2009 PLP (C (PLC(CS))

ZIA PERWEZ, J.

Leave to appeal was granted to examine the question of animus-revertendi in this case on recall of the order of promotion upheld by the impugned judgment of the Punjab Service Tribunal, Lahore dated 15-6-2005 in Appeal No.1919 of 2004.

2. In appreciation of his excellent and extraordinary performance, the appellant was awarded out of turn promotion w.e.f. 9-6-1994 under instructions of the Inspector-General of Police, Punjab. On 28-11-1994, the appellant was reverted to his earlier rank of constable on the ground that promotion can only be granted on the basis of seniority cum fitness, therefore, the accelerated promotion resulted in injustice to his seniors and become a cause of frustration and heart burning to those who were superseded.

3. Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the appellant after referring to various orders involving out of turn promotions during the same period contended that the order for recalling the promotion of the appellant was liable to be set aside. Referring to the facts he laid emphasis on the principle of animus-revertendi as adopted by this Court in the case of Raja Muhammad Anwar v. Government of the Punjab 1981 SCMR

523. He further claimed that the action suffered from the patent illegality and is liable to be set side as held by this Court in the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and pressed the claim for back-benefits as were awarded to the petitioner in the case of Ali Nawaz v. Pakistan Railways through Chairman/Secretary and others 1999 SCMR 1873.

4. We have perused the record with the assistance of the learned Advocate Supreme Court for the appellant with particular reference to his contentions.

5. The orders involving out of turn promotions to several employees of the police department during the same period are relied upon by the learned Advocate Supreme Court to support his contentions to the effect that out of turn promotion was not confined to the solitary case of the appellant. However, on a closer examination of facts, we find that the out of turn promotion was recommended in the present case on the ground that the appellant was diligent in performance of his duties. He made sincere efforts in investigation. Out of thirteen cases entrusted to him for investigation, he succeeded to recover three motorcycles, 1 carbine, 1 rifle .7 mm, 1 pistol, 1 dagger and 13 cartridges, which shows that the appellant performed his duties with due diligence, so he deserved appreciation. On the other hand the cases of the other employees who were awarded out of turn promotions, do not involve mere diligent performance of duties but in addition also involve the element of acts of bravery over and above due diligence which in a few of the cases also resulted in serious injuries in encounters while responding beyond the call of duty specific details whereof are available on record. In the light of the above facts the I.-G. while appreciating the service of the appellant appears to have taken into consideration the parameters for a rational exercise of discretion in a judicious manner duly supported by reasons for such action in his order as follows:

"The promotion orders since issued vide this office No.27593-96, dated 9-6-1994 in favour of Constable Farhat Abbas No.1946 to the rank of officiating Head Constable, out of turn, are hereby reviewed in light of the instructions contained in the I.G.P. Punjab, Lahore's Memo No.SE-I/5737-99/E-III/94, dated 27-10-1994, and therefore, reverted to his substantive rank of Constable with immediate effect. However, he is granted a C.C. Class III with cash reward of Rs.500 (Rupees five hundred) only in recognition of his excellent and outstanding performance, while posted at Police Post Kali Khan Police Station Wandho." In the instant case, the order of reversion was upheld by the learned Service Tribunal. Both the orders allowing out of turn promotion and reversion were passed by the same officer/S.S.P. namely Shahid Iqbal. The order was passed on rational consideration giving valid reasons duly supported by record. Every case is to be considered on its own facts and reasons. In the case of Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213, this Court held in para. No.17 of the judgment as follows:

"(17) Now the justification for the binding character of ratio decidendi, which doctrine is founded on immemorial practice is "the inconvenience the disastrous inconvenience of having each question subject to being reargued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal". (Lord Balsbury in (1898) SC 375 at 380). It is well-settled that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Quinn v. Leathem (1901) AC 495, 506)." In the case of Muhammad Nawaz (supra), this Court recalled the earlier appointments orders of competent authority by the successor of the that authority. It was observed that the impugned order in that case suffered from an inherent defect both of law and fact, which is not the case in the present order.

7. The order was recalled by the authority assigning valid reasons to differentiate and to follow the parameters of reward on account of bravery and gallantry as well as appreciation for performance of duty diligently but with due regard to the extent of such appreciation to commensurate with the degree of merit, involved. Undoubtedly performance of duty with due diligence and efficiently deserves due appreciation but it cannot be over appreciated out of proportion so as to make out case a grievance to the other employees in service of the department. If a case of glaring favouritism is made out resulting in a mala fide action as in the instant matter, it has to be rectified in accordance with law to avoid any injustice. Such a valid order cannot be set aside merely on conjectures or surmises as such practice would encourage a person to obtain any order using underhand means or otherwise and then claim immunity for such acts which would therefore, result in rewarding the person using such means by allowing him to continue to enjoy fruits of such ill-gotten gains and thus, perpetuate injustice.

8. For the foregoing reasons, no ground for interference is made out with the impugned judgment. Accordingly, this appeal being devoid of any merit is dismissed. M.H./F-20/SC Appeal dismissed.