1. ' AMANULLAH KHAN (CHAIRMAN).--- In Service Appeals Nos.73 of 2002, 88 of 2002, 2 of 2003, 3 of 2003, 4 of 2003, 5 of 2003, 7 of 2003, 9 of 2003, 15 of 2003 and 30 of 2003, filed by appellants Muhammad Ismail, Sohail Ahmed Sheikh, Shahab Azim, Muhammad Jaffer, Tahir Allauddin, Muhammad Akbar Raisani, Raz Muhammad Tareen, Shabih Akhter, Haibat Khan and Ghulam Dastagir, respectively; nor only the facts are akin, but the law points are also identical, therefore, by means of this common judgment, all the appeals are being disposed of.
2. ' The succinct facts, relevant for the disposal of instant appeals are that, appellants and respondents Nos.4 and 5 were serving as Deputy Superintendents of Police, with the seniority, as it stood in seniority list of 15-10-2001, when in recognition of the meritorious services rendered by respondents 4 and 5, they were given out of turn accelerated promotion. It so happened that, in the month of January, 2002, police arrested two high profile criminals, Noor Muhammad alias Noora Marrai and his nephew Gul Hassan, wanted in the murder of late Mr. Justice Muhammad Nawaz Marri. On their disclosures, the hideouts of terrorists were raided, where cross-firing started, resulting in death of three terrorists and serious injuries to one police official. Thereafter, one Ghulam Sarwar alias Baby was arrested, on the disclosure of whom the police was able to expose the entire network of the terrorists, involved in the murder case of late Justice Muhammad Nawaz Marri and abduction of other renowned businessmen of the community. Besides on the basis of such disclosures, huge quantity of arms and ammunition were also recovered. It is stated that all this became possible due to the hard work and exceptienal professionalism of respondents Nos.4 and 5, who throughout remained associated in this scenario. In the wake of above, on 3rd June, 2002, the Government of Balochistan, issued Notification, wherein the respondents 4 and 5, who according to the seniority list, as it stood on 15-10-2001, were junior to the appellants; were granted out of turn accelerated promotion from the rank of Deputy Superintendent of Police (BPS-17) to the rank of Superintendent of Police (BPS-18). The Notification reads as under:-- Notification "No,15-10(4)/2002/SO-1(S&GAD). In recognition of their meritorious services the Government of Balochistan is pleased to promote following Deputy Superintendents of Police (BPS-17) to the rank of Superintendents of Police (BPS-18) with immediate effect:--
(1) Mr. Muhammad Saleem Lehri,
(2) Mr. Wazir Muhammad Khan Nasir, ' Induction of above named officers in the PSP cadre would be considered on their turn."
3. ' Feeling aggrieved, the appellants and other D.S.Ps. Except appellant Muhammad Ismail, initially filed C.P. No,277 of 2002, challenging the legality of the above notification. It may not be out of place to mention here that during pendency of the petition, most of the appellants also filed a representation against the promotion of respondents 4 and 5 before the Departmental Authorities.
4. The petition so tiled was heard and ultimately disposed of vide judgment dated 16-12-2002, wherein it was held that matter does not fall within the purview of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and thus, the High Court has no jurisdiction to entertain the petition. Consequently, instant appeals have been filed.
5. ' It may be pointed out at this stage, that during pendency of the service Appeals, all the appellants, except Tahir Alluddin, were promoted to the rank of Superintendent of Police in BPS-18.
6. ' We have heard Messrs Basharatullah, Syed Ayaz Zahoor and Mujeeb Ahmed Hashmi, learned counsel for the appellants; Mr. Riaz Ahmed and Mr. Shakeel Ahmed, learned counsel appeared for the respondents 4 and 5 and Mr. Salahuddin Mengal, learned Advocate-General, for the official respondents.
7. ' Mr. Basharatullah, learned counsel for the appellants raised the following contentions:-
(1) There pis no provision under the Police Act or other service laws, whereby out of turn accelerated promotion can be granted to the officers in B-17 and above working in the Police Department.
(2) Under the service laws, the promotion of officers could only be made on the basis of seniority- cum-fitness, through Departmental Committee.
