1990 PLC(CS) 500

PANDURANG RAMCHANDRA MANDLIK Versus SAHANTABAI RAMCHANDRA GHATGE

Citation1990 PLC(CS) 500

CourtFederal Service Tribunal

Date1989-10-16

Judge(s)Syed Ally Madad Shah, Chairman and Salahuddin Chaudhri w:d Rasheed‑ud‑Din Arshad Members

ResultAppeal dismissed

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑ Appellant Khan Nisar Khan, a Superintendent of Police, has preferred this appeal for his encadrement in Police Group from the date of his promotion to Grade‑18, viz. 24‑9‑1975 and determination of his seniority vis‑a‑vis the respondents 5 to 187.

2. The appellant's case, in nutshell, is that he joined the Punjab Police as a Sub‑Inspector on 10‑9‑1953. He was promoted as a Deputy Superintendent of Police and was confirmed in that rank' with `effect from 1‑6‑1973. He was promoted as a Superintendent of Police (Grade‑18) with effect from 24‑9‑1975. He held the post of Deputy Director, F.I.A., Islamabad from ‑ 24‑9‑1975 to 15‑1.2‑1976. Thereafter, he held the post of the Superintendent of Police at different stations. Lastly,, he was holding the post of Superintendent of Police (Security), Prime Minister's House, Rawalpindi, when he preferred this appeal on 17‑3,1988. He expected his induction in the Police Group of the All‑Pakistan Unified Grades (APUG) with effect from 24‑9‑1975 when he was promoted as a Superintendent of Police (Grade‑18). He was surprised to know that he was inducted in the Police Group with effect from 23‑7‑1985 as per Establishment Division Notification No. 10/4/87‑E.3 (Police), dated 7‑10‑1987. He made representation on 22‑10‑1987 for ante‑dating his encadrement in the Police Group. He was informed under the I. G. Police, Punjab's endorsement No. 795 96/NGO‑I, dated 28‑2‑1988 that his representation was not accepted by the Establishment Division. He, therefore, filed this appeal on 17‑3‑1988.

3. The grounds urged by the appellant in the memo of appeal are:

(1) That the appellant was promoted to the post of Superintendent of Police with effect from 24‑9‑1975 in accordance with para. 4 of the Establishment Division Office Memorandum No. 3/2/75‑ARC, dated 31-5‑1975 and he held that post in that grade continuously and he was entitled to his induction' in the Police Group with effect from that date viz. 24‑9‑1975.

(2) That seniority of the Police officers promoted to Grade‑18 was to be determined from the date of their regular continuous officiation in the grade as per para.8 of the Establishment Division Office Memorandum No. 3/2/75‑ARC, dated 31‑5‑1975, and his seniority should have been reckoned from that date.

(3) That Provincial Police Officers of Grade‑18 and above were inducted in the Police Group in accordance with subsection (4) of section 8 of the Civil Servants Act, 1973 as per list of the Police Officers of the Police Group circulated by the Establishment Division on 1‑10‑1975.

(4) That the appellant's encadrement with effect from 23‑7‑1983 instead of 24-9‑1975 was arbitrary and prejudicial to the rights and terms of his service.

4. The appeal is directed against the Prime Minister of Pakistan, through the Secretary, Establishment Division; the Secretary, Establishent Division; the Governor of the Punjab through the Secretary, Services and General Administration Department; the Secretary, Services and General: Administration Department, Government of the Punjab; and 183 Officers of the Police Croup. Written objections have been filed on behalf of the respondent No. 1 (the Prime 11k Minister) by a Section Officer, Establishment Division. Written objection4 have also been filed by the respondents 14, 15, 29, 31, 32, 43, 44, 45, 47, 64,80,87, 95, 97, 106, 108, 118, 123, 124, 125, 126, 131, 135, 139, 141, 165, 172 and 175. Other respondents have not filed written objections.

5. The Establishment Division has raised four legal objections that the appeal, as framed, is not maintainable in law or on facts; the appellant has no legal cause of action for preferring the appeal, the appeal is not maintainable against the seniority list of P.S.P. .Officers issued in 1980 and 1987 and it is time -barred as against the order dated 8‑2‑1988 and it is also barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973.

6. The case put up on facts by the Establishment Division is that the appellant wag an officer of the Punjab Police. Notification of his promotion to the rank of Superintendent of Police in Grade‑18 was issued in‑ pursuance of Establishment Division's O.M. No. 3/2/75‑ARC, dated 31‑5‑1975, where under all police posts in BPS‑17 and above, namely‑posts of ASPS, SPs, DIGS, Additional I.‑Gs and I.‑Gs, as specified in the schedule of the cadre of the former Police Service of Pakistan (Composition and Cadre)‑ Rules,.. 1969 constituted an occupational group called as the Police Group. However, he was not inducted in the Police Group in accordance with the relevant rules. He was recommended by the Provincial Government of the Punjab in 1984 for his encadrement in the Police Group against the Provincial quota of 40 per cent. He was not inducted in the Group due to his indifferent record. He was again recommended by the Government of the Punjab in the year 1987 and he was approved and was inducted in the Police Service of Pakistan with effect from 23‑5‑1985 when there occurred a vacancy in the PSP cadre in the Province of the Punjab quota. It is the contention of the department that mere promotion of the appellant to the rank of S.P. did not induct him in the Police Group or Police Service of Pakistan and he could not claim his encadrement from the date of his promotion as S.P viz. 24‑9‑1975: According to them, the appellant could count his seniority froth the date of his regular induction in. the superior service of the Police. It has farther been stated that by a Policy Letter No. 10/74/78‑Police, dated 23‑9‑1979 issued by the Establishment Division, all the Provincial Governments were required that cases of promotion of the Provincial Police Officers against the posts in Grade‑18 above reserved for them in the Police Group should be referred t0 the Establishment Division for further action. According to them, the appellant was encadred in the Police Service of Pakistan with effect from 23‑5‑190 in accordance with Rule 4(1)(b) of Police Service of Pakistan (Composition and Cadre) Rules, 1909 and Rule 7 of the Police Service of Pakistan (Compo5itron' Cadre and Seniority) Rules,. 1985 and he was not entitled to his encadrement in the Police Service of Pakistan from any earlier date suffers from the same defect rather with larger gravity. Therefore, under the circumstances, what requires to be decided is whether the appellant has been able to make out a good case for condonation of delay in his application under section 7 of the Service Tribunals Act, 1973, read with Rule 8 of Service Tribunal (Procedure) Rules, 1974 and sections 5 and 14 of the Limitation Act, 1908.

10. As already mentioned before in the statement of facts, after the passage of impugned order on 17‑3‑1982, the appellant served the respondents with grievance notice dated 15‑4‑1982 which was followed by a grievance petition on 20‑6‑1982, eventually accepted on 18‑10‑1982. The WAPDA's writ petition to challenge the validity of Labour Court's order was finally accepted by the High Court on 21‑4‑1984 on the ground that the Labour Court had no jurisdiction in the matter. The first appeal was filed on 16‑5‑1984 after the appellant became aware of the High Court's decision on 14‑5‑1984.

11. Delay in filing the appeal has been explained in the application for condonation of delay with the pleadings that the law on the point was not clear in accordance with the judgments of the superior Courts and that certain categories of WAPDA employees like the petitioner were treated as workmen at the relevant time and not as civil servants; which led the appellant to a genuine belief that his remedy lay before the Labour Court and not before the Service Tribunal. It was further pleaded that in a number of cases, it was held by the Tribunal that the grievance notice served under section 25‑A of the Industrial Relations Ordinance, 1969 fulfilled the requirements of a departmental appeal. This was in an attempt to explain why the first appeal dated 16‑5‑1984 was instituted with some delay and without first exhausting the departmental remedy provided under Rule 11 of the Rules.

12. We also see in the pleadings of the appellant in the application for condonation of delay that this view of the Tribunal underwent a change in consequence of Full Bench ruling which became known to the appellant through his counsel on 21‑12‑1985, after which he filed the departmental appeal on the same day. The second appeal was then filed on 16‑4‑1986 after the expiry of the statutory period of 90 days under proviso to section 4(1) of the Act. Relying upon these facts, it was contended by the appellant's learned counsel that even the second appeal is within time if the period spent by him on prosecution of the matter before the Labour Court and the Service Tribunal is excluded under section 14 of the Limitation Act while computing the period of limitation. He emphasised that he had been suffering from a genuine and bona fide belief that his remedy lay before the Labour Court and that the grievance notice served the purpose of a departmental appeal under Rule 11 of the Rules.

13. The question whether the grievance notice amounted to a departmental appeal under rule 11 of the Rules so as to fulfil the jurisdictional requirements, was examined by a full Bench of the Tribunal in Mohammad Latif Bhatti's case decided on 10‑11‑1985. (1986 P L C (C.S.)

111. It came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal and that both had different characteristics. The Tribunal's decision was subsequently endorsed on appeal by the Supreme Court in 1987 S C M R 1936 with the following observations:

"It is clear to us that it was not a case of mistake of fact, that is quoting a wrong law, addressing an incompetent officer or mentioning an incorrect fact but that a mistaken view of the law was at the back of it all. The appellants considered themselves to be governed by Labour Laws in the matter of their employment and removal from service. This accounted for the grievance notice under section 25‑A of the Industrial Relations Ordinance and their point of view prevailed before the Labour Court as well. Finally. they were told by the High Court that law was inapplicable and their remedy lay before the Service Tribunal. It was then an occasion for them to have referred to the law applicable and to have satisfied its jurisdictional requirements for approaching the Service Tribunal. Having failed to do that they cannot as a matter of legal right claim that the Service Tribunal was bound in law to treat their grievance notice as substantial compliance with the law, requiring a departmental appeal before approaching the Service. Tribunal. If in individual cases, the Service Tribunal has been, after examining the facts, condoning such a similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) Service Tribunals Act is not satisfied. It was within the discretion of the Service Tribunal and we find that the Tribunal has in fact attended to all aspects of the case involving facts as well as the law before exercising the discretion against the appellants. We too find no reason why the appellants failed to file a departmental appeal as was required under the law."

14. One aspect of the smatter is that ''after the High Court's decision on 21‑4‑1984, regarding lack of jurisdiction in the Labour Court, the appellant should have promptly filed a departmental appeal before coming to the Tribunal to fulfil the jurisdictional requirements of law laid down in section 4(1) of the Act. He however filed the first appeal without exhausting the departmental remedy and I have no doubt in my mind that it is liable to dismissal as being incompetent under proviso to section 4(1) of the Act. But this still leaves us with the question whether under the circumstances of this case, delay in filing the second appeal should be condoned. The appellant's case, as already pointed out before, is that he had been under a bona fide impression that the grievance notice was as good as departmental appeal under Rule 11 of the Rules and that his first appeal was competent. I am inclined to say that his pleadings on this point and the arguments of his learned counsel are not wholly without substance. They do carry some weight because the law on the point was rather not clear, and it was for the first time on 10‑11‑1985 in Muhammad Latif Bhatti's case that the Tribunal came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal. Different judgments delivered on different occasions could referred to above. Paragraphs 4 and 5 are relevant for the purpose of this case and they are reproduced below:‑‑

"4. Grade‑18 and above .‑‑Officiating appointments to Grade‑18 were hitherto made by the Provincial Governments. As already decided in the case of the District Management Group, all appointments to Grade‑18 will hence, forth be made by the Federal Government.

5. Appointments to posts in Grade‑18 will be made by promotion of officers of Grade‑17 of the Police Group and also of Grade‑17 officers of the Provincial Police of the rank of DSP of requisite service and experience who are recommended by the Provincial Governments. Selection for appointment to posts in Grade‑18 and above will be made on the recommendations of the Central Selection Board."

