1990 PLP (C (PLC(CS))

18. Mr. Muhammad Amin 36 1‑11‑1976 20 (Repre 10‑9‑1976 sentationist). (This date has been noted from the seniority list of 28‑8‑1980).

4. The respondents have resisted the appeal. Respondent No. 1 (Secretary, Establishment Division) and Nos. 3, 6, 8, 9, 10, 11, 12, 14, 16, 17 and 19 have filed written objections. All of them have challenged the maintainability of the appeal on various grounds and most of them have advanced the ground that the appeal is time‑barred. In the objections filed on behalf of the Establishment Division, it has been stated that the appellant had been promoted to the rank of D.I.‑G. vide Establishment Division Notification No. 11/15‑76‑Police, dated 1‑10‑1976 over and above his seniors who had not completed required length of service for promotion, subject to the condition that he would rank junior to them and he was shown senior to them in the seniority list issued in 1980 annexed with the memo of appeal and the seniority list was revised later in the year 1987 after the promotion of those officers. The plea of other (private) respondents, in substance, is that the appellant should not have been promoted out of turn and the mistake be rectified by revising the seniority list.

5. At the hearing of appeal, the appellant was represented by Mr. Fazal Elahi Siddiqi, Advocate, while the respondent No. 1 was represented by the standing counsel, Mr. Muhammad Amir Akbar Khan, and the respondents Nos.3, 15, 17 and 19 presented their case themselves, and Mr. Hartz SA. Rahman, Advocate appeared on behalf of respondent No. 10 and Mr. Abid Hussain Minto on behalf of respondent No.

11. There was no appearance by or on behalf of other respondents.

6. The learned counsel for the appellant urged that the appellant's promotion as SP (B‑18) and even as D.I.‑G. (B‑19) was earlier than that of the private respondents and, therefore, he was senior to them for all intents and purposes. He advanced alternative argument that even if the appellant were not senior to the respondents in B‑18 for any reason, he ranked senior to them by virtue of this earlier unqualified promotion to B‑19 as D.I.‑G. While making reference to the provisions of Police Service of Pakistan (Composition and Cadre) Rules, 1969, and All‑Pakistan Services (Change in Nomenclature) Rules, 1973; notifications under Administrative Reforms, Civil Servants Act, 1973 and the formation of the Police Group, he urged that the appellant had earned seniority over the respondents. He also sought protection of the principle of locus poenitentiae relying on the cases reported in P L J 1982 Tr. C (Service) 165, 1983 P L C (C.S.) 995, 1987 P L C (C.S.) 183 and 1985 P L C (C.S.)

133. He next placed reliance on the cases reported in 1984 P L C (C.S.) 402 and 1983 P L C (IC.S.) 478, on the consideration of seniority. He referred to 1981 S C M R 501 as regards the powers of the President in making promotions.

7. The learned counsel for the Federal Government contended that the promotions in 1976 were made on the recommendations of a Committee and not by a Selection Board as required under Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and they were, therefore, deemed to be promotions on ad hoc basis and as such he could not claim seniority on that basis. He next urged the legal grounds that the appeal was not only time‑barred, but also it was not maintainable even otherwise as it was hit by proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973, as no appeal/representation was preferred to the appropriate authority, and placed reliance on the cases reported in 1989 S C M R 1271 and P L D 1979 S C

856. According to him, repetition of representations does not extend the period of limitation and cited 1986 S C M R 30 as the supporting authority.