(3) The promotion since under the law is to be made through Departmental Promotion Committee, therefore, the Executive Authority has no jurisdiction and such promotion is therefore, against the object and mandate of all Service Laws.
(4) Although the appellants have been promoted to the rank of Superintendent of Police (BPS-18), but the cause of action still subsists.
(5) The delay if any, caused in filing of appeals, may be condoned, as question of public importance is involved.
8. ' Learned counsel for the other appellants adopted the arguments of Mr. Basharatullah, Advocate.
9. ' On the other hand, Mr. Riaz Ahmed, learned counsel for the respondent No,5 emphatically argued that:--
(A) The appeals being time-barred are straightaway liable to be dismissed, as no cogent reasons have been advanced, for condonation of delay in tiling the appeals.
(B) Since all the appellants, except Tahir Allauddin, stand promoted to the rank of Superintendent of Police in BPS-18, therefore, their grievance stand redressed and as such, the appeals have become infructuous.
(C) Since Rules, regulating promotion of Police Officer in B-17 and above, have not been framed, therefore, rightly they were granted promotion on the basis of their outstanding extraordinary performance.
10. ' It may be added here that, case of respondents 4 and 5 in rebuttal is that, they have been granted out of turn promotion, after their case was processed through Inspector-General of Police, Home Secretary, Secretary, S&GAD, Chief Secretary and finally by the Governor, Balochistan. In view of section 39(1) of the Government of Balochistan Rules of Business read with schedule VIII of the said Rules, and in the light of section 23 of the Civil Servants Act, the Government was competent to grant promotion to the respondents 4 and 5 on the basis of their meritorious services. Additionally, the analogy of giving out of turn promotion finds mention in Chapter 13 of the Police Rules, 1934, which is corresponding to section 8-A of the Punjab Civil Servants Act, thus, rightly in recognition of the meritorious services, the respondents were allowed to hold the higher rank of Superintendent of Police.
11. ' Mr. Shakeel Ahmed, learned counsel for the respondent No,4, however, adopted the contentions of Mr. Riaz Ahmed, Advocate.
12. ' Learned Advocate-General, opposed the appeals; contending that since the Governor, Balochistan is the Rule making Authority, therefore, under section 20 of the General Clauses Act, 1956, it has the power to amend, make and relax the Rules.
13. ' We have given our anxious thought to the contentions of learned counsel for parties. In our considered opinion, the pivotal questions, which are required to be dealt with, for disposal of instant appeals, are;
(i) Whether the appeals filed by the appellants are barred by time?
(ii) Whether the Government/Executive Authority is competent to grant promotion, in recognition of the meritorious services, to the officers of the police force, at the detriment of senior officers?
14. ' Coming to the first point; it may be observed that, as the respondents 4 and 5 have been granted out of turn accelerated promotion, which question is of public importance, therefore, in the larger interest of public, we are inclined to condone the delay occurred in filing of appeals by the appellants, without examining this point on other analogies.
15. ' As regards the second point; it may be seen that, at the relevant time, there had been no specific Rules, giving promotion of the officers of Police Department in B-17 above, but it is an admitted position that they being the 'civil servants' would be governed by the service laws, as applicable to the 'civil servants' of other department. Procedure to be followed in the cases of promotion of officials/officers has been laid down in the Civil Servants (Appointment, Promotion and Transfer)
16. Rules, 1973, and Rule 7 of these Rules, specifically lays down that, promotion and transfers to the posts in basic pay scales 2 to 18 and equivalent, shall be made on the recommendation of the appropriate Departmental Promotion Committee whereas 19 to 21 shall be made on the recommendation of the Central Selection Board and in the context of foregoing, section 9 of the Civil Servants Act, provides that in case of promotion against a non-selection post, the same shall be made on the basis of 'seniority-cum-fitness'. Here we would not go to the question of `seniority- cum-fitness' as same is not the issue, to be dealt with. We have minutely scrutinized Chapter 13 of the Police Rules, 1934 and failed to find out a single provision which could empower the Authorities to make out of turn promotion, specifically regarding officers in B-17 and above. The same in fact pertains to the officials of lower rank and as regards the Police Officers, in case of their rendering outstanding extraordinary performance, they are to be rewarded in shape of medals, commendations certificates etc. And not by giving them out of turn promotion. No doubt section 20 of the General Clauses Act, 1956 and the aiding provisions of law i,e, section 39(1) of the Government of Balochistan Rules of Business read with its schedule VII and section 23 of the Civil Servants Act, empowers the Executive Authority to amend, make and relax the Rules, as also to deal with the case of any Civil Servant as may appear to him just and equitable, but these provisions of law, have no relevancy with the matter pertaining to out of turn promotion, in presence of a specific statutory provisions of law, as envisaged in Civil Servant Act, itself and the Civil Servant (Appointment, Promotion and Transfer) Rules. In our considered view it was never a case, where deviation could have been made from the statutory Rules.
