2011 PLP (C (PLC(CS))

QALANDAR ALI KHAN (CHAIRMAN).

This single order in the instant Appeal by Aziz-ur-Rehman (No.1846/2009) is also directed to dispose of appeal by Abdul Sattar (No,1907/2009), as in both the appeals the appellants are seeking confirmation as PSIS from the date of their appointment.

2. In their separate appeals, the appellants contended that they joined. Police Department as Prosecuting Sub-Inspectors (PSIs) at Karak and Bannu, respectively, on 3-4-1983 and 31-3-1983; and after undergoing necessary training and qualifying the examination, they were confirmed with effect from 1-6-1989 and 1-7-1991, respectively. Their names were also brought on promotion list 'F' on 9-7-1991 and promoted as Officiating Prosecutor Inspectors (PIs) w.e.f. 1-3-1993 and 20-12-1995 respectively. The appellants alleged that under Police Rule 19.26(3), they approached the appropriate authorities in the department for confirmation as PSIs from the date of their appointment after their similarly placed colleagues were confirmed as PSIs from the date of their appointment and this Tribunal also accepted appeals of similar nature, but to no avail; hence these appeals, inter alia, on the grounds that not only their departmental appeals/representations were supported at appropriate level in the department but also by precedent cases of their colleagues in the department as well as judgments of the Service Tribunal; together with judgments of the august Supreme Court of Pakistan, enjoining the departmental authorities to extend the same benefit to similarly placed employees when their colleagues are held entitled by the Tribunal/Courts.

3. The appeals were resisted by the respondents on several legal and factual grounds, including the ground of limitation, and also the fact that confirmation of a civil servant takes effect from the date of occurrence of a permanent vacancy in the service. They disputed claim of the appellants regarding discrimination on the ground that their case was different from others, as they were confirmed on occurrence of vacancies. The respondents also referred to the provision, of Police Rules 19.26 to rebut claim of the appellants, by alleging that PSI can be promoted to the rank of PI only when he passes the PSI examination with credit. The respondents further alleged that appointments of the appellants were on temporary basis, therefore, they were confirmed from the date when permanent vacancies occurred. They also contended that the appellants were appointed by D.I.-Gs. of Police of respective Regions, whereas the other PSIs have been appointed through Public Service Commission against permanent vacancies.

4. The appellants filed rejoinders to the written replies of the respondents, whereafter arguments of the learned counsel for the appellants and learned A.A.-G. heard and record perused.

5. The claim, of the appellants in both the appeals is for their confirmation as PSIs from the date of their appointment. The respondents have contested the claim on the grounds that the appellants were appointed against temporary posts of PSIs and they were confirmed on the occurrence of permanent posts, that promotion of PSIs is subject to their passing examination of PSIs with credit and also that the cases of PSIs to which the appellants have made reference are distinct from the cases of the appellants as the former have been appointed through Public Service Commission against permanent vacancies while the latter were appointed by the respective D.I.-Gs. on temporary basis.

6. As regards the first objection of appointment on temporary basis, suffice it to say that the same objection was raised before the Tribunal in the cases of Mirfaraz Khan (Appeal No. 1056/2009) and Muhammad Asif (Appeal No.667/2009), but was not accepted; and Tribunal held appellants in both the appeals entitled to confirmation as PSIs from the 'date of their appointment. On this score alone, the appellants are entitled to the relief prayed for in view of consistent view of the superior courts, enjoining the departmental authorities to also extend the same benefits to similarly placed government servants once the Court/Tribunal declared the claim lawful and valid in case of other government servants. Moreover, it was not only the Tribunal which had accepted plea of similarly placed PSIs, the departmental authorities have also been accepting claims of PSIs on similar grounds, as was done in the case of Altai' Hussain Inspector (Legal) PTC Hangu by the Regional Police Officer D.I. Khan vide order dated 15-4-2009. Besides, a number of PSIs have been confirmed from the date of their appointment in accordance with Police Rule 19.26.

7. So far the question of passing examination of PSI with credit is concerned the same has also been laid to rest in the case reported as 1986 PLC (C.S.) 800 wherein, it was held that passing of PSI examination with credit was not relevant for determining seniority under rule 19.28(4).

8. The third and last objection of induction of PSIs through Public Service Commission against permanent posts and appointments by DJ.-Gs. on temporary basis has no legal force as Public Service Commission is not an appointing authority, and only enjoys the status of a recommendatory body.

9. The learned A.A.-G. laid much stress on the issue of limitation, but once it is held that cases of the appellants have merit and they have some vested right in view of relevant law/rules and that denial of the benefit would amount to discrimination in view of granting of the same benefit to other similarly placed government servants, the appeals could not be dismissed on the ground of limitation in view of PLJ 1997 Tr.C. (Services) 139 (Federal Service Tribunal Islamabad) and consistent view of the superior courts in a number of cases.

10. As a sequel to the foregoing discu4on, the appeals are accepted with the result that the relevant orders/notifications be modified by confirming the appellants from the date of their appointment, with consequential benefits. There shall, however, be no order as to costs. H.B.T./7/KPK???????????????????????????????????????????????????????????????????????????????????? Appeals accepted.