1990 PLP (C (PLC(CS))

Cases of promotion of officers while they were P.O.W. were considered and those considered fit were promoted in absentia. (c) Air Force: Question of protection of seniority of officers taken P.O.W. did not arise because there had been no case of substantive seniority, of a PAF officer promoted after his repatriation to Pakistan, having been disturbed.

17. In cases of time-scale promotion in all the three Services relaxations in time limit in the promotion examinations were granted.

18. As such the problem of the nature mentioned in the Establishment Divisions Summary at paragraph 1-13 N ante, did not arise on the Defence side. Sd/- GHULAM JILANI KHAN Secretary General 29-9-1979 COS to the President CMLA:

19. It appears from para.16 that the officers of Army and Navy were given normal seniority in higher ranks to which they would have been entitled but for their being taken as POW). There was no such case in Air Force. It was exactly in this spirit that the case of restoration of the seniority was initiated. 20Approval of the President may now be accorded to the proposal made in para.3. Sd/- Syed Ijlal Haider Zaidi Establishment Secretary COS to the President-

21. The seniority rules in the Armed Forces are quite different to those in the civil service, The comparison drawn in para.19 is, therefore, valid to a limited extent only.

22. Para. 3 above be approved as recommended. Intd. 27/2 PRESIDENT: Para. 3 above is approved without any monetary benefits. Sd/- 5-6-1980"

9. The learned counsel for the appellants urged that the appellants appointment/induction in the Police Service was made in accordance with the provisions of the Civil Servants Act, 1973 and the rules made there under viz. Civil Servants (Appointment, Promotion- and Transfer) Rules, 1973 (hereinafter referred to as the Promotion Rules). He made. pertinent reference to rules 3 and 7 thereof. He also made reference to section 5 of the Federal Public Service Commission Act, 1973 and Rules 3, 4 and 5 of the Federal Public Service Commission (Functions) Rules, 1978. He placed much reliance on the provisions of the Establishment Division O.M., dated 31-5-1975 with specific reference to para. S thereof. He next urged that the respondents Nos. 2 to 5 were regularly appointed as Assistant Superintendents of Police in Grade-17 after completing their training and they were promoted to Grade-18 in December, 1975. He advanced the argument that seniority was to be determined from the date of continuous officiation in a post as laid down in section 8 of the Civil Servants Act, 1973, read with the Establishment Division O.M., dated 31-5-1975 and, therefore, the appellants were rightly placed above the respondents Nos. 2 to 5 in the seniority list issued in the years 1976 and 1978, which were not objected to by the respondents. He placed reliance on the decision of Lahore High Court in the case of Justice Paizullah Khan, reported in P L D 1964 Lab. 519, upheld by the Supreme Court as reported in P L D 1974 S C

291. He contended that the respondents Nos. 2 to 5 were not entitled for their promotion from any earlier date on any hypothesis as none of their juniors was promoted at an earlier date He also contended that the respondents Nos. 2 to 5 had not put in requisite service of five years in Grade-17 for earning promotion to Grade-18. He made grievance that the appellant's case was not considered altogether in the Summary submitted to the President for ante-dating seniority of the respondents Nos. 2 to 5 in Grade-18. He emphatically urged that the case of the respondents Nos. 2 to 5 did not fall within the purview of section 23 of the Civil Servants Act, 1973 which was invoked in their favour.

10. The learned counsel for the Government urged that the case of the respondents Nos. 2 to 5 was definitely a case of hardship as the stream of their service career was blocked by the unfortunate circumstances of their capture as prisoners of war during the course of their training at Sardah Academy in East Pakistan and they completed their training after their release and repatriation to Pakistan in 1974 and they were regularly appointed and confirmed as Assistant Superintendents of Police (Grade-17) with effect from 7-3-1975 and were subsequently promoted to Grade-18 with effect from December, 1975. He raised legal pleas that the gradation list was revised in favour of the respondents Nos. 2 to 5 in the year 1980 and the appellants did not challenge it till the final seniority list was issued in 1987 and, therefore, their appeals are time-barred and they are also not maintainable as no departmental remedy was availed of before filing them and they are hit by the proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973.

