Ch. ALLAH DAD Versus INSPECTOR-GENERAL OF POLICE, PUNJAB

ORDER

1. M. SALEEM CHAUDHRY (CHAIRMAN). ‑In this appeal tae appellant, a Superintendent of Police, under the Punjab Government seeks correction of his seniority, inasmuch as it is claimed that he was senior to respondents Nos. 3 and 7. The appellant abandoned the respondents, Ch. Mohammad Ashiq and Ch. Abdul Majid Bajwa, who have since retired from service and their names were accordingly struck off from the list of respondents vide our order dated 27‑10‑75. The respondents Nos. 5 and 7 did not appear despite due service of notice and ex parte proceedings were therefore taken against them on 18‑12‑75. Only respondents Nos. 1, 2 and 6 were represented through Mr. A. G. Humayun, Government Pleader and Mr. Ehsan‑ul‑Haq, Advocate respectively.

2. The facts in brief so far as relevant to this appeal, are as under :‑

3. "The appellant joined Punjab Police on 1‑3‑1951 and was promoted as Officiating D. S. P. on 25‑10‑59 and was later on confirmed in the same capacity on 26‑8‑68. However, ultimately vide order, dated 7‑2‑1972 he was granted pro forma promotion as Officiating D. S. P. w. e. f. 8‑4‑51 and was confirmed in the same capacity on 16. 6‑59. Ultimately he was promoted as S. P. on 3-4‑1971. The comparable date in the same case of respondents Nos. 5‑7 was as under :‑‑

4. Appointed Pro forma Confirmed Promoted as Offg. Promotion as as D. S. P. as S. P.

5. D. S. P. Offg. D. S. P.

6. Ch. Wahid Bakhsh

7. (Respondent No. 5) 25‑2‑61 31‑12‑51 16‑2‑64 5‑10‑67

8. Nisar Ahmad 5‑7‑57 ---- 2‑7‑64 14‑1‑70

9. (Respondent No. 6)

10. Mohd Ahmad Ansari 1‑10‑57 ---‑ 2‑7‑64 13‑7‑70

11. (Respondent No. 7)

12. It has been stated before us that at the time of promotion of respondents Nos. 5‑7 as Superintendent of Police, the appellant was admittedly junior to them and therefore he was not considered for promotion as S. P. alongwith them. However, on 7‑2‑72 when he wag granted pro forma promotion with retrospective effect the situation changed and thereafter he became senior to them even in the rank of S. P. on the basis of the pro forma promotion and thus be was entitled to seniority as such over respondents Nos. 5‑7 and pro forma promotion in accordance with the same. He made a representation on 7‑2‑1972 to the Government of Punjab to rectify the position. However, the same was rejected on 29‑5‑73 whereafter the appellant filed a Writ Petition No. 1651‑S/73 before the Lahore High Court which in wake of the enforcement of the Punjab Service Tribunals Act of 1974. was declared to have abated by Mr. Justice Shafi‑ur‑Rehman on 18‑9‑74. Hence the present appeal.

13. The learned counsel for the appellant Sh. Nisar Qutab, Advocate in the first instance argued that the pro forma promotion in substance is tanta mount to the assignment of pre‑emptive date of seniority which the appellant became entitled to, in consequence of the order, dated 7‑2‑72 which made him senior is the ranks of Inspector and D. S. P. to all the respondents Nos. 5‑7 Reliance was placed in this behalf on the provisions contained in Explanation III to sub‑rule (1) of rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which provided as under :‑

14. "Explanation III.‑Subject to the Provisions of rule 14 of these rules, a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior was appointed in preference to the senior."

15. The learned counsel submitted that since the case of the appellant was never considered for promotion as S. P. together with the respondents Nos. 5‑7, therefore, he could not be deemed in law to have been superseded in terms of Explanation III, reproduced above. Thus according to appellant in the absence of any supersession he retained his seniority over the respondents Nos. 5‑7 even in the rang of S. P. Reliance was also placed on the ratio of decision of this Tribunal reported as Shaukat Ali Khan v. I.‑G. Police (1971 P L C 144). The appellant in particular relied upon the following observation in the judgment :‑

16. "This was therefore, a fit case in which he should have been granted promotion from 20th May, 1956, when his juniors respondents 3 and 9 Khan Zaman Khan and Muhammad Said Khan were promoted. We are of the view that he should, therefore be promoted as Officiating Inspector from 28th May 1956."

