' JUSTICE (RTD.) ABDUL GHAN1 SHAIKH (CHAIRMAN).--Appellant Syed Sahib Shah was initially appointed as Assistant Sub-Inspector of Police on 1-11-1976 and was confirmed as such w.e.f. 1-11- 1979. His name was brought on promotion list "E" w.e.f. 22-11-1984, promoted as officiating Sub- Inspector of Police in the year, 1988 and was confirmed as such w.e.f. 21-11-1990. On account of meritorious service/gallantry act performed in an encounter (F.I.R. No.13 of 1991 under sections 307, 353, 147/148 P.P.C. And F.I.R. No.14 of 1991 under section 13(d) A.O. Of P.S. Taluka, District Larkana) in which notorious dacoit Mirza Abro was killed and one Kilashnikov along with 50 rounds were recovered, appellant was promoted out of turn to the rank of Inspector on temporary basis vide order dated 26-3-1991 by the Inspector General of Police Sindh (camp at Larkana). However, vide Notification dated 19-5-1992 appellant and 53 other Inspectors were reverted to their substantive rank of Sub-Inspectors with immediate effect by the Inspector General of Police, Sindh, Karachi.
Subsequently thereto, on seniority basis appellant was promoted to the rank of Inspector on 6-12- 1992 and confirmed as such w.e.f. 6-12-1995.
2. Appellant's case is that a large number of Police officials/officers were granted out of turn promotions and they were assigned seniority from the dates of performance of gallantry act. Like appellant, M/s. Munir Ahmed Khuhro, Irshad Ali Raza Seehar, Mohib Ali, Imam Bux Tagar, Muhammad Ayaz Khan and many others who were promoted on performance of gallantry act were reverted and were again promoted w.e.f. The earlier dates but appellant was ignored. He stated that recently the Regional Police Officer, Sukkur Region, Sukkur vide letter dated 28-6-2002 recommended his name for grant of Civil Award of PPM (Pakistan Police. Medal.) He preferred departmental appeal to the respondent No.2 on 11-2-2002 but was rejected vide order dated 17-12- 2002 communicated to appellant through endorsement dated 1-2-2003.
3. In their respective written statements, respondents admitted that appellant was promoted on out of turn basis on account of rendering meritorious services. They, however, stated that in view of the judgment passed by this Tribunal and upheld by Honourable Supreme Court, whereby the out of turn confirmations were declared as illegal, appellant and many others were reverted.
4. In support of appeal, learned counsel for the appellant contended that order promoting appellant to the post/rank of Inspector was implemented/acted upon, thus under the principles of locus poenitentiae the same could not be withdrawn as appellant had acquired vested right. He sateted that no opportunity of showing cause was provided to the appellant and the principles of natural justice were glaringly violated. He submitted further that many of Police officials/officers who were promoted out of turn on performance of gallantry act, were reverted but were again promoted, thus the appellant was meted out with discriminatory treatment which under the law is unwarranted. In reply to office objection that appellant's departmental appeal was barred by time, therefore, this appeal is also time-barred, learned counsel for appellant stated that departmental appeal was not dismissed on the ground of limitation but on merits, therefore, this appeal filed within 30 days from the date of dismissal of departmental appeal is well within time. In support of his contention, he relied upon; i) Anwar Muhammad v. General Manager Pakistan Railways. Lahore and another, 1995 PLC (C.S.) 803 and ii) Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others, 1997 SCMR 287.
5. Learned Asstt. A.-G. Argued that orders of out of turn 'promotions were recalled in pursuance of the judgment passed by this Tribunal duly upheld by the Honourable Supreme Court, thus the Police department committed no illegality or irregularity. Besides, the out of turn/accelerated promotions were in violation of Police Rules.
6. We have considered the above submissions, perused the material placed on the record so also have gone through the case-law referred to by the learned counsel for the appellant and the judgment passed by this Tribunal and the Honourable Supreme Court of Pakistan, on the basis of which the orders of out of turn promotions were re-called by the respondent No.2.
