QAZI QAMARUDDIN (MEMBER-I).--- This appeal is directed against refusal of out of turn promotion for the gallantry performance exhibited by the appellant being leader of the investigation team duly recommended by D.I.-G. (Investigation-I) and Capital City Police Officer, Karachi. Appellant's two subordinates were awarded with 'out of turn promotion', whereas he (appellant) was denied same benefit. The facts and grounds of the appeal for the purpose of disposal are given as under.
2. That, the appellant was initially appointed as a Constable with Sindh Police at Karachi on 30-1- 1979. Later on gradually and timely on account of his excellent services/duties record, hardwork, undergoing courses of the department was promoted from constable to H.C., A.S.-I. And eventually as Sub-Inspector and as such confirmed. Sub-Inspector on 7-12-2003 and since then he is working with clean record, honestly and punctually.
3. That a boy named Muhammad Abid son of Muhammad Hanif aged about 17 years was kidnapped by unknown accused persons on 19-12-2002 for ransom from the area of Police Station Al-Falah, Karachi East. The kidnappers demanded a ransom of Rs,I2 lac from the father of boy for his release, they also threatened to kill boy, if matter was reported to police; however father of the boy lodged F.I.R. No,225/2002 under section 365-A/34, P.P.C. Read with section 7, A.T.A at Police Station Al-Falah, and appellant was having responsibility of the Investigating Officer at said police station. After F.I.R. Was lodged by the duty officer the investigation of the same was assigned to the appellant. In the capacity of Investigating Officer as Sub-Inspector after relentless efforts with the help of his police officials appellant arrested the kidnapper namely Abdul Ghaffar on 22-12-2002 in a quick move from the area of Preedy at the time of delivery of the ransom money. The arrested kidnapper Abdul Ghaffar was interrogated at the spot during which he disclosed that the kidnapped boy was kept in Bilal Colony Industrial Area by kidnapper's another associate namely Muhammad Rafiq. Hence, appellant arranged another raid which led to the arrest of another kidnapper and safe recovery of the kidnapped boy Muhammad Abid, besides-T.T. Pistol. In this remarkable and well-calculated police action, the appellant not only saved the life of the kidnapped boy but also saved the ransom money of the father of the boy. Subsequently, 2 F.i.Rs, were registered vide F.I.R. No,196/2002 and F.I.R. No,582/2002 under section 13-D, Arms Ordinance at Police Station Preedy and Police Station Korangi Industrial Area.
4. Appellant further assailed that, the credit of this performance goes to him as he, not only arrested the kidnappers in his capacity as Investigating Officer of this case but collected maximum evidence against the accused persons/kidnappers and on the basis of such solid evidence challaned the case before the Anti-Terrorism Court-III, Karachi headed by the honourable Judge Mr. Arshad Noor Khan. Due to the appellant's pursuance and production of the solid evidence during trial, the two kidnappers were convicted with death penalty on 24-2-2003. The trial court also awarded 7 years' R.I. And imposed fine of Rs,25,000 each in Arms Ordinance cases with confiscation of their moveable and immovable property. Kidnapper Abdul Ghaffar, who had also committed sodomy with kidnapped boy was also awarded R.I. For 10 years. (Photocopy of the Judgment placed as Annexure "B").
5. For the reasons as stated above, which are sufficient to determine honesty and bravery of the appellant, he was strongly recommended along with his team by the D.I.-G.P./ADMN. CCPO, Karachi for the promotion to respondent No,3 (PPO, Sindh) vide letter dated 5-6-2004, wherein specific remarks were recorded, for the appellant that "This was a particular and genuine case wherein S.-I.
(appellant) not only busted said gang of kidnappers but also got them successfully convicted with death. Penalty".
6. Two of team members H.C. Muhammad Amin Abbasi and P.C. Waheed Akhtar, who extended assistance to the appellant had been promoted to the rank of A.S.-I. And HC respectively, vide notification dated 28-6-2004 by the CCPO, Karachi, but the appellant is denied same benefit by the respondent No,3, in spite of the fact CCPO, also endorsed the recommendation of D.I.-G.
(Investigation-I) for promotion of the appellant to the rank of Inspector in appreciation of matchless gallantry performance, risk of life and devotion in performing the duty in arresting the kidnappers and got them convicted with death penalty. The respondent No,3 has denied the benefit in the backdrop of the circular issued by PPO, Sindh dated 25-2-2006. Whereas, even after the said letter, a number of cases of out of turn promotion have recently been granted, wherein officers have been promoted to the rank of Inspectors. Some names are, Inspectors Muhammad Naseer Tanoli, Mazhar Iqbal Awan, Ghulam Hussain Korai, Sufyan Malik and Intisar Ahmed.
