TAUSEEF YOUSAF Versus INSPECTOR GENERAL OF MOTORWAY POLICE (NH&MP), CENTRAL POLICE OFFICE, ISLAMABAD
JUSTICE (RETD.) ROOH-UL-AMIN KHAN, CHAIRMAN.--- Through this single judgment we propose to decide the instant Appeal No.455(R)CS/2021 along with the above titled 174 appeals as identical question of law and fact is involved therein. The Appeal No.455(R)CS/2021 is taken as lead appeal wherein the appellant has prayed as follows:
"It is respectfully prayed that the instant appeal may kindly be accepted, inaction at the part of the respondents may kindly be set aside/ altered/amended and appellant may please be granted promotion as APO and PO w.e.f. due date as per order of the Apex Court and the judgment cited 2013 SCMR 1752 as the same relief has been given SPO and CPO the said benefit may kindly be extended to the appellant by treating him equally without discrimination, along with consequential/back benefits of grant of seniority at appropriate serial number as per law and the order of the Hon ble Supreme Court".
2. As per averments of the appeal and arguments of the learned counsel for the appellant are that the appellant joined the National Highways and Motorway Police "NH&MP" as Junior Patrol Officer "JPO" on 15.4.2002. In July, 2007 the NH&MP recruited fresh Assistant Patrol Officers "APO" and also inducted many APOs, the appellant whose promotion as APO was due in 2007 but was not promoted despite availability of sufficient seats. The appellant was promoted as APO on 03.09.2009 after a lapse of seven years and 5 months whereas as per Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 he was to be promoted to the rank of APO after five years service as JPO. Later on the appellant was promoted to the rank of Patrol Officer "P.O" (BS-14) on acting charge basis on 15.07.2015 due to late promotion from the rank of JPO to APO and thereafter on regular basis on 19.1.2017 with delay of 3 months.
3. It was contended that seniority list of SI/POs (BS-14) was maintained by the NH&MP in pursuance to the order dated 16.01.2017 passed by the Hon'ble Supreme Court of Pakistan in Civil Appeals Nos. 709 to 717 of 2018 and Civil Misc. Application No. 981 of 2016.1n the said seniority list the SIs/POs from Serial Nos. 987 to 1026 (39 inducted officers) and from Serial Nos. 1052 to 1062 (11 inductee officers) were placed below the appellant, who were inducted as JPO from 25.01.2003 to 10.7.2005 in NH&MP and were senior to him in the previous seniority lists. These officers were placed below him after the revision of seniority lists as per order of Hon'ble Supreme Court but the benefit of back date seniority and promotion was not granted to the appellant and his batch-mates. It is further contended that the appellant was not assigned his due seniority by placing those below the posts of APO and P.Os which posts were vacant from that date. One Muhammad Nasim, P-1525 is still placed at Serial No. 870 in seniority list who was inducted in NH&MP vide order dated 10.6.2005 as JPO. If above mentioned officers were placed below the appellant in seniority list, Muhammad Nasim was required to be placed at his due place as the officers from BS-16 and above were granted the benefit of order which was passed in rem but not implemented in its true letter and spirit and the extension of the benefit to BS-16 and below was not allowed properly.
4. It was further argued that the SPOs who were promoted to the rank of CPOs in May, 2017, were given antedated promotion from 2008 vide order dated 29.11.2018 and similarly several others officers were also granted, seniority from their due date by the NH&MP in compliance of the order of Hon'ble Supreme Court of Pakistan dated 18.05.2017. It was contended that in view the law reported in 2013 SCMR 1752 and duly implemented through several orders of the Apex Court regarding implementation in NH&MP wherein the benefit was only granted to BS-16 officers and above whereas the judgment of the Apex Court was in rem. The appellant was discriminated as neither he was granted seniority from his due date nor subsequent promotion and still suffering for none of his fault. It was also contended that if a benefit is granted by the court and implemented the same should be extended to the other similarly employees instead of dragging them into unnecessary litigation. In support of his contention the learned counsel for the appellant has placed reliance on the case law reported as 1996 SCMR 1185, 2005 SCMR 449 and 2009 SCMR 01 and prayed for acceptance of the appeal.
