AFTAB EJAZ Versus D. L-G. POLICE, LAHORE RANGE

S. ABDUL JABDAR KHAN (CHAIRMAN). ‑ Syed Aftab Ejaz, Inspector of Police, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded D. I.‑G. Police, Lahore Range, Lahore, I.‑G. Police Punjab, Lahore and 3 to 77 respondents per list attached with the appeal.

2. By virtue of this appeal he has prayed that seniority list of List‑F, in so far it relegates appellant below the contesting respon dents and the final order, dated 11th November, 1981, be set aside and respondents be directed to award pro forma promotion to the appellant w. e. f. 18th May, 1975 and be promoted as Inspector of Police from the date of promotion of his juniors/contesting respondents.

3. Contesting respondents Nos. 3 to 78 were served with notices but since they did not appear before this Tribunal, ex parte proceedings were taken against them.

4. Brief facts of the case are that the appellant joined service in the Police Department in the year 1965 as a probationer A. S.‑I. by direct appointment The appellant was confirmed in that capacity from the same rate after he successfully completed the period of probation and requisite to departmental training and examinations. The appellant was promoted as officiating Sub‑Inspector w. e. f. 10th March, 1969. He was confirmed in the said post w. e. f. 10th September, 1972. The appellant completed 8 years service in all and 5 years service as Sub‑Inspector in March, 1974 and was eligible for promotion to List `F. According to the learned counsel for the appellant he was duly recommended for being brought on List `F' in April, 1974 and then in 1975.The seniority list of officiating Inspectors of Police as stood on 1st March, 1980 was prepared by C. P. O. At some time later, appellant came to know that three groups of Sub‑Inspectors had been promoted to List 'F' on 18th May, 1975, 9th August, 1975 and 30th December, 1975, whereas the appellant stood confirmed from an earlier date viz. 10th September, 1972, and thus was senior to all of them as Sub‑Inspector. The appellant was later on brought on List `F' w. e. f. 11th January, 1976, vide notification dated 26th January, 1976 i. e. only 8 months later than 7 of those officers and 10 days later than 68 of them. The appellant submitted representations dated 9th June, 1976 as well as 17th May, 1981, which have now been rejected by order dated 11th November, 1981. Hence this appeal.

5. Learned counsel for the appellant has submitted that the case of the appellant suffers from discrimination which had taken place at the behest/behaviour of his superiors and by manipulation of his colleagues and thus his vested right of seniority has been disturbed and thus he has suffered an irreparable loss due to above‑mentioned act of omission by his superiors. On the other hand learned District Attorney has submitted that in fact the appellant was considered alongwith his colleagues and as he was not considered fit for promotion, therefore, this case was that of super session and as such he was not entitled to claim seniority over those who were promoted earlier to him.

6. We have given our anxious thought to the short contention of the parties and are required to adjudicate whether the appellant was superse ded or he was ignored deferred for promotion and under what circum. stances. In order to come to the conclusion to resolve this controversy, we will reproduce the observation of Mr. Aslam Hayat the then Additional I.‑G. P. while he interviewed the appellant for purpose of promotion which runs as under :‑---

"Interviewed at Lahore today, 15th May, 1975. His name appears at serial No. 68/88 of the list of recommendees. .

Short statured but smart. This officer is son of a deceased D. S. P. He has some experience as S. H. O. and his record, on the whole, may be regarded as slightly above average.

He is reported honest but needs more experience and maturity to qualify for List F. To wait."

We also find that the appellant was again recommended in the same year and after a period of six months by the Selection Committee of Lahore District but the Additional I.‑G. P. observed as under:‑---

"It is too early to go contrary to the evaluation of my predecessor."

However the appellant was admitted to List `F w. e. f. 21st January, 1976 vide notification dated 26th January, 1976.

7. We have carefully examined the language used by the Additional I.‑G. P. in order to decide whether this was an act of supersession or the appellant was deferred to gain some experience. In this connection, we will emphasize on the observation already underlined by us "To wait" The word to wait, would mean that he was not superseded and his superiors needed more time to make up their minds whether to clear him for promotion or not. If they had decided to supersede the appellant, there was no bar for them to say in unequivocal term, that the appellant was unfit for promotion. The substitution of word "to wait" for the con ventional phrase "unfit for promotion" leads to resistable conclusion that the case of the appellant was a case of being deferred and not a case of supersession. It will not be out of place to mention that according to the Police Rule 13.14 (3) the minimum experience for promotion to List `F', would be 8 years in all including 5 years as upper subordinate. We have consulted the record and have satisfied ourselves that the appellant did fulfil this minimum requirement for promotion to list `F'. We also cannot remain obvious of the fact that the Additional I.‑G. P. did concede that he was reported to be honest and his record on the whole was slightly above average. The only impediment in his way according to the said I.‑G. P. was lack of experience which is not supported by the service record of the appellant. The experience means the experience as required under the rules and not according to the personal opinion of the Additional I.‑G. P. We are fortified in our observation in this respect as the rules clearly fix certain requirements of service and experience and do not allow the superiors of a civil servant to create a yardstick of their own in violation of the said mandatory provisions. In this respect we further rely on a case of Ashfaq Ahmad v. I.‑G. P. and 2‑34 contesting respondents which we decided on 9/81 and which also became a subject of appeal before their Lordships of the Supreme Court of Pakistan. In the said case Ashfaq Ahmad was ignored for promotion to List `F' vide Additional I.‑G. P. order, dated 24th November, 1973 in which it was stated that he needed more grounding/experience in execution of work before he can be consi dered for higher responsibilities. It was also observed in similar manner that on the whole Ashfaq Ahmad possessed slightly above average record and the word used was "wait". This Tribunal held that this sort of observation was in violation of rule 13,14 (3) of the Police Rules therefore, it decided to set aside the above order and directed that the said Ashfaq Ahmad would be deemed to have been admitted in List `F' w. e. f. 15th December, 1973, the date when his juniors were so promoted. The Government chose to file an appeal against the decision of this Tribunal which came before their Lordships of the Supreme Court of Pakistan. Their Lordships upheld the decision of this Tribunal holding that due weight was not given as it was so required under rule 13.14 (3) and in this manner this would be a case of indiscrimination, qua the respondent in the said case.

8. We would further like to highlight two serious discrepancies of the decision of the superiors of the appellant in regard to the discrimina tion, when we, find the appellant was born on 28th September, 1944 when among the contesting respondents Nos. 3, 6, 39, 58, 59, 66, 67, 68, 75 and 76 were born on dates later than him and thus were younger in age. We have also confirmed that the date of appointments of all these respondents so mentioned above were also later than the appellant. The second factor which make us to believe when we further find that the appellant was promoted 10 days later than most of the respondents who were lesser in age and juniors in length of service, that this must have been happened due to some misunderstanding about the facts and figures regarding the appellant's date of birth or length of service otherwise the decision on the face of it, is not well‑founded. Thus, we are forced to conclude when we find that a short period of 10 days cannot make‑up for the gap of experience and maturity which the Additional I.‑G. P. considered an impediment in the way of the appellant's promotion.

9. In view of the above, relying on our judgment in Ashfaq Ahmad's case and decision of the highest Court of realm the Supreme Court of Pakistan in the said appeal by the Government, we proceed to set aside the final order, dated 11th November, 1981, impugned before us, and direct that the appellant would be deemed to have been promoted to List `F' w. e. f. 18th May, 1975. However the parties shall bear their own costs.

M.I Appeal accepted.