1993 PLP (C (PLC(CS))

RANA RIFAT SAEED (MEMBER): ‑‑Appeal No. 395(R) of 1991: The appellant, Hameed Aslam Malik, had been appointed as an ASP (B‑17) through FPSC w.e.f. 24‑12‑1971 and promoted as S.P. (B‑18) w.e.f. 24‑12‑1976. He was mature for promotion as D.I: G. (B‑19) during 1985; but, since he had been facing an enquiry, his case had been deferred by the CSB‑II in the meetings held on 2‑1‑1985,10‑9‑1985 and 9‑4‑1986 and, when the enquiry was completed/he was exonerated, he had been cleared by the Board for promotion as DIG (B‑19) in its meeting held on 16‑3‑1987. Competent authority had approved his promotion, issued a Notification to this effect on 29‑3‑1987 and he had taken the charge as D.I.‑G. (B‑1.9) w.e.f. 6‑10‑1987.

2. The learned counsel had mentioned that in the seniority list issued on 12‑4‑1987, he had been shown at Sl. 97 i.e. in between DIGS Shahid at Sl. 56 and Azhar at Sl.

58. He had mentioned that respondents 2 to 5 (M/s. M. Arif Chaudhry, M. Habib Khan, M. Akram Chaudhry and Mukhtarul Mulk Rajput) who had been inducted from Pak Army as S.P. (B‑18) during 1975 and 1976 and after their promotion as DIGS (B‑19), they had been shown junior to appellant against serials, 4s indicated below:‑‑ Appellant (Hameed Aslam Malik) Sl. 57 Respondent 2 (M. Arif Chaudhry) Sl. 62 Respondent 3 (M. Habib Khan) Sl. 65 Respondent 5 (Mukhtarul Mulk) Sl. 68 Respondent 4 (M. Akram Chaudhry) Sl. 69 But in the seniority list issued on 1‑4‑1990 the appellant and the respondents 2 to 5 had been shown against the serials as under:‑‑ Respondent

2. Sl.

48. Respondent

3. Sl.

49. Appellant Sl.

51. Respondent 4 Sl. 58 Respondent 5 Sl. 60 that is the appellant had been shown below and junior to the respondents Nos.2 and 3.

3. The appellant was thus aggrieved on account of placing him junior to respondents 2 and 3 and he on 30‑7‑1991 had made a departmental representation which had not been responded and then within 120. days, he had submitted the instant appeal to the Tribunal on 27/30‑11‑1991 with the following prayer:‑‑ "In the circumstances, it is most humbly prayed that the decision to convert the supersession of respondents Nos. 2 ‑ 5 for the purpose of promotion to the rank of DIG as deferment and giving them the benefit of seniority in the grade of DIG from dates earlier than their actual dates of promotion to that grade, thereby adversely affecting the seniority of the appellant, being illegal, contrary to the provisions of the Civil Servants Act, 1973 and instructions issued by respondent No. 1 from time to time, as reflected in the gradation lists of PSP Officers issued on 10‑7‑1990 (Annexure‑VIII) and gradation list prepared in the middle of 1991 (Annexure‑IX), may very kindly be rescinded/reversed/set aside and the appellant declared senior to respondents Nos. 2 ‑ 5 in the grade of DIG (BPS‑20)."

4. The learned counsel appearing on behalf of private respondents (M/s. M. Aslam Vuk and Rao Fazal Akhtar, Advocates) had clarified that prima facie the appeal was hit by limitation, as it had not been filed within the prescribed time. It was also incompetent, as the appellant had never represented and challenged the seniority list issued in 1990, because his first departmental representation dated 30‑7‑1991 had not been submitted with reference to 1990's seniority list and he had never challenged against the earlier promotion and seniority of respondents 2 to

5. As such the appellant had never tried to avail the departmental opportunity or relief by way of making a departmental representation. Therefore, it should be dismissed on that very account.

5. They had further mentioned that the plea of the learned counsel for the appellant pleading that had only been able to acquire the knowledge of 1990's seniority list in the middle of 1991 and the departmental representation submitted in July, 1991 and the instant appeal submitted in November 1991 were in time. But his this plea did not hold good, as in para. 9 of the appeal, the appellant had admitted that he had come to know of the seniority list on 10‑7‑1990. Para. 9 reads as under:‑‑ "

9. On 10‑7‑1990 respondent No. 1 circulated another Gradation list of the Police Service of ‑Pakistan (Annexure‑VIII). In this list the appellant was shown at Sl. No. 51 and respondents Nos. 2 and 3 at S

1. Nos. 48 and 49 among BPS‑20 officers of PSP."

6. Both the learned counsel for the private respondents, while referring to the seniority list issued on 12‑4‑1987 had mentioned the name of the appellant appearing at Sl. 57 had inadvertently been shown and they had also mentioned about this vide para. 7 of their comments which read as under:‑‑ "Para.

7. The name of the appellant was inadvertently included in the gradation fist of 1‑4‑1987 among the DIGs. He was promoted as DIG vide Notification, dated 6‑10‑1987 and, therefore, his name should have appeared among the Superintendents of Police." Since by 12‑4‑1987 he had not taken over the charge of DIG, his name appearing in the seniority list was a typographical error and no right or claim could be established or inferred by the appellant from this typing mistake. Further, the respondents 2 to 5 who had earlier been recommended for supersession by the CSB‑11 in its meetings held in 1983, 1984 and 1985 and deferred in 1985 had ultimately been cleared by the Board for promotion as DIG (B‑19) in 1985‑1986. But, since these respondents had been facing departmental enquiry and also some ACRs were awaited, the Board having no knowledge of such events had initially recommended their cases for supersession. But ultimately, when the enquiry had been completed, they were exonerated and their ACRs had become available, competent authority upon considering their representations had rightly converted their earlier supersession into deferment and allowed them benefits of seniority and pay fixation with increments etc. Since these respondents were senior as S.P. (B‑18), they had been allowed seniority and increments over the appellant after their promotions as DIG (B‑19) during 1985‑

86. As such the appellant had no case and no ground to agitate against promotion and seniority of the respondents.

7. The learned counsel for the appellant had mentioned that the seniority had wrongly been allowed to the respondents by the Secretary, Establishment who after 1‑8‑1989 had ceased to be competent authority to settle such issues, whereas after 1‑8-1989 the post of DIG had been upgraded to (B‑20) and as such Prime Minister was competent authority to settle the issue and assign seniority to the respondents. But the learned counsel for the respondents had clarified that the seniority and increments had rightly been allowed by the Secretary, Establishment during 1987‑88 in his capacity as competent authority and the letters in this regard had been issued much earlier than 1‑8‑1989, when the post of DIG had not been upgraded to B‑

20. So, there was no need to send the case to the Prime Minister, as the matter could be settled by the Secretary, Establishment himself before 1‑8‑1989. They had also referred to the following judgments in‑their support: 1991 SCMR 1129; PLD 1991(SC) 1180 and 1992 SCMR 365. whereby the Government was competent and had powers to settle such issues and disputes. The learned counsel for the respondents had brought out at Bar that these respondents were senior to the appellant as S.P. (B‑18), as DIG (B 19) and again as DIG (B‑20) and there were no valid points or grounds put forward by the appellant, whereby he could be placed senior to the respondents particularly in his capacity as DIG (B‑19). The app‑ A was totally misconceived and devoid of any merit and substance. He had further mentioned that the appellant had also not sought any departmental remedy or relief, before submitting the instant appeal to the Tribunal and appeal was thus incompetent.

8. After hearing the parties it is established that: (a) The appellant had not made any departmental representation/appeal to seek relief/justice against the seniority list issued in 1990. The only representation he had made was on 30‑7‑1991 and that was without reference to the 1990's seniority list. Since he had not availed departmental opportunity/relief, the instant appeal to the Tribunal is incompetent and misconceived. (b) The appellant had referred to the seniority list issued on 12‑4‑1987, wherein he had been shown at Sl. 57 and respondents at Serials 62, 65, 68 and 69 and this was the basis for his claim of seniority particularly as DIG (B‑19). But, since he had taken over the charge as DIG (B‑19) on 6‑10‑1987, his name appearing as DIG in the list issued on 12‑4‑1987 was a typing error and it had been admitted by the Department that appellant's name had inadvertently been shown therein. (c) The supersession of the respondents ‑2 to 5 done in the earlier meetings of the Board held in 1983,1984 and 1985 had been converted into deferment, because the respondents had been facing inquiry and also ACRs of some of them had not become available by then. As such Secretary Establishment in his capacity as competent Authority had powers to convert the supersession into deferment and assign due seniority to the respondents. This had been done by the Secretary, Establishment much before 1‑8‑1989, when the post of DIG was in B‑

19. Appeal No. 443(R) of 1992 and 211 (L) f 1990:

9. Likewise the appellant, Muhammad Arshad Saeed, had challenged the seniority of private respondents 2 and 3 pleading that both respondents had been promoted/appointed as DIG (B‑19) much later than him and as such he was senior to them as DIG (B‑19) and as DIG (B‑20) after upgradation of the post w.e.f. 1‑8‑1989.

10. The appellant had referred to a seniority list of police officers issued on 10‑7‑1990, wherein he had been shown at Sl. 19 as DIG (B‑19) and there was no mention of the respondents 2 and 3 in that list. But learned counsel for the private respondents had submitted that the appellant had not produced proper seniority list and only one page No. 10 of DIGS' seniority list had been annexed with the appeal. Had he placed on record a proper seniority list and then it could be possible to see/examine inter se seniority position of the appellant vis‑a‑vis respondents 2 and 3.

11. The appellant had also clarified that in the seniority list issued on 1‑4‑1987 he was at Sl. 86 as DIG (B‑19), whereas the respondents 2 and 3 were S.Ps. (B‑18) at Serials 3 and 5 and as such they were junior to him. The learned counsel for the respondents had again submitted that the appellant had only referred to one page 10 of seniority list of DIGS and also one page of seniority list of SPs. page 11 and neither he had annexed a complete seniority list of DIGs nor a complete list of S.Ps. Therefore, the appellant had failed to establish/ assert his claim of seniority over the respondents, because as SP (B 18) he was junior to respondents, as DIG (B‑19) and as DIG (B‑20) he was still junior to them and his claim for seniority over the respondents was totally misconceived and out of tune.

12. The appellant had then very precisely and‑specifically stated that he had been cleared by the CSB‑11 for promotion as DIG (B‑19) in its meeting held in March/April, 1987 and his promotion had taken place w.e.f.16‑6‑1987; whereas the promotion of respondents 2 and 3 as DIG (B‑19) had taken effect from 13‑9‑1988 and 9‑10‑1988 respectively and accordingly they should be placed junior to him. Replying to this point of the appellant, the learned counsel had elaborated that respondents 2 and 3 had been cleared for promotion as DIG (B‑19) by the Board in the meeting held in March 1986 and Secretary, Establishment i.e. competent Authority had approved their promotions in April 1986, whereas a Notification in this regard had been delayed and issued during 1988. Evidently, the respondents had been cleared for promotion as DIG (B‑19) by the Board in its earlier meeting and approved for promotion by the competent authority much earlier than the appellant and according to the relevant rules, earlier selection/clearance of the Board for promotion should rank/entitle for seniority for the respondents over the appellant who had been cleared/approved as a result of a subsequent/later meeting of the Board. But since initially the Notification of promotion of the respondents had been held in abeyance due to inquiry pending against them, later on when the inquiry got completed/matter got resolved and nothing was found adverse against them, the respondent Department had issued their Notifications for promotion as DIG (B‑19) in 1988. To simplify the issue, he had stated that although the respondents 1 and 3 had been cleared by the Board in 1986 and approved for promotion by the competent authority on 30‑4‑1986, but since they had been facing an inquiry (which finally had been dropped and completed in 1988 by exonerating these respondents), their Notifications for promotion had to be issued during 1988. Therefore, their original inter se seniority over the appellant could not be affected. They were senior to him as S.P. (B‑18), senior to him as DIG (B‑19) and senior to him as DIG (B‑20) and evidently there should be no cause of grievance or any ill -feeling to the appellant about his inter se seniority position vis‑a‑vis the respondents. In fact Secretary Establishment being competent authority had, upon consideration of their requests/representations, allowed them seniority and pay fixation with increments etc. according to their due place in the seniority lists of SPs and DIGS.

13. Under the aforementioned circumstances and after hearing the parties we conclude that' the Appeals Nos. 395(R) of 1991 and 443(R) of 1992 and 211 (L) of 1990) are incompetent/misconceived, devoid of any merit and substance. Final inter se seniority positions of the appellants vis‑a‑vis the respondents have logically and lawfully been concluded by the respondent Department by following relevant rules and these need not be disturbed. There is no ground to interfere with the final order of seniorities as fixed/assigned to the appellants and respondents. Hence both the appeals fail and are disposed of as such.

14. No order for costs, H.B.T./831/Sr.F Appeals dismissed.