SAJJAD HAIDER TAREEN Versus The PROVINCIAL POLICE OFFICER, BALOCHISTAN QUETTA
ORDER
1. MUHAMMAD NOOR MESKANZAI, C.J.--- C.M.A. No. 1472/2012 : The applicants are aggrieved of the order dated 23.04.2009 passed by this court in Constitutional Petition No.246/2008 on the ground that the order has been obtained by practicing fraud upon the court, as a result of mis-representation and with collision of official respondents.
2. The learned counsel submitted that the applicants have been inducted initially as Sub-Inspectors and with the passage of time after getting promotion; they were promoted as Deputy Superintendent of Police (DSPs). The applicants belong to general cadre of police department and the seniority list of general cadre and that of the prosecution department have been maintained separately. The practice of maintaining separate seniority list is not restricted to Balochistan rather all the sister provinces as well as Azad Jammu and Kashmir and Gilgit Baltistan, seniority lists are separately maintained. The respondents/ petitioners in C.P No.246/2008 by concealment of facts and with active connivance of official respondent succeeded to get the impugned order passed in their favour mainly on the ground that the respondents could not answer the query of the court i.e. as to whether in other provinces seniority list of the general cadre and prosecution department have been bifurcated. It was emphatically stressed that list sought to be maintained jointly would adversely affect the seniority of the officers serving in general cadre and without impleading the applicants as party in the proceedings the impugned order could not have been passed. The learned counsel urged with vehemence that seniority of the petitioners shall be adversely affected, with the result, irreparable loss to the service structure of the applicants is natural and inevitable. The learned counsel stated that petitioners came to know about the impugned order dated 23.4.2009 on 15th February, 2012 and they applied for copy of the order and filed a CPLA before the Hon'ble Apex Court. However, the same was withdrawn with intent to avail the remedy before the High Court which was allowed vide order dated 11.5.2012. Soon after, the applicants filed the present application along with an application for condonation of delay. Learned counsel stated that the applicants were not aware of the impugned order passed by this court as they were not party to the proceedings. The applicants came to know about the order on 15.02.2012 and filed C.P.L.A. No.674/20012 and after withdrawal thereof, they filed application on 9.6.2012 instantaneously. Learned counsel stated that an application filed under Section 12(2), C.P.C. is governed by Article 181 of the Limitation Act and in the given circumstances of the case there is no delay on the part of the applicants on filing of the application as legally the period has to reckon from the date of knowledge, therefore, the application is well within time. However, as a precautionary measures application for condonation of delay has also been filed. Learned counsel stated that valuable and fundamental rights of the applicants are involved which cannot be done away on mere technicalities. Learned counsel maintained that the petition before the High Court was not competent for clear reason that seniority list sought to be maintained either jointly or separately relates to the terms and conditions of the service and the law stands settled on the subject that matters pertaining to terms and conditions of civil servants are required to be agitated, determined, and decided by the forum having been created for the purpose i.e. Service Tribunal. From this point of view the Judgment dated 23.04.2009 is patently illegal, ab initio, void and unlawful. The learned counsel stated that the petitioners and official respondents were in league and with connivance of each other they mis-represented the facts. Admittedly, the seniority list in all the sister provinces as well as Azad Jammu and Kashmir and Gilgit Baltistan have been and are being maintained separately. He made reference to the following case laws as well as placed the seniority lists maintained separately by the Police Departments in sister provinces:--
1. 1996 SCMR 856 Muhammad Shafi v. Mushtaque Ahmed
2. 1993 SCMR 2096 Kubra Begum v. Shad Begum
3. 2007 SCMR 836 Abdul Ghani v. Shaheen
4. 1993 SCMR 1171 Secretary Ministry of Religious Affairs and Minorities v. Abdul Majid.
2. It was stressed that the petitioners succeeded to obtain the order by concealing and mis-representing facts and thereby practiced fraud upon this court, therefore, the application under Section 12(2), C.P.C. is well competent. Learned counsel stated that he DSPs rendering service in general cadre are being promoted after attaining a couple of physical trainings whereas the PDSPs do not undergo any such experience; hence the request for maintaining of joint seniority list in such circumstances is beyond comprehension. Learned counsel requested for acceptance of application by re-calling of order dated 23.4.2009 passed in Constitutional Petition No. 246/2008.
3. Messrs Muhammad Aslam Chishti and Syed Ayaz Zahoor, Advocates appeared on behalf of the private respondents/petitioners raised preliminary objections on maintainability of the application on the ground of limitation and that the order has attained finality. It was maintained that the application under Section 5 of the Limitation Act does not disclose any plausible reason justifying the condonation of delay. It was maintained that in pursuance of the impugned order a joint seniority list was prepared and circulated among all the police officers including the applicants, so they were aware of the order passed in the year 2009, therefore, the application is hopelessly barred by time. He further stated that legally, it is the duty of the court to itself remain alive and take notice that delayed, belated and time barred proceedings are not brought before the court and it is not necessary that an objection must be taken by the opponent. He further maintained that the order impugned has attained finality, as no appeal against this order has been filed and the CPLA so filed has been withdrawn. Learned counsel submitted that the ingredients of Section 12(2), C.P.C. are not available, neither fraud has been practiced upon the court nor question of mis-representation arises. According to learned counsel the question of fraud and mis-representation arises where service is effected upon a party through practicing fraud whereas the non-impleadment, of a party does not come within the definition of mis-representation or fraud. It was stated that perhaps in the year 1960, a suit was filed by one Ghulam Haider who belonged to PDSPs Cadre and thereby he sought a declaration for maintaining a common seniority list. Suit to the extent of declaration was decreed, however relief of injunction was refused by the lower forum which was challenged through RSA No.15/1967 and the RSA was accepted by this court vide judgment reported in PLD 1971 Quetta 57. He stated that applicants 6 to 8 were DSPs when the petition was filed whereas rest of the applicants were Inspectors; therefore, they were not supposed to be prejudiced by the order passed by this court. He placed reliance on the following citations:--
1. PLD 1971 Quetta 57 Ghulam Haider v. The Province of West Pakistan and 15 others.
2. 1990 SCMR 164 State v. Zahid Hussain
3. 1990 MLD 211 Messrs Basco Enterprises (Pvt.) Ltd. v. Muhammad Siddique
4. 2001 SCMR 286 Allah Dino and another v. Muhammad Shah
5. PLD 1985 SC 153 Muhammad Buta v. Habib Ahmed.
3. We have heard the learned counsel for the parties at length and with their valuable assistance perused the available record of the case. At first instance, we would like to deal with the preliminary objection regarding maintainability of the petition raised by the learned counsel for the private respondents, admittedly the application has been filed after a lapse of about three years, however according to applicants they came to know about the passage of order dated 23.4 2009 on 15th February, 2012 and to this effect their affidavits are on record. The applicants soon after obtaining the copies initially filed a CPLA before the Hon'ble Apex Court, however withdrew the same with intent to avail the remedy before the High Court. For the sake of convenience the order passed by the Hon'ble Apex Court is reproduced herein below:--
4. .. Learned counsel states that he does not want to press this partition as he wants to avail remedy before the High Court.
5. Dismissed as not pressed."
4. Mr. Muhammad Aslam Chishti, learned counsel in support of its contentions stated that after the passage of order a seniority list was circulated and the same was served upon applicants but to this effect his contention is not supported by any documentary evidence. So far as circulation of seniority list is concerned, the respondents/petitioners did not produce any document showing the circulation of the seniority list and service thereof upon the applicants and their knowledge of the order at that particular juncture. Moreover, an application under Section 12(2), C.P.C. is governed by Article 181 of the Limitation Act and the overall efforts of the applicants make it clear that the moment they came to know, they left no stone unturned for knocking the doors of forums for redressal of their grievance. So the contentions of the applicants that they came to know on the particular date mentioned in the application finds weight because to bar a remedy provided under law on account of limitation in a case where one is not party to the proceedings and is being adversely affected by the order/proceedings, the objectors has to satisfy the conscience of the court that the party was having the knowledge. Admittedly, in this case neither the applicants were party nor the proceedings were conducted through a publication as in cases of representative character, so the knowledge cannot be readily inferred. Legally, a period of three years for filing of an application under Section 12(2), C.P.C. is provided under Article 181 of the Limitation Act and that too from the date of knowledge. We are fortified by the dictum laid down by the Hon'ble Apex Court in its judgment titled as 'Fida Hussain v. Ghulam Sarwar' reported in 2002 SCMR 1554, (Relevant at page-1556) which reads as under:--
6. "Be that as it may, even if Article 181 of the Limitation Act is made applicable, the period of limitation is three years from the date when right to sue accrues. In a case of decree allegedly obtained through fraud, the right would accrue to challenge the said decree when the fraud comes to the knowledge of the applicant in case he was not party in the suit."
5. So in the given circumstances of this case, we do not understand that the application is barred by time, therefore, the preliminary objection stands repelled. So far as the second objection that since no appeal has been filed, therefore, the judgment has attained finality is concerned, this argument does not fit in the circumstances of this case for the reasons, firstly this is not a case where a decree has been passed and a right of statutory appeal has been provided and the same has not been availed. The order has been passed in the exercise of writ jurisdiction and only a CPLA can be filed which could not be equated with the right of an appeal conferred by a statute. Thirdly, the applicants were not impleaded as party; therefore, the remedy provided under Section 12(2), C.P.C. cannot be denied on the ground that the order has attained finality. The perusal of the record reveals that the petition filed by the respondents/ petitioners was defective as the relief so claimed was bound to substantially prejudice the interest of DSPs serving then or thereafter. The respondents/petitioners were bound to have impleaded the applicants or any other person serving as DSP. Moreover, the main reason prevailed upon this court was the silence of the official respondents on the query i.e. as to whether any such action for bifurcation of the seniority list has been taken by sister provinces, at that juncture the official respondents were required to have placed the factual position before the court, which was not done. Whereas, the silence of the official respondents should not have extended any benefit to the petitioners respondents nor could have constituted a legal ground for acceptance of the petition for the sole and simple reason that infact it was the stance of the petitioners that common and joint seniority list of the DSPs and PDSPs are being maintained in the sister provinces, which they failed to discharge at the point of time and secondly the stance was not factually correct as it reflects from the following table:--
7. TENTATIVE SENIORITY LIST OF DEPUTY SUPERINTENDENTS OF NWFP POLICE (BPS-17) AS STOOD
8. ON 16.01.2012
9. Sr. #
10. Name
11. Home District
12. Date of Birth
13. Date of Joining Service
14. Date of entry in Grade-17
15. 1.
16. Mr. Shaukat Raza
17. Peshawar
18. 4/2/1952
19. 3/2/1975
20. 7/8/2007
21. From Serial No. 1 to Serial No.165
22. SENIORITY LIST OF DSsP
LEGAL IN NWFP AS STOOD
23. ON OCTOBER, 2011
24. Sr. #
25. Name
26. Home District
27. Date of Birth
28. 1.
29. Malik ur Rehman
30. Bannu
31. 18-5-1953
32. Date of List Entry into Govt. Service as PSI
33. Date of appointment as PI
34. Date of Promo-tion in BS-17
35. 4-10-1981
36. 19-4-1983
37. 23-2-2009
38. From Serial No.1 to Serial No.08
39. LIST OF DEPUTY SUPERINTENDENTS OF SINDH POLICE (BPS-17)
40. AS STOOD ON 5.6.2008
41. Sr. #
42. Name
43. Date of Birth
44. 1
45. Mr. Arshad Kamal Kiani
46. 12/7/1952
47. Date of First Entry in Police Department
48. Date of Confirmation in the Rank of Inspector
49. Date of Regular Appointment/ Promotion as DSP
50. 15/10/1972
51. 15/08/1982
52. 19/01/1989
53. From Serial No.1 to Serial No.262
54. SENIORITY LIST OF PROSECUTING DEPUTY SUPERINTENDENTS OF SINDH POLICE (BPS-17) AS STOOD ON 01.12.2003
55. Sr. #
56. Name
57. Date of Birth
58. 1
59. Mr. Manzoor Ahmed Qureshi
60. 01/03/1948
61. Date of First Entry in Police Department
62. Date of Confirmation in the Rank of Inspector
63. Date of Regular Appointment/ Promotion as DSP
64. 4/1/1975
65. 15/08/1982
66. 21/11/1996
67. From Serial No.1 to Serial No.23
68. SENIORITY LIST OF ASSISTANT DIRECTOR (INVESTIGATION) BPS-17 FIA AS STOOD ON 20.07.2009
69. Sr. #
70. Name
71. Date of Birth
72. Date of Entry in BS-17
73. Date of Regular Appointment to Present BPS in FIA
74. 1
75. Mr. Ejaz Ahmed Bajwa
76. 14/12/1949
77. 26/11/1991
78. 26/11/1991
79. From Serial No.1 to Serial No.77
80. SENIORITY LIST OF ASSISTANT DIRECTORS LEGAL (BPS-17) FIA AS STOOD ON 01/10/2009
81. Sr. #
82. Name
83. Date of Birth
84. 1
85. Mr. Qaiser Shabir Warraich
86. 15/01/1961
87. Entry into Service
88. Date of Entry in BS-17
89. Entry in Present BPS in FIA
90. 18/04/1994
91. 18/04/1994
92. 18/04/1994
93. From Serial No.1 to Serial No.17
SENIORITY LIST OF DEPUTY SUPERINTENDENTS OF AZAD
94. GOVT. OF JAMMU AND KASHMIR POLICE (BPS-17)
95. Sr. #
96. Name
97. Date of Birth
98. 1
99. Mr. Arif Hussain Shah
100. 14/08/1955
101. Date of Initial Appointment with Rank
102. Date of Promotion as Inspector
103. Date of Promotion as DSP
104. 16/03/1989 (PSI)
105. 20/08/1998
106. 24/02/2009
107. From Serial No.1 to Serial No.13
SENIORITY LIST OF DSP
108. OF PUNJAB (BPS-17) AS STOOD
109. ON 26-06-2009
110. Sr. #
111. Name
112. Date of Birth
113. 1
114. Mr. Sadaqat Ali
115. 03-03-1950
116. Date of entry into Govt. Service
117. Date of Approval Select List
118. Date of Continuous Officiating as DSP
119. 27/05/1972
120. 03/09/86
121. 04/09/1986
122. From Serial No.1 to Serial No.449
PROVISIONAL SENIORITY LIST
123. OF DSP (LEGAL BRANCH) OF
PUNJAB PREPARED ON
THE BASIS OF CONFIRMATION
AS LEGAL INSPECTOR AS STOOD
124. ON 10.04.2009
125. Sr. #
126. Name
127. Date of Birth
128. 1
129. Mr. Ijaz Hussain Gillani Ali
130. 10/04/53
131. Date of entry into Govt. Service
132. Date of Confirmation as INSPR
133. Date of Promotion on DSP Notified
134. 19/07/1984
135. 01/03/1985
136. 06/10/1999
137. From Serial No.1 to Serial No.116
6. So far as the question of non-competency of petition before this Court in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, since we are allowing this application, therefore, we retrain to dilate that issue at this juncture, which, of course, would be a moot question while hearing the main petition.
7. We have gone through the citations referred by the learned counsel for the respondents/petitioners but find that the said citations do not help the point of view pressed into service by the respondents as the facts are distinguishable.
138. For the foregoing reasons, we are inclined to accept this application, recall order dated 23.1.2009 passed in C.P. No.246 of 2008 and direct the petitioners to amend the petition and make the applica-tions as well as other DSP(s) party (as respondents). The amended petition shall be filed within three weeks and the office to issue notice to newly impleaded respon-dents after entertaining amended petition.
139. ZC/112/Bal Application accepted.