Mrs. Surraya Naseem, ex-Trained Dai, Health Department has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein the appellant has impleaded the District Health Officer, Sheikhupra, the Deputy Director, Health Services, Lahore Division, Lahore and the District Accounts Officer, Sheikhupura as respon--dents.
2. By virtue of this appeal the appellant has prayed as follows :-
(1) Impugned orders dated 5-2-1979 be set aside and respondent be directed to pay the salary of the appellant from 3-2-1976 onward.
(2) Appellant be treated in service throughout and the orders of striking of her name be set aside.
(3) Respondent No. 1 be directed to honour and implement the documentary proof/school leaving certificate.
(4) Respondent No. 1 be directed to honour and implement the order of the higher authorities of Health Department.
(5) Costs of the appeal be awarded to the appellant.
3. Brief history of the case is that Mrs. Surraya Naseem was appointed as Trained Dai in NPS-1 vide order No. 265 dated 27-1-1976 of District Health Officer, Sheikhupura. The appellant joined her duty on 3-2-1976 at Sub-Health Centre, Nathuwala, District Sheikhupura. According to the condition 3 of her appointment she was required to produce medical fitness certificate from the M. S., District Headquarter Hospital, Sheikhupura. Accordingly she was declared medically fit by the said Medical Superintendent, vide Medical Fitness Certificate dated 27-1-1976. In this certificate the Medical Superintendent mentioned her age by appearance about 45/46 years. On this the District Health Officer, Sheikhupura seems to have taken up the issue of her being over age. There was no such condition of age verification in her appointment order mentioned above. Her appointment order makes it clear that the appellant was appointed, after checking her qualifications and age. An attempt was also made by the office of the District Health Officer, Sheikhupura to object the appellant's school leaving certificate as it had cutting in her date of birth. The matter was referred to the District Education Officer, Sheikhupura to verify the fact. The District Education Officer, Sheikhu--para vide his Memo. No. 2080/G-III, dated 31-7-1976 supplied the Distri:t Health 0113cer, Sheikhupura a new school leaving certificate in respect of the appellant issued by the Headmistress, Government Girls Primary School, Kanwanwali, in original duly countersigned by the District Education Officer, Sheikhupura wherein the date of birth of the appellant was mentioned as 16-5-1946. This school leaving certificate and earlier school leaving certificate had the same registered number i.e. 107 and same date of birth i.e. 16-5-1946 (original certificates at pages 190 and 191 of personal file of the appellant). Thus, her age was within the prescribed limit for this post.
The appellant was not paid her pay in spite of her so many requests. The bill of her salary was submitted to the District Accounts Officer as late in the month of April, 1977, though she joined on 3- 2-1976. The District Accounts Officer, Sheikhu--pura had his own part to play. He raised the objection that the medical certificate issued by the M. S., District Headquarter Hospital, Sheiku-- pura shows the age more than the required age for initial recruitment and he returned the bill un- passed with these objections without proper scrutiny and observing of her appointment's order, there was no such condition that appellant's age would be according to the medical fitness certificate. This matter was referred by the District Health Officer, Sheikhupura to the Director, Health Services, Punjab, Lahore vide No. 1691/C, dated 12-4-1977. In the meanwhile the Director of Health Services, Punjab, Lahore vide his letter No. 3435/E-II, dated 24-6-1976 had directed the District Health Officer, Sheikhupura that school leaving certificate of the appellant may be considered for accepting the age of the appellant. This direction was issued on the request of the appellant forwarded through the Health Minister of Punjab, regarding non-payment of salary to the appellant. The order of the Director of Health Services, Punjab, Lahore regarding accepting the appellant's school leaving certificate for the purpose of age was not complied with by District Health Officer, Sheikhupura. Again through letter No. Misc. 6/4307/E, dated 11-10-1976, Dr. Ilahi Bux Soomro, Deputy Director; Health Services, Lahore Division Lahore directed Dr. Mahboob Shah Pirzada, District Health Officer, Sheikhupura mentioning that the appellant has not been paid for last nine months in spite of the fact that clear instructions were issued from his office that the school leaving certificate should be considered. The explanation was also called for not making the payment, with a direction that the appellant be paid salary immediately. Even then the District Health Officer, Sheikhupura did not agree with these instructions and wrote back to the Deputy Director, Health Services, Lahore Division, Lahore vide his letter No, 10916/C, dated 18-10-1976 regarding examination of the appellant by the Medical Board at Services Hospital, Lahore for assessm ent of her age and also mentioning in the same letter that the Director Health Services, Punjab, Lahore has also directed him vide his letter No. 3435/E. II; dated 24-6-1976 that her school leaving certifi--cate be considered for ascertaining her age. In reply to this letter, the Deputy Director, Health Services, Lahore Division, Lahore vide his letter No. Misc-6/Dais/4539/E, dated 25- lp-1976 to the District Health Officer, Sheikhupura, issued clear constructions that there was no need to get further guidance in the presence, of instructions issued by the Director, Health Services, Punjab, Lahore vide his Memo. No. 3435/ E. II, dated 24-6-1976 and his office letter No. Misc- 6/4307/E, dated 11-10-1976. The District Health Officer, Sheikhupura was also directed to take immediate steps for the payment of the salary to the appellant. No compliance was made to these instructions as well and District Accounts Officer, Sheikhupura was not also apprised of these orders who remained asking for the re-assessment of age of the appellant by the Medical Board, Lahore. In the meanwhile another Board was constituted at Gujranwala by the Health Department.
The appellant appeared there and her age in the opinion of Medical Board was about 31 years. This medical certificate of Gujranwala Board dated 7-9-1977 (original at page 111 of the personal file of the appellant was forwarded to the District Health Officer, Sheikhupura by the Deputy Director, Health Services, Lahore Division, Lahore vide letter No. P. T/1-4880/E, dated 25-10-1977. On this the matter was referred by the District Health Officer, Sheikhu--pura vide No. 5609, dated 21-6-197112- 7-1978 to the District Accounts Officer, Sheikhupura mentioning as follows :- "4. Since the Medical Superintendent, Sheikhupura who issued the Medical Fitness Certificate to the concerned Dai, had by that time been transferred to Services Hospital, Lahore as Medical Superin-- tendent and he was the Chairman of the Medical Board, Lahore. So concerned Dai requested to Deputy Director, Health Services, Lahore Division, Lahore to transfer the case to some other Medical Board as she was not expecting full justice from Medical Superintendent, Services Hospital, Lahore.
As such the case, was referred to the Deputy Director. Health Services, Lahore Division Lahore to the Medical Board, Gujranwala for re-examin--ation vide his letter No. 3785, dated 18-8-1977 for final decision in the matter. The Medical Board Gujranwala estimated the age of Dai as 31 years.
5. Photo copy of school leaving certificate is attached."
Even then no payment was made to the appellant. In the meanwhile a letter was received from the Accountant-General, Punjab, Lahore addres--sed to the District Health Officer, Sheikhupura dated 9-I1-1978 asking for more queries and information etc. In reply to this letter Dr. A. A. Khan, District Health Officer, Sheikhupura vide his letter No. 10666, dated 28 -11-1978 (page 84 of personal file of the appellant) addressed to the Accountant-General, Punjab, Lahore supplied the documents and information to the Accountant-General, Punjab, Lahore but in this letter it was mentioned that the appellant appeared before the Medical Superin--tendent, District Headquarter Hospital, Gujranwala instead of Punjab Medical Board at Services Hospital, Lahore. His office had no inform-- ation under the orders of which authority she appeared before the Medical Superintendent, District Headquarter Hospital, Gujranwala instead of Medical Board/Invaliding Committee at Services Hospital, Lahore. This was against the facts of his earlier office letter No. 5609, dated 21-6-1978/ 2- 7-1978 addressed to District Accounts Officer, Sheikhupura wherein the District Health Officer, Sheikhupura had himself mentioned that the appellant was examined -by the Medical Board,, Gujranwala as allowed by the Deputy Director, Health Services, Lahore Division, Lahore (Refer page 5 above). This mis-statement of facts given by Dr. A. A. Khan, District Health Officer, Sheikhupura complicated the issued in paying the appellant her salary and created undue hardship to the appellant. In the meanwhile Deputy Director, Health Services, Lahore Division, Lahore sent a copy of the letter. No F. C./9100/E. 11, dated 28-12-1978 from the Director, Health 'Services, Punjab, Lahore to District Health Officer, Sheikhupura, enquiring that when the appellant was got re-examined by the Health Department by Medical Board, Gujranwala, how the appellant wa3 not paid her salary :and the explanation for the same was called for. But the District Health Officer, Sheikhupura did not dare for these instructions as well and he again wrote vide his letter No. 547, dated 15-1-1979 to the appellant that she should appear before the Punjab Medical Board, Services Hospital, Lahore at an early date. In the meanwhile the Accountant-General, Punjab, Lahore vide letter No. TM. I/l-lA/78- 79/546, dated 30-12-1978 wrote to the District Health Officer, Sheikhupura mentioning that as the District Health Officer, Sheikhupura was sticking to the assessment of the age made by him at the time of her first entry into Government Service and were not agreeing with appellant's age of 31 years, sanction to the relaxation of her age from the competent authority was necessary. The Accountant-General, Punjab, Lahore further directed and advised that the appellant is entitled for her pay and allowances for the entire period of her duties subject to relaxation of age. The Accountant-General, Punjab, Lahore would have not given these instructions if the District Health Officer, Sheikhupura had not mis-stated the facts as mentioned earlier, mentioning that he had no information how she was examined by the Medical Board, Gujranwala where her age was assessed as 31 years, although it was in his full knowledge that the appellant was examined under the orders of the Health Department. The services of the appellant were also terminated in a peculiar manner.
The appellant was on medical leave. On her joining back on 20-2-1979 at her centre, she was told by the Medical Officer Inchhrge, Primary Rural Helilth Centre, Shahkot, District Sheikhupura that she had been struck of from duty vide District Health Officer, Sheikhupura letter No. 1105, dated 5-2-1979.
The contents of this letter signed by Dr.. A. A. Khan, District Health Officer, Sheikhupura are self--- contradictory The appellant made numerous applications during her tenure of service to the various officers of the Health Department including the hierarchy, even to the Health Minister ; but she could not get her pay and relief or justice from the Department. Frustrated by these all efforts she also filed a civil suit before the Senior Civil Judge, Sheikhupura for recovery of Rs. 8,737.79 on account of her pay for the period from 3-2-1976 to 28-2-1979 but the same was rejected for the want of juris--diction vide judgment dated 17-3-1980. The appellant made another appeal in the Court of Additional District Judge, Sheikhupura, but vide his judgment dated 29-10-1980 the learned Additional District Judge decided that "as per appellant's counsel the concerned Department has not yet passed any final order regarding the payment of the arrears, therefore, the Service Tribunal cannot take cognizance of this matter. The suit is premature because no cause of action has been accrued to the appellant, thus the appeal was dismissed." The appellant made representation to 'respondent No. 2 on 29-11-1980 but there was no response. Hence this appeal.
4. The learned counsel for the appellant argued that this is a case of clear cut malice on the part of the District Health Officer, Sheikhupura and his office as he did not pay the salary to the appellant and also forced her unlawfully oat of service. The appointment letter of the appellant clearly shows that she was appointed after checking of her qualifications and age meant for this post as there is no condition imposed in the appointment letter regarding these conditions. She was asked to produce the medical fitness certificate according to condition 3 of her appointment order which was complied with. On this medical fitness certificate the District Health Officer, Sheikhupura the appointing authority picked up the dispute regard--ing her age as the age mentioned in the medical fitness certificate was not within prescribed limit of her post. The learned counsel of appellant argued that this was not a proper documentary proof as the age given by the Medical Superintendent, District Headquarter Hospital, Sheikhupura was a guess and was just a human opinion which could not be relied upon in the presence of other documentary proof regarding her exact date of birth in the shape of school leaving certificate. The first school leaving certificate given by the appellant had some cuttings. The District Health Officer, Sheikhupura asked the District Education Officer, Sheikhupura to confirm the genuiness of the certificate, which was confirmed by the said officer and also another new certificate was supplied to the District Health Officers office, Sheikhupura. On this documentary proof there was no earthly reason for the District Health Officer, Sheikhupura or the District Accounts Officer, Sheikhupuxa to refuse regarding date of birth given in the school leaving certificate. The matter did not end there, it was clearly directed by the Deputy Director, Health Services and the Director Health Services, Punjab. Lahore that this school leaving certificate be recognised for date of birth but the District Health Officer did not obey these orders even. The appellant was forced to get another medical fitness certificate from the Gujranwala Board as allowed by the Health Department and the age men--tioned in this medical fitness certificate was more or less the same as given in the school leaving certificate but this was also not accepted by the District Accounts Officer, Sheikhupura. The appellant suffered hardships and mental agony due to adamant attitude of respondent No. 1 i.e. District Health Officer, Sheikhupura who was her appointing authority and her appointment was made by him after due verification of her age. This attitude of the Respondent No. 1 and his office in connivance with the District Accounts Officer, Sheikhupura and by misguiding the Accountant---General, Punjab, Lahore Office; managed not to pay salary to the appellant for years and ultimately, forced her unlawfully out of service in a peculiar manner. The appellants counsel concluded that in view of the documentary proof of her date of birth as given in the school leaving certificate, medical fitness certificate of Gujranwala Board and acceptance of the school leaving certificate by the Director, Health Services, Punjab, Lahore the impugned orders be set aside and the appellant be considered continuing in service as the impugned orders passed by the District Health Officer, Sheikhupura and the Medical Officer, Primary Rural Health Centre, Shahkot, District Sheikhupura (Annexure. Q-1 and Q respectively with the appeal) are vague and void. Mohammad Azam, C D C Officer, representative of the District Health Officer, Sheikhupura and Zafar Ahmad. C D C Officer, representative of the Respondent No. 2 when questioned by me stated that Health Depart--ment have all sympathies with the appellant and they are all out to help the appellant but as the Accountant-General, Punjab/District Accounts Officer, Sheikhupura did not agree regarding payment to her hence they were compelled to pass the impugned orders. On the other hand Abdul Majeed Akhtar Superintendent, representative of the District Accounts Officer, a Sheikhupura when questioned pointed out that they also did not have any objection for her appointment and payment of salary.
They only wanted, as the appellant was over age, the age should be got relaxed. It was for the Department to get the relaxation of the age. The learned District Attorney raised the issue of limitation and mentioned that the appeal of the appellant was premature. On this the learned counsel of the appellant produced a letter from the Deputy Director, Health Services. Lahore Division, Lahore No. 1358/E, dated 15-2-1981 mentioning that "his office is unable to decide this case and the appellant was advised to seek legal remedy'". Thus according to him the appeal has matured during the pendency of the appeal before the Tribunal. The learned counsel of the appellant further submitted that this was perfectly in order and a reliance) is made upon the decision reported as NLR 1979 Service 216.
5. I have given my anxious thoughts to the arguments put forth by the learned counsel of the appellant, the representatives of Respondents, the learned District Attorney and have perused the record very carefully. I have taken considerable time to consult the record of this case produced by the respondents. The history and facts of this case have been produced in hat. 3 above to illustrate the matter in detail. The malice on the part of the District Health Officer, Sheikhupura is proved beyond doubts which is clear from the following facts;-----
(i) There is no condition in the appointment letter No 265, dated 27-1-1976 issued by the District Health Officer, Sheikhupura regarding producing of age certificate or verification thereof. It is thus dear that the appellant was appointed after scrutiny of her age and other qualifications, as a candidate cannot be appointed to Government service until his/her age and qualifications are checked, verified and seen that these are according to the prescribed qualifica--tion.
(ii) The medical fitness certificate was only meant for her fitness and not for a e as per condition 3 of her appointment letter mentioned above here was no reason to involve the appellant in the contro--versy of the age oil the basis of this medical fitness certificate, as age given in the certificate was just a human opinion given by the medical Superintendent, Sheikhupura. This could not be preferred over the school leaving certificate giving her date of birth.
(i.e) After the receipt of this medical fitness certificate, the appointing authority even chose to get her school leaving certificate verified from the District Education Officer as this school leaving certificate had some cuttings in figure. In compliance of this, the District Educa--tion Officer, Sheikhupura supplied a new school leaving certificate duly verified by hint. Thereafter there was no justification for the District Health Officer, Sheikhupura to dispute the date of birth of the appellant.
(iv) District Health Officer, Sheikhupura even did not accept this school leaving certificate when it was directed by the Director, Health Services, Punjab, Lahore and the Deputy Director. Health Services. Lahore Division, Lahore to accept the same.
(v) The Audit Office was also misguided by concealment of facts and by misrepresentation by the District Health Officer, Sheikhupura otherwise they would have not raised any objection for the payment of the salary of the appellant. On the advice of the Health Depart--ment, Gujranwala Medical Board examined the appellant. In spite of the fact that the age in this medical fitness certificate was within the prescribed limit, the District Health Officer, did not accept .It despite the fact that this was supplied by his superior officer i.e. Deputy Director, Health Services, Lahore Division, Lahore to him. The Deputy Director, Health Services, Lahore Division, Lahore and the Director, Health Services, Punjab, Lahore continued hammering the District Health Officer, Sheikhupura regarding the acceptance of the certificates and making the payment to the appellant but he remained adamant. Dr. A. A. Khan, District Health Officer, Sheikhu--pura vide his letter No. 10666, dated 28-11-1978 addressed to the Accountant-General, Punjab, Lahore made misstatement of facts that it was not in his knowledge how the appellant appeared before the Medical Superintendent, District Headquarter Hospital, Gujran--wala when vide his office letter No. 5609, dated 21-6-1978/2-7-1978 addressed to the District Accounts Officer, Sheikhupura it was clearly mentioned by him that the appellant was examined by the Medical Board, Guiranwala as .Allowed by the Deputy Director, Health Services, Lahore Division. Lahore.
(vi) Had Dr. Abdul Aziz Khan, District Health Officer, Sheikhupura not made this misstatement to the Accountant-General, Punjab, Lahore the matter would have ended there and then and the Account--ant-General, Punjab would not have raised any objection regarding the payment of salary to the appellant. The Accountant-General, Punjab, Lahore only wanted relaxation of age as according to them the appointing authority i.e. District Health Officer, Sheikhupura himself was nit accepting the claim of the appellant regarding her age and was sticking to his own assessment.
(vii) The District Health Officer, Sheikhupura was not within his rights as appointing authority to appoint the appellant fist and then to object to her date of birth without any justification, particularly in the presence of documentary proof i. e. School leaving certificate of the appellant. It will not be out of place to mention here that the said Office was also supplied the requisite certificate showing her age within the prescribed limits of her post, issued by the Medical Board, Gujranwala.
Thus, this is a clear cut case of malice adamancy, disobedience of orders of the higher authorities, misstatement of facts by the District Health Officer, Sheikhupura and thus the appellant has suffered unnecessarily. On one hand she was not paid her salary for a long period and on the other hand she was unlawfully removed from the service without observing the formalities as laid down in the Punjab Civil Servants (E & D) Rules, 1975, Thus, the impugned orders are void. As far as objection of limitation raised by the learned District Attorney is concerned, I agree with the judgment so relied upon by the learned counsel of the appellant and keeping in view this decision, I hold that the appeal is maintainable. Moreover I have mentioned above that the impugned orders passed by the respondents are unlawful and void, hence no limitation runs against such orders.
6. Keeping the above analysis in view I set aside the impugned orders No. 1105, dated 5-2-1979 endorsed to Medical Officer Incharge, Primary Rural Health Centre, Shahkot, District Sheikhupura vide endorsement No. 1106, dated 5-2-1979 (Annex. Q/I & Q respectively with the appeal) being unlawful, void and without any merits. The appellant is directed to be reinstated in service with all back benefits were. f. 3rd February, 1976, the date of her joining the service. Hence, the appeal is accepted with costs which shall be borne by the then District Health Officer, Sheikhupura who passed the impugned order No. 1105, dated 5-2-1979 mentioned above.
7. I shall be failing in my duties, if I do not observe that the Government has been unnecessarily dragged into an avoidable litigation due to the mala fide acts of the District Health Officer, Sheikhupura which call for action against him The Registrar of this Tribunal is directed to send a copy of this judgment alongwith the personal file of the appellant to the Secretary, Government of the Punjab, Health Department for taking such action against the District Health Officer, Sheikhupura as he may deem fit.