1984 PLP (C (PLC(CS))

ABEEDULLAH JAN (MEMBER).--his order is intended to dispose of Appeal No. 15 of 1983 preferred by appellant (Fazal Hussain) against the order of the Deputy Inspector-General of Police Peshawar Range, Peshawar, dated 30th September, 1979 whereby the appellant was reverted from the post of Platoon Commander to that of Head Constable, Additional Police Force Peshawar.

2. The facts in brief are that the appellant was employed in Kuram Malatia as Havaldar when his services were transferred to the Province of Baluchistan and he was posted in Kalat as Head Constable with effect from 25th July, 1966. On 16th August, 1972, the appellant was transferred back from Baluchistan and was posted as Head Constable in the Additional Police Force, Peshawar. On 18th July, 1975, the appellant was promoted and posted as Platoon Commander in the same Force but after 4 years, he was reverted and posted back as Head Constable. The appellant felt aggrieved and therefore, submitted a departmental appeal before the Inspector-General of Police, N.-W. F. P. but since the appeal was not decided within 90 days, the appellant preferred the present appeal before this Tribunal challenging the impugned order as illegal, without lawful authority and having been passed in violation of the Civil Servants Act, 1973. The appellant's claim is that he was promoted regularly from the post of Head Constable to that of Platoon Commander (Sub-Inspector) and, therefore, he could not be reverted except by way of punishment. The appellant thus seeks restoration on the post of Platoon Commander,

3. The answering respondents, to begin with, submitted a joint reply in which they raised preliminary objections that the appeal is time-barred, the Service Tribunal has got no jurisdiction and the appeal does not lie against the said order. It was further contended that the appellant com pleted prescribed tenure as Sub-Inspector/Platoon Commander and was, therefore, reverted to the post of Head Constable in accordance with the instructions laid down in the circular letter, dated 29th July, 1978. It was further mentioned that no provision existed in the Police Rules regarding continuance of promotion of Sub-Inspector/Platoon Commander behind three years.

4. At the time of preliminary hearing, the Tribunal observed that apparently the appeal is directed against the order of revision issued by the Deputy Inspector-General of Police, Peshawar, but in view of section 4 (b) (ii) no appeal shall lie against promotion or revision. It was further observed that probably the posts of Head Constable and Platoon Com mander are equal in rank, one being a field job and the other being a train ing assignment.

5. In response to the aforementioned observations of the Tribunal, the counsel for the appellant produced an affidavit to the effect that the appel lant was duly promoted as Sub-Inspector/Platoon Commander, the post of Platoon Commander carries a higher pay, status and responsibility as compared to the Head Constable and to say the least the appellant was reverted from the post of Sub-Inspector/Platoon Commander without valid reasons.

6. At the time of arguments, the preliminary objections raised by the Additional Government Pleader on behalf of the respondents were con sidered at length but they were ruled out of context. The appellant categorically mentioned in para. 8 of his appeal that on 8th November, 1979 he preferred an appeal to the Inspector-General of Police against the order, dated 30th November, 1979 but the same is till pending before the Inspector- General of Police while more than 90 days have elapsed. The respondents in reply mentioned that the departmental appeal of the appellant was rejected by the Inspector-General of Police, N.-W.F.P., Peshawar on 11th November, 1979. The appellant in para. 4 of his affidavit controverted this stand and mentioned that the reply of respondent is vague and incorrect in the sense that no orders of the Inspector-General of Police in respect of the finding of the appeal have ever been communicated to him. In counter-affidavit as well as at the time of arguments the respondents failed to produce document to prove that the departmental representation was rejected by the Inspector-General of Police on 11th November, 1979. We, therefore, accept the plea that the appeal is within time. The other two preliminary objections raised by the respondents are also flimsical. It has been held in several cases that this Tribunal is competent to entertain appeal of the aggrieved Police Officers even though there is provision in the Police Rules, 1975 to the effect that the orders passed under the said Rules are not subject to review by any Court/ Tribunal. Since this objection has been settled once for all, we need not dwell upon this issue any more. Similarly section 4(b) (ii) of the N.-W.F.P. Service Tribunals Act, 1974 is not operative because the appellant was not reverted as a result of departmental enquiry but on the basis of a circular letter which has no legal force behind it.

7. While discussing the merit of the case the counsel for the appellant contended that the appellant was promoted from Grade-3 to Orade-5. After 4 years, he was reverted to Grade-3 without any rhyme or reason. Other Head Constables who were promoted alongwith the appellant on completion of 3-4 years tenure were retired as Sub-Inspector instead of reverting them to the rank of Head Constables. There is provision in the Police Rules to the effect that Head Constable when promoted and posted as Platoon Com mander would stand reverted after 3 years. There is only a circular letter issued by the Deputy Inspector-General of Police which does not carry any legal sanctity. 1n support of this contention, he quoted authority of the Supreme Court of Pakistan appearing in P L D 1965 S C 106 which for the benefit of reference is reproduced below :- "(c) Constitution of Pakistan (1962), Art. 98 (Government Servant) Service Rules not in existence-Letters issued by executive authorities regarding service matter, increment etc. cannot take the place of "properly framed Rules"

8. The counsel for the appellant further contended that if it is presumed without conceding that the appellant was reverted after completion of normal tenure of 3-4 years as Platoon Commander and this reversion was not by way of a punishment, even then the issue of show-cause notice to the appellant was necessary. In support of this contention, the counsel produced P L D 1958 (W. P.) Kar. 35 (Writ Petition No. 168 of 1957) which reads as under :- "(a) Constitution of Pakistan, Art. 181 (2)-Reduction in rank-Pro vision, show-cause notice applies even if reduction is not by way of penalty or punishment."

9. The counsel for the appellant further claimed that the appellant was eligible for promotion on the basis of seniority-cum-fitness. He was, there fore, promoted on regular basis to the rank of Platoon Commander vide Deputy Inspector-General of Police Order O. B. No. 317/AP, dated 17th July, 1975. As such, he could not be reverted except by way of punishment. Since the appellant did not commit any irregularity nor he was proceeded against under the Police Rules, 1975, his reversion was without lawful authority.

10. The Additional Government Pleader while replying to some of the points raised by the counsel for the appellant stated that the appellant was promoted from Grade-3 to 7 and not Grade-5 in the first instance for three years as a matter of routine. He was allowed extension of one year as special case. After completion of normal tenure of 3 years with one year extension he was reverted to Grade-3 in normal course. The temporary promotion cannot be claimed as a matter of right as it is not guaranteed. The counsel further argued that provision does not exist in Police Rules with regard to the promotion of Head Constable to the rank of Sub-Inspector/ Platoon Commander. The promotion is granted to the men in the interest of administration as a temporary measure. Only those Upper Subordinates are allowed to remain in officiating capacity for a longer period who are qualified in Intermediate as well as Upper School Courses. The appellant has not undergone those courses and as such he could not be allowed to remain as officiating Sub-Inspector for ever. He was promoted as S. I/ Platoon Commander in officiating capacity and on completion of three years tenure he was considered for reversion to his substantive rank of Head Constable. The counsel further went on to argue that the Head Constables promoted to officiate as Sub-Inspector /Platoon Commander for 3 years were allowed to retire after completion of 25 years service on their own request. In the normal course they had to be reverted to the rank of Head Constable after completion of 3 years tenure.

11. While rebutting the stand of the Additional Government Pleader, the counsel for appellant stated that the word `officiating' does not exist in the promotion order of the appellant but even if it is presumed without conceding that the promotion of the appellant was ordered on temporary basis, even then demotion from the post of Platoon Commander to that of Head Constable could not be ordered without issuing show-cause notice to the appellant. The appellant relied on High Court judgment appearing in P L D 1958 (W. P.) Kar. 35 which is set out as under:- "Government Servant (Railways) Promotion by authority competent to promote temporarily-Promotee unaware of restricted character of such authority-Order reverting Railway servant set aside in circum stances of case-Law of agency and estoppel-Constitution of Pakistan (1956), Art. 170."