It would appear that the appellant, who was a Deputy Superintendent of Police in the Provincial Police of the Punjab, could seek entry into the Police Group if he had requisite service and he possessed requisite experience and his name was recommended by the Provincial Government and his selection to the post in Grade‑18 was made by the Central Selection Board. The added requirement was that of the availability of a vacancy in the 33‑1/3 per cent quota of the senior posts for the promotion of the Provincial Police Officers as per schedule annexed to the O.M. 1t appears from the endorsement below the promotion order of the appellant dated 23‑9‑1975, reproduced above, that his name was recommended by the Provincial Government under letter No. SO(S)‑18/2/75, dated 25‑8‑1975. His name was approved for promotion as S.P. in Grade‑18. But his‑ promotion was not considered for his induction in the Police Group as it appears from the Summary submitted to the Minister of State for Establishment on 20‑9‑1975 that the case of the appellant and many other officers of the Provincial Police Service a was considered for promotion in ordinary course and was not processed through a Selection Board as required, nor were the length of their service and requisite experience considered. Of course, the appellant was given assignment under the Federal Government, as mentioned above, but that did not mean that he was inducted in the Police Group, as the recommendations were initiated by the Provincial Government for promotion of some police officers including the appellant for filling some vacant posts. This appears to have been done in view of the provisions of paragraph 4 of the O.M. dated 31‑5‑1975, that officiating appointments to Grade‑18, which were being made by the Provincial Governments before, were to be made by the Federal Government. Obviously, the notification dated 23‑9‑1975 as regards the promotion of the appellant as an S.P. in Grade‑18 did not place him in Police Group and he has no case to claim encadrement in the Police Group, now converted, into the Police Service of Pakistan under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. It was for this reason that the appellant's name was not mentioned in the seniority lists of the officers in the Police Group published in the years 1975 and 1980. It was in that context that the questions of encardement of the appellant and his consequential seniority in the Police Service of Pakistan were considered under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. His case was processed along with many other officers and he was not considered fit for promotion at one stage and he was cleared at the second stage and he was given promotion from the date a vacancy was available in the promotion quota for the Provincial Police Officers, as reflected in the seniority list published in the year 1987.

9. The Establishment Division, which is the respondent No. 1, and most of the private respondents have raised the question of limitation. The appellant has mainly called in question the Establishment Division Notification dated 7‑10‑1987 (filed as Annexure `B' to the memo. of appeal), where under names of as many as 34 Provincial Service Police Officers were notified to have been approved' for appointment in the Police Service of Pakistan in accordance with Rule 7 of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, with P effect from the dates mentioned against their respective names. The appellant's appointment was shown effective from 23‑7‑1985. He has stated that he made representation dated 22‑10‑1987 for his proper encadrement and he was informed through the I.G. Police, Punjab that his request for refixation of .his seniority could not be acceded to and the information was communicated to him by the I G. Police, Punjab, under endorsement dated 28‑2‑1988, received by him on 2‑3 1988. The appeal was filed on 17‑3‑1988. It was, therefore, within the period of limitation in view of the events mentioned above. However, the contention of the contesting respondents is that the appellant claimed encadrement in the Police Service of Pakistan on the basis of his promotion as S.P. vide order dated 23‑9 1975 and his name did not appear in the gradation list of the officers in the Police Service of Pakistan published in the year 1975 and 1980 and yet he did not make any representation and, therefore, the appeal filed by him is hopelessly time- barred. No doubt, the appellant's name did not appear in the gradation list, published in the year 1975 and 1980 but the question of encadrement of the Police Officers from the Provincial Service was still hanging on and it was in 1979 or so that the matter was taken up by the Federal Government and the Provincial Governments were called upon to make recommendations for induction of the Police Officers in the Provincial Service into the Police Service of Pakistan, then called as Police Group. The appellant's encadrement in the Police Service of Pakistan was finally settled vide Notification dated 7‑10‑1987. Feeling aggrieved thereby, he made representation which was turned down and he was informed accordingly by the I.‑G. Police, Punjab under endorsement dated 28‑2‑1988. Confining his case within the compass of the aforesaid events, the appeal does not seem to be time‑barred.

10. Some of the respondents have also contended that the appeal is not maintainable, as it was filed without exhausting the remedy of departmental p appeal. As mentioned above, the date of appellant's encadrement in the Police Service of Pakistan was finally determined as per notification dated 7‑10‑1987 and his departmental representation was turned down and there was hardly any scope) for preferring a departmental appeal. This objection is not substantiated.

11. Consequent to the finding arrived at above that the appellant's promotion to the post of S.P. in Grade‑18 under notification dated 23‑9‑1975 did not amount to his induction in the Police Service of Pakistan, then known as the E Police Group, and therefore, his encadrement in the Police Service of Pakistan as per notification dated 7‑10‑1987 was in accordance with the rules, the appeal merits dismissal and is accordingly dismissed. No order is made for costs.

M.Y.H./535/Sr. F Appeal dismissed.