5. The respondent-NH&MP contested the appeal by filing their para-wise comments wherein they have raised objection that the appeal is badly time barred. The appellant, who is claiming seniority from 2007 has not challenged the seniority lists dated 08.06.2009, 14.02.2012 and 21.04.2017 and at this stage if the seniority is revised by granting antedated seniority to him the same would affect seniority of many other officers who are not party in this appeal. The other objection of the respondents is that no departmental appeals have been filed by the appellants in Appeals Nos.457, 458, 459, 460, 462, 463, 465, 466, 467, 471, 472, 473, 476, 477, 478, 479, 480, 481, 482, 483, 484, 485, 486, 487, 490, 491, 493, 494, 495, 497, 499, 500, 503, 504, 506, 507, 508, 509, 510, 512, 513, 514, 515, 516, 518, 519, 525, 527, 528, 529, 530, 531, 535, 536, 538, 539, 541, 543, 544, 546, 547, 549, 550, 551, 554, 555, 556, 559, 560, 561, 562, 564, 565, 566, 568, 569, 572, 573, 575, 577, 578, 582, 583, 584, 585, 586, 588, 589, 590, 591, 592, 594, 597, 599, 601, 602, 606, 608, 609, 610, 611, 612, 614, 616, 619, 620, 621, 624, 626, 627, 628 and 630(R)CS/2021, hence the same are not maintainable.
6. The worthy Deputy Attorney General who is assisted by the departmental representatives while narrating the background of the case has stated that certain uniformed police officers and civilians/non-uniformed officers/ officials were initially taken on deputation in the NH&NP from different departments by giving incentive to some of them of one step above of their substantive rank in their parent department, who were later inducted/ absorbed from backdate. The inducted officers/officials were further promoted to higher posts/scales on the recommendations of Departmental Promotion Committee. The inter-se-seniority of inducted, recruited and promoted officers/ officials was maintained according to the provisions of Civil Servants (Seniority) Rules, 1993. The seniority lists issued from time to time i.e. on 08.06.2009, 14.02.2012 and on 21.04.2017 which were not challenged by the appellant. The Hon'ble Supreme Court of Pakistan in the case reported as 2013 SCMR 1752 when declared the inductions/ absorptions as illegal and ultra vires to the Constitution, the NH&MP in compliance of the judgment of the Hon'ble Apex Court cancelled/ withdrawn the induction of 173 officers vide Notification dated 28.05.2019.
7. The appellant seeks seniority on the basis of order dated 16.01.2017 passed by the Hon'ble Supreme Court of Pakistan in Civil Appeals Nos. 709 to 717 of 2016 etc wherein the dispute of seniority was between directly recruited IPs/SPOs of 2002 and dcputationists wherein the Hon'ble Apex Court with the consent of the AIG (HRM), NH&MP and AAG for Pakistan disposed of the Appeals that the seniority of the Police Officials in the NH&MP shall be re-fixed and the deputationists (Police Officials) who were inducted in NH&MP by extending the benefit of one step higher than their substantive rank in the parent department, shall be assigned seniority from the date of their permanent absorption in the department by the Notification issued by the competent authority and their seniority shall be placed at the bottom. The incentive of one step promotion cannot be equated as out of turn promotion in terms of judgment reported as 2013 SCMR 1752 and 2015 SCMR 456 . It is submitted that the Hon'ble Supreme Court further observed in its order dated 16.01.2017 that the principles laid down in PLD 2016 SC 961, would be attracted in the case in hand and the seniority of all the Police Officials shall be finalized in the above terms from the date when they were permanently absorbed in the department, placing them at the bottom of the seniority.
