2001 PLP (C (PLC(CS))

MUHAMMAD AYUB KHAN (MEMBER),

Arguments have been heard and record perused. 2, For correct appreciation of merits of the case it is just and advisable to give a brief reference to the background leading to filing of the appeal by the appellant for redressal of his grievance and in this respect the services of the appellant, then posted as PI in Turbat District, Balochistan, were placed, on deputation, at the disposal of Capital Territory Police, Islamabad, by the Government of Balochistan, Home and Tribal Affairs Department, (Home Section) by order, dated 25-2-1992 as a result of which he joined the Islamabad Police on 30-3-1992 as per admission contained in Para.2 of the appeal and probably attracted by the charming atmosphere of the Islamabad Capital; inclusive of the surrounding hills and the pleasant weather, he applied for permanent absorption in the Capital Territory Police by application, dated NIL" photostat copy is available on the file at Annexure-"H", Page 14, which application was processed and ultimately the Inspector-General of Police, Islamabad, requested the Inspector-General of Police, Balochistan, Quetta, by letter, dated 12-10-1995 for permanent absorption of the appellant, by furnishing "No Objection Certificate" by the latter and ultimately, after processing the matter between the Inspector- General of Police, Balochistan, Quetta, and other concerned Departments, the Government of Balochistan, S&GAD (Co-Ordination Section) was pleased to furnish "No Objection Certificates" to the transfer of the appellant to Islamabad Capital Territory Police to his absorption subject to observance of certain administrative points i.e. application on the prescribed pro forma, undertakings that he will not claim TA/DA, seniority in the Islamabad Police, certificate regarding non-pendency of enquiry proceedings against him etc. and after furnishing "No Objection Certificate" by the Inspector- General of Police, Balochistan, Quetta, as well as the Government of Balochistan in the Home Department (Police Section) and the S&GAD, the Inspector-General of Police, Islamabad, was pleased to order absorption of the appellant:-- "with immediate effect by Order No.143.1-36/E, dated 5-4-1997 in the Prosecution Branch till retirement. However, his name will be placed at the bottom of seniority list of the officers of his rank as it exists on the date of his absorption under the new rules/Government orders conveyed vide Ministry of Interior Letter No.2/37/86-ICT, dated 22-5-1988. " The said letter is Annexure-"A" at page-6 of the file which is also the impugned order.

3. It is further to observe that in this respect he had furnished his option, dated 28-8-1984 vide Annexure-"B" for permanent absorption in Islamabad Capital Police. The appellant had also furnished an undertaking on 16-7-1996 that he will have no objection after absorption in the Federal Police if his name was placed at the bottom of the cadre (Annexure-"C") which is reproduced below in verbatim:-- "Respected Sir, Respectfully, it is stated that I have no objection after absorption in Federal Police, if my name is kept at the bottom amongst the Inspectors at the date of absorption. (Sd.) (Muhammad Ilyas Hashmi), Inspector/Legal, Federal Police. dated 16th July, 1996. "

4. In wake of the above background now let us see the allegations made in the appeal. A perusal of the appeal indicates that the appellant has placed reliance on the case of one Javed Iqbal Khattak, Inspector (Legal) who was permanently absorbed in Islamabad Capital Police by order, dated 5-10-1995 with effect from 24-3-1990 vide copy Annexure-"D" and is available at page-9 of the appeal. No doubt, it is a fact that Javed Iqbal Khattak, Inspector of Balochistan Police was absorbed permanently by the said order but the facts of the instant case are quite distinguished in the sense that he had given an undertaking himself that he would not claim seniority over other if absorbed in Islamabad Capital Police permanently vide his undertaking reproduced above in verbatim. It is further to observe that this Tribunal cannot go into the facts and circumstances under which Javed Iqbal Khattak was absorbed being not in dispute and just possible he might have been absorbed indifferent situation and circumstances whereas in the instant case the appellant, it appears, was probably so moved by Islamabad environments that he without considering his future interest with respect to seniority etc. Straightaway without hesitation, furnished and undertaking to forego his rights, including seniority, so much so to be placed at the bottom of the seniority. There does not exist any law which could help him in such a situation. He is legally estopped to go beyond his undertaking for the interest which he was visualizing/expecting to get while being absorbed in the Islamabad Capital Police. He is a matured person and holding responsible position of Inspector of Police when he furnished the said undertaking. The Holy Qur'an ordains:-- "(Abide by the contract/undertaking and, in a case of its violation you can be questioned here and in the hereafter.)"

