. JUDGMENT ' QAZI EHSANULLAH QURESHI (CHAIRMAN).--- Facts giving rise to the present petition as enshrined from the record are that the petitioner was appointed as foot constable on 21-9-1970 promoted SGC on 1-5-1972, HC on 1-10-1972, A.S-I. On 9-4-1974, SIP on 6-11-1974 courses to his credit, lower class 1971, intermediate 1974, upper class July, 1976.
2. In this scenario we have to examine the comparative statement produced by the petitioner regarding direct appointments and promotions as stated below:--- PRO FORMA [Group "A"] {{TABLE}} S.No, Date of Appointment/Promotion FC SGC HC A.S-I.
Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 Res.No,16 28-3-1973 1-4-1974 Res.No,17 11-11-1973 1-4-1974 Res.No,21 1-6-1973 9-4-1974 Date of Passing of Courses SIP Lower Inter Upper 6-11-1974 1971 1974 July, 1976 1-10-1974 1973 1976 22-9-1990 1-10-1974 Nil 1976 1992 2-11-1974 Nil Nil Nil [Group "B"] S.No, Date of Appointment/Promotion FC SGC HC A.S.-I. SIP Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Res.No,9 1-5-1972 1-10-1972 17-1-1974 1-10-1974 Res.No,10 1-5-1972 1-10-1972 17-1-1974 1-10-1974 Res.No,11 1-5-1972 1-10-1972 17-1-1974 1-10-1974 Res.No,24 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Date of Passing of Courses Lower Inter Upper 1971 1974 July, 1976 1973 1974 12-12-1990 1973 1974 12-12-1990 1973 1974 12-12-1990 1973 1974 1999 [Group "C"] S.No, Date of Appointment/Promotion FC SGC HC A.S.-I. SIP Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Res.No,5 1-5-1972 17-1-1974 1-10-1974 Res.No,6 1-5-1972 17-1-1974 1-10-1974 Res.No,7 1-5-1972 17-1-1974 1-10-1974 Res.No,8 1-5-1972 17-1-1974 1-10-1974 Res.No,23 1-5-1972 9-4-1974 6-11-1974 Date of Passing of Courses Lower Inter Upper Merit Number 1971 1974 July,1976 14/50 1973 1974 1973 1974 1976 32/50 1973 1974 1989 1973 1974 1984 Failed 1973 1974 1976 28/50 [Group "D"] S.No, Date of Appointment/Promotion FC SGC HC A.S-I. SIP Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Res.No,12 16-2-1974 1-10-1974 Res.No,13 16-2-1974 1-10-1974 Res.No,14 16-2-1974 1-10-1974 Res.No,15 16-2-1974 1-10-1974 Date of Passing of Courses Lower Inter Upper 1971 1974 July, 1976 Nil 31-3-1975 1994 Nil Nil 11-12-1990 Nil Nil 11-9-1984 Failed Nil Nil 22-9-1990 [Group "E"] S.No, Date of Appointment/Promotion FC SGC HC A..S.-I. SIP Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Res.No,18 31-12-1973 Mining project 2-10-1974 Res.No,19 31-12-1973 Mining project 2-10-1974 Res.No,20 31-12-1973 Mining project 2-11-1974 Date of Passing of Courses Lower Inter . Upper 1971 1974 July, 1976 Nil 20-3-1978 1994 Nil Nil 23-11-1993 Nil 1978 23-11-1993 [Group "F"] S.No, Date of Appointment/Promotion FC _ SGC HC A.S.-I. SIP Petitioner 21-9-1970 1-5-1972 1-10-1972 9-4-1974 6-11-1974 Res.No,4 5-9-1974 Res.No,22 2-11-1974 Date of Passing of Courses Lower Inter Upper 1971 , 1974 July, 1976 Nil Nil 22-11-1974 Nil Nil 1993 {{TABLE}}
3. According to the petitioner the direct appointments and method of promotions were made in utter violation of rules, laws applicable at that time. He further stated that no hard and fact rules or criteria or set principle of seniority-cum-fitness were applied for. He is ignored and discriminated and not given the due promotions in time which he observed under the rules. In the circumstances, he was constrained to move the Federal Service Tribunal Islamabad, where he failed to get relief sought for. He then preferred an appeal before the Supreme Court of Pakistan, the Honourable Supreme Court of Pakistan allowed the petition and remanded the case back to I.G.P. Northern Areas with the following directions:--- Quote: Civil Appeal No,737 of 1995.
