their entitlement to "generation allowance" was pending before the respondent. Their claim before the constitutional court was that the decision of the said appeals was being delayed without any reason. This writ petition was filed in 2008 and decided on 21-5-2008. The Honourable Court, in limine, issued a direction to the respondent for deciding the departmental appeals within one month.
I again very humbly and with utmost respect do not agree with the above noted judgment for the reason that the law clearly caters for the situation at hand, i.e., that in cases where the departm ental appeals are not decided within the stipulated time period, the aggrieved civil servant can approach the Service Tribunal after the expiry of 90 days and the maximum period within which the said Tribunal can be approached is the next thirty days. This case again does not help the petitioner , as the stance taken before the competent authority by her was that she was not aware of the procedure for long leave. It is also noted from the record placed with the instant petition that she willfully absented herself without obtaining prior leave. It is further noted that the petition in hand, as is self-evident from the record, that after October , 2014 she did not bother to contact anyone of the relevant authorities, hence too, the writ petition merits dismissal. Keeping in view the above noted conduct of the petitioner and the fact that she did not approach the Service Tribunal within the period provided for under the provisions of Section 4 of the Punjab Service Tribunals Act, 1974, the direction prayed for cannot be granted. In reaching this conclusion, I am fortified by the case reported as Muhammad Naeem Vs. Director Public Instruction (SE), Punjab and another (2018 PLC (C.S.) Note 52) .
11. It is also noted that the matter relates to the terms and conditions of service for which the Service Tribunal is the appropriate forum. In such circumstances the bar contained in the Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is also fully attracted. It is further noted that certain other precedents have also been mentioned in various paragraphs of the writ petition but these were not referred to by the learned counsel for the petitioner and rightly so as they related to the merits of the case. It also needs to be noted that the petitioner has not sued the Province of Punjab in accordance with the provisions of the Constitution of the Islamic Republic of Pakistan, 1973 (Article 174) read with the Code of Civil Procedure, 1908, (Section 79) hence too this petition merits dismissal. Reference is made to cases reported as ?Government of Balochistan VS. Nawabzada Mir Tariq Hussain Khan Magsi & Others 2010 SCMR 115 & Province of Punjab VS. Muhammad Hussain PLD 1993 SC 147. In the above background, I am afraid I cannot set the ball rolling for the petitioner particularly in view of the governing law , resultantly , this petition is dismissed in limine.