JAMIL AKHTER SHERAZI Versus AZAD JAMMU AND KASHMIR GOVERNMENT

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): ‑‑ This is an appeal by Mr. Jamil Akhtar Sherazi, Deputy Superintendent of Police (Reserve Branch) against the Government Notification No. S&GAD/A 8 (98)/5/91, dated 6th May, 1991 by which the respondents Nos. 2 to 5 were promoted to the posts of Superintendent of Police.

2. The relevant facts giving rise to this appeal are that at the relevant time of promotion of respondents Nos. 2 to 5, the appellant held the post of Deputy Superintendent of Police (Reserve) but he was not considered for being selected and promoted to the post of Superintendent of Police. While submitting the grounds of appeal, the appellant has invited our attention to Rule 4, sub‑rule 2 clause (a) of Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 (hereinafter to be referred as Police Service (Composition and Cadre) Rules, 1983 by which the post of Superintendent of Police is declared a selection post and the method of its recruitment and promotion is regulated in clause (b) of the said sub‑rule. According to the aforesaid rule 50% of the posts in the cadre of Superintendent of Police are to be filled up by selection from among the Assistant Superintendents of Police appointed through initial recruitment and the rest 50% vacancies are to be filled in by selection in the cadre of DSP and PDSP. It is submitted by the appellant that the vacancies of Superintendent of Police were to be filled up under the aforesaid rule of procedure by selection but the respondent‑Government has made the impugned promotion of the respondents on the basis of their seniority in the Police Service. It is further submitted by the appellant that by adopting the principle of parity with Punjab in relation to its civil servants the respondent‑Government has regulated and provided the same terms and conditions of service as are enjoyed by their counterparts in Punjab. Hence there must not be any deviation from following the rule of procedure which is followed in Punjab for selection and promotion to the post of Superintendent of Police from among the members of its feeding units. Under the Punjab Government Notification No. II/S&GAD/2‑54/76, dated 25‑8‑1990, the posts of Deputy Superintendent of Police in each branch of the Police Department of Azad Jammu and Kashmir Government are the feeding units to fill up the vacancy of a Superintendent of Police and in order to ensure that all the members of each feeding units must get its due share of promotion, it is further provided that where the sources of induction in office by promotion are more than one then all the members of feeding units in one cadre shall be given their due share in the existing service in proportion to the strength of that unit. The appellant claims that by following the above rule of law, the share of Reserve/Ranger branches of Police Department comes to two posts of Superintendents of Police and out of four vacancies of Superintendents of Police, at least two must have gone to the share of Reserve and Ranger branch of Police Department. But instead of doing a fair deal, three vacancies of Superintendent of Police were filled up from among PDSP and the 4th was given to the general branch of the Police under the impugned order and the share of Reserve and Ranger branches was denied. Being aggrieved of the impugned order, the appellant had made a representation to Inspector‑General of Police on 3‑7‑1991 and a review petition to the next higher authority on 25‑5‑1991 but both his representation and the review petition were not considered by the concerned authorities and the appellant ultimately had to invoke the jurisdiction of this Tribunal for the redress of his grievances under section 4 of the Service Tribunal Act.

3. It is prayed by the appellant that the impugned Government Notification dated 6‑5‑1991 may be set aside. The appellant may be promoted to the rank of Superintendent of Police from the date, the respondents are promoted and he may be allowed such other relief also as may be admissible to him under law.

4. By an order dated 7‑10‑1991, the above noted appeal was admitted for regular hearing in this Tribunal and the respondents were called upon to submit their objections, if any. On behalf of Mr. Taj Durrani, Ch. Muhammad Ashraf and Ch. Muhammad Sarwar respondents, it is submitted that the appeal brought against them is frivolous, incompetent and meritting dismissal. The appellant being the junior most Deputy Superintendent of Police had no locus standi to challenge their promotion. The appellant is not an aggrieved civil servant and hence his appeal against their promotion is devoid of force. The appeal is time‑barred and is not maintainable on that account also. Similar objections were raised by the respondents Nos. 1 and 2 and it was submitted on their behalf that both the appellant and respondents had common seniority in the Police service and the appellant for having been assigned the position in the seniority list at Serial No. 22 had no merits to be placed on the promotion list alongwith the respondents Nos. 2 to 5. No quota was fixed for each branch of the feeding units and hence the appellant was not entitled to seek any relief on that account.