"As a result, Civil Appeal No,737 of 1995 is allowed, impugned judgment dated 22-8-1994 passed by the Federal Service Tribunal in Appeal No,208(R)/94 is set aside and the matter is remanded to Inspector General Police, Northern Areas, for fresh decision. The I.-G. Will invite fresh objections from all the concerned officials, including the appellant and the private respondents in this appeal and will then take the decision on the said objections strictly in accordance with the applicable law and rules. This matter has been pending for a long time. It is directed that the entire process of disposing of the objections shall be completed by I.-G.P. Northern Areas, by 31-7-1998".
4. Consequent upon the decision of the apex Court dated 23-5-1998 the I.-G.P. Northern Areas was obliged to constitute a six (6) members committee comprising of senior officials for the purpose, as directed, the committee first invited the objections from all the concerned/affectees and examined each case on the principle of first induction in service, date of birth, qualification, completion of courses, date of confirmation, and after thorough scrutiny and in the light of Police Rules, prepared the seniority list, whereof the petitioner Muhammad Riaz was placed at serial No,4.
5. However the aforesaid office order No,IGP-1(43)/3759-97/98 dated 30-7-1998 by the then I.-G.P.
Too was not accepted by one Mr. Muhammad Saleem then Sub Inspector of Police, resultantly challenged before the then Chief Secretary who vide his Office Order No,Admn.1-5(99)/93 dated 23-2-1999 picked up the following crucial points in the impugned office order by I.-G.P.:--- Quote:
(a) "Date of initial entry into police service in case of one and the same date of appointment age factor has been indicated in police rules.
(b) Whereas 12.2(3) of Police Rules 1934 has laid down the following criteria determining the inter - se-seniority."
Quote: "(the) Seniority of upper subordinates (i,e, A.S-I., S-I.P. And S-I) will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on same date, and the seniority of officers appointed direct on the same date being reckoned according to age, seniority shall however, be finally settled by dates of confirmation, the seniority inter se of several officers confirmed on the same date bring that allotted to them on first appointment ...."
6. The then Chief Secretary, interpreted the above rules and emphasized in the manner that seniority is not to be determined on the basis of date of first appointment alone but the date of confirmation shall also be taken into consideration which according to him the committee deliberately ignored, the condition of the date of confirmation in the criteria adopted by them, as such the list of seniority issued by the then I.-G.P. Vide office order dated 30-7-1998 was set aside by the then Chief Secretary and directions were made to this effect that the fresh list be prepared in the light of 12.2(3), Police Rules, 1934.
7. This being so, it again stimulated the feelings of the petitioner and he once again resorted to invoke the jurisdiction of the Court, thereby went before the Federal Service Tribunal where the efforts proved fruitless which prompted him to knock the doors of the Supreme Court in the second round of litigation, the Honourable Supreme Court, however abstained to entertain the petition of the petitioner due to lack of jurisdiction as such dismissed the same with the following observations:--- Quote: "We have been informed that it has been substantially complied with and the Courts have been established for resolution of the disputes of civil matters of people of Northern Areas, therefore, the Federal Government shall also consider the desirability of extending the service laws and establishment of Service Tribunals by giving directions to the Northern Areas Administration if it is within its power so that the servants of the Northern Area may also have special forums for redressal of their wrongs in connection with the terms and conditions of their service within three months. Till such time any such forum is created such like the Service Tribunal, the servants of Northern Area as the appellant is, may invoke the jurisdiction of the Courts of general jurisdiction established for deciding civil disputes, for in that case, in our view, there will be no bar for invoking jurisdiction of the said Courts there being no previsions like Article 212 of the Constitution barring their jurisdiction."