17. On the basis of above ruling it has been contended by the learned counsel for the appellant that seniority of the appellant could not be tampered with by the respondents Nos. 1 and 2 unless this case was considered together with respondents Nos. 3 to 7 and he was consciously superseded. It was next argued that the impugned orders passed by the respondents Nos. 1 and 2 did not assign any valid reason for refusing to restore the due seniority of the appellant in the rank of S. P. and they failed to implement the orders dated 7‑2‑72, In entirety as there was no legal warrant for denying all consequential benefits accruing to the appellant. The appellant also submitted that his case was duly recommended by the I. G. Police but tee Government illegally in violation of orders dated 7‑2‑72, denied the benefit of seniority and pro forma promoting to him. Reliance was also placed on the precedents in the case of Messrs Abdul Majid Bajwa and others who were granted similar benefits of seniority by the competent authority. On this premises it was urged that this appeal be accepted and the appellant be declared senior to respondents Nos. 5‑7 in the rant of S. P.

18. Mr. A. G. Hamayun, Government Pleader on behalf of respondent Nos. 1 and 2 submitted that the petition merited to be defeated on the ground of laches. The Government Pleader argued that since the impugned orders in this case were passed at the time when the previous Tribunal existed which had jurisdiction in seniority matters and the appellant having failed to approach the aforesaid Tribunal was precluded from agitating this issue at this belated stage before this Tribunal. Reliance was placed on the decision of this Tribunal in Case No. 711/72, dated 11‑11‑74 sad the reported decision of this Tribunal in 1976 P L C (C. S. T.) 2 which laid down that the relief to a civil servant could be refused on the ground of laches. Secondly the learned Government Pleader also argued that the pro forma promotion was not a right. He relied upon the provisions of rule 9 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Sub‑rule (2) of Rules provided as follows : ‑‑

19. "Promotion including pro forma promotion shall not be claimed as of right by any civil servant."

20. He also relied upon the decision of this Tribunal reported as Zaheer Ahmad Parvez v. Province of Punjab (1975 P L C (C. S. T.) 105) and also on 1971 P L C 144 for the proposition that promotion could not be claimed as a matter of right. The findings of the Court in 1971 P L C (C. S. T.) 144 that "On our own, we find ourselves unable to interfere in the circumstances of the case with the date of confirmation" was relied upon. Thirdly he invited our attention to proviso (b) to section 4 of the Punjab Service Tribunals Act of 1974, according to which no appeal was maintainable by any civil servant before this Tribunal determining the fitness or otherwise of a person to be promoted to a higher grade. Fourthly he also placed strong reliance upon the "Administrative reforms‑Police Group" as conveyed by Federal Government in their letter No. 3/2/75‑ARC. dated 31‑5‑75. According to aforesaid letter all Police posts in Grade 17 (filled by direct recruitment) and above will be under the control of the Establishment Division, Government of Pakistan. The recruit ment to Grade 17 and officiating appointment shall be made by promotion from Provincial Cadre of Grade 17 officers of the Provincial Police carrying the rank of D. S. P. as recommended by the Provincial Government. But the appointment was to be made on the final recommendation of the Central Selection Board‑As regards seniority it provided :‑

118. Seniority.‑The inter se seniority of direct recruits to Grade 17 will be determined on the basis of the order of merit assigned to the probationer officers allocated to the Police Group on completion of the training at the Academy for Administrative Training. Seniority in Grade 18 and above would be determined from the date of regular continuous officiation in a grade. Gradation Lists of Officers in all Pakistan Unified Grades would be issued by the Establishment Division periodically."

21. On the basis of the above letter, the learned Government Pleader argued that the recruitment by way of promotion and the preparation of seniority list of the Police Officers of Grade 18 and above i. e. in the rank of S. P. and above was no longer a Provincial subject and the post held by these officers would not be a civil post under the Province. In this behalf he also relied upon rules 4 and 5 of Police Service of Pakistan (Composition and Cadre) Rules, 1969, promulgated by a Notification dated 26‑11‑1969 of Government of Pakistan Cabinet Secretariat, which appeared to be to the same effect. Controversy as to seniority of such officers was thus no longer amenable to the jurisdiction of this Tribunal. Moreover, he submitted that no seniority list of the officers in the rank of Superintendents of Police has been placed on record in the absence of which the controversy could not be entertained by this Tribunal. Even otherwise the basis of seniority as laid down in para. 8 above was the date of regular continuous officiation in Grade.

