P L D 1965 Supreme Court 50 (PLP)

S. A. RAHMAN, J.‑This appeal, by special leave, raises the question of true interpretation of some of the Police Rules. The question has arisen in the following circumstances. The appellant, S. Qamar Ali Shah, occupied substantively, the post of a Head Constable, in the Gujrat District. He was promoted to offciate as an A. S. I. in Rawalpindi. During the investigation of a case under section 324, P. P. C., the appellant was said to have received illegal gratification of Rs.100 in two instalments of Rs.50 each, from one, Qadir Bakhsh, P. W. 1. He was prosecuted on this charge and convicted by a Special Judge under sections 161, P. P. C. and 5 (2) of Act II of 1947. He was awarded a consolidated sentence of rigorous imprisonment for one year. His appeal from the conviction and sentence was dismissed by a learned Single Judge of the High Court of West Pakistan. Special leave to appeal was granted to the appellant to consider the question whether the trial was not bad for want of proper sanction of the prosecution by a competent authority. On the merits, it was felt that the conviction would not require interference. The sanction for the prosecution was accorded in this case by the Superintendent of Police. It is contended on behalf of the appellant, by Mr. S. M. Zafar, that he was appointed officiating A. S. I. by order of the D. I. G., Rawalpindi Range, and as that officer alone was, in consequence, the authority that could have dismissed the appellant from service, sanction for the prosecution should also have been accorded by that authority and not by the Superintendent of Police who was subordinate to him. The trial in this case began and was concluded before the promulgation of the present Constitution, so that at the relevant time, the Constitution of 1956 would be the constitutional instrument that governed the service conditions of State servants. Article 181 of that Constitution, inter alia, declared that no person who is a member of a civil service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service by an authority subordinate to that by which he was appointed. The corresponding provision contained in section 240 of the Government of India Act, 1935, was modified in the case of Police Officers, by section 243 thereof, which provided that the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces, notwithstanding anything contained in the Constitution Act of 1935. It was pointed out that section 243 of that Act had no counterpart in the 1956 Constitution and therefore Article 181 of the latter Constitution would apply in full force, even to subordinate ranks of Police Officers. Sanction for the prosecution of the appellant could therefore only be given by an authority that could remove him from service, as expressly enacted in the relevant law. The factual position of the appointment of the appellant may now be cleared. Our attention was drawn by learned counsel for the appellant to the "order" of the D. I. G., Police, Rawalpindi Range, printed at pages 113 and 114 of the record. The opening part of this "order" reads as follows: "The following A. S. Is. on List `E' and Head Constables on List `D' of this Range are promoted to offciate as Sub. Inspectors and Assistant Sub‑Inspectors of Police, till further orders, in the vacancies noted below and are posted to Districts mentioned against their names. Their promotions will take effect from the dates they take charge of their new duties." At item No. 9‑is the name of the appellant, Qamar Ali Shah, Head Constable, Gujrat, who was being posted as an officiating A. S. I. Vice Shafiq Ahmad promoted as S. I., at Rawalpindi. There was an endorsement below this "order" saying that a copy was being forwarded for information and necessary action to all S. Ps. in the Rawalpindi Range and it was directed that necessary Gazette notifications should be issued by them. At page 116 of the record is an order purporting to be of the Superintendent of Police, Rawalpindi District. This is headed:‑ "Police Department For Publication in Police Gazette Part‑II‑Orders by the Superintendent of Police. Dated Rawalpindi, the 31st October 1958. No. 3364‑HC/Promotion:‑The following Assistant Sub -Inspectors on List `E' and Head Constables on List `D' are promoted, to officiate as Sub‑Inspectors and Assistant Sub-Inspectors respectively. The nature of vacancy and date of promotion are noted against their names." The entry at No. 4 pertains to the appellant and is in the following terms: Date S. No. Name of officer promoted Nature of vacancy of . , . . . . . promotion 4. Officiating A. S. I. Qamar Vice A. S. I. Shafiq 27‑10‑58 Ali Shah No. 498/ Ahmad No. 49/R Gujrat. promoted as Officiating S. I. Below this appear the signatures of the Superintendent of Police, Rawalpindi. It is conceded on behalf of the appellant that only this order of the Superintendent of Police, Rawalpindi, was published in the Police Gazette and not the so‑called "order" of the D. I. G., Rawalpindi Range. Chapter XI.II of the Punjab Police Rules, 1934, relates to promotions. Rule 13. 1 of this Chapter declares that promotion from one rank to another, and from one grade to another in the same rank, shall be made by selection, tempered by seniority. Sub rule (3) of this rule lays down that for the purposes of regulating promotions amongst enrolled Police Officers, six promotion lists, A, B, C, D, E and F will be maintained. We are concerned in this case with List `D' which is directed to be maintained in each district, as prescribed in rule 13.9, of Head Constables who may be considered eligible for promotion as Assistant Sub -Inspectors. Rule 13.4 has the title "Power to make officiating Promotions". Sub‑rule (2) of this rule is relevant for our purpose and may be reproduced in extenso:‑ "(2) Officiating promotions to the rank of sub‑inspector and assistant sub‑inspector shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police. If the flow of promotion is unevenly distributed among districts, the Deputy Inspector‑General shall make suitable transfers of assistant sub‑inspectors and head constables on the promotion lists, from one district to another." Sub‑rule (3) further provides that all promotions concerning upper subordinates made under this rule, shall be published in the Police Gazette and notifications by Superintendents shall be sent in through the Deputy Inspectors‑General, who shall have the power to revise such order after recording reasons in each case. If any Superintendent has not enough men on lists `D' and `E' in his district, to fill temporary appointments in either rank, which he is required to make, he shall apply