7. Being aggrieved by the order of the respondent No,3 dated 23-6-2009 on the departmental appeal/representation, hence the instant appeal.
8. Respondent No,3 has filed written statement, whereas respondent No,2 through Additional Advocate-General has submitted to delete his name being unnecessary party, whereas respondent No,1 has adopted written statement of respondent No,3.
9. In the written statement there is no denial of the facts assailed by the appellant in the memo. Of appeal, regarding case F.I.Rs, as mentioned by the appellant, rather facts are duly endorsed, however it is contended that the departmental appeal dated 21-4-2009 has been replied vide letter dated 23-6-2009 that his matter was already filed by the competent authority as communicated in letter bearing No,3171/EII/Insp. Dated 24-5-2006. Regarding para relevant to the recent out of turn promotions of 5 S.-Is. As Inspectors, respondent No,3 has stated that the cases of three S.-Is. Were considered by the Committee on their old performance as well as shown in the years 2008 and 2009 and are approved for the promotion, whereas officer at Serial No,4 was considered for his performance given in 2003. No any Sub-Inspector with the name of Intisar Ahmed was promoted.
10. Advancing the arguments, learned counsel for the appellant asserted that, it is an admitted fact that appellant showed his valor by his brave and gallantry act to apprehend kidnappers in a dramatic move without any fear, taking his life on risk and not only arrested the kidnappers but recovered kidnapped young boy and saved the ransom money. Besides, persuaded the trial court proceedings with all solid evidence, as a result thereof, the culprit kidnappers were convicted to the death sentence, R.I. And fine. For such commendable act D.I.-G. (Investigation-I) and CCPO recommended his case for out of turn promotion along with appellant's two junior team members.
It seems very unfortunate that the two junior subordinates have been bestowed upon with 'out of turn promotion' and the team leader, who led the entire difficult task has been denied the same benefit of promotion. Such type of act of the respondent No,3 is discriminatory and is in violation of the Articles 4, 25 and 26. He vehemently assailed that there are number of cases in addition to 5 Sub-Inspectors as mentioned in memo. Of the appeal, wherein such promotions have also been given to several police officers even after issuance of the circular from the respondent 3 dated 25- 2-2006.
' Learned counsel relied on the Judgment of honourable Supreme Court of Pakistan reported as Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814; wherein it has been held that out of turn promotion to be granted to a particular individual on the basis of his extraordinary and outstanding performance of his duty and exhibiting high standard of intellectual, moral and financial integrity, this criterion alone was to be kept in view while considering the "out of turn promotion". It is a special promotion and has to be given effect to in accordance with its own terms.
11. He further emphasized that the Constitution has provided equality to all State subjects before law and they were entitled to equal protection of law. It is settled principle of law that superior courts would never allow a discriminatory treatment to a citizen of State even through legislation what to talk of an administrative order discriminating employee regarding service benefits without any legal justification.
12. Learned counsel for the appellant has placed number of Judgments relevant to the instant case of the appellant in addition to referred by him (ibid) C.P. No,D-2448 of 2008 Gulzar Ali Khuskh and others v. Province of Sindh and others; 1992 PLC (C.S.) 1029 Muhammad Zafarullah v. Inspector- General of Police, Punjab, Lahore and others; 2005 SCMR 25, Abid Hussain and others v. PIAC and others; 1984 PLC (C.S.) 754 (Service Tribunal Punjab), Mrs. Nasim Habib Shahzada v. Secretary to Government of Punjab, Education Department, Lahore.
13. Learned Additional Advocate-General while repudiating the points pressed by the appellant's counsel, submitted that the appeal is hopelessly time-barred with the department as an old issue of the year 2004 is taken with respondent-Department after 5 years vide his departmental appeal/representation dated 21-4-2009. He asserted that it is laid down principle of the law that, if the departmental appeal is time-barred, it becomes incompetent before the Service Tribunal on this account. Therefore, he prayed to dismiss the appeal.
14. We have heard the parties, perused the material placed before us and the law.
15. Before dilating on the merit of the case, we find appropriate to resolve question of limitation as raised by the learned Additional Advocate-General.
