1989 PLP 483 (SCMR)

ABDUL KADIR SHAIKH, J‑‑This is a petition for leave to appeal from the judgment of Federal Service Tribunal dated 5‑7‑1987 whereby an appeal filed by respondent was allowed with the direction that the first respondent shall be deemed to have been inducted in service in Police Group with effect from 21‑11‑1979, instead of 1‑4‑1971. Facts briefly stated are that the first respondent joined service in Police Department of the Government of N: W.F.P. as an Assistant Sub‑Inspector of Police and in due course he was appointed as Superintendent of Police with effect from 13‑10‑1973. It is however the case of the Federal Government, petitioner herein, that the appointment of the first respondent as Superintendent of Police was made under Rule 5(2) of the P.S.P. (Composition and Cadre) Rules, 1969, and not under Rule 4(1)(b) of the said Rules under which appointments are made on regular basis, from within the quota fixed for the respective Provinces, and he was therefore not entitled to be included in the seniority list of officers of the Police Group. However, due to an inadvertent mistake, his name was wrongly shown in the Gradation List issued in 1975. Later on, this mistake was corrected, and in the Gradation List of the Police Officers issued in 1980 his name was omitted. Respondent however felt aggrieved by the aforesaid omission, and made a representation to the Department on 11‑10‑1980 for the inclusion of his name. While his case was under consideration, respondent filed Writ Petition No.528 of 1982 in Peshawar High Court which was dismissed on 7‑1‑1983 as premature, with the observation that the Department should deal with the respondent's request expeditiously. Respondent however felt dissatisfied with the decision of the High Court, and filed C.P.LA. No.57‑P of 1984 but in the meantime petitioner‑Government informed him under letter dated 10‑12‑1983 that he continued to be a Provincial Government civil servant, and that his name could not be included in the Gradation List of Police Group. Respondent thereupon treating this reply as an order rejecting his representation, filed an appeal before the Service Tribunal on 25‑2‑1984. While respondent's appeal was yet pending, petitioner‑Government decided to include respondent's name in the List of Officers of Police Group and he was inducted into Police Group with effect from 1‑4‑1981 when vacancy in that Group occurred. Before the Service Tribunal respondent, however, took the position that the total strength of the senior Police Group posts in the Province of N.W.F.P. was 25 and not 18, and that 8 Provincial Police Officers could be inducted at a time from N.W.F.P. According to them, while working out the total strength, the Federal Government had failed to include the Frontier Constabulary posts which are also borne on the N.W.F.P. cadre. The Federal Service Tribunal took into consideration the fact that in 1969, the Frontier Constabulary posts were included against West Pakistan posts, but on the dissolution of the Province of West Pakistan, no separate allocation was made but subsequently in 1985 these posts were allocated to N.W.F.P. According to the Service Tribunal these facts raised the presumption that these senior posts of the Frontier Constabulary are also borne on the cadre of N.W.F.P. On this view of the case, the Service Tribunal held that respondent should be inducted into Police Group, not with effect from 1‑4‑1981 when Haji Saleh Muhammad retired, but from 21‑11‑1979 when Mian Ajmer Shah retired. Mr. Sajjad Ahmed Sipra, learned Deputy Attorney‑General appearing in support of the petition submits that the Federal Service Tribunal has failed to appreciate that the appeal before it was directed against the letter dated 10‑12‑1983, and not against the decision of the petitioner which indeed was taken while the appeal before the Tribunal was pending, and this decision could not be interfered with in the appeal as no challenge had been made against it by way of a departmental remedy under section 4 of the Act or another appeal filed against it. Learned counsel further submits that while deciding the appeal the Federal Service Tribunal rested its decision on the notification published on 23‑10‑1985, ignoring the fact that a corrigendum was published in the Gazette of Pakistan, Extraordinary, dated 24‑11‑1986 by which the posts of Commandant Frontier Constabulary, Deputy Commandant, F.C. and District Officers F.C. were omitted from under the N.‑W.F.P. and included under State and Frontier Regions. These posts, according to the learned counsel, were erroneously included under N.‑W.F.P. initially, but as soon as the mistake came to notice it was corrected. After having heard the learned counsel for the parties, we find that the points raised in support of this petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. MA.K./F‑83/S Leave granted.