17. ' It may further be observed that time and again it has been held by the Superior Courts that no civil servant has a vested right of promotion, but since Rules and Policies have been framed, regulating appointments and promotions, therefore, any breach or deviation for any reasons, mala tide or arbitrary, would entitle the aggrieved person to challenge the same. It may be seen that in the case in hand, individual or two individuals were selected for promotion, without considering the accumulative merit with others placed in the same grade, would certainly be in violation of the Act and Rules, governing promotions. It may be mentioned here that promotion is always, considered by the Selection Board and not to be made under the arbitrary and whimsical orders of the Executive.
18. ' In the instant case, a deviation was made from the Rules and the selection was made by the Governor, the Chief Executive of the Province, which was arbitrary and without lawful basis. In this context of exercising discretion by an Authority, the Honourable Supreme Court in the case of Walayat Ali Mir v. Pak International Airlines 1995 SCM R 650, observed as under:-- "No doubt the competent Authority has the discretion but it was not unfettered. While exercising discretion, the authority should not act arbitrarily, unreasonably and in complete disregard of the rules and regulations. The discretion to be exercised has to be judged and considered in the background of the facts and circumstances of each case. In the present case there is a strong background of ignoring for disapproving the appellant with certain purposes."
19. ' It may be pointed out that, while giving accelerated promotion to the respondents 4 and 5, to the utter detriment of appellants no cogent reasons were given, as under the Police Rules, 1934, in case of performance of extraordinary services by a Police Officer, he can only be rewarded in shape of medals etc. And not by giving him out of turn promotion. No doubt the Authority has discretion to exercise such powers, but as observed, such discretion should be reasonable and not arbitrary.
20. ' In view of the above discussion, we regretfully disapprove such exercise of power by the Chief Executive of the Province, and hold that in order to avoid such-like situation, in future no accelerated promotion should be given, to the Police Officers; specifically in B-17 and above, without adhereing the Rules. However, if a Police Officer has to be rewarded for his meritorious service, there are other ways of doing so i,e, by giving medals, etc. But accelerated promotion cannot be given to the detriment of other officers, working in the same grade.
21. ' However, in view of the changed situation, where during pendency of appeal, all the appellants, except appellants Tahir Allauddin stand promoted to the rank of Superintendent of Police in BPS-18, and by the time the respondents 4 and 5 have rendered a service of almost more than four years as Superintendent of Police in BPS-18, therefore, we are not inclined to go further deep into the merits of the case, or to pass a consequential order, as to a sufficient and reasonable extent, the grievance of the appellants stand redressed, therefore, now the only question which is to be decided is the fixation of seniority, vis-a-vis, the respondents and the appellants. It may not be out of place to mention here that the promotion case of appellant Tahir Allauddin was considered by the Departmental Promotion Committee and he was deferred, thus, a fresh cause of action has accrued to him.
22. ' In para.2 of the Notification of promotion of respondents 4 and 5, it has been clearly mentioned that the induction of the respondents in the PSP cadre would be considered on their turn. Since the seniority has not been considered therefore, the competent Authority is directed to consider the seniority of appellants and the respondents strictly in accordance with law. In case, the new seniority of appellants and respondents 4 and 5 is to be prepared, the same be done in the light of relevant Rules, and in case, any of the party has any objection on such seniority list, to be prepared in future, shall be at liberty to challenge the same before the competent Forum.
23. ' With the above observations the appeals stand disposed of, with no order as to costs.