12. In view of the conflicting views and contradictory stands taken by the parties concerned, it would be difficult to resolve the controversy unless a reference is made to promotion/demotion orders issued by the authorities from time to time. The first order of promotion was issued by the Deputy Inspector-General of Police, Peshawar Range, Peshawar on 17th July, 1975. This order is silent about the nature of promotion i.e. regular or otherwise. It also does not mention that the appellant would be reverted as Head Constable after completion of fixed tenure of 3-4 years. The second orders dated 18th July, 1975 was also issued by the Deputy Inspector-General of Police, Peshawar Range, Peshawar through which the appellant after promo tion was posted in the Additional Police Training Centre, Nowshera. The order was published in the Gazette Part II, but it did not mention the word provisional or officiating or temporary or ad hoc. Since these orders pertain ed to promotion/posting of the Platoon Commanders, they should have naturally been endorsed to the officers concerned. The third order issued by the Deputy Inspector-General of Police, Peshawar Range, Peshawar on 19th July, 1975. no doubt indicates the word `officiating' but since this order was issued on 19th July, 1975 subsequent to the promotion order of 17th July, 1975 and posting order of 18th July, 1975 it should get lower rating in the order of preference. Moreover the first two orders were endorsed to the appellant whereas the third order, dated 19th July, 1975 was addressed to the Superintendents of Police in Peshawar Range and Principal P. T. S., Hangu. It was, therefore, not supposed to trickle down to the appellant and other S. Is./A. S. I concerned in the routine manner. The fourth order dated nil issued by the Senior Superintendent of Police, Peshawar for publication in the Police Gazette, Part 11 also mentioned that Head Constable, Fazal Hussain No. 2928/AP, was promoted as officiating Sub-Inspector/Platoon Commander, with effect from 25th July, 1975 till further orders and posted in the Additional Police Force, Nowshera. It would thus be apparent that two notifications were published in the Police Gazette, Part 11, one by the Deputy Inspector-General of Police, Peshawar Range, Peshawar (which does not mention the word officiating) and the other by the Senior Superintendent of Police, Peshawar which bears the word officiating. We have considered this difference in the two Gazette Notifications published on the same subject but we have come to the conclusion that the Notification issued by the higher authority i.e. Deputy Inspector-General of Police, Peshawar Range, Peshawar would naturally take preference. We have also given our due consideration to the fact that four orders relating to promotion of the appellant were issued on different dates out of which two orders were endorsed to the appellant, which, did not mention promotion being provisional officiating/temporary/ad hoc. The remaining two orders were published in the Police Gazette, Part II but they differed in form and substance. One order issued by the higher authority conveyed the sense of regular promotion whereas the order issued by the lower officer mentioned the word `officiating'. None of these orders was endorsed to the appellant. The claim of the appellant that he was unaware of the restricted character of the promotion should therefore prevail. The appellant is thus entitled to the benefit of the judgments of the superior Courts referred to in the preceding paragraphs.

13. The appellant was considered suitable for promotion by the Deputy Inspector-General of Police, Peshawar Range. This suitability naturally meant seniority-cum-fitness. The appellant is undoubtedly senior. He is also fit for promotion as he was placed in list 'B' when serving in Baluchistan. The appellant possesses more than satisfactory record of service. He has undergone training meant for Platoon Commanders. He has earned certificates and cash rewards on several occasions. Entries with regard to all these. facts are available in service documents of the appellant. The vacancies for promotion were also available at the relevant time.

14. The net result of the above discussion is that the appellant was promoted on regular basis as is apparent from the Deputy Inspector-General of Police, Peshawar Range, Peshawar orders, dated 17th July, 1975 and 18th July, 1975. The orders of the Deputy Inspector-General of Police, dated 19th July, 1975 and the Senior Superintendent of Police, dated nil, no doubt, bear the word `officiating' but since these orders were not endorsed to the appellant, he is entitled to the benefit of the judgment of Dacca High Court in Writ Petition of 239/1961. Moreover the appellant could not be demoted on the basis of the circular letter because such letter had no force of law in view of judgment of the Supreme Court of Pakistan appearing in P L D 1965 S C

16. It is also evident that the appellant became the victim of differential treatment. Other Head Constables who were promoted with the appellant were retired as Platoon Commanders whereas the appellant was reverted back as Head Constable. In view of these facts, the appeal should succeed and is accordingly accepted with cost. We, therefore, direct the respondents to consider the appellant as Platoon Commander in the relevant grade with effect from the date he was demoted.. A. E. Appeal accepted.