8. It was contended that in compliance of the order of the Hon ble Supreme Court of Pakistan dated 16.01.2017 seniority list of all ranks i.e. JPOs to SPOs was maintained by the NH&MP in accordance with law/rules. The same was circulated on 10.02.2017 seeking objections. The objections received were accordingly processed and with the approval of the IGP, NH&MP were decided/ disposed of. After removing the objections, revised seniority list of SIs/ Pos (BS-14) was issued on 21.04.2017. On the basis of said seniority list of SI/PO (BS-14), 576 SIs/POs (BS-14) were promoted to the rank of IPs/SPOs (BS-17) on 22.08.2017, 23.10.2017 and 07.09.2018, but no representation received from appellant regarding grant of benefit of promotion of HC/APO and SI/PO from the date of occurrence of vacancies instead of promotion with inunediate effect. It is contended that some de-inducted officers were promoted to the rank of DSPs/ CPOs (BS-17) in the year 2008 subject to final verdict of court and after the judgment of Supreme Court and issuance of new seniority list their promotions as DSPs/ CPOs (BS-17) were cancelled/ withdrawn vide Notification dated 21.04.2017. After cancellation of the promotion of de-inducted DSPs/ CPOs, the posts fell vacant were filled in through promotion of eligible directly recruited IP/SPOs of 2002 on seniority cum fitness basis and in light with the provisions of NH&MP APT Rules. Number of appeals were filed before this Tribunal by the employees of NH&MP which were dismissed vide order dated 19.05.2017, 26.05.2017, 31.01.2018, 28.06.2018. Similarly writ petitions and thereafter ICAs were filed before Hon ble Islamabad High Court, Islamabad and the judgment dated 12.02.2020 passed in I.C.As. Nos.314 and 317 of 2019 was upheld by the Hontle Supreme Court vide order dated 02.07.2021 passed in C.As. Nos.131 and 132 of 2021 therefore, the seniority attained finality. The promotion is not a vested right and a Civil Servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter, which is within exclusive domain of the Government/ executive authority. If promotion is denied to a civil servant it could not be termed as denial of any fundamental right. Furthermore, claim of the appellant for backdated promotion to the post of HC/APO and SIPO is not supported by applicable rules and cast law on the subject.
9. It is lastly argued that appellant has not challenged his promotion order dated 05.09.2009 at any forum, therefore, past and closed transaction cannot be re-opened at this stage particularly when the appellant gained another promotion i.e. SI/PO (BS-l4) in the year 2015-16. The appellant claiming his seniority on the similar way given to Inspectors/ SPOs vide Judgments dated 29.10.2015 and 13.09.2017 passed by this Tribunal and that referred service appeals the Inspectors/ SPOs/ appellants had initially challenged their seniority list dated 27.03.2007 and after different rounds of litigation the seniority of Inspectors/ SPOs was finally settled vide order dated 16.01.2017 passed by the Hon ble Supreme Court, hence on the basis of said judgment the appellant cannot claim seniority form the date of his choice. The worthy Deputy Attorney General prayed for dismissal of the appeal.
10. We have heard the learned counsel for the parties and have perused the record with their able assistance.
11. We will first advert to the objection of the respondents that the appeal is barred by time as the appellant has not challenged the seniority lists dated 08.06.2009, 14.02.2012 and 21.04.2017. In fact the appellant filed the departmental appeal on 29.01.2021 for assignment of correct seniority and grant of antedated promotion after the order dated 16.01.2017 passed by the Hon'ble Supreme Court wherein the Hon ble Apex Court with the consent of the AIG (HRM), NH&MP and AAG of Pakistan directed for re-fixation of seniority of the deputationists from the date of their permanent absorption and for placing them at the bottom. The respondents were required to decide the departmental appeal of the appellant, either way, on merit or on the point of limitation, but said departmental appeal remained un-responded and after waiting for statutory period of 90 days, the appellant filed the present appeal before the Tribunal on 27.05.2021 i.e. within 120 days from the date of his departmental appeal, hence the objection of the respondents is not tenable as when the appellant filed departmental appeal the respondent had not taken objection of limitation and when he filed appeal before the Tribunal they have raised the objection of limitation. So far as the second objection of the respondents that in certain appeals the appellants have not filed departmental appeals is concerned, on perusal of the case files, it reveals that all the appellants have filed stereotype departmental appeals which are available on their files and the respondents have admitted that in some cases the appellants have filed the departmental appeals, hence the objection of the respondents is repelled.