5. We have considered the arguments as were addressed by the learned counsel of each party. We have gone through the record and the impugned order of the respondent‑Government placed on the file regarding promotion of the respondents. We have gone through the Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 a copy of which is also placed on the file. It is argued on behalf of the appellant that under section 8 subsection (2) of Azad Jammu and Kashmir Civil Servants Act, 1976 the post of Superintendent of Police is declared to be a selection post while the method of its recruitment and promotion is given in clause (b) of that subsection, In clause (b) it is provided that 50% of the vacancies in the cadre of Superintendent of Police shall be filled up by selection from among the Assistant Superintendents of Police appointed through initial recruitment and the rest 50% by selection from the units of DSP and PDSP. It follows that no separate share of seats to fill up the vacancies of Superintendent of Police is allowed for each unit constituting Police service. The learned counsel for the appellant invited our attention to the principle of parity by which the entire service structure of the Azad Government has been brought at par with that of the Punjab Government and has submitted it that the rule of promotion to the post of Superintendent of Police followed in Punjab must have been given effect in Azad Kashmir Police Service also for the ends of justice and fair play. But it was not done and the appellant was denied the right of being considered for his promotion to the post of Superintendent of Police. We find no force in this argument that by accepting the principle of parity the respondent Government has thereby incurred any liability to follow the Punjab Rules for granting promotions in the cadre of DSP. The Government has its separate rules to follow in case of promotion from one post of police service to another. Hence the objection is overruled.

6. The promotion is regulated by section 8 of the Azad Jummu and Kashmir Civil Servants Act, 1976 and the relevant rule of law is reproduced below for guidance: ‑

"8, Promotion.‑‑(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service of cadre to which he belongs..

(2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotion shall be made as may be prescribed.‑‑

(a) in the case of a selection post, On the basis of selection on merit; and

(b) in the case of a non‑selection post; on, the basis of seniority‑cum fitness.

The above rule of law makes it clear that in the case of a selection post, it shall be filled up on the basis of selection on merits and in the case of a non‑selection post on the basis of seniority cum‑fitness. It follows that while filling up a selection post, seniortiy is not the basic rule for granting promotion to that post. It is for the Selection Board to determine suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude and antecedent of official record, none of which is less important than the other for the preservation of purity and efficiency in public service. The basic principle or governing consideration in all promotions is what may be shortly described as merit or suitability. Seniority is in the substance one of the elements in the assessment of merit. Merit does not mean good service record only. It includes experience, qualification and suitability for the post or service to which promotion is made. But under all circumstances, if a promotion is granted by selection on merits then it is to be made with due regard to seniority. The words "with due regard to seniority" implies that while emphasis is to be placed on good service record, qualifications and aptitude for higher posts, the officer's relative seniority in the cadre from which promotion is made shall be given due weight, the greater, the disparity in seniority the greater should be the junior officers' superiority in merit. In the instant case all the respondents promotees at the relevant time of their promotion were having long service with good record of service in the cadre of Deputy Superintendents of Police. According to the seniority list placed on the file at pages 7 and 8 of the appeal file, the respondents were the most senior persons among Deputy Superintendents of Police/DSP and the appellant was the last man in that list because he was promoted as such on 17‑3‑1988 and the respondents in the year 1975, 1976 and 1978. It is well‑established from the record that the respondents by putting more service in the Department on the posts of DSP/PDSP had gained much experience of Police service at the relevant time of their promotion to compete with the appellant. They held better qualifications such as seniority, past experience, rectitude and antecedent record of service in comparison to the appellant for assessing their suitability and selection to the post of Superintendent of Police. Among the respondents, Syed Zaman Ali Shah, Taj Muhammad Durrani and Ch. Muhammad Ashraf were PDSP and they are all Law Graduates while Ch. Muhammad Sarwar is very senior Police Officer having stepped up on the post of DSP w.e.f. 5‑10‑1975. Therefore, we do not feel ourselves inclined to disturb the impugned order of promotion of respondents Nos. 2 to 5 which is undoubtedly ordered by the respondent/Government after due consideration of their seniority and merits. The appellant must wait to avail some another chance of promotion in the Police service.

7. W e agree with this argument that the promotion is not a vested right of a civil servant, but at the same time, this fact must not be lost sight of that it is an important part of the terms and conditions of service of a civil servant and its breach does give him a right to be considered for promotion provided he has a legal remedy in law. There is, no doubt, that the appellant had little chances of success while competing with the service of respondents Nos. 2 to 5, yet he held the right to be considered for his promotion to the post of Superintendent of Police which is provided in the rules to be a selection post. Apart from that, the seniority list which is prepared by a competent authority in accordance with the rule of procedure provides a panel of promotion in respect of the employees in the same cadre of service and where a post is selection post and the same is to be filled up by promotion from among the members of feeding units, then of course, the name of every person placed on the seniority list must be sent to the Selection Board for assessing the suitability of each and every candidate. The appellant had, no doubt, held the right to be considered for promotion and because of its infringement by the Departmental Authority, he has rightly found himself to be an aggrieved civil servant and therefore, the objection that he is not an aggrieved civil servant is repelled for being devoid of force. It shall be further noted here that the right of consideration can take effect in future also and we have this confirmed view about it that even from a purely equality point of view it is necessary for the Department to send all the persons on the seniority list of Deputy Superintendents of Police before the Selection Board for assessing their suitability to their promotion to the post of Superintendent of Police.

8. For the above reasons, we accept the present appeal to this extent that the appellant shall be afforded an opportunity to be considered for his promotion to the post of Superintendent of Police if and when there is any vacancy of Superintendent of Police in the Police Department. No order as to the costs.

A.A. /176,/Sr.A

Order accordingly.