1996 PLP (C (PLC(CS))

3. The appellants were represented by Sh. Riazul Haq, Advocate, respondent No.4 was represented by Shah Abdur Rashid, Advocate' and respondent7departments were represented by Mr. Fida Ali, Admin. Officer, I.‑G. Police, Gilgit.

4. The learned counsel for the appellants pleaded that it is a settled law that the discretion in the matter of promotion should be exercised judiciously rather than arbitrarily. In the present cases the learned counsel argued that the action on the part of the competent authority was arbitrary ‑ hence action .so taken was not in order.

5. Under the law the posts carrying B‑18 and below are non‑selection posts and promotions to these posts are to be made on the basis of seniority‑cum‑ fitness. The respondent No.4 neither has the profession qualification nor is the senior‑most, hence is not eligible for promotion under the Police Rules, 1934. The respondent 4's action of honesty should not be rewarded on the cost of appellants. He was obliged to return the overpaid said money.

6. The respondent No.4 has also filed comments, whereby it has been contended that the respondent No.4 was promoted out of turn by the order of Chief Secretary, which was intimated to him under the signatures of Secretary, Home, S&GAD and Law Department. It has been pointed out that there is no provision for filing the review petitions under the Police Rules, 1934 if at all any representation is preferred, it should be submitted to the next higher authority. Instead of this the appellants have preferred review petitions, direct to the Chief Secretary on 19‑7‑1995. Neither the review petitions were competent nor these were addressed to the proper authority and also were not filed within 30 days as required under the law. As such the appellants' appeals filed before the Tribunal are incompetent and time‑barred despite the fact that reply to the review petitions were made on 23‑10‑1995. It is further argued that the said reply has no value whatsoever and does not enlarge the time in other words. Moreover, the Chief Secretary does not have jurisdiction to review his earlier order which could only be set aside by the Secretary, KANA who is the next higher authority. The appeal is, therefore, liable to be dismissed on that ground alone.

7. The appeal is also not competent for non‑rejoinder of the necessary parties. If the respondent No.4 had not been promoted out, of turn, it was A.S. I., Muhammad Yasin who had a right to be promoted on the basis of seniority. He has not challenged the promotion of the respondent No.

4. The appellant, therefore, cannot file the present appeal without impleading said Muhammad Yasin as a necessary party. Otherwise, A.S.I. Ghulam Rasool was also senior to appellants, A.S.I. Muhammad Aslam and A.S.I. Ehsari Ali and he too has not filed any appeal either to the department or before the Tribunal. As they too have not impleaded the persons senior to them as parties, the appeals are consequently liable to be dismissed on this ground. It was held in 1982 SCMR 1135, that when a person is not directly affected and those affectees are not made parties, the appeal is liable to be dismissed.

8. The appeal is liable to be dismissed, on the grounds that the Tribunal has no jurisdiction to entertain an appeal against the order determining the fitness of out of turn promotion. of respondent No.4 when under the rules, out of turn promotion is permissible inter alia per work of honesty and

9. It has also been pointed out that the respondent No.4 was given honorary rank of S.I. for his exceptionally good service by order dated 16‑12‑1991. The appellant did not object that at that time. He is, therefore, estopped from bringing his grievance. now.

10. The appellants have impleaded Secretary, KANA, although they did not file any appeal to him. Under the circumstances the present appeals against the KANA Division are incompetent and, therefore, liable to be dismissed.

11. It has further been contended that appellants have no chance of promotion in near future on the basis of seniority. They cannot challenge the promotion of respondent No. 4, because his promotion was made under rule 13.1(1) of the Police Rules, 1934, for unique example of honesty which was the main factor under that rule. Similar provision also exists under section 8‑A of the Punjab Civil Servants Act, 1974. The Supreme Court in the case as reported in 1993 SCMR 1814, held on the interpretation of that section that out of turn promotion can be given for financial integrity and high standard of honesty the Hon'ble Court set aside the order of Selection Board, refusing promotion on the basis of moral and financial integrity to the civil servant on the basis that he was not senior most and that his Annual Confidential Reports were not better than his seniors

12. We have heard both the parties and also perused the record before us. .

13. The main issues before us to examine are:‑‑ (i) Whether or not the out of turn promotion granted to the respondent No.4, was right in the eye of law? (ii) Whether or not the present appeal is competent under the law?

14. We are taking the first point. The perusal of the record reveals that, the respondent No. 4, was given promotion out of turn, and under the rule 13.1(1) of the Police Rules, 1934, for an act of honesty, which is the main factor under that rule. Such a provision also exists in section 8‑A of the Punjab Civil Servants Act, 1974. This position has also been held in 1993 SCMR 1814, as quoted in the comments filed on behalf of the respondent No. 4 15.. In view of the above, the .general rules of the seniority will not be applicable. In this case special rules have been applied. Even in our daily lives, we cone across with a number of cases in which police official/officers are given out of turn promotion. As such the case of respondent No. 4 is no exception. We are of the opinion that out of turn promotion of the respondent No.4, was right in the eye of law. As such, the. respondent‑department did not commit any infirmity while granting respondent No.4 out of turn promotion a his promotion was made under special rules, rather than under seniority‑cum‑ ‑fitness rules, on which the learned counsel for the appellant built up his case in support of which quoted Tribunal's judgment reported as 1995 PLC'(C.S.) 836 and pleaded that discrimination was meted out with the appellant which argument in our view is irrelevant, in the instant case. .

16. Coming to our next point, the respondent No.4 was promoted out of turn on 31‑5‑1995. The appellants submitted their review petitions against the said promotion order of the respondent No.4 on 19‑7‑1995 to the Chief Secretary, Northern Areas. The office memorandum dated 23‑10‑1995, reveals that the said review petition was examined and filed. The learned counsel on behalf of the respondent No.4 contended and rightly that, it was neither accepted ' nor rejected. Hence such an action cannot be termed as rejection of the said review petition. The right course if at all for the appellant was to come directly to the Tribunal, within 30 days of the passing of the promotion of the respondent No. 4, i.e. 31‑5‑1995. But he did not come within that period. As such, as contended and rightly on behalf of the respondent No.4, the appeal being time‑barred is incompetent. 17., During the course of regular hearing, it came out, at bar that there is no provision of appeal in Police Rules. But then the review petition was made to the Chief Secretary. However, the promotion order of the respondent No. 4 was passed by the Secretary, Home & S&GAD and Law Department. The review petition should, therefore, if at all, should have been addressed to the Secretary. But since there is no provision of any appeal/review petition in the Police Rules, no cause arose to the appellants to file appeals before the Tribunal. As such, the present appeal would be incompetent.

18. Lastly, Mr. Yasin was the person who was directly affected being the senior most for all the A.S.Is. by the promotion of the respondent No. 4: For arguments sake, if the respondent No.4 is demoted, it would be Mr. Yasin to get the promotion not the appellants. In any way they do riot stand chance of their promotion in the near future. As such they are not directly affected. Moreover, they did not implead Mr. Yasin in their memo. of appeals, as party, as such their appeals would be, under the circumstances, incompetent. In this regard, the learned counsel for the respondent No.4 has rightly cited 1982 SCMR 1135.

19. For the reasons recorded above, the appeals having no merit and being incompetent besides being time‑barred, are dismissed with no order as to costs.

20. Parties be informed. H.B.T./43/Sr.F Appeals dismissed.