11. The respondent No. 2 (Mr. Saadatullah Khan) contended that the. appellants were relieved/retired from the Army service much after they had joined Police Service and they could claim seniority after they were relieved from the Army service. He made reference to Appeal No. 200(R)/87. The respondent No. 4 (Mr. Abdur Razzaq) adopted the same arguments. The respondent No. 5 has remained ex parte. Respondent Ch. Iftikhar Ahmad also remained absent at the hearing of the appeal. There was no appearance by or on behalf of respondent Ch. Muhammad Amin. It may be mentioned that the respondent Ch. Muhammad Amin has filed a separate appeal bearing No. 163(R)/88 for determination of his seniority where under the respondents Nos. 2 to 5 have been impleaded as the respondents. These appeals were heard when the appeal filed by Ch. Muhammad Amin had not become ripe. At subsequent stage, an application was moved in that appeal that hearing of these appeals may be reopened for their hearing along with that, appeal of Ch. Muhammad Amin. That request was objected to by the Advocate for the appellants herein and the application was rejected with the observation that these appeals and that appeal would be decided simultaneously. That appeal is being decided by separate judgment.

12. The peculiar features of the service of the respondents 2 to 5 arc reflected in the Summary submitted to the President, reproduced above, for redressing hardship faced by them. They were appointed to the Police Service of Pakistan constituted by the Ministry of Interior (Home Division) Letter No.10/1/50-P61ice, dated 11th March, 1950 as a service common to the Federation and the Provinces through the competitive examination held by the Public Service Commission in accordance with Rule 4 of the Police Service of Pakistan (Composition and Cadre) Rules, 1969 [since repealed by the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985]. Sub-rule (2) of Rule 4 of the former rules laid down that a person appointed to the service under sub-rule (1) was to be appointed to the service as a probationer in terms of the Police Service of Pakistan (Probationary Service) Rules, 1950 (hereinafter, referred to as the Probationary Service Rules), a probationer has been defined in Rule 2 as under:-- "2. xxx a "Probationer" means a person appointed on the results of a selection or competitive examination held by the Pakistan Public Service Commission to the Police Service of Pakistan who has not been confirmed as such under the provisions of these rules. A member of the Provincial Police Service will not be a probationer within the meaning of these Rules." Other Probationary Service Rules relevant for the purpose of these appeals are Rules 3, 8 and 11, which are reproduced below:-- "3. (i) Every probationer shall be on probation for a period of not less than two years from the date of his appointment. (ii) Every probationer shall on appointment undergo training for a period of not more than a year at the Central Police Training College; the remaining one year of probation shall be spent partly with a Military Unit and partly in a selected District Headquarters. At the end of the period of training at the Central Training College, every probationer, unless exempted under Rule 5, shall be required to attain such standard at the final Examination as the Central Government may decide. The subjects of the said examination shall be prescribed by the Central Government from time to time.

8. If any probationer is prevented by sickness or any other cause which the Central Government consider adequate for this purpose, from completing his course of study at the Central Police Training College or from attending the examination referred to in Rule 3, the Central Government may arrange for him to be specially examined in any or all of the subjects prescribed for the examination after such interval as may seem to them suitable having regard to the circumstances of the case.

11. A probationer Who has satisfied the Central and the Provincial Government concerned as to his conduct during probation and has passed or been exempted by the Central Government from passing the prescribed examination shall be confirmcd by the Provincial Government as an Assistant Superintendent of Police and shall thereafter be governed by the Rules and Regulations applicable to the Police Service of Pakistan in force on the date of his appointment as a probationer."