12. The National Highways and Motorways Police "NH&MP" was established in the year 1997, initially for responsibilities for patrolling Motorway (M-2), subsequently extended its jurisdiction to look after all the Highways of the country. At the beginning, the uniform and non-uniform Police and civil officers were inducted on deputation from Police and other departments. Some of them were taken in their own pay and scale, while some on the basis of one step higher scale. The deputationists were later on absorbed in NH&MP, who were subsequently promoted to higher scale on the basis of recommendation of Departmental Promotion Committee, whose seniority was maintained in accordance with provision of Civil Servant (Seniority) Rules, 1993, as such first seniority list of HCs/APOs was issued on 08.06.2009, second on 14.02.2012 and last one of SIs/POs on 21.04.2017. The appellant remained enlisted in all three lists on his due serial number. Pertinently mentioned, no one has challenged or objected the above lists. In the meanwhile, in pursuance of judgment of Hon'ble Supreme Court of Pakistan passed in Cr1. Original Petition No.89/2011 titled " Contempt Proceedings against Chief Secretary, Sindh and others " (2013 SCMR 1752), 173 officers were repatriated to Police and other departments. Thereafter seniority positions of all the employees were prepared and on completion of legal process it was revamped on 21.04.2017, on the basis of which 576 Sub-Inspectors/ Patrolling Officers (BS-14) were promoted to the post of IPs/SPOs (BS-17) on different time i.e. vide order/Notifications dated 22.08.2017, 23.10.2017 and 09.09.2018 respectively. None from the appellants raised voice against the above said promotion orders, thus all the promotions orders being remained unchallenged have attained finality.
13. The appellant has claimed antedate promotion on the strength of case of Inspector and SPOs who were granted promotion on the basis of judgment of Hon ble Supreme Court of Pakistan with effect from 2008. In fact, the respondent-department issued a tentative seniority list of directly recruited IPs and SPOs (BS-16) of 2002 batch along with similarly placed absorbed/inducted from Police service vide order dated 27.03.2007. On the basis of above mentioned list, conditional promotion was granted to the enlisted members of above mentioned seniority list vide order dated 10.04.2008, with a specific condition that their promotions shall remain in existence subject to decision of various cases pending before different courts regarding seniority of direct recruited and absorbed employees. The Notification dated 10.04.2008 also remained under litigation for two rounds before the Tribunal which were finally decided in favour of direct recruited IPs/SPOs of 2002 batch vide judgment of this court dated 29.10.2015 and upheld by Hon'ble Supreme Court of Pakistan vide judgment dated 16.01.2017. The crux of the judgment was that the appointees of batch 2002 shall be kept and placed senior to the absorbed employees with all consequential benefits including their promotions with effect from 10.04.2008 (the dates when absorbed employees were promoted).
14. Against the above mentioned judgment of this Tribunal the absorbed employees approached the august Supreme Court, which was disposed of vide order dated 17.01.2016 with direction that the seniority of inducted/absorbed employees be re-fixed from the date of their permanent absorption in the department, while their seniority shall he placed at the bottom. The respondent-department, while complying with the judgment of august Supreme Court of Pakistan issued seniority list dated 21.04.2017 and on the recommendation of Departmental Promotion Committee, IPs/SPOs of 2002 batch were promoted with immediate effect vide Notification dated 18.05.2017, while the absorbed officers, who had been promoted to the post of DSPs/CPOs on the basis of tentative / disputed seniority list were demoted to the rank of IPs/SPOs. The promotion order dated 18.05.2017 was again challenged by the IPs/SPOs of batch 2002 before this Tribunal for implementation of its earlier judgment in letter and spirit and to grant promotion to them with effect from 10.04.2018. The Tribunal again directed the respondents to issue the promotion orders of the IPs/SPOs from the date mentioned in the earlier judgment dated 19.10.2015 i.e. 10.04.2008 viz. where from the private respondents in judgment dated 19.10.2015 were promoted. The order of this Court was challenged by the respondent-department before the Hon'ble Supreme Court of Pakistan but the Petition for Leave was refused and judgment of Tribunal was upheld vide judgment dated 13.07.2019. Consequently, the IPs/SPOs of batch 2002 were extended promotions with effect from 10.04.2008 i.e. from the date when their opponents were promoted.