to the Deputy Inspector‑General for a man from another district. Rule 13.9 requires a list to be maintained in each district, in card index Form 13.9 (1), of those Head Constables, who have passed the lower school course and the intermediate school course, at the Police Training School and are approved by the Deputy Inspector‑General, as eligible for officiating or sub stantive promotion to the rank of Assistant Sub‑Inspector. Sub rule (2) of this rule is to the effect that officiating promotion to the rank of Assistant Sub‑Inspector shall be made from the list prescribed in sub‑rule (1) as far as possible in rotation, so as to give each man a trial, in the duties of the higher rank. The last sentence of this sub‑rule reads "Substantive promotion shall be made by the Deputy Inspector‑General in accordance with the principles in rule 13.1, and officiating promotion shall be made in accordance with sub‑rule 13.4 (2)." Mr. S. M. Zafar relied strongly on the last sentence of sub‑rule (2) of rule 13.9 and suggested that it was the Deputy Inspector‑General who was, under the rules, competent to make officiating promotions of even Head Constables to the post of A. S. I. This does not appear to be correct. In this sentence it is made clear that only orders of substantive promotion shall be made by the Deputy Inspector‑General, in accordance with the principles prescribed in rule 13.1 and it is added that officiating promotions shall be ordered in accordance with rule 13.4 (2), without mentioning the competent authority. Reference to rule 13.4 (2), however, puts the matter beyond doubt. It clearly mentions that officiating promotions to the rank of Sub‑Inspector and Assistant Sub‑Inspector, shall be made by Superintendents of Police and Assistant Superintendent, Government Railway Police who is, in this respect, regarded as equivalent to a Superintendent of Police in a district. There is, consequently, no room for argument on the basis of the Police Rules that the appointing authority in the case of an officiating promotion of a Head Constable to the post of an A. S. I., is the D. I. G. The rules contemplate such an appointment being made by a Superintendent of Police in the district concerned. It is, however, maintained that the actual appointment of the appellant in this case as officiating A. S. L, was in fact made by the D. I. G., Rawalpindi Range, arid not by the S. P., Rawalpindi, and that the rules did not debar the D. I. G. from making such an appointment, he being an officer higher to the S. P. In consequence, it is argued, the notification in the Police Gazette, was a mere formal matter, as the appointment of the appellant to the officiating post of A. S. I., had already been made by the D. I. G. This does not appear to us to be the correct position. As has been brought out above, all promotions concerning upper subordinates made under rule 13‑4, have to be published in the Police Gazette and the notifications has to be by the Superintendent of Police. Such notification is required to be sent through the D. I. G., however, who has a revisional power of interference with the appointments made, for reasons to be recorded. It is also understandable why this supervisory power should vest in the D. I. G., as this would ensure a uniform rate of promotions among subordinate Police Officers in the various districts of the range under his control. It is because of this aspect of the matter that the rules apparently provide that the list of those Head Constables who are to be regarded as eligible for promotion to the next higher post, requires the approval of the D. I. G. The power of appointment, never the less, vests, in this regard, in the S. P. alone, though he is confined to the list of eligibles approved by the D. I. G. The D. I. G.'s "order" appears to have employed some loose language in declaring that the officers named therein were promoted to officiate as S. Is. and A. S. Is. The correct position was that they were being recommended for appointment to the various S. Ps., who alone were competent to issue the necessary notifications in the Police Gazette. The order of the D. I. G. was never published in the Police Gazette whereas all promotions concerning upper subordinates are required to be published therein, by virtue of sub‑rule (3) of rule 13.4. The position that emerges is therefore that the rules only contemplate such officiating appointments to the post of A. S. Is., by the S. P., though as a superior officer the D. I. G. might advise them on the question of suitability of the candidates and it is difficult to sustain the proposition that the appointment in the present case had been, in fact, made by the D. I. G. If the appellant had been first reverted to his substantive post of Head Constable, prior to the order of his prosecution being passed, there would have been no scope at all for the contention raised in this case. The alternative argument was then advanced that if the D. I. G.'s approval was necessary before a Head Constable could be considered as eligible for promotion, the appointment should be deemed to have been jointly made by the D. I. G. and the S. P. For this contention, reliance is placed on certain obser vations made by the High Court of West Pakistan in Muhammad Afzal Khan v. Superintendent of Police, District Montgomery (P L D 1961 Lah. 808). That case related to the appointment, as a direct recruit, of an A. S. I., in a substantive capacity and the facts of the case are therefore distinguishable from those of the instant one. If, however, the ruling was intended to lay down that in circum stances similar to those prevailing under the relevant rules, in this case, the prior approval of a candidate for promotion by the higher officer, entailed the consequence that the higher officer also became part of the appointing authority, then we must respectfully dissent from that view. The position of the higher authority in the present case seems to be more akin to that of a Public Service Commission who has to make selection of suitable candidates for appointment to a post but the power of appointment is to be exercised by the competent authority or by Government. After full consideration of the matter we are inclined to agree with the learned Single Judge of the High Court who found that the appointing authority in the present case was the Superintendent of Police and not the D. I. G. The sanction for the prosecution proceeding as it did, from the Superintendent of Police, was consequently valid in law and the trial was not vitiated for want of proper sanction. The appeal fails and is hereby dismissed. A. H. Appeal dismissed. P L D 1965 Supreme Court 55