MUHAMMAD AMIN Versus SECRETARY, ESTABLISHMENT DIVISION , Ali Abid

1. CH. A. RAHMAN KHAN (MEMBER). ‑‑‑This appeal was heard ex parte as per order, dated 27‑9‑1990.

2. Mr. Muhammad Amin Additional Inspector‑General of Police (AIGP), the appellant, has requested by way of this appeal that he be allowed (BPS‑21) vide Prime Minister's Secretariat Letter No. F.Ds (IMP)/PMDIR/114/89, dated 4‑5‑1989 with effect from 4‑5‑1989 and be assigned the seniority which he held before the upgradation of the post. His departmental appeal, dated 17‑8‑1989 has remained unresponded.

3. Briefly, the facts of the case are that the appellant, an Officer of the Police Group was promoted to the rank of AIGP in B‑20 vide Gazette Notification, dated 29‑9‑1988. The name of the appellant appears at. Serial No.14 of the gradation list of Additional Inspectors‑General of Police (B‑20) as on 1st January, 1989.

4. It was contended by the learned counsel for the appellant that the Prime Minister's Secretariat issued the following letter on 4‑5‑1989: ‑‑

2. "PRIME MINISTER'S SECRETARIAT

RAWALPINDI

3. No. F.Ds (IMP)/PMDIR/114/89, dated 4‑5‑1989.

4. Subject: PRIME MINISTER'S DIRECTIVES/ANNOUNCEMENT MADE

5. DURING THE DINNER HOSTED BY THE OFFICERS OF POLICE GROUP.

6. The Prime Minister has been pleased to announce the following decisions while addressing the officers of the Police Group on 12th April, 1989: ‑‑

7. Directives/Announcements Action by a.

8. The Metropolitan Police System to be introduced on experimental basis in selected cities.

9. Secretary Ministry of

10. Interior b.

11. Recommendations of the Police

12. Committee of 1985 to be implemented in the wider interest of the public.

13. Secretary Ministry of

14. Interior c.

15. Three senior Police Officers, Mr Laeeq Ahmed, I.‑G.P. Railways; Mr. Obaidur Rahman Khan, OSD, Mr. Dilshad Najmuddin, Chairman, PNCB, promoted to BS‑22.

16. Secretary, Establishment

17. Division d.

18. The post of Additional I.‑G.P. to be placed in BS‑21.

19. ‑do‑ e.

20. The post of D.I.‑G. to be placed in BS‑

21. 20.

22. ‑do‑ f.

23. Posts of SSPs/AIGs/SP (Spl. And Crime Branches to be placed in BS‑ 19).

24. Secretary, Establishment

25. Division g.

26. The proposal concerning establishment of National Police Academy should be placed immediately on the Agenda of

27. ECNEC.

28. Secretary Interior h.

29. The PSP Association to get a grant of

30. Rupees 10 lacs. (The Prime Minister announced this grant after she had delivered the written speech).

31. ‑do‑

2. Final action taken in the matter may please be intimated, for the kind information of the Prime Minister.

32. (Sd.)

33. (SIRAJ S. SHAMSUDDIN)

34. Deputy Secretary (IMP)

35. Mr. S.K. Mahmood,

36. Secretary, Interior Division, Islamabad

37. Mr. M.I.K. Khalil,

38. Secretary, Establishment Division, Rawalpindi."

39. Subsequently the Regulation Wing of the Finance Division sent the following D.O. Letter to the Secretary, Establishment Division:‑‑

40. (Regulation Wing)

41. 1st August 1989.

42. Joint Secretary,

43. (Regulations)'

44. Phone 812161

45. D.O. No. F.2 (32)‑8.2/89

46. Subject: IMPLEMENTATION OF PRIME MINISTER'S

47. DECISION TO ENHANCE PAY SCALES OF POLICE FORCE.

48. Dear Mr. Secretary,

49. Kindly refer to your D.O. Letter No. 1/4/89‑CP.2, dated the 20th May, 1989 on the subject noted above.

2. The competent authority has been pleased to approve the upgradation of the following posts:‑

(i) The posts of Addl. I.‑G. Police from BPS‑20 to BPS‑21.

(ii) The posts of DIG Police from BPS‑19 to BPS‑20.

(iii) The posts of SSPs/AIGs and SPs (Special and Crime Branches) from BPS‑18 to BPS‑19.

3. The upgradation of the posts will take effect from the date the posts are filled in by eligible officers in accordance with the relevant rules and procedure.

50. With regards.

51. Yours sincerely,

52. (Sd.)

53. (S.A.A. BUKHARI)

54. Mr. M.I.K. Khalil,

55. Secretary,

56. Establishment Division,

57. ' Rawalpindi

58. Simultaneously the Establishment Division issued the following letter on 1st of August, 1989:‑‑ '

GOVERNMENT OF PAKISTAN

59. CABINET SECRETARIAT,

60. (ESTABLISHMENT DIVISION)

61. No.1/4/89‑CP.2, Dated Islamabad the 1st August, 1989.

62. From: Malik Gulab Khan,

63. Section Officer.

64. To

(i) The Accountant‑General of Pakistan Revenues, Islamabad

(ii) Accountant‑General, Punjab, Lahore/Sindh, Karachi/N.‑W.F.P.,

65. Peshawar/Balochistan, Quetta

66. Sir,

67. I am directed to convey the sanction of the President to the up gradation of the following posts of Additional Inspector‑General of Police and equivalent, borne on the cadre of Ponce Service of Pakistan from BPS‑20 to BPS‑21:‑‑

(a) Additional Inspector 3 Punjab 2 of the Province Sindh .1

(b) Inspector‑General of

68. Police, Islamabad 1

(c) Joint Director,

69. Intelligence Bureau 4

(d) Additional Director

70. General, FIA 1

(e) Commandant, FC 1

71. Total 10

2. The upgradation of the above posts will take effect from 1st August, 1989.

3. This issues with the concurrence of the Finance Division vide their D.O. Letter No. F.2(32)‑8.2/89, dated 1‑8‑1989.

72. Your obedient servant

73. (Sd.)

74. (Malik Gulab Khan.)"

5. It was contended that on the same date namely 1st of August, 1989, a Notification was issued regarding grant of BPS‑21 to certain officers of the rank of AIGP which read as under:‑‑

75. "Government of Pakistan

76. Cabinet Secretariat

77. Establishment Division

78. Rawalpindi, the August 1, 1989.

NOTIFICATION

79. No. 11‑6/89‑E.3 (Police).‑‑‑Consequent upon upgradation of the post of Additional Inspectors‑General of Police and equivalent, in the Police Service of Pakistan, to BPS‑21, the competent authority has been pleased to grant BPS‑21 to the under mentioned officers of the rank of Additional Inspectors‑General of Police in the Police Service of Pakistan with immediate effect and until further orders:

80. 1.

81. Mr. Muhammad Nawaz Malik

82. J.D. Intelligence Bureau

83. 2.

84. Sardar Noor Elahi Leghari

85. D.G. Bureau of Emigration and

86. Overseas Employment, ISB.

87. 3.

88. Mr. Ahmed Javed Shah

89. J.D. Intelligence Bureau,

90. Lahore.

91. 4.

92. Mr. Bukhtar Rasool Awan

93. J.D. Intelligence Bureau,

94. Islamabad.

95. 5.

96. Mr. Riaz Ahmad Sipra

97. Joint Secretary, Establishment

98. Division, Islamabad.

99. 6.

100. Mr. Zulfiqar Ali Qureshi

101. OSD, Establishment Division,

102. Islamabad.

103. 7.

104. Mr. Manzoor Ahmad

105. Inspector‑General of Police,

106. Government of the Punjab.

107. 8.

108. Mr. Khawar Zaman

109. Inspector‑General of Police,

110. Government of Sindh.

111. 9.

112. Mr. Wajahat Latif

113. Inspector‑General of Police,

114. Islamabad.

115. 10.

116. Mr. Abbas Khan

117. Inspector‑General of Police,

118. Government of NWFP.

119. (Sd.)

120. (ABDUL REHMAN),

121. Deputy Secretary to the

122. Government of Pakistan

123. Tele: 817117:"

6. It was further submitted that no objections were filed by the Establishment Division in spite of the Honourable Tribunal's express directions in this regard. It was submitted that Mr. Sardar Muhammad Chaudhry who stood at Serial No. 22 of the gradation list has been granted B‑21 by Notification, dated 15‑8‑1990 (copy produced at the time of hearing) while it has not been granted to the appellant. In view of the fact that the Prime Minister's Directive placed all the posts of AIGPs in BPS‑21 without any exception the Finance Division by para. 3 of their D.O. Letter No. F.2(32) R.2/89, dated 1‑8‑1989 has tried to introduce the concept of selection which is contrary to the Directive of the Prime Minister. It has been pointed out that Notification No. 11‑6/89‑E.3 (Police), dated 1‑8‑1989 has, however, been issued without going through any process of selection. It was further submitted that there was no concept of `duty post' in the Police Service of Pakistan and this terminology is foreign to the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985. It was also brought to our notice that after mentioning the posts under each head, leave deputation and training, reserve at 40% of the total number of the posts has been shown. It was contended that this reserve has been ignored altogether while issuing Letter No. 1/4/89‑CP.2, dated 1st of August, 1989 relating to AIGPs. The learned counsel for the appellant has cited the decision in respect of Dr. Muhammad Sarfraz Khan Rana v. Government of the Punjab and others (PLD 1990 Lah. 88) where it was remarked that when all posts in a cadre are upgraded, all the incumbents would be placed in the higher grade. The plea of the learned counsel for the appellant is that the directive of the Prime Minister merely revised the pay scales by which all officers of the rank of AIGP were placed in BPS‑21 and the action of the Establishment Division in interpreting it differently was not warranted. The wrong interpretation of the Prime Minister's directive has resulted in equating some AIGP with DIGS which is contrary to the command structure of police service.

7. This is violative of the scheme of the cadre. Also, it is stated that the Police Service of Pakistan has always been a uniformed service with clearly defined tiered hierarchy of ranks of ASP, SP, DIG, AIGPs and I.‑G. Further, that the Prime Minister's directive while ordering the placement of the posts of AIGPs in BPS‑21 has laid no limit of such upgradation, it was only the respondents ‑ Establishment Division who while upgrading the posts of AIGPs limited the number of 10 only and ignored the reserves. This clearly shows that the respondents had not faithfully implemented the Prime Minister's directive. This amounts to introduction of structural changes in the Police Service of Pakistan which is contrary to the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985. This action is, therefore, discriminatory and contrary to the Article 4 of the Constitution of Islamic Republic of Pakistan. The learned counsel has cited the decision of the Federal Service Tribunal in the case of Bakhatmand v. Secretary, Ministry of Food and Agriculture and others (1983 PLC (C.S.) 824) wherein it was held that when the post was upgraded such order by its implication amounted to appointment of incumbent to higher grade. He has further cited the decisions at PLD 1986 SC 349; 1986 SCMR 991, 1970 SCMR 721 in support of his contention that the appellant was entitled to pay of BPS‑21. It was further contended that as held at PLD 1978 SC 61 the learned Supreme Court had held that if the rules were capable of bearing a reasonable interpretation favourable to the employees then that interpretation should be preferred. it was further urged that the action of the respondents creates an individuals discrimination between officers of the same rank whereas no such discrimination is inferable from the Prime Minister's directive.

8. The learned counsel for the appellant submitted that the respondents Establishment Division should be asked to produce file No. 1/3/90‑Lit‑I relating to the matter under consideration which would show that the case was referred to the Law and Justice Division who categorically expressed their opinion that the appeal was not defendable. This matter was further referred to the Attorney‑General of Pakistan who agreed with the opinion of the Law Division. In view of the above arguments, it was strongly contended that the appellant be given BPS‑21 from the date of issue of the Prime Minister's directive i.e. 4‑5‑1989 with full back benefits and be assigned the same seniority as held before the upgradation of the post on the gradation list of AIGP.

9. We have given our anxious thoughts to the arguments given by the learned counsel for the appellant and have perused the record presented to us carefully. We are of the firm view that the Prime Minister's directive dated 4‑5‑1989 placed all the posts of Additional Inspectors‑General of Police in BPS‑21 without any condition. Also, the Finance Division, in our view, did not place any limit on the number of posts to be upgraded. In our opinion, Letter No. 1/4/1989‑CP.II, dated 1‑8‑1989 which placed a limit on the number of posts of Additional Inspectors‑General of Police to be upgraded was not' only contrary to the directive of the Prime Minister but also defective in calculating the posts of AIGP to be available for upgrading.

10. In our view, the opinion ‑expressed by the Law and Justice Division supported by the Honourable Attorney‑General in no uncertain terms regarding the erroneous lamentation of the Prime Minister's directive in this case is binding on the respondents as held in PLD 1978 SC 61. The Government of Pakistan should remain benevolent in interpreting the rules concerning its employees.

11. The views expressed by respondent department in two Letters No. 1/4/1989‑CP‑II, dated 1st August, 1989 that there were only 10 posts of AIGP and 65 posts of DIGS as per the existing strength are incorrect to the extent that it excludes 134 senior posts which are there in the Schedule in the form of "Leave, Deputation and Training Reserves" and are integral part of the cadre strength. It is so because these 134 posts are not individually specified and separately identified as are the other 332 senior posts in the rank of IGP (9), AIGP (10), DIGS (65) and SSP/SP (248) (including their equivalents in each rank). This reserve is @ 40% of the specified senior posts (332). This is only after the thus worked out 134 posts which are taken into account alongwith 106 junior posts of Assistant Superintendent of Police that the cadre strength totals up to 572 in the Schedule. In addition, 40% Reserve is not shown separately in the Schedule but overall `floating Reserve' of 134 posts is held against 332 specified senior posts and their equivalents. In other words, as per scheme of the cadre of Police Service, the number of posts that can be held over and above the specified posts in each senior rank will remain flexible (within the upper limit of 134 for all senior ranks), depending upon the requirements of exigencies of service.

12. Under section 17 of the Civil Servants Act, 1973, a civil servant shall be entitled to the pay sanctioned for the post he is appointed to. Therefore, the pay of an Officer in the Police Group should be regulated according to the 8 rank/post he is promoted to e.g. Addl. I. ‑G. in BPS‑21. In this case the Gazette Notification which would indicate the specific promotion rank shall form the basis for the entitlement to the relevant grade. This entitlement shall not be

124. Related to the actual post to be held by the incumbent, which may be a cadre/an ex‑cadre post or the equivalents.

13. All regularly created cadre posts, which are not specifically shown in the Schedule at present but invariably are to be manned by Police Officers should be treated as a part of the cadre strength in the Schedule.

14. The upshot of the above discussion is that the appeal before us succeeds. We direct that the appellant be placed in BPS‑21 as he has already been promoted to the rank of AIGP with effect from 29‑9‑1989. However, the date of grant of BPS‑21 would be 1‑8‑1989 as the letter of Finance Division (Regulation Wing) for upgradation was issued on that date. Ordered accordingly.

15. No order as to costs.

16. Parties be informed.

125. A.A. /662/Sr.F

126. Appeal accepted.