15. From the above facts, it is manifest that the seniority position amongst the direct recruited and inducted/absorbed IPs/SPOs remained disputed in two rounds of litigation before the Tribunal and then before the Hon ble Supreme Court of Pakistan and ultimately in compliance of the judgment of this Tribunal upheld by the Hon ble Supreme Court of Pakistan the antedated promotion was granted to direct recruited employees from the date of promotion of absorbed employees who had been granted conditional promotion and subsequently were demoted. In case in hand, neither seniority position of the appellants has never remained disputed, nor they have challenged the consecutive promotions of three different batches vide order dated 22.08.2017, 23.10.2017 and 09.09.2018. During arguments, the departmental representative of respondent NH&MP apprised the court that in compliance of the judgment of august Supreme Court dated 16.01.2017, the respondent-department issued revised seniority list dated 21.04.2017 and on recommendation of DPC, the IPs/SPOs of 2002 batch were promoted with immediate effect vide Notification dated 18.05.2017, whereas the absorbed employees promoted to the post and rank of DSPs/CPOs on the basis of disputed tentative seniority list have been demoted to the rank of IPs/SPOs.
16. In light of above discussion we have arrived at an irresistible conclusion that the case in hand is not at par with the case of IPs/SPOs (BS-16) promoted to the rank of DSPs/CPOs (BS-17) because;
Firstly; the matter of seniority and promotion of the above ranked officers 'remained subjudice before different courts from the date of issuance of tentative seniority list and promotion of the absorbed/inducted employees in higher ranks, whereas the appellants in the instant case have never challenged the seniority list issued from time to time and particularly the last seniority list issued on 21.04.2017,
Secondly; the IPs/SPOs of 2002 batch were granted antedate promotions in compliance of the judgment of this Tribunal upheld by the Hon'ble Supreme Court of Pakistan, their Notifications for promotion with effect from 10.08.2008 was one time promotion from the date when the absorbed / inductee were reverted to their original rank. In case in hand, neither seniority dispute is involved nor anyone has been reverted from the higher rank to lower rank.
In essence, the appellants have claimed multiple antedate promotions on the basis of length of service required for each post which does not cover under the rules or judgment of the august Supreme Court passed in case of IPs/SPOs of 2002 batch. It may be stated, even on the cost of repetition, that only one promotion against the post of DSP/CPO (BS-17) was granted to the IPs/SPOs of 2002 batch, in compliance with the orders of this Tribunal dated 13.09.2017 and 17.09.2018. Subsequently, the DSPs/CPOs filed departmental appeals for antedated promotion to the post of SP with effect from 2013 which was rejected by the Secretary, Ministry of Communication vide order dated 25.05.2021 wherein guideline was sought from the judgments reported as PLD 2003 SC 110 [ Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others ], PLD 1996 SC 86 [ Capt. (Retd.) Muhammad Younas Jaffar v. Government of Pakistan through Secretary, Establishment Division and others ], 1996 PLC (C.S.) 746 [ Dr. Shuja-ud-Din Khan v. Secretary, Establishment Division and 5 others ], 1990 SCMR 927 [ M.A. Rafique v. Managing Director (Power), WAPDA and 7 others and 1992 SCMR 77 [ Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others ].
17. We have observed that the case of appellants mostly akin to Service Appeals Nos.35 and 36(K)CS/2018 filed by Muzaffar Hussain Kolachi and Dost Muhammad v. Federation of Pakistan respectively which came up for hearing before this Tribunal at Circuit Bench, Karachi. The appeals were heard and ultimately dismissed vide judgment dated 06.11.2019, relevant pars as reproduced as under:-
"5. The objection of limitation raised on behalf of the respondents that the appellant has not challenged any of the Seniority Lists issued right from 15.01.2005 till 02.05.2017 carries weight. According to the Seniority Rules, 1993, seniority, on promotion, in a service, cadre or post to which a civil servant is promoted, shall take effect from the date of regular promotion to that service cadre or post, whereas the seniority, on initial appointment, on the recommendations of the Selection Authority through an earlier open advertisement shall rank senior to those appointed through a subsequent open advertisement.