8. In the wake of above situation, the petitioner left with no option but to file writ petition before the Chief Court under Art.19-A of Northern Areas Legal Framework Order, 1999 which petition was heard and dismissed by the learned Chief Court with the observations: Quote: "The matter directly and substantially in the writ is related to service laws as enforced in the area and adjudicable through forum for thrashing-out material facts leading to the fair conclusion and that held that the writ petition is not maintainable however, the petitioner may challenge the direct appointments and other issues before the Service Tribunal hence this petition before this Court".
9. The Advocate-General on behalf of respondents Nos.1 to 3 vehemently opposed the stance taken by the petitioner and submitted that petitioner Muhammad Riaz was appointed on 21-9-1970 as F.C. Against the leave vacancy, temporary in nature, who could be terminated any time without notice.
10. Secondly under provisions of police rule 12(1) promotion from one rank to other, principles are followed and seniority list of each rank maintained accordingly. He stressed that the claim of the seniority of the petitioner on the basis of year of promotion with reference to S.I.; No,154 of ESTACODE is not correct. Determination of seniority of upper subordinates is governed by section 12.2(3) of Police Rules, which in short the promoted officer shall rank senior to an officer appointed direct to the same rank on the same date. Referring the Cabinet Secretariat Establishment Division Memo, O.M. No,F.1/11/94-R-4 dated 8-5-1997 that the Civil Servants (Seniority) Rules 1993 made under Civil Servants Act, 1973 are not applicable to the upper subordinates of police (I.P., S-I.Ps. And A.S-I.), which shall therefore, continue to be governed by Police Rules, 1934.
11. According to him all respondents had qualified the courses and were fully eligible for the elevations they are commanding. He then taking turn, stated that Punjab Police Rules 1934 were formally extended to Northern Areas during 1978 vide K.A and NAs Division office memorandum No,11-7/29/78 dated 30-7-1978.
12. He also placed his reliance on the seniority list prepared by Marital Law Enquiry Commission which was constituted under ML Order No,10-7-1977.
13. The I.G.P. Prepared the seniority list in compliance to the judgment of the Honourable Supreme Court of Pakistan, dated 24-4-1998 on the basis of the report of the Senior Police Officials Committee. Which was not strictly made according to Honourable Supreme Court directions?
14. The Advocate General has also taken serious preliminary objections that the writ petition under Article 19-A, Northern Areas Legal Framework Order, 1999 before Chief Court was not competent being service matter. The Supreme Court through their judgment dated 11-10-2001 directed the petitioner to seek his remedy from Civil Court till Service Tribunal is established.
(a) The learned counsel for the respondents Nos.4 to 24 raised legal points that the writ petition under Art. 19-A of Northern Areas Legal Framework Order, 1999 is incompetent in nature as it is a service matter and does not fall within the ambit of Art. 19-A read with Art. 18-27 of Fundamental Rights.
(b) That the petitioner had alternate remedy in Civil Court, as rightly observed by the Supreme Court of Pakistan in his judgment dated 11-10-2001.
(c) The writ petition is time barred which attracts doctrine of latches, provisions of Limitation Act and Rule 16.30(2) of Police Rules. Admittedly the answering respondents were appointed before 1974 by the then Resident Commissioner in exercise of powers under section 46 of Police Act, which action of the Government could be challenged within one year of the order as envisaged under Art. 14 of the Limitation Act, he, has also thrown light on the seniority controversy and departmental appeal and its rejection which were not challenged on time. The learned counsel for the respondents also added that the petitioner failed to challenge the promotions etc. Regarding some of the respondents so under the law he cannot agitate against them at this belated stage.
15. He also relied upon Appointment Rules, 1965 and submitted that during the fateful days Police Rules, 1934 were not, in field, at this juncture when directed to produce Police Rules, 1965. The department Advocate-General and counsel for the respondents No,2 to 24 failed to produce the same.
16. Respondent No,23 Abdul Manaf Inspector, however submitted written answers to the Court query separately, the respondent No,23 almost supported the case of the petitioner, with the additions that he is also sufferer due to irregular promotions by the Departmental Authority etc., which he could not challenge as he was bankrupt and financially weak, hence he also requested that his case may also be reviewed and reconsidered.
' We have heard the learned counsel for the parties at length and learned Advocate-General and also scrutinized the record carefully.