8. Respondent No. 3, Mr. M.R. Zia, argued the appeal himself. He made reference to para.7(a) of the written reply and urged that he was appointed as an ASP on 22‑12‑1967 and was promoted as S.P. on 8‑11‑1971 when the appellant was a D.S.P., Class II. He stated that he was compulsorily retired on 15‑8‑1975 and was reinstated under MLO‑23 on 20‑5‑1978 and his seniors were promoted as D.I.‑Gs. on 16‑8‑1976, but he was promoted as D.I.‑G. on 18‑11‑1979, while many officers were promoted in the meanwhile. He made reference to the office order of the Establishment Division dated 26‑11‑1978, copy whereof has been filed as Annexure `A' to the written objections filed by him. He had preferred Appeal No. 192(R)/81 before this Tribunal which was decided on 9‑8‑1983 and also referred to the order of the Supreme Court on the appeal filed by the Establishment Division, reported in P L D 1987 S C 427.

9. The learned counsel for the respondent No. 10 laid emphasis on the objection of limitation and urged that the appellant received gradation list in May, 1987 and he made representation on 24‑6‑1987 and he was conveyed orders on his representation on 13‑12‑1987 and the appeal filed on 15‑6‑1988 was clearly time‑barred. He next urged that the appeal was liable to be dismissed as no departmental appeal was tiled and it is, therefore, hit by the provisions of subsection (1) of section 4 of the Service Tribunals Act, 1973. He placed reliance on the facts stated in the written objections, wherein the promotions given to the appellant have been challenged.

10. The learned counsel for the respondent No. 11 argued the case at length. tie reiterated the preliminary objections that the appeal was not maintainable as ho departmental appeal was filed as required under subsection (1) of section 4 of the Service Tribunals Act, 1973 and it was also time‑barred. He outlined the history of the service of the respondent and contended that the appellant's promotions were irregular as he was not entitled to benefit of previous service. According to him, the appellant's promotions were deemed to be ad hoc. He also made reference to the orders where under Police Group was established in 1975 and also to the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985.

11. Respondent No. 15 relied upon Establishment Division a/o dated 23‑10‑19'85.

12. Respondent No. 17 gave history of his service and urged that he was recruited as A.S.P. on 26‑12‑1970 and he was deputed for training in East Pakistan, where he was taken as a prisoner‑of‑war on 10‑4‑1971 and was released in July, 1974, and on his return he did his training course and was given regular appointment. He further urged that the gap in his service was relaxed by the President under the provisions of section 23 of the Civil Servants Act, 1973. According to him, the cases of respondents 15 and 16 were identical to his case.

13. Respondent No. 19 narrated history of his service that he joined Police Service in March, 1968 and was promoted A.S.P. on 18‑9‑1971, when the appellant was only a D.S.P., and was later promoted as S.P. on ad hoc basis after October, 1972. According to him, name of the appellant did not appear in the gradation list published in 1973, whereas the appellant's name appeared in the seniority list of 1975 at serial No. 56 and his own name was placed at serial No.13. He stated that he was placed under suspension in December, 1975 and his batch mates were promoted in May, 1976 and he was reinstated in 1976. He further contended that he was transferred to Office Management Group which he resented and was ultimately repatriated to the P.S.P. service in April, 1978. He has further stated that he and 23 other officers were promoted in due course of time. He disclosed that he had preferred Appeal No. 82(R)/79 before this Tribunal wherein the appellant was a party, and his appeal was allowed on 3‑11‑1980 and he was allowed retrospective promotion and the appellant did not challenge that decision.