6. With regard to merits of the case, as mentioned earlier, the appellant made a request for fixing seniority of Assistant from the date of occurrence of vacancy whereas as per contention of the department, the appellant was promoted to the post of Assistant as and when the vacancy occurred after repatriation of the inductees, therefore, his seniority will be counted in the cadre of Assistant from the date of promotion. Even otherwise, he has not made any of his junior, as party in the instant appeal, who was given seniority over and above him and without arraying any incumbent as respondent, the doom of seniority could not be decided.
7. Foregoing in view, we do not find any force in the appeal which is hereby dismissed with no order as to costs".
Against the above said judgment the respondents filed Civil Petitions for Leave to Appeal bearing Nos.30-K and 31-K of 2020 before the august Supreme Court which came up for hearing on 22.12.2021. The august Supreme Court was pleased to pass the following order:-
"The learned Deputy Attorney General ( DAG ) was not present in the morning when we took up this case and it is now 2.20 pm. The learned DAG states that though concise statements have been filed in both the petitions, the same were filed by the department by bypassing him and he needs time to consider whether he is satisfied with such concise statement or wants to file others and also to prepare the case. He may do so. The concerned respondents are directed to file a concise statement stating whether there was any post vacant when the petitioners were promoted and, if so since when. To come up in the next session".
In compliance with the above order the concise statement was filed by the respondents, however, during arguments before the august Supreme Court on 18.02.2022 the worthy Deputy Attorney General after arguing the matter at some length submitted that the antedated, postdated promotions given to the uniform staff were consequent upon the direction of this court and cases of the petitioners would also be placed before the competent authority in order to see whether they could be granted similar treatment. If their cases are found to be at par, they may be given similar treatment; failing which a report shall be filed and the matter be re-listed before this Court during the next session as and when available. In consequence of above mentioned order, the respondents submitted a detailed report with request that in light of report submitted, as the case was not at par with the uniform employees, who have been granted promotion with effect from 10.04.2008, the case may be decided on merit. In view of the report of the respondent-department, the Civil Petitions Nos.30-K and 31-K of 2020 were dismissed vide judgment dated 27.04.2022, hence the matter of antedate promotion on the analogy of 2002 batch was buried. Though the appellants have referred to the seniority position of one Muhammad Naseem but neither he has been impleaded as party nor any seniority list has been produced to show that he was wrongly placed at seniority list in the alleged seniority list.
18. The main case of the appellant hinges on the ground that he has completed the requisite five years service for onward promotion to the post of Assistant Patrol Officer and Patrol Officer, as such he be granted antedate promotion. We are not inconsonance with the submission and prayer urged in the memo. of appeal for the reasons that the prescribed length of service is one of the conditions for promotion and does not confer a right to promotion on a civil servant. The law is settled by the august Supreme Court of Pakistan that no provision exist which provides that promotion from one to another higher grade shall be automatic upon the expiry of prescribed period of eligibility, mainly five years. Reliance may be placed on the case titled " Capt. (Retd.) Muhammad Yunus Jaffar v. Government of Pakistan through Secretary, Establishment Division and others (PLD 1996 SC 86). It was also decided by the august Supreme Court of Pakistan in the case of Dr. Shuja-ud-Din Khan v. Secretary, Establishment Division and 5 others (1996 PLC (C.S.) 746) that;
Five years' service in Grade-17, no doubt was the minimum requirements for eligibility for promotion to Grade-18, but rendering of five years' service would not ipso facto entitle civil servant to enter Grade-18 by promotion...Contention that on retirement of other civil servant post in Grade 18 having become vacant, civil servant, who had rendered five years' service in Grade-17 should have not been denied promotion to that post, was repelled being misconceived as filling of the post lay within discretion of concerned Authorities depending upon expediency of service ......".
The law is settled by the august Supreme Court of Pakistan on the proposition that a civil servant cannot ask for promotion as a right, and grant or refusing of promotion is a matter, which is within the exclusive domain of the Government / executive authority. If promotion is denied to a civil servant it could not be termed as denial of any fundamental right. Reliance may be placed on the case titled " Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others (PLD 2003 SC 110).
19. In view of the above, discussion, the instant appeal as well a connected appeals bearing Nos. 456 to 467 and 469 to 630(R)CS/2021, being devoid of merit, stand dismissed with no order as to costs.
20. Parties be informed.
MQ/4/FST Appeals dismissed.