2006 PLP (C (PLC(CS))

NUR AHMAD SHAH (MEMBER-I)

This is an appeal under section 4 Sindh Service Tribunals Act, 1973. The facts as narrated in the memo of appeal are that the appellant was appointed as Police Constable in the regular police force, Hyderabad, in September, 1989. He was transferred to the Special Branch in April, 1993. There, he was promoted as Head Constable in December, 1993 and as an A.S.-I. in May, 1994. He was reverted to the regular force in August, 1996 and was given the rank of Constable. He challenged his reversion in the Sindh High Court and filed an appeal No.69/2002 in the Sindh Service Tribunal. The Addl. I.G, Police ordered for the assignment of his seniority and consequent benefits in the Special Branch. He was accordingly transferred back to the Special Branch in April, 1999, where he was restored to the rank of A.S.-I. in August, 1999. He, as a result, withdrew his appeal before the Sindh Service Tribunal (SST) on 18-8-1999. Meanwhile aggrieved by the position given to him in the seniority list of A.S.-Is. issued on 9-5-2000, he approached the relevant authorities and agitated the matter in departmental appeal which went unnoticed. Hence this appeal. The respondents vehemently rebut the appellant's plea. They state that his transfer to the Special Branch and subsequent promotions were in violation of rules and purely on political grounds, and that the private respondents are senior to the appellant by virtue of initial appointment in the Special Branch.

2. Heard Mr. Ghulam Sarwar Chandio for the appellant and the A.A.-G. for the respondents. Perused the record.

3. The Counsel for the' appellant alleges malice on the part of respondent 2 against the appellant. He contends that the appellant be confirmed as A.S.-I. with effect from the date of completion of probation period in that rank and submits that the seniority list dated 9-5-2000 be declared illegal. In her counter-arguments, the A.A.-G. states that no injustice has been done to the appellant and that he got out of turn postings and promotions by using his political clout.

4. It is an admitted position that the appellant was appointed as constable in the regular police force on 3-9-1989. He was transferred to the Special Branch, Hyderabad on 30-9-1993 with a clear order that he will get the lowest position in Seniority of constables of Special Branch, Hyderabad. In less than 3 months thereof, on 15-12-1993,, the appellant was transferred to the Special Branch Karachi and in the same order he was promoted to the rank of Head Constable (BS-7) and it was clearly s stated that the higher rank would be "purely temporary and within Special Branch only." In another 5 1/2 months (on 31-5-1994) he was promoted to the rank of A.S.-I. (BS-11) again the promotion was "purely temporary and within Special Branch." On 28-3-1995, the appellant was allowed selection grade in BS-11, w.e.f 1-3-1995. He was confirmed in the rank of Head Constable w.e.f. the date of promotion to that rank viz. 15-12-1993, and that too, retrospectively, on 6-4-1995.

5. Rule 13.18 Police Rules makes it obligatory for all police officers promoted in any rank to be on probation in that post for two years. Even a successful completion of probation would not earn them confirmation as a matter of course unless a regular slot exists for the purpose. The probation period can be extended but, in no way, waived or curtailed. The appellant, as already stated, was confirmed in the rank of Head Constable retrospectively w.e.f 15-12-1993 which was the date on which he was promoted. This was in clear violation of rule 13.18 which required him to hold the promotion post on probation for least two years.

6. In fact, the appellant's initial entry into the Police Department was as Constable in regular force on 3-9-1989. After 4 years on 30-9-1993 he got himself transferred to the Special Branch where he, was given the junior most position in the rank of Constables. In just 2-1/2 months on 15-12-1993 he was promoted as Head Constable in BS-7 and in less than six months thereafter on 31-5-1994, he was further elevated to the rank of A.S.-I. (BS-11). He was granted selection grade in BS-11 with effect from 1-3-1995. In a matter of eight months he jumped from a Constable to an A.S.-I. and that, too, on the strength of Special Branch where he went on deputation as Constable and was placed at the lowest rank of seniority ladder of that cadre. Meanwhile on 6-8-1996, he was reverted to his parent force as Constable.

7. On the appellant's agitation, the matter was reviewed. It transpired that the appellant was given the rank of A.S.-I. specific to the Special Branch only because of this political connections despite the fact that he had not done any promotional course required for that rank. The appellant contended that his out of turn promotions were regularized by the then Chief Minister vide the Government No.SO-II/(S&GAD) 5-1/95 dated 13-10-1995 and he could hold so he claimed, the rank of A.S.-I. As a matter of right even on his repatriation to the parent force. The then I.-G, Police, however, held the view that the Government order dated 13-10-1995 was issued under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 which are not applicable to the police personnel who are, instead, governed under the Police Rules. The I.-G, Police further held that the Chief Minister's orders were wrong.

8. The private respondents, in their written statements, emphasise that they are senior to the appellant since their initial appointment and that almost all of them started their service career in the Special Branch D unlike the appellant who landed- there clandestinely by use of political clout. He has not produced any evidence in support of his allegation of malice on the part of official respondents.

9. We are constrained to hold that the appellant's rapid rise in the Special Branch where he went on deputation from Constable to the A.S.-I. in less than six months . is not sustainable in rules. It is not equitable either. It is rather a case of political favouritism, and misuse of authority. It is a long established rule that a civil servant seeking transfer to an equivalent post in another cadre would rank junior to all those already working there in that grade/cadre and so a condition incorporated to that effect, in the order of the appellant's transfer to the Special Branch was fully in accord with that principle. The same principle applies in inter-regional transfers.

10. The appellant was initially appointed on the strength of Hyderabad region and so on his transfer to Karachi, he would rank junior to his colleagues in that rank already working in Karachi region. Besides, the competent authority for inter-regional transfer is the I.-G Police. The appellant, was however, transferred to Karachi region by the DIG, Special Branch. This leaves us in no doubt that the appellant's confirmation in the rank of Head Constable and his transfer to Karachi region were patently wrong and void ab initio.

11. The I.-G Police vide his order dated 9-4-1999 rectified the situation and directed the appellant to be borne on the strength of Special Branch w.e.f. 30-9-1993, subject to the terms and conditions laid down in the order dated 30-9-1993. According to the said terms and conditions, the appellant shall rank junior to the Constables already working in the Special Branch, Hyderabad. His seniority will be fixed accordingly. In view of the above, the impugned order is just and proper. There is no merit in the appeal which is dismissed with no order as to costs. H.B.T./4/KST????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.