14. This appeal involves question of seniority in the Police Service of Pakistan (hereinafter referred to as PSP) which was constituted under the Ministry of Interior (Home Division) Letter No. 10/1/50‑Police, dated 11th March, 1950, as a service common to the Federation and the Provinces, in pursuance of an agreement made under section 263 of the Government of India Act, 1935 (26 Gee. 5 c. 2), at the Prime Ministers' Conference held on 27th December, 1949. The service was regulated by different rules and orders adopted/made from time to time until 1969 when the Police Service of Pakistan (Composition and Cadre) Rules, 1969 were made as per Notification No.10/ 10/53‑Police, dated 26th November, 1969. The characteristic of the service was changed to All‑Pakistan Unified Grades under the All‑Pakistan Services (Change in Nomenclature) Rules, 1973. Its characteristic again emerged in the form of Police Group constituted under O.M. No. 3/2/75‑ARC, dated 31st May, 1975. It re‑emerged almost in the original form and named under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. The appellant herein entered Provincial Police Service as a Police Inspector on 19‑3‑1961. He was promoted as a Deputy Superintendent of Police (D.S.P.) on 27‑1‑1965. He was further promoted to the rank of Superintendent of Police (S.P.), in Grade‑18, on 18‑10‑1972. He was promoted to the rank of Deputy Inspector‑General of Police (DIG), in Grade‑19, vide Establishment Division Notification No. 11/15/76 Policx, dated 1‑10‑1976. He claims that on his promotion as a Superintendent of Police in Grade‑18, he entered the PSP,,by virtue of Police Service of Pakistan (Composition and Cadre) Rules,' 1969 and he continued to be in that service in whatever form it was, and he was promoted as Deputy Inspector‑General of Police in Grade‑19, with effect from 1‑10‑1976 and his service and seniority is to be reckoned accordingly. The respondents have challenged his entry in the PSP and there lies the cause of action.

15. The appellant admittedly entered service in the Provincial Police of the Punjab. He entered PSP first time on his ad hoc promotion to the senior scale of PSP vide Notification dated 13‑10‑1972 and his appointment as such was extended under the sanction of the President as per Establishment Division letter No.ll/ 5/72‑Police, dated 19‑9‑1973. The appellant has not placed on record or shown any order of his regular appointment in Grade‑18 in the PSP. He has placed much reliance on the order of his promotion as DIG vide notification dated 1‑10‑1976 and based his claim of seniority on this notification. His services were placed at the disposal of the Government of the Punjab for appointment as Deputy Inspector‑General there or to an equivalent post in Grade‑

