1984 PLP (C (PLC(CS))

(h) That the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, do not supersede the Police Act and the Police Rules. (c) Assuming that Punjab Civil Servants Act, 1974 superseded the Police Act, in that case also Police Rules are saved by section 23 of the Punjab Civil Servants Act, 1974, as being not inconsistent with section 7 of the Punjab Civil Servants Act, 1974.

6. On the other hand. learned District Attorney has argued that the advice of the Law Department was absolutely justified as the same was based on section 7 (2) of the Punjab Civil Servants Act, 1974, which has clearly laid down that the seniority on promotion will take effect from the date of regular appointment of a promotee civil servant. According to the learned District Attorney the rule of confirmation as envisaged in rule 12.2 of the Police Rules of 1934, in this manner, would be inconsistent with the substantive provision of the Punjab Civil Servants Act, 1974 and are liable to be struck down. Learned District Attorney emphasized his point by submitting that Act of 1974 being latter in date, would certainly prevail over the Act of 1861 and the Rules made thereunder.

7. I have given my anxious thought to the arguments so advanced by parties and would first of all trace the history of this case, which would the be useful to resolve this important issue of law. It was in the year 1.981, that the Government wanted to amend the Punjab Police (E & D) Rules, 1975, and the matter was referred to Law Department. While taking into consideration the intention of Government, the Law Department, made the following observations in the said context :‑ (i) The Subordinate Police Officers to whom the Police Act, 1861 applies continued to be governed by that Act and the Rules made thereunder. (ii) The Punjab Civil Servants Act, 1974, does not apply to the Subordinate Police Officers because the Police Act, 1861, is the special law in that it deals with special subject namely Police, which is a disciplined force and only the special class of civil servants falls within its purview. On the other hand Punjab Civil Servants Act, 1974, is a general Act in that it deals with generality of civil servants. (iii) The Punjab Civil Servants Act, 1974 does not repeal the Police Act, 1861 by implication. Although the Law Department has given its positive opinion in the matter which has been reproduced above, yet the same Department took abso lutely contrary view in the year 1982, to its earlier stand. It was held by the Law Department that since members of the Police Force are civil servants within the meaning of the Punjab Civil Servants Act, 1974, their conditions of service are to be governed by the said Act, and the Rules framed thereunder, except in respect of matters dealt with by section 7 of the Police Act, 1861 and the Police (E &D) Rules, 1975. It was further opined that rule 12.2 of the Police Rules, 1934, in so far as it relates to the counting of seniority of Police personnel from the date of confirmation being inconsistent with section 7 of the Punjab Civil Servants Act, 1974 and rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, cannot be deemed to be a valid rule within the meaning of subsection (2) of section 23 of‑ the Punjab Civil Servants Act, 1974.

8. What we find is that at the time when the Law Department took absolutely contrary view to its first advice in 1981, they failed to mention the same as if it never existed on the record. We also cannot remain oblivious of the fact that the period between the contrary advice is hardly a year, therefore, at the time of giving second advice in 1982, it was incumbent upon the Law Department to give reasons as to why they were deviating from their earlier positive and well‑reasoned stand. We are also constrained to observe that the Home Department, while taking a decision on the second advice of the Law Department should have called upon the Department to give reasons as to why they were taking contrary stand to their earlier advice. In these circumstances, we find that the advice of the Law Department, which has been adopted by the Regulation Wing of the Services, General Administration and Information Department and Departmental Promotion Committee, presided over by the Home Secretary would not be all effective as it suffers from two contrary stands taken by it within a short period of one year without assigning any cogent reason. We would now analyse the entire issue in the light of the argu ments so advanced by the learned counsel for the appellants.

9. The reading of Act 1861, which is a central Act made exclusively for the Police Force, we find that section 2 of the Act empowers the Provincial Government to frame rules in respect of pay and all other terms and conditions. Section 7 of the same Act enables the Provincial Govern ment to make rules with regard to the disciplinary matters. What we further find is that on 24th December, 1975, the Governor of the Punjab was pleased to make Police (E & D) Rules, 1.975, deriving powers from Police Act, 1861, with a particular reference to section 7 of the said Act, whereas the same Governor made E & D Rules relating to other civil servants under section 23 of the Punjab Civil Servants Act, 1974. This would clearly show that the Governor of the Punjab was fully conscious that Police Act, 1861, being a Central Act, so specifically made to govern the disciplined force of Police and was very much alive, therefore, he exercised his powers under the said Act by making E & D Rules in the year 1975. On the converse it can be conveniently argued that section 23 of the Punjab Civil Servants Act, 1974, was exclusively made for the other civil servants besides the Police Force which has its own peculiarity being a disciplined force. Article 143 of the Constitution of 1973, is reproduced below.:‑ "

