' ARSHAD BIN AHMAD (MEMBER-III).--- Through the instant appeal, the appellant Zia-ud-Din, Inspector No,L/565 of Punjab Police has impugned the order, dated 7-7-2006 passed by the Inspector-General of Police, Punjab/respondent No,1 wherein it was held that, since the appellant did not fulfil the condition regarding experience as Station House Officer for two years and in the Investigation Branch for one year which are mandatory for promotion to the rank of Deputy Superintendent of Police as per policy memorandum, dated 16-11-2005 issued by the said respondent No,1, therefore, he was rightly deferred and hence his representation, dated 7-12-2005 was filed. The background of the instant appeal is that the appellant who is an Inspector in the Special Branch was not considered for promotion as Deputy Superintendent of Police ostensibly on the grounds that, he was far too junior in the list of Inspectors having been placed at Serial No,441 in the seniority list of confirmed Inspectors notified on 25-4-2005. The Departmental Promotion Committee held 3 meetings on 30-4-2005, 5-5-2005 and 13-8-2005 but it considered Inspectors upto Serial No,359 of the seniority list. Subsequently, on being granted ante-dated promotion as Sub-Inspector from 16-8-1984 and as confirmed Inspector from 3-11-1986 appellant moved up in seniority. He preferred a representation before the respondent No,1 on 7-12-2005 for regular promotion as Deputy Superintendent of Police with effect from 13-8-2005 i,e, the date when his next junior Inspector, Khalid Mateen (respondent No,3) was so promoted. A D.P.C. Meeting was stated to be held on 25-5-2006 which considered the promotion cases of Inspectors to D.S.P. On the new criteria set out in the aforesaid policy memorandum, dated 16-11-2005. The appellant's case was also considered by the said D.P.C. And was deferred on the grounds that, he did not meet the criteria of two years experience as S.H.O. And one year in Investigation Branch. The representation filed by the appellant was accordingly filed by respondent No,
1. Hence this appeal.
' Learned counsel for the appellant, relating the background of the ante-dated promotion granted to the appellant contended that, as a result of the ante-dated promotion as Sub-Inspector and Inspector, he had become senior to Khalid Mateen Inspector/respondent No,3 which was not disputed even by the respondents. However, his deferment under the new criteria was contradictory to the Punjab Deputy Superintendents of Police Service Rules, 1979 as amended by the Government of the Punjab, Services and General Administration Department vide its Notification No,SOR-III-1-22/2003, dated 25-1-2004. It was contended that in the aforementioned rules no such condition as mentioned above was laid down. It was argued that the Inspector- General of Police/ respondent No,1 had no authority under any law to issue any regulations in the presence of the aforesaid Rules of 1979 (amended). In this regard, the counsel, produced a copy of the judgment passed by the Honourable Lahore High Court, Lahore on 13-12-2006 in Writ Petition No,5870 of 2006 whereby the Honourable High Court inter alia accepting the petition struck down the aforesaid policy memorandum, dated 16-11-2005.
' Reliance was also placed on 2006 SCMR 1240, 2007 PLC (C.S.) 208, 2005 SCMR 675, 2002 PLC (C.S.)
1279 in support of these contentions.
3 The respondents through learned District Attorney opposed the contentions raised saying that the said memorandum, dated 16-11-2005 issued by respondent No,1 was valid and that it was issued in accordance with the powers conferred under Article 10(3) of the Police Order, 2000. It was further contended that the impugned memorandum was essential for the smooth and efficient functioning of police force in the Province. He could not however, controvert or deny the overriding effect of the Notification regarding the service rules for D.S.P. Referred above framed under section 23 of the Civil Servants Act, 1974 over the aforesaid policy memorandum.
4. Heard both parties in detail and perused the record. There is hardly any doubt left after the decision of the Lahore High Court, Lahore. It would be appropriate to quote the relevant extract of the judgment here as under:--- "There can be no escape from the fact that statutory rules i,e, Punjab D.S.P. Service Rules, 1979 are in force to determine the eligibility of the persons to be considered for promotion. The only question requiring adjudication in this case is whether said rules could be added to or conditions therein varied by issuance of policy memorandum by respondent No,l. Similar issue came for consideration before this Court and a Division Bench dealing therewith in I.C.A. No,194 of 2006 held as under: ' At this juncture we may add that the learned single Bench has held that "the impugned Standing Order is neither approved by the Provincial Government nor notified in the official gazette (and) consequently, it does not have the status of rules conferred by Article 112 of the Police Order upon an instrument issued by the Provincial Police Officer having such attributes". We are in agreement with this observation and also note that the respondents have neither challenged this finding and nor any argument has been advanced against it on their behalf.
' From the facts of the case, it is clear and obvious that impugned policy memorandum is not even the Standing Order. And in the light of the aforesaid judgment of the Division Bench of this Court referred to above, said policy memorandum must give way to the statutory rules which are issued with the prior approval of the Government and are duly notified."
' It was also found that the appellant completed advance course mandatory for promotion as D.S.P.
As required under the amended rules (ibid). This fact has also been acknowledged by the respondent No,1 in his parawise comments. Neither the respondent could produce any order passed by apex Court against the order of the Lahore High Court nor did they bring anything else to support their arguments. It is, therefore, held that the appellant who has regained his seniority as Inspector Police on the basis of ante-dated promotion already granted to him, stands senior to the respondent No,3 and, therefore, is entitled to be promoted as Deputy Superintendent in accordance with the Punjab Deputy Superintendents of Police Service Rules, 1979 (as amended) as held by the Honourable Lahore High Court in its aforementioned judgment.
5. In view of the foregoing, the impugned order, dated 7-7-2006 passed by respondent No,1 is set aside with the direction to consider expeditiously, the appellant for promotion to the rank of Deputy Superintendent of Police from the date of promotion of his next junior i,e, Khalid Mateen in accordance with the criteria laid down in the Service Rules (ibid) and in accordance with the para.2 of Pro forma Promotion Policy of the Government of the Punjab Notified vide No,SOR- III(S&GAD)2-59/78, dated 19-4-2003. Parties to bear their own cost. Consigned to record.