16. Nowhere in the impugned order and in the written statement of the respondent No,3, an issue of time limitation is raised therefore pressing the said issue at this stage is having no substance. It is settled law that when limitation issue is not raised earlier by the authority, the same becomes devoid of force (rel. 1995 PLC (C.S.) 803 (S.C.)), wherein it has been held that if the departmental authority had not dismissed the appeal before it on the point of limitation, as such the Federal Service Tribunal also not competent to dismiss the appeal on the point of limitation. Furthermore, the respondent No,3 has himself admitted in the written statement that the case of one of the Inspectors among 5 promoted was considered on the basis of his performance of the year 2003 (para 9 above).As a result thereof contention of learned Additional Advocate-General is without any force. Besides,. It is settled law that illegal acts remain illegal and do not become legal with afflux of time as such the principle of estoppel or limitation would not apply to the illegal acts. [rel.
Aminuddin Ahmed v. Afzal Shah and others 2000 PLC (C.S.) 166].
17. Keeping into account foregoing discussion, we dismiss the contention of Additional Advocate- General on the point of limitation.
18. On merit after perusal of the appeal, written statement and points raised during the course of arguments an eligibility, for the 'Out of Turn promotion' as claimed by the appellant requires to be assessed by a litmus test having statutory parameters as laid down and as defined by the Superior Judiciary to reach a lawful resolve. It would be appropriate to reproduce section 9-A of the Sindh Civil Servants Act, 1973, which postulates; "(1) ["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 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 or reward in such manner as may be prescribed]."
' There is consensus at both sides, that the appellant has exhibited an act of gallantry while performing his duties as expressed above, and so recommended by D.I.-G. (Investigation-I) and CCPO, Karachi and also admitted in the written statement of respondent No,3. As a result, thereof the conditions as envisaged in section 9-A (ibid) are fulfilled, and in our view appellant qualifies to get the benefit as recommended.
19. The team comprised three officials namely S.-I. Aslam Pervez Bhutta (Appellant), HC-5441 M.
Amin Abbas and PC-2945 Waheed Akhtar. All the three officials were recommended by D.I.-G.
(Investigation-I), Karachi, vide his letter dated 31-3-2003 for the promotion to higher ranks as Inspector, A.S.-I. And HC respectively. The recommendation letter (Annexure "G") is comprehensive and persuasive, elaborating all the facts of the gallantry performance exhibited by the three officials of the Police Department. Subsequently, two officials namely H.C. M. Amin Abbas and P.C.
Waheed Akhtar were promoted as A.S.-I. And H.C. As recommended by D.I.-G. (Investigation-I) vide notification dated 28-4-2004 and the case of IF appellant was forwarded by the CCPO office to respondent 3 (PPO, Sindh) vide two page letter dated 5-6-2004 (Annexure "C") requesting him for the promotion of appellant. Said letter caters commendation cogently explained by the CCPO office. Last two paras of the letter are reproduced hereinunder, having much relevance:--- "This was a particular case wherein S.-I. Aslam Pervez Bhutta not only busted the said gang of kidnappers but also got them successfully convicted with death penalty. HC-5441 Muhammad Amin Abbasi and PC-2945 Waheed Akhtar who extended help to the said S.-I. In the arrest of kidnappers and safe recovery of the boy have been promoted to the rank of A.S.-I. And HC respectively vide this office Notification No,EB/REWARD/36236-41 dated 28-6-2004 (copy enclosed). The CCPO, Karachi has endorsed the recommendation of D.I.- G.P Investigation-I for promotion of S.-I. Aslam Pervez Bhutta to the rank of Inspector in appreciation of his matchless gallantry performance.I am therefore directed to request you to kindly promote S.-I. Islam Pervez Bhutta to the rank of Inspector as a special case in recognition of his exceptional gallantry performance at the risk of life and devotion to duty with which he arrested the kidnappers and got them convicted with death penalty." (Underlining is ours)
' An act of uneven treatment tantamount in terms of discrimination, which is comprehensively defined by law:---
(A) Discrimination is a term used for the distinctive treatment between two individuals or classes entitled to equal right [rel. Dr. Hafiz Ahmed Khan v. Secretary Establishment Division 2000 PLC (C.S.)
553].
(B) Honourable Supreme Court of Pakistan in a reported case Asadullah Mangi v. P.I.A.C. And others 2005 PLC (C.S) 771 held that:--- "Discrimination always involves an element of unfairness and bias and it is in that sense that the expression has to be understood. The factus of bias could not be substantiated by any convincing evidence. A Court of law cannot exercise unfettered or unrestricted powers to administer supposed equity not based on justifiable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants."
' There is plethora of law, wherein Superior Judiciary has time and again laid down the principle and emphasized to eradicate "Discrimination" and to uphold the rule of law. Some more authorities are cited as under:---
(I) Provisions of Article 25 of the Constitution only conveys that persons positioned alike be treated equally in privileges conferred and liabilities imposed. