P L D 1969 Azad J & K 1 (PLP)

MUHAMMAD SHARIF, A. C. J.‑

This first appeal against the judgment and decree of the District Judge, Rawalakote dated 20‑5‑68 arises out of the plaintiff‑respondent's suit for a declaration that the order of his reversion dated 15‑5‑49 from the post of Sub‑Inspector of Police to the post of Head Constable, by S. P., Poonch is ineffective and inoperative against him as having been passed without jurisdiction and the plaintiff remains and continues to be a Sub‑Inspector of Police from 30‑7‑1948, the date of his appointment and is also entitled to all the benefits and emoluments arising there from. The facts of the case are that the plaintiff respondent was appointed as Sub‑Inspector of Police by the then Chief Com missioner on 30‑7‑1948. The S. P. Poonch by his order dated 15‑5‑1949 reverted him to the post of a Head Constable. The plaintiff filed an appeal against the order of the S. P. as being against the Police Rules and without jurisdiction. Khan Bahadur Sheikh Abdul Qayoom Khan, the Secretary‑General of the Azad Government of the States of Jammu & Kashmir disposed of this appeal by order dated 29‑3‑1952. He signed himself as Special Judge, Azad Kashmir Government. A copy of his appellate order Exh. P/1 is on the record. Khan Bahadur Sheikh Abdul Qayoom Khan held in his order that the S. P. was not competent to revert an officer who had been directly appointed as Sub‑Inspector of the Police to the rank of a Head Constable. He accordingly set aside the order of the S. P. dated 15th May 1949, reverting the plaintiff to the post of Head Constable and directed the Inspector‑General of Police to examine the cases of the appellant (plaintiff) as well as the respondents who were Aziz Ali, Fazal Illahi and others. The plaintiff after the delivery of the appellate order by the Special Judge made repeated applications and representations to the T. G. P. for implementing the appellate order of the Special Judge but no action was taken on these representations. The plaintiff then served the Government with a notice under section 80, C. P. C. through his counsel on 17th June 1965, fin which all the facts were given and it was demanded of the Government that the order of the Special Judge be implemented but the Government did not implement the order of the Special judge and elected to contest the suit. After the expiry of the prescribed period the plaintiff filed his declaratory suit in the Court of the District Judge, Poonch on 25‑8‑

65. The following issues were struck :‑ (1) Whether the suit is not cognizable by a Civil Court? O. P. D. (2) If the answer to the issue No. 1 is in the negative whether Court‑fee paid on the consequential relief is deficient in value and if so how much is the deficiency? O. P. D. (3) Whether the suit is affected by res judicata and therefore not maintainable? O. P. D. (4) Whether the suit is within time? O. P. P. (5) Whether the order of reversion dated 15‑5‑49 is in effective and inoperative against the plaintiff? O. P. P. (6) In case issue No. 5 is proved whether the plaintiff is entitled to remain on the post of Sub‑Inspector and from 15‑5‑49 and thereafter he is entitled to the pay and increments of the post of Sub‑Inspector? O. P. P. (7) Whether the plaintiff on account of his seniority is entitled to the promotion on the post of Inspector of Police? O. P. P. (8) Whether the Special Judge vide his order dated 29‑3‑52 held the reversion of the plaintiff illegal and how does it affect the present suit? O. P. P. (9) Relief. The learned District Judge by his order dated 6‑5‑66 found issues Nos. 1 and 2 in favour of the plaintiff. The finding on these issues are not challenged in appeal. Issues Nos. 3 was found against the defendant while issues Nos. 4, 5 and 6 were found in favour of the plaintiff. Issue No. 7 was found against the plaintiff on the ground of there being no evidence led by the plaintiff on this issue. Issue No. 8 was also found in favour of the plaintiff and the learned District Judge held that the Special Judge had rightly held the order of the S. P. to be without jurisdiction and rightly set it aside. The learned Additional Government Advocate has addressed us on issues Nos. 3, 4, 5, 6 and

8. On issue No. 3 he argued that the suit of the plaintiff was barred by res judicata and was, therefore not maintainable because the plaintiff's claim had already been adjudicated upon by a Special Judge. Two of the most important ingredients of the law of res judicata are that there should have been a previous suit which was decided by al Court. The learned Additional Government Advocate frankly, concedes that the proceedings by way of appeal before Khan Bahadur Sheikh Abdul Qayoom Khan were not a suit. He, however, argues that the appellate authority was a Court. The original order by which Khan Bahadur Sheikh Abdul Qayoom Khan, Secretary‑General to the Government was appointed as a Special Judge is not on record and the parties' counsel have not been able to produce it even before us. However, there is a copy of the Government order directing Khan Bahadur Sheikh Abdul Qayoom to assume duties as Secretary‑General on return from leave and it is further directed that he shall also function as a Special Judge as already ordered. Well, it appears to us that the Government delegated its powers of hearing appeals to the Secretary‑General and Khan Bahadur Sheikh Abdul Qayoom heard the departmental appeals which had been referred to him and for deciding which he had been designated as a Special Judge. The fact that Khan Bahadur Sheikh Abdul Qayoom Khan was hearing departmental appeals does not convert him into a Court and there can be no res judicata in case of depart mental proceedings. We are supported in our view by A I R 1949 Cal. 609 which lays down that in order to apply the bar under this section (11), the former decision must have been that of a Court. Administrative officers are not `Courts' within the meaning of section 11, C. P. C., though they have been invested by the Legislature with certain powers to make inquiry C and though they are bound to conduct such inquiries in conformity with the principles of natural, justice. It was also laid down in P L D 1962 Kar. 362 by Waheed‑ud‑Din Ahmad and Masood Ahmed, JJ., that the principles of res judicata do not apply to departmental proceedings. We hold that the proceedings taken before the Secretary‑General who was designated as a Special Judge do not constitute res judicata. The finding of the trial Court on issue No. 3 is maintained. The learned Additional Government Advocate argued that the cause of action arose to the plaintiff‑respondent on 29‑3‑52 which is the date of the order of the Tribunal designated as the Special Judge and that the suit which was instituted on 28‑8‑65 after the lapse of 3 years and even 6 years was hopelessly time -barred. But he could not state what article of the Limitation Act prescribing 3 years' limitation would govern the case. He argued that in any case the residuary Article 120 would apply which prescribes a 6 years limitation but the 6 years limitation pres cribed by the residuary Article 120, Limitation Act runs from the date when the right to sue accrues. We have to see when the right to sue accrued in this particular case. The interpretation to be put upon the expression "when the right to sue accrues" to a large extent depends upon the particular facts of the case and to the relief sought. The plaintiff made repeated applications or representations to the I. G. P. for implementing the order of the Tribunal, the Special Judge. His application Exh. P. K. was made on 27‑7‑56, P. N. on 5‑6‑57, P. L. on 29‑11‑57 P.M. on 20‑1‑57 and another on 17‑11‑

64. These applications were neither accepted nor turned down. It would be ridiculous to say that the right to sue accrued to the plaintiff on 29‑3‑1952 which is the date of the appellate order of the Tribunal. The Tribunal had accepted the departmental E appeal of the plaintiff. The acceptance of his appeal would not give him the right to file a suit. All that he could do was that he should approach the Government for implementation of this appellate order which he did time and again but which repre sentations all fell on deaf ears. The inaction of the Head of the Police Department is most regrettable. In the end the plaintiff was forced to serve the Government with a notice under section 80, C. P. C. but the Government decided to contest the suit and this decision of the Government to contest the suit gives the plaintiff, in our opinion, the cause of action and it shall be said that the right to sue accrued to him when the Government also turned down the notice under section 80, C. P. C. and elected to contest. The notice was served on 17‑6‑65 and after the expiry of the statutory period of 2 months the suit was instituted on 25‑8‑65 which is well within time. We hold that the plaintiff's suit is within time. On issues Nos. 5 and 6 the learned Additional Government Advocate cited P L D 1960 Lab. 641 and P L D 1960 S C

164. He referred to the Rule of Law laid down in headnote (a) of P L D 1960 S C 164 which lays down that :‑ "So far as suitability for promotion to a particular post is concerned, the sole Judge is the Government and Courts are unable to interfere except possibly in a case of proved mala fides." This authority is quite irrelevant to the case before us. P L D 1960 Lab. 641 lays down under headnote (M) that :‑ "Dismissal, removal, reduction, compulsory retirement or suspension of Government Officers are matters within the jurisdiction of departmental officers." But at the same time it lays down that "Courts will interfere only in case of lack of authority of such officer, or in case such order could not have been passed under law, or order was mala fide." We called upon the learned Government Advocate to cite the Police Rule that authorised the S. P. to revert the plaintiff who had been directly appointed as a Sub‑Inspector, to the rank of a Head Constable. The order of the S. P. demoting the plaintiff to the rank of a Head Constable could be justified only if he had authority to pass such an order but the learned Additional Government Advocate could not show us any Police Rule on this point. The learned District Judge has in his judgment referred to Rule 16.4 (2) of the Punjab Police Rules which are in force in Azad Jammu & Kashmir and which provides that an upper subordinate shall not ordinarily be reduced to the rank of Head Constable, unless he has been promoted from that rank and is capable of performing the duties of a Head Constable. If he is absolutely unfitted for his position or for that of a Head Cons table, he shall be dismissed, and not reduced in rank. The S. P. had reverted the plaintiff to the rank of a Head Constable which he could not do because the plaintiff had not been promoted from the rank of Head Constable and it was not found by the S. P. that the plaintiff was unfit for holding the rank of a Sub‑Inspector of Police. If he had been found to be unfit he could have been dismissed but not reduced in rank. The fact that he was not dismissed also shows that he was not found to be unfit for holding the rank of a Sub‑Inspector. Even the Tribunal, the Special Judge had found the order of the S. P. to be wrong and had set aside that order. The order of the S. P. reverting the plaintiff to the rank of a Head Constable having been found to be against the Police Rules and without jurisdiction, has been rightly held to be ineffective and inoperative against the plaintiff: The result is that the plaintiff remains and continues to be a Sub‑Inspector from 30‑7‑1948 when he was directly appointed as Sub‑Inspector. We hold that the order of the S. P. reverting the plaintiff to the post of Head Constable is ineffective and inoperative against the plaintiff and that the plaintiff remains and continues a Sub‑Inspector of the Police from the date of his original appointment as Sub‑Inspector which is 30‑7‑48 and is also entitled to all the benefits and emoluments of the post from that date. Issues Nos. 5 and 6 have been rightly decided in favour of the plaintiff. The Police Rules prescribe that an officer who has not been promoted from the ranks but has been directly appointed as a Sub‑Inspector shall not be reverted to the rank of Head Constable unless he is found to be unfit to hold his post. The plaintiff was not found by the S. P. to be unfit to hold his post, therefore the Special Judge had rightly held the reversion of the plaintiff to P be illegal and the Government having refused to implement the order of the Special Judge, the plaintiff had a right to bring the suit and the civil Court had jurisdiction to entertain and try the suit because the S. P. passed an order which he could not have passed under law, i.e. Police Rules. The suit of the plaintiff has been rightly decreed. There is no force in this appeal which is hereby dismissed with costs. A. E./S. A. H. Appeal dismissed.