7. As regards office objection, admittedly appellant's departmental appeal was not dismissed on the ground of limitation but on merits. It appears that department was conscious of the fact that departmental appeal was barred by time, but instead it was dismissed on merits, meaning thereby that appellate authority condoned the delay. The present appeal filed within.30 days of the receipt of the impugned order is thus well within time. The office objection in the circumstances; is overruled.
8. On merits of the case, we have observed that respondents misinterpreted the judgment of this Tribunal passed in Appeal No.6 of 1990 and others (M/s. M.S. Tariq and, others v. Government of Singh and others, reported in 1992 PLC (C.S.) 43) and upheld by Honourable Supreme Court of Pakistan in C.P.L.A. No.25-K of 1991 decided on 11-4-1991. In the above referred judgment of Tribunal, the question of out of turn confirmation was under consideration and it held that out of turn confirmation was not permissible under the rules. Promotion and confirmation are entirely two different things which are achieved by satisfaction of different conditions. In the case while referring rule 13.1 of the Police Rules, 1934 it was observed that it deals with promotion from one rank to another or from one grade to another, in the same rank in the police force. As envisaged in the said rule, it was however, possible to make out of turn promotions. Besides, in the case of the Chief Secretary, Government of Punjab. Lahore and others v. Raja Mumtaz Ahmed, Superintendent of Police. CIA Staff, Rawalpindi, 1995 PLC (C.S.) 1140, the Honourable Supreme Court upheld the judgment of the Punjab Service Tribunal allowed out of turn promotion from the date of performance of gallantry act relevant para-5 of the said judgment for the sake of convenience is reproduced hereunder:-- "5. It is not denied that the respondent was granted out of turn oromotion because of his act distinguished and outstanding performance relating to busting of racket dealing in foreign exchange. He therefore, legitimately claimed his promotion w.e.f. Back date when he was recommended through the D.O. Letter referred to above. The Tribunal has taken into consideration the fact that in case of officers mentioned in the memo. Of appeal and Appeal No.118 of 1992 and one reported in 1992 PLC 1029 decided by the Tribunal out of turn promotions were given to the officers from the respective date of gallantry. The Tribunal has in those cases repelled the same contentions as are raised before us. Contention of the learned counsel that per decision of the Government dated 13-8-1990 out of turn promotion is not allowed has got no force in view of section 8-A of the Punjab Civil Servants Act, 1974 which provides for such promotion."
' On the basis of above judgment, a large number of Police Officers/officials were promoted out of turn on account of rendering meritorious service and performances of gallantry act. Vide notification dated 18-12-2000 one Imam Bux Taggar, D.S.P. Who earlier promoted out of turn was assigned seniority from the date he performed gallantry act. It is pertinent to mention here that out of turn promotions on the basis of act of gallantry like Punjab are also permissible in Sindh Province as per section 9-A of the Sindh Civil Servants Act, 1973 which reads as under:-- "9.A. Notwithstanding anything 'contained in this Act or any other law for the time being in force or any judgment of any Court, a civil servant who provenly by exhibits the act of gallantry while performing his duties or very exceptional performance beyond the call of duty, may be granted out of turn promotion or award in such manner as may be prescribed."
9. Respondents have not denied the fact that number of police officers/officials who were reverted were taken back and their orders of out of turn promotions were restored and they all are enjoying the fruits of'their gallantry act/performance in the shape of out of turn' promotion, while the appellant was deprived of and this being a discriminatory treatment is not warranted by law.
Similar view was earlier taken by a Division Bench of this Tribunal in a case of Moula Bux v.
Government of Sindh and others, decided on 4-3-2003.
10. Accordingly, the appeal is accepted, the impugned order dated 19-5-1992 and 17-12-2002 passed by respondent No.2 are set aside. There shall be no order as to costs.
11. Announced in open Court.