143. Inconsistency between Federal and Provincial laws.‑

If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Parliament whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void." This would clearly show that when the Provincial and the Central Act take a divergent view of a particular matter, it would be the Central Act which would prevail and not the Provincial Act. Similarly Article 148 makes it obligatory on the Provincial Government to exercise its authority in a manner so as to secure compliance with the Federal Law which applies in that Province. In view of the above, I am of the considered opinion that the Law Department, vide its advice of 12th September, 1981 placed on the record as Annexure 'E' with these appeals, took a correct stand, when it categorically stated that the Punjab Civil Servants Act, 1974, did not apply to the subordinate Police Officers because the Police Act, 1861, was a special Law which dealt with Police, which was a disciplined force and special class of civil servants, falls within its purview. I am fully in agree ment with the opinion of the Law Department so given in 1981, that the subordinate Police Officers to whom the Police Act, 1861 applies, continue to be governed by that Act and the Rules made thereunder.

10. The crux of the matter is that the Punjab Civil Servants Act, 1974, in no manner repels the Act of 1861 by implication, if the Law Department had to differ with its earlier advice, it was incumbent upon it to give very very cogent reasons to dislodge itself from its earlier stand which was positively based in substance on the provisions of the Constitution so quoted above.

11. I have also considered the alternative argument of the learned counsel for the appellants, which he has made as a matter of abundant caution, that if it was held that the Punjab Civil Servants Act, 1974, prevails over the Police Act, 1861, and if at all it applies to Police, even then the Police Act was not inconsistent with section 7 (4) of the Punjab Civil Servants Act, 1974. Section 7 (2) which deals with seniority in the grade to which a civil servant is promoted lays down that the date of promotion, would be the date of regular appointment. It does not speak of the inter se seniority but only makes a general reference to this subject. Subsection (4) of the same section makes the position clyster clear. It lays down that seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed (underlining is mine). I have to look into the meanings of word `prescribed'. This I find in Chapter I of the same Act in section 2 (g), which lays down `Prescribed' means prescribed by rules. I am fully satisfied that no rules have been framed under this Act for the Police Force and the Rules already framed are fully saved under section 23 (2) of the same Act. In this manner, I am pursuaded even to accept this alternative argument that there is no inconsistency between the Police Rules and the Punjab Civil Servants Act, 1974. The Police Rules of 1934 have clearly laid down that the seniority will be finally settled from the date of confirmation. It will be interesting to observe that even after the case of the appellants was ignored for promotion, the Rules of 1934 were not considered alive, yet the Department itself is applying the same Police Rules in a large number of cases and a positive example of the same has been quoted by the appel lants, a notification in respect of two Inspectors namely Khalid Abdullah and Aslam Sahi, which was issued in 1982, after the decision so taken by the Departmental Promotion Committee in respect of the appellants.

12. In view of the detailed analysis of this legal issue, I have no hesitation to hold that the Departmental Promotion Committee, headed by the Secretary, Home Punjab did not go deep into the matter and completely ignored a positive and well‑reasoned advice of the Law Depart ment so given in 1981 and accepted a perfunctory advice of the same Department, which was not based on any cogent reasons. I am of the considered opinion that the Police Act, 1861 being a Central Act, will prevail over the Provincial Act of 1974, and is very much alive alongwith Police Rules, 1934 so made thereunder. I therefore, direct that the seniority of the appellants would be governed by rule 12.2 of the Police Rules, 1934, i. e. from the date of confirmation. As the dates of confirmation of the appellants are earlier than the date of confirmation of the contesting respondents therefore, the appellants will be deemed senior to them.

13. I therefore, accept the appeals, set aside the orders dated 16th September, 1982, 11th November, 1982 and direct that the case of the appellants for promotion as D. S. Ps. from the date from which their juniors were promoted, be considered in the light of their revised seniority as determined in the earlier part of this judgment. There will be no order as to costs. A. E. Appeals accepted.