1991 PLP (C (PLC(CS))

Syed Jamshed Ali Shah for Respondents Nos. 5 and

6. Nemo for Respondents Nos. 7 to

17. Date of hearing: 25th November, 1990. , This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, arises out of a service matter. The petitioner was appointed as a Deputy Superintendent of Police on probation by the Government of Punjab on 1st of October, 1983. He was confirmed on 13th January, 1988 w.e.f. 21st of June, 1984. According to the petitioner, respondents Nos. 5 to 17 though working as Deputy Superintendent of Police were never confirmed and as such must rank junior to the petitioner as the seniority of the Deputy Superintendent of Police is to be reckoned from the date of confirmation. In the present petition, he has challenged the seniority list prepared by the Government in which he has been shown to be junior to respondents Nos. 5 to

17. Another grievance voiced is that though these respondents were junior to the petitioner as Deputy Superintendent of Police, but they have been promoted to the post of Superintendent of Police while the petitioner has been ignored.

2. In the written statement filed by the respondents they have taken up the position that the seniority of the Deputy Superintendent of Police is to be reckoned from the date of continuous appointment/officiation in grade irrespective of the confirmation. An objection as to the maintainability of this petition has also been raised on the strength of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.

3. Mr. Khurshid Alam Ramay, the learned counsel for the petitioner has relied upon section 7 of the Police Act, 1861 to contend that the post of Deputy Superintendent of Police is a post of subordinate rank within the meaning of the Police Act and as such the appointments, confirmations and seniority of the Deputy Superintendent of Police are regulated by the Police Rules, 1934 framed under the said Act. The learned counsel has heavily relied upon the authority of the Supreme Court in Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others P L D 1985 S C

159. Rana Muhammad Arshad, Addl. Advocate-General and Syed Jamshed Ali Shah, Advocate on the other hand, contended that the post of Deputy Superintendent of Police is not one of the posts to which the Punjab Police Rules, 1934 can be made applicable but instead the promotion and seniority of the Deputy Superintendents of Police are governed by the West Pakistan Deputy Superintendents of Police Service Rules, 1964.

4. Two questions which fall for determination in the present petition are that:- (i) Whether the seniority of Deputy Superintendent of Police is to be regulated by the Punjab Police Rules, 1934 or by the West Pakistan Deputy Superintendent of Police Service Rules, 1964; (ii) Whether this petition is maintainable before this Court in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.

5. As regards the first question, there can be no dispute that the Deputy Superintendents of Police are civil servants within the meaning of Punjab Civil Servants Act, 1973. However, in the case relied upon by the learned counsel for the petitioner namely Inspector-General of Police Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others P L D 1985 S C 159, the Supreme Court while relying upon the maxim generally specialibus non derogant was pleased to hold that the Police Act and the Police Rules being special laws so far as the subordinate police officers were concerned would co-exist with the Civil Servants Act, 1973 and the rules framed thereunder and in case of any conflict the earlier enactment and the rules must be given effect to. It may be mentioned that the Supreme-Court was dealing with the case of Inspector of Police and not Deputy Superintendent of Police.

6. The learned counsel for the petitioner has however, referred to rule 1.13 of the Police Rules to submit that both the Deputy Superintendents of Police and the Inspectors of Police are gazetted officers of subordinate rank and are governed by the Police Act, 1861 and the Police Rules.

7. This argument of the learned counsel however, ignores the fact that in the present case the dispute is not as to whether the provisions of Punjab Civil Servants Act, 1973 and the Rules framed thereunder or those of Police Act, 1861 and the Rules framed thereunder should be applied. On the other hand, the question is whether the seniority of the Deputy Superintendents of Police is to be reckoned according to the Police Rules or the West Pakistan Deputy Superintendents of Police Service Rules, 1964. It cannot be doubted that in the context of present controversy the West Pakistan Deputy Superintendents of Police Rules, 1964 are to be considered as special law and the Police Rules as general law inasmuch as though the Police Rules apply to all categories of employees in the subordinate police ranks, the West Pakistan Deputy Superintendents of Police are applicable only to Deputy Superintendents of Police and must prevail over the general rules.

8. It is also to be noticed that the West Pakistan Deputy Superintendents of Police Service Rules, 1964 were promulgated much later than the Police Rules and for this reason also the Police Rules must yield to the Deputy Superintendents of Police Rules which have been framed in the exercise of high power conferred by the Governor by Article 179 of the Constitution of the Islamic Republic of Pakistan, 1962 and continue to remain in force in view of Article 124 of the Constitution of the Islamic Republic of Pakistan, 1973.

9. According to Rule 8 of the West Pakistan Deputy Superintendents of Police Service Rules, 1964, the seniority inter se the Deputy Superintendents of Police is to be reckoned from the date of continuous appointment. It is not disputed that the date of continuous appointment of respondents 5 to 17 is earlier than that of the petitioner and it is on that basis that the seniority list has been prepared by the Government. In view of this rule the date of confirmation has no significance.

10. As regards the contention of the learned counsel that the petitioner was not considered for promotion, suffice it to say that admittedly in the seniority lists prepared by the department, the last of which is dated 30th August, 1989, the petitioner is shown as junior to all the respondents except respondent No. 9 who has been granted out of turn promotion.

11. Reverting to the second question, the learned counsel submitted that the matter of promotion stood excluded from the jurisdiction of the Service Tribunal in view of proviso to section 4 of the Punjab Service Tribunal Act, 1973 and as such the jurisdiction of this Court to examine the same was not barred. Reliance has been placed on Dr. Muhammad Rafi-ud-Din Qureshi v. Government of Punjab and others 1989 P L C (C.S.) 785 and Dr. Syed Muhammad Zafar Bukhari v. Government of the Punjab through Secretary, Health Department 1989 P L C (C.S.)

752. The contention of the learned counsel is, however, devoid of any force. The proviso to section 4 of the Punjab Service Tribunal Act does not oust the jurisdiction of Service Tribunal in all matters regarding promotion. It is only where the dispute relates to fitness of a person to be promoted or to hold a particular post that the Services Tribunal does not have jurisdiction. However, eligibility to be considered for promotion is quite different and distinct from fitness and any dispute with regard to same can be taken to the Service Tribunal. The distinction, if I may say so with respect, was succinctly brought out by the Supreme Court of Pakistan in Iqan Ahmad Khurram v. Government of Pakistan and others P L D 1980 S C 153 in the following words:- "We may hereby point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal." Reference may also be made to two other decisions of the Supreme Court of Pakistan in Islamic Republic of Pakistan v. Dr. Safdar Mahmood P L D 1983 SC 100 and Abdul Wahab Khan v. Government of the Punjab and 3 others P L D 1989 S C 508.

12. It is also to be noticed that the petitioner in the present case has also challenged the seniority of respondents and such a dispute undoubtedly falls within the jurisdiction of the Service Tribunal. The bar of jurisdiction is constitutional in nature and must be ungrudgingly given full effect to. The precedents relied upon by the learned counsel for the petitioner have no applicability to the present case. For the reasons aforesaid there is no force in this petition which is dismissed leaving the parties to bear their own costs. A.A./A-1258/L Petition dismissed.