13. By virtue of Rule 3 of the Probationary Service Rules, the respondents Nos. 2 to 5 had to remain on probation for two years, during which they had to undergo training for a period not exceeding a year at Police Training College and for the remaining period they had to receive training partly with a Military Unit and partly at selected District Headquarters, and after satisfactory completion of the probationary period, they were to be confirmed as Assistant Superintendents of Police by the respective Provincial Governments they were allocated to. They did go for training at Sardah Academy in East Pakistan but they were taken as war captives before they could complete the training. In any case, they had to remain as probationers up to the end of 1972 and they could expect their confirmation as Assistant Superintendents of Police in Grade-17 on the completion of the probationary period, had they not been taken as prisoners of war. They could have been granted exemption by the President from remaining on probation as provided in sub-rule (2) of Rule 4 of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, but they were not granted exemption under that rule and their case for relaxation was dealt with under the provisions of section 23 of the Civil Servants Act, 1973. No doubt, the case of the respondents Nos. 2 to 5, stated above, did attract the provisions of section 23 of the Civil Servants Act, 1973 for restoring them to the position they would have occupied had they not been taken as prisoners of war during the probationary period. In normal course, they must have remained as probationers up to the end of 1972. In that situation, they could claim confirmation as Assistant Superintendents of Police in Grade-17 in the respective Provinces they were allocated to on the expiry of the probationary period of two years at the end of 1972 and they could be given due place in the seniority with the Assistant Superintendents of Police in. Grade-17. The next step for consideration was their placement in Grade-18 in normal course and their seniority in Grade-18 could be reckoned accordingly vis-a-vis that of the inductees and the promotees from the Provincial Police Service. It is not mentioned in the Summary submitted to the President when they could have earned promotion in normal circumstances. It was not a correct approach to recommend in paragraph 3 of the Summary that their names in the seniority list of Grade-18 Officers in the Police Group should be detached from the seniority, list at S. Nos. 102 to 106 and placed at S. Nos. 25 to 29 as to place them just below the names of the PSP Officers of 1969. Their seniority vis-a-vis the other officers in Grade-1-8, particularly promotees from the Provincial Police Service had to be worked but in accordance with paragraph 8 of the Establishment Division O.M., dated 31-5-1975, where under the Police Group was constituted, providing that seniority in Grade-18 and above of officers had to be determined from the date of regular continuous officiation in a grade. The seniority of the respondents Nos. 2 to 5 vis-a-vis the appellants needed to be determined on the dates of the respondents' presumptive entry into Grade-18 by virtue of the relief given to them under the provisions of section 23 of the Civil Servants Act, 1973 and the dates of actual entry into Grade-18 by the appellants and the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin. Looking at the seniority list of APUG officers of Police Group (Grade-18), published on 28-8-1980 (a copy whereof is Annexure `C' to the memo. of Appeal No. 311(R)/87), it appears that the first promotion from amongst the direct recruits to Grade-18 after 1972 was that of Mr. M. Rafiq Haider (at S.No. 5) on 25-1-1973. His entry. into the Police Service by direct appointment is shown as 3-12-1969 and he was, obviously, senior to the respondents Nos. 2 to

5. The next promotion to Grade-18 from amongst the direct appointees was that of Mr. Sajjad Ahmad, Javaid Bhatti (at S.No. 7), on 19-1-1976. The date of his entry in the Police Service is mentioned as 20-1-1971. Thus, he had entered into the Police Service soon after the entry into the service by the respondents. Nos. 2 to 5 in December, 1970 and 18th January, 1971. It follows that no promotion of direct appointees in the service to Grade-18 was made between 25-1-1973 and 19-1-1976 C except the respondents Nos. 2 to 5, who were promoted to Grade-18 on 27-12-1975, 25-12-1975, 25-12-1975 and 17-1-1975 respectively. The appellants were directly appointed in Grade-18 earlier than the promotions of the respondents Nos. 2 to 5 to grade, as stated above, and, therefore, the respondents Nos. 2 to 5 could not legitimately be planted over the appellants in the seniority list of 1980 in any manner whatsoever.

14. As regards the seniority of the appellants vis-a-vis the respondents Ch. lftikhar Ahmad and Ch. Muhammad Amin, the names of the two respondents do not appear in the seniority list of Grade-18 Officers published in the year 1980. They came in picture in the seniority list of Grade-19 Officers published on 12-4-1987. Their names were placed just below the names of the respondents Nos. 2 to 5 and just above the name of the appellant Major (Rtd.) Mian Zaheer Ahmad (Appeal No. 312(R)/87) and above the names of the other appellants. The dates of their entry in Grade-19 shown as under:- APPELLANTS:, (1) Sikandar Hayat Shaheen (S.No. 40) 14-9-1983, (2) Syed Kamal Shah (S.No. 43) 26-1-1983 (3) Asif Ali Shah.(S.No. 41) 20-11-1983 (4) Khaliq Yar Tiwana (S.No. 39) 11-12-1983 (5) Mushtaq Ahmad (S.No. 42). 8-2-1983 (6) Mian Zahecr Ahmad (S.No. 37) 5-9-1983 (7) Malik Asif Hayat (S.No. 44) 5-21983. RESPONDENTS: (1) Saadatullah Khan (S. No. 11) 8-2-1983 (2) Saad Sharif (S.No. 32). 9-5-1983 (3) Abdur Razzaq (S. No. 33). 11-10-1984 (4) Muhammad Saeed Alrai (S. No. 34). 7-9-1983 (5) Ch. Iftikhar Ahmad (S. No. 35). 3-9-1976 (6) Ch. Muhammad Amin (S. No. 36). 1-11-1976. The above statement depicts an anomalous position. The respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin are shown to have entered Grade-19 on 3-9-1976 and 1-11-1976 respectively, but their names have been placed below the names of the respondents Nos. 2 to 5 whose entry in Grade-19 has been shown in the years 1983 and 1984 but their names have been placed above the names of the appellants whose entry in Grade-19 also has been shown in the year 1983. It is understandable that the names of the appellants in Grade-19 in the gradation list of 1987 have been placed below those of the respondents Nos. 2 to 5 on the basis of seniority fist published in 1980 as stated above, but it .is beyond comprehension as to how the names of the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin have been sandwiched between the names of the other two sets. It has a4gady been stated above that the appellants herein are inductees in the Police Service of Pakistan from the Armed Forces, while the respondents .in 2 to 5 are Aired recruits to the same service, whereas the, respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin are the promotees from the Provincial Police Service. The question of inter se seniority of the first two groups has been discussed above. The seniority of the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin, the promotees, is claimed on the basis of the dates of their entry in Grade-19 viz. 3-9-1976 and 1-11-1976 respectively. It may be stated at the outset that promotions in the Provincial Police Service are totally different from the promotions to the Police Service of Pakistan, notwithstanding the 'change of the nomenclature of the service. The respondent Ch: Muhammad Amin has filed a separate appeal against the respondents Nos. 2 to 5 herein and some others, which was heard separately in the circumstances stated above, but is being disposed of simultaneously. His case has been fully discussed in that appeal. However, his case needs to be discussed herein also. The facts in the background of his entry and that of the respondent Ch. Iftikhar Ahmad, are stated in the Summary that was submitted by the Establishment Division to the Minister of State for Establishment for seeking approval in August, 1976 reproduced below:-- "No. 11 /5/76-Police CABINET SECRETARIAT (ESTABLISHMENT DIVISION) Subject:-Appointment to the post of Deputy Inspector-General of Police through lateral entry: There are at present 9 vacancies of Deputy Inspector-General of Police (Grade-19). Some Army Officers of the rank of Brigadier have been cleared with the approval of the Prime Minister for appointment as Deputy Inspector-General of Police. These officers have yet to be released by the Army where after they will undergo training and it win not be until at least six months to a year before they are available for posting. The Committee consisting of Cabinet Secretary, Interior Secretary, Director-General, Federal Investigating Agency, Special Secretary Cabinet, therefore, met to approve officers of the regular Police Cadre for the post of Deputy Inspector-General of Police.

2. The names were taken in order of seniority. There were 7 officers who had not completed the 12 years usual length of service. They were not considered for promotion with the stipulation that if and when subsequently they are promoted their seniority will be maintained as at present.