17. Before adverting to the preliminary objections and facts of the case it is also a moot question in the case, whether the seniority list prepared by the then I.G.P. Dated 30-7-1998 could be disturbed by the then Chief Secretary under police rules exercising the supervisory powers and that when it was prepared on the directions of the apex Court dated 23-5-1998.
18. So far as the, objection of limitation is concerned, that the petitioner failed to challenge the seniority/promotion within the stipulated time is immaterial, frivolous, and an objection for the sake of objection. As a matter of fact once a matter has been resolved by the Honourable Supreme Court of Pakistan wherein C.P.L.A. No,48 of 1998, dated 23-4-1998 appeal was very graciously allowed. The chapter of limitation closed forever, as the petition was entertained and the I.-G.P.
Northern Areas was directed by apex Court to reopen the case and to prepare the seniority list afresh as per rules and law.
19. As to second objection that the petitioner was appointed against leave vacancy which was temporary in nature, it is also funny as why the petitioner on the date of appointment against leave vacancy was referred to Medical Officer for fitness certificate and immediately sent for course to Police Training Centre Hangu, following regular promotions in chain till date. It was otherwise the bounden duty of respondents Nos.1 to 3 to produce the original service record, and to show the correct position as onus was on respondents, rather the department requested the Court to ask petitioner for production of original service book. It is highly deplorable to notice that the original service record of the petitioner is missing and the respondents failed to produce the important record, which is moot document for dispensation of justice.
20. Thirdly about the direction of Honourable Supreme Court of Pakistan vide his judgment dated 11-10-2001 in C.P.L.A No,48/2001 that the aggrieved person could seek his remedy from the Civil Court till the establishment of Service Tribunal in the Northern Areas. The respondents in this respect are of the view that the Civil Court mean the trial Court and not the Chief Court, in exercise, of writ jurisdiction. We in this respect differ civil remedy include writ. When no oral evidence or exhaustive enquiry is called for and the matter could be disposed of on available record and documents, the proper forum in such eventuality is writ jurisdiction as it not only save the time factor but heavy expenses of the parties.
21. In our view interpretation of Civil Court on the part of respondents is misconceived approach.
We thus, hold that moving Chief Court was a right step following the guideline, streamlined by the Supreme Court of Pakistan in C.P.L.A. No,48 of 2001.
22. In this situation of the matter when the parties have not properly assisted the Court, even rules and documents referred etc. Could not be made available for assistance. How the Court can adjudge the sensitive matter involving the life long career of the parties.
23. What an irony it is, that both the parties took whimsical and hypothetical stands based on surmises and conjectures. Documents produced from both sides were not authentic nor acceptable to each other, which we can safely gather that because of this irregular practice many officials of the police must be sufferer as, pointed out by respondent No,23 Abdul Manaf that every business of direct appointment and promotion went on in a haphazard manner as per good wishes and whims of the authorities.
24. We therefore accept this petition and grant leave to appeal by remanding back the case to I.G.P. Northern Areas with the directions to look into the matter personally, dig out the proper record of each employee who is affected and claim seniority the seniority list shall be prepared within two months strictly in accordance with the rules and law applicable at that time and while preparing the list, the criteria and justification must be highlighted in black and white, so that the prolonged litigation pending disposal since long be ended once for all and each one who comes within this sphere shall get his due share and be contended.
25. We at this juncture also deem it necessary that the Service Tribunal likewise other special Courts i,e, Anti-Terrorism Court and National Accountability Court shall be constituted for the Government servants of the Northern Areas which is quite remote and backward area and which would also save them from financial restraints.
26. The Chief Secretary, Deputy Chief Executive and Speaker of Northern Areas Legislative Council are directed to take up the matter with the Federal Government on urgent basis.
27. Copy of this judgment shall also be sent to Chief Secretary Northern Areas, Deputy Chief Executive, Speaker of Northern Areas Legislative Council and also to the Secretary Ministry of Law, Justice and Human Rights Division Islamabad and Secretary Kashmir Affairs and Northern Areas Division Islamabad for the needful to be done.
' No order as to cost. File be consigned to record.