19. Of course, this notification was issued by Government of Pakistan, Establishment Division, but it does not indicate that this promotion was in the PSP Entry/induction to the PSP of the Officers in the Provincial Police Service did not automatically follow their promotion to Grade‑18 and above, but that was dependent on certain' conditions incorporated in the rules operating at the relevant time. Under Rule 4 of the Police Service 'of Pakistan (Composition and Cadre) Rules, 1969; appointment to the PSP from the Police Service of the Province was to be made by selection made on the recommendation of the Governor and in consultation with the Public Service Commission and to the extent of only 1/3rd of the number of the senior cadre posts of that Province in the PSP. In Police Group, officers of the Provincial Police of only the rank of Deputy Superintendent of Police, possessing requisite service and experience and recommended by the Provincial Government and selected by the Central Selection Board, could be promoted to Grade‑18 and promotions to the above posts were also to be made on the recommendations of the Central Selection Board, as per paragraph 5 of O.M. dated 31‑5‑1975, where under the Police Group was constituted, and that too to the extent of the fixed quota of 33‑1/2%, subsequently revised to 4070.' Likewise is provided in the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (paragraph 7) that members of the Police Cadre of a Province shall be appointed to the service on the basis of selection made on the recommendation of the Governor, but to the extent of 40% of the senior cadre posts of that Province as specified in the schedule. The appellant has not furnished any evidence that his promotion to the rank of Deputy Inspector‑General of Police in Grade‑19 was processed in accordance with the aforesaid rules. It has been stated in paragraph 4 of the written objections filed by the Establishment Division that the appellant was promoted to the post of Deputy Inspector‑General of Police (B‑19) in preference to his seniors who had not completed the required length of service and the competent authority approved promotion of the appellant subject to the condition that he would rank junior to those who were not promoted as Deputy Inspectors‑General of Police as they did not possess the minimum length of service required for promotion to the said post; and he was placed at proper place in the seniority list impugned by him in this appeal. This is not correct statement but is a distorted version of the proceedings taken in elevating Police Officers from the Provincial Service. The actual facts in the background are reflected in the Summary submitted to the Minister of State for Establishment in August, 1976, reproduced below:‑ "No. 11/5/76‑Police GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION) SUMMARY FOR THE MINISTER OF STATE FOR ESTABLISHMENT.. 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 will 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 Ramzan. (3) Mian Rafiuddin. (4) Mufti Muhammad Hasan. (5) Mr. Muhammad Idris. (6) Ch. Badar‑ud‑Din. (7) Mr. Ghulam Shabbir Kalyar.' (8) Ch. Iftikhar Ahmad. (9) Mr. Muhammad Asghar Khan. (10) Mr. Mir Azam Khan. (11) Mr. Muhammad Tehmash Khan. (12) Mr. Mir Akbar Khan. (13) Mr. Muhammad Amin. (14) Mr. Muhammad Aslam Bajwa. (15) Ch. Mukhtar Ahmad. (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/‑ xxox 19 /R_" It would appear from the Summary reproduced above that a device was worked out to by‑pass some Army Officers inducted as Deputy Inspectors‑General in the Police and to elevate from back door some of the Police Officers in the Provincial Police Service, who could not be promoted to the rank of Deputy Inspector -General through normal channel. It is astonishing that a case of promotion was made out through the channel of "Lateral Entry" and it was successfully carried out and this mischief perpetuated for indefinite period, so much so that even seniority was claimed to the detriment of the officers who would have occupied those posts. The concept of "Lateral Entry" into the Police Group contained in paragraph 7 of the Office Memo dated 31‑5‑1975 was totally misconstrued or was deliberately twisted to accommodate the beneficiaries who included the appellant also. The concept of "Lateral Entry" was that in order to bring in fresh blood and to relieve shortages, if any, induction in the Group may be made at various levels by selection from amongst officers of the Armed Forces, or by lateral entry from other source subject to suitability and fitness being determined by the Selection Board. In the instant case, the selection was made from amongst the Provincial Police Service Officers who could find place in the Police Group only by way of promotions and the concept of lateral entry was thus frustrated. The entry of the appellant in the Police Group in that manner could not be deemed to have been his regular continuous officiation in the rank of Deputy Inspector‑General of Police. Of course, his name did appear in the 1980 gradation list of Grade‑19 Officers and he could conveniently lay claim of seniority as per that list on the basis of the provisions of subsection (1) of section 11 of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 but he could avail of the benefit of seniority provided he had entered the Police Group in regular course. The protection of seniority envisaged under the aforesaid rule 11 did not extend to the incumbent who did not get into the Police Group in accordance with the relevant rules. The appellant's case was, accordingly, reprocessed for seniority and was assigned place he was entitled to in normal course, and he has no case to claim seniority over and above the respondents on the ground of his early entry in B‑

19. The plea of locus poenitentiae advanced by the learned counsel for the appellant, relying on the cases reported in P L, J 1982 Tr. C (S) 165, 1983 P L C (C.S.) 995, 1985 P L C (C.S.) 133 and 1987 P L C (C.S.) 185, is of no avail to the appellant on the facts and in the circumstances discussed above.

16. The respondents have raised plea of limitation. The appellant has grievance against the seniority list of 1987 circulated on 26‑5‑1987. The appeal was filed on 15‑6‑1988. It.: stated that he had applied for copies and then made representation on 17‑2‑1988. The delay in making representation did not afford him condonation of delay in the period of limtiation. The appeal is, therefore, time‑barred as well.

17. Some of the respondents have also raised the plea of non‑maintainability of the appeal on the ground that no departmental remedy was availed. But the appellant did prefer a representation against the seniority list and it met the requirement of subsection (1) of section 4 of the Service Tribunals Act, 1973 and I the appeal does not suffer from non‑maintainability on that ground.

18. For the reasons recorded above that the appellant has no case on merits to succeed and also that the appeal is time‑barred, the appeal is dismissed with no ~E order as to costs. M.Y.H./537/Sr. F Appeal dismissed.