3. Officers who had done 12 years of service were then taken up. They were officers promoted from ranks; their educational background was generally not up to the mark. Since their promotion would be in the nature of lateral entry, the Committee decided to make selection strictly on merit, taking into account the officers' educational background, experience in the field, personality, etc. as well as service record. However, all officers were considered in order of seniority. The following officers were recommended for promotion as Deputy Inspector-General of Police:- (1) Ch. Ghulam Akbar. (2) Ch. Muhammad R (3) Mian Rafiuddin. (4) Mufti Muhammad Hasan. (5) Mr. Muhammad ldris. (6) Ch. Badar-ud-Din. (7) Mr. Ghulam Shabbir Kalyar. (8) Ch. Iftikhar Ahmad. (9) Mr. Muhammad Asghar Khan. (10) Mr. MirAzamKhan. (11) Mr. Muhammad Tehmash Khan. (12) Mr. Mir Akbar Khan. (13) Mr. Muhammad Amin. (14) Mr. Muhammad Aslam Bajwa. (15) Ch. Mukhtar Ahinad. . (16) Mr. Muhammad Nawaz Aulak.

4. Those who were not considered fit for the promotion are listed in the Annexure. The reasons for not considering them fit are given against each.

5. Approval of the Minister of State for Establishment is solicited to the promotion of the officers listed in para.3 above as Deputy Inspector General of Police through the lateral entry. Sd/- K. Mahmood, Special Secretary Minister of State for Establishment: Approved. Sd /- xxx 19/8." It would appear that both the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin did not enter the Police Service of Pakistan then known as the Police Group, by promotion, as provided under the rules, but they found a way of intrusion in the service in the garb of "Lateral Entry" which was meant for transfusion in service of fresh blood by making selection from amongst the officers of the Armed Forces or from other sources subject to suitability and fitness determined by the Selection Board. They could not, therefore, be placed ill the cadre of the Police Service in the Police Group at the relevant time and entry of their names in the gradation list did not confirm their entry in the Police Service of Pakistan. They had to find their place in the service through the normal IE channel of promotion. The name of respondent Ch. Muhammad Amin in the seniority list above the names of the appellants needs to be deleted and placed at appropriate place below the names of the appellants and the respondents Nos. 2 to

5. As regards the respondent Ch. Iftikhar Ahmad, only the appellant Mian Zaheer Ahmad has challenged his seniority, while the other appellants have not questioned his seniority. His name was, therefore, to be placed just below the name of the appellant Mian Zaheer Ahmad (Appeal No. 312(R)/87). The question of inter se seniority between the appellants and the respondents Nos. 2 to 5 has already been discussed and terminated above.

15. The respondents have raised the plea of limitation contending that the appellant's seniority was reversed in the gradation list published in 1980 and they did not challenge that seniority list and the appeals filed after the publication the gradation list in the year 1987 are time-barred. The appellants' contention is that they had made representations against the gradation list of 1980 and no orders thereon were communicated to them until the publication of 1987 gradation list wherein they were again placed below the respondents and that tantamounted to the rejection of their representations and they preferred appeals within time. Their contention has not been controverted. Moreover, the gradation list published in 1980 was provisional and objections were invited and no appeal lay against it. The next gradation list was only that one which was published in 1987 and has been impugned by the appellants. It is stated in the memo of appeals that the copies of the gradation list of 1987 were received by the appellants on 31-5-1987 and the appeals filed on 30-6-1987 are, therefore, within the period of limitation of thirty days. Thus, the objection that the appeals are time-barred is not sustainable. The respondents have also contended that the appeals are hit by the provisions of subsection (1) of section 4 of the Service Tribunals Act, 1973 as they were filed without preferring departmental appeals. We have not been shown any rule or regulation providing that an appeal lies against the grievance arising from a gradation list. This objection too does nor hold the field.

16. For the reasons recorded above, the appeals are allowed to the extent that the seniority of the appellants vis-a-vis the respondents Nos. 2 to 5 shall be determined on the basis of their dates of entry in Grade-18, as discussed above; whereas the respondent Ch. Iftikhar Ahmad shall occupy place in the seniority list just below the name of the appellant Mian Zaheer Ahmad; and the respondent Ch. Muhammad Amin shall be placed in the seniority list, below the names of the appellants and the respondents Nos. 2 to 5 after settlement of their seniority as discussed and held above. No order is made for costs. M.Y.H./534/Sr. F Appeals allowed.