22. Lastly, the learned Government Pleader argued that the Explanation III to rule 8 referred to above had no application to the facts of this case. He argued that admittedly at the time of promotion of respondents Nos. 3‑7 as S. P. the appellant being Junior to them his case could not be considered for promotion alongwith their cases and even if so considered he could have no grievance as he was evidently junior to them. Thus it was only after the order, dated 7‑2‑72 in his favour that he became eligible to vie with res pondents Nos. 3‑7 for seniority in the rank of S. P. However, the appellant was not approved for promotion by the relevant Selection Committee on 20‑1‑1971, but was promoted conditionally on 9-3‑1971 under the order of Governor of Punjab and his performance was to be watched for six months. His officiating promotion as S. P. was finally approved by the Governor of Punjab on the 4th of October, 1971. He made a representation after about a year and half to the Governor Punjab Respondents 3‑7 also made similar representations. Their claims were examined together at this stage and after considering their comparative merits the claims of appellant qua respondents 3‑‑7 was rejected by the Governor on 7‑3‑1973 and the rejection was duly conveyed to the appellant on 27‑5‑73. In view of above the Govern ment Pleader argued that the appellant's contention that his case was never considered alongwith the respondent could not be allowed to prevail inasmuch as his case has been duly considered and the promotion of respondents Nos. 3‑7 in preference to him stood duly approved by the Governor by the aforesaid order and thereafter he stood properly superseded and was not entitled to claim any seniority over the respondents 5‑7. Consequently he submitted that the appeal has to merit and may be rejected accordingly.

23. The counsel for Mr. Nisar Ahmad, respondent No. 6, the only contesting respondent, reiterated the contentions raised by the learned Government Pleader that the appeal was liable to be defeated on the ground of laches and Explanation III to rule 8(1) of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 was not applicable to the facts of the case. However, he advanced the arguments further by contending that rule 8 was not retrospective but prospective in operation. He reinforced his submission by placing reliance upon the following passage from 1976 P L C (C. S. T.) 2:‑

24. "The West Pakistan Education, Department, Subordinate Regional Service (Administrative Branch) Men's Section Rules, 1962, were promulgated on 11‑10‑62. Rule 10 of the Rules provides the rules of seniority but these rules should by prospective arid not retrospective in their application and effect. On the other hand. bath the appellant and the second group of Respondents 17 to 63 and 73 to 89 were appointed and confirmed before coming into force of the rules. As such, these rules are not available to us for the determination of seniority among themselves of the aforementioned respondents."

25. He further argued that the appellant before the Department was claiming pro forma promotion only which could not be granted to him. He invited our attention to the representation the appellant, dated 7‑2‑72 to the I.‑G. Police, Punjab, Lahore, in which he had claimed the following relief:

26. "I may kindly be granted pro forma promotion as officiating S. P. w. e. f. the date on which my junior had started officiating as S. P."

27. Thus the Counsel for respondent No. 6 argued that the only claim of the appellant was to pro forma promotion which fell outside the scope of jurisdiction of this Tribunal in view of the decision reported 1975 P L C (C. S. T.) 105.

28. It was nest argued by him that his claim to earlier confirmation and seniority was also not tenable in view of the decision 1976 P L C (C. S. T.)

2. He also argued that the seniority could not be fixed merely on the basis of claim to promotion or pro forma promotion and the issue of promotions already made could not be reopened after the lapse of considerable time. Reliance was placed on 1972 P L C (C. S. T.)

42. In that case the respondent was promoted to the higher rank and confirmed as such. It was held that the appellant could not compete in seniority with the respondent who had attained the higher rank on a permanent basis. The learned counsel also argued that in view of the provisions contained in, section 6(6) of the Civil Servants Act, there was no room left fur the grant of pro forma promotion as one cannot be confirmed earlier than the availability of a permanent vacancy or the continuous officiation whichever was later. He also pressed into service section 7 of the aforesaid Act to support the plea that seniority could be claimed from the date of regular appointment only and no appointment could be made from a date earlier than the physical appointment. He also referred to the meaning of "regular" as contained in the Oxford Dictionary according to which regular means "permanent" employment. Thus according to the learned counsel since the appellant had not been regularly appointed as S. P. therefore be could not claim any seniority as S. P, over respondent No. 6. In the result he also maintained that the appeal merits to be rejected.

29. The learned counsel for the appellant in reply pointed out that the objection as to the laches is not maintainable inasmuch as the appellant pressed the remedy by way of writ petition filed on 11‑8‑73 before the Lahore High Court. It was on the abatement of the writ petition on 8‑9‑75 that he moved this Tribunal. He also argued that rule 9 of the Punjab Civil Servants (Appointment and Conditions Service) Rules, 1974 was not applicable to this case as there was clear distinction between promotion" and `'pro forma promotion". The pro forma promotion, according to the learned counsel for the appellant, was mere assignment of pre‑emptive date of seniority.

30. We have heard at length the arguments advanced by both the sides and have also perused the records. After hearing the parties and taking into consideration facts of the case we do not find force in any of the contentions advanced by the appellant.

31. We find a good deal of merit in the arguments of the counsel respondent No. 6. The appellant has been claiming pro forma promotion before the Department. The appellant has not produced anything to show that pro forma promotion was a mere predating of the seniority, No rule or instruction has been brought to our notice to show that the salary pension other concomitant benefits are not admissible to a civil servant who succeeded in securing pro forma promotion.