5. The facts of the absorption of the said Javed Iqbal Khattak are not to be acted upon as a precedent case being not legally sound for the obvious reason that a wrong precedent cannot be followed. A sound and rightful order can be followed and cited as a precedent. The entire system of law is based on the fair notion of justice in which rightful orders are made, obeyed and followed as precedents right from the bottom upto the order of the apex Court i.e. the Honourable Supreme-Court of Pakistan. In the respect the basic law is contained in the Holy Qur'an and traditions of the Holy Prophet Muhammad (p.b.u.h.) which provide the fundamental laws since the last more than 1400 years and since then almost all the civilized nations generally and the Muslim countries in particular have regarded these fundamental laws in high esteem and are honouring as precedents. In this respect a tradition of Holy Prophet (p.b.h.u.) is referred to with advantage:-- (Tarjamanul Qur'an, Vol.I, Page-64) In other words, law/rules, and regualtions shall be followed and not extraneous matters. (In the instant case not the case of Javed Iqbal Khattak. )

6. Now coming to the request of the appellant which he submits as per his prayer at the end of the appeal:-- ....that his appeal may kindly be accepted, the impugned order may please be varied/modified/changed by ordering the antedation of his absorption from the date of his joining the Islamabad Police or, in any case, from the date of his option Le. 28-8-1994 in the manner as has been done in the case of Mr. Javed-Iqbal tak, Inspector of Islamabad Police, with all consequential fits.

7. His option, dated 28-8-1994 as per Annexure-"B", Page 7, of the appeal is also reproduced over here for ready reference:--

8. A perusal of the parawise comments filed by the respondents, including Respondent No.4, indicates that serious objection of limitation has been raised vide as against the impugned order, dated 5-4-1997 the appellant filed a departmental appeal on 2-5-1997 which was rejected by order, dated 30-7-1997 (Annexure-F, page-12 of the file.) No doubt the departmental appeal was filed within time yet the rejection order, dated 30-7-1997 was conveyed to the appellant on 1-8-1997 and not on 21-8-1997 as alleged by the appellant. In this respect one copy of the rejection order, dated 30-7-1997 indicates at its left top corner diary No. 1285-P, dated 1-8-1997, but beneath the signatures of the PDSP the date shown in "21-8-1997" whereas the other photostat copy, available .3t Annexure-A, bears the date as "1-8-1997" at both the places and the date "21-8-1997" is not indicated anywhere. A formal enquiry was conducted by the Deputy Superintendent of Police (legal) Islamabad, and per his report, dated 6-11-1997, placed on file, it has been proved that the rejection order passed by the Inspector-General of Police was diarized in the relevant Diary Register at Serial No.1285-P, dated 1-8-1997 and its copy was endorsed to the appellant on the same date i.e. 1-8-1997 and the date of endorsement showing 21-8-1997 was changed by the petitioner, Muhammad Ilyas Hashmi (now appellant). This enquiry was based on the statement of the officials concerned who maintained the Diary and Despatch Register and viewed from this angle the appellant was obliged/required to file his service appeal before this Tribunal by 1-9-1997 whereas he filed the same on 20-9-1997. Respondent No.4 has taken serious objection to the limitation. It also appears that a futile effort was made by the appellant to bring filing of his appeal within limitation but it is very difficult to conceal as gospel truth. It is further to observe that Respondent No.4 is a confirmed PI with effect from 29-7-1988 vide Confirmation Order No.1136-49/13/(34)-A, dated 19-1-1989, (Annexure-B) issued by the Inspector-General of Policc, Balochistan, Quetta.

9. Pursuant to the aforesaid discussion, this appeal fails on merits as well as on point of limitation and is hereby dismissed leaving parties to bear their own costs. All concerned shall be informed accordingly. H.B.T./284/ST/F Appeal dismissed.