1998 PLP 7 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner, an Assistant Executive Engineer/S.D O. in the Department of Irrigation, Government of Punjab has filed this petition for leave to appeal-against the judgment of the Punjab Service Tribunal dated 8-11997 whereby appeal filed by Imtiaz Akbar Bhatti S.D.O. against an order of the Secretary to Government of the Punjab, Irrigation Department dated 11th November, 1996 withdrawing the posting order of the said respondent as S.D.O. at Marala Headworks Sub-Division, was accepted with further direction that "he shall not be further transferred accept in accordance with the rules and transfer policy".

2. We have heard the learned counsel for the petitioner as also the learned counsel appearing for respondent No.3 Imtiaz -Akbar Bhatti. It has been contended by the learned counsel for the petitioner that the appeal of respondent No.3 before the Service Tribunal was not competent in view of proviso (a) to section 4 of the Punjab Service Tribunals Act, 1974. To elaborate his 'contention, learned counsel has submitted that respondent No.3 filed his appeal before the Service Tribunal without first approaching the higher departmental authority by way of representation which remedy was available to him in law. Reference at this stage may usefully be made to Proviso (a) to section 4 of the Punjab Service Tribunals Act which reads as follows:- (a) Where 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 be to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred. , The aforequoted proviso quite clearly shows that the appeal to the Service Tribunal does not lie unless the aggrieved civil servant prefers an appeal or review application or representation to a departmental authority and 90 days have elapsed from the date of filing of such appeal, application or representation. Needless to observe that under section 21(2) of the Punjab Civil Servants Act, 1974 right to make a representation to the authority next above the authority which made the impugned order is available to the aggrieved civil servant.

3. It appears that the order of the Secretary with which the petitioner felt aggrieved was passed on 11-I 1-1996. The record shows that the petitioner made a representation against the said order to the next higher authority, namely, the Governor on the following day viz. 12-11-1996 (copy of which is available at page 25 of the paper-book). He, however, proceeded to file the appeal before the Service Tribunal on 13-11-1996 without allowing the period of 90 days to expire as required by the proviso aforementioned. That being so, the appeal filed by respondent No.3 before the Service Tribunal was clearly pre-mature and was not maintainable when filed. It appears that the learned Tribunal was not alive to this aspect of the matter. The impugned judgment of the Service Tribunal cannot, therefore, be sustained in law. This petition is accordingly converted into an appeal which is allowed and the impugned judgment of the Service Tribunal is set aside leaving it open to respondent No.3 to file fresh appeal before the Service Tribunal in accordance with law: A. A./J-1/S Appeal accepted.