32. In view of rule 9 referred above, no civil servant can claim pro forma promotion as of right. The decision reported as 1975 P L C (C. S. T.) 105 and 1976 P L C (C. S. T.) 2, also lays dawn the same position independently of rule 9 that the promotion could not be claimed as of right. In particular the decision reported as 1975 P L C (C. S. T.) 105 was on all fours. Paras. 2 and 3 from the same judgment may be reproduced with advantage :

33. "2. The learned counsel for the appellant, however, contends that the appellant's promotion to the grade of Executive Engineer was initially withheld on the basis of some adverse remarks which were subsequently expunged. Consequently, he was given pro forma promotion to the grade of Executive Engineers from a date which was prior in time to the dates of the promotion of respondents 2, 3 and 5 to the said grade. As such as Executive Engineer he was senior to these respondents. On that very basis he was entitled to promotion as Superintending Engineer from a date which was anterior to the date of promotion of the said respondents,"

3. We have considered the contention of the learned counsel but duo not find any merit in it. The decision of the Government whether al person is fit for promotion is not appealable before the Tribunal by virtue of paragraph (b) of the proviso to section 4 of the Punjab Administrative Tribunal Act, 1974. It follows therefrom that the Tribunal cannot direct the Government to promote a person from a particular date in the circumstances the contention raised by the learned counsel is outside the jurisdiction of this Tribunal."

34. We are in respectful agreement with the decision above and hold accordingly. However, we do not agree with the learned Counsel for respondent No. 6 that sections 6 and 7 restrict the power of the Departmental authority for making pro forma promotions in suitable cases. There was nothing in these sections, to abridge the power of departmental authority to make regular appointments contemplated in section 7(2) retrospectively or to deem a person as officiating from a predate for the purposes of confirmation under section 6(6) of the Civil Servants Act, 1974, provided a vacancy exists. Our reading of the relevant provision do not present the difficulty canvassed by the respondent. This plea of the respondent has thus no face and is accord ingly rejected. We are inclined to agree with the respondent that the seniority list of the civil servants holding the post of S. P. and above i.e. Grade 18 and above are to be prepared by the Establishment Division of the Government of Pakistan as per Administration Reforms, Police Group, dated 31‑5‑74 and the appellant has not produced before us any seniority list prepared by any competent authority whether Provincial or Federal in respect of the Super intendents of Police. In fact the seniority list now to be prepared under the Administration Reforms in para. 8 lays down the rules of seniority for the posts in Grade 18 and above on the basis of the date of regular continuous officiation in the grade". As such the appellant unless granted pro forma promotion as S. P. from an earlier date than the respondents could not rank senior to them. Thus the case of the appellant whether treated as that of pro forma promotion or that of seniority does not appear to be tenable before us. In any case, in substance and in material result the rejection of his representation by the Governor of the Punjab after due consideration of the merit of his case qua respondents Nos. 3‑7 was tantamount to his surersession resulting in loss of seniority even in terms of Explanation Iii to rule 8 of the Punjab Civil Servants (Appointment and Conditions of Services Rules, 1974. The contention of the appellant that his case was not considered viz‑a‑viz: Respondents Nos. 3 to 7 is contrary to the facts of the case. It is the admitted position that before 7‑2‑72, when the contesting respondents were promoted as S. P. the appellant was junior to them and we fail to see how he could have any grievance in this behalf. It was only after 7‑2‑72 when he got pro forma promotion as Inspector and D. S. P. that he became eligible to be considered alongwith the respondents Nos. 3 to 7 whereafter his case has been duly considered viz‑a‑viz them and rejected. In the circums tances the contention is not available to the appellant that his case has not been considered together with the respondents Nos. 3‑7 and he has not been superseded. Even otherwise Explanation III to rule 8 above came into force on 24‑8‑74 i. e. long after the promotions of respondents and the decision of the Governor, Punjab, dated 7‑3‑73 and the same was not retrospective in operation. Moreover in its scope and application it has to be confirmed to the incumbents holding civil posts in relation to the Province i. e. Grade 17 and below posts in Provincial Police Department excluding Assistant Super intendents of Police who were recruited by the Federal Government through the Federal Public Service Commission. We are also of the view that the said provision was not available to justify the reopening of the post and closed transactions. The reported decision of this Tribunal In 1976 P L C (C. S. T.) 2 amply fortifies this conclusion.

35. The upshot of the above discussion is that all the pleas of the appellant fail. However so far as the objection of the respondent to the maintainability of the appeal on the ground of laches is concerned, we are not inclined t accept the same. The appellant had adequately explained that he has bee pursuing diligently the remedy before the Lahore High Court and it was only on the abatement of the writ petition that he moved this Tribunal. We, therefore, find no merit in this contention of the respondent which is hereby repelled,

36. Consequently this appeal fails and is accordingly rejected with no orders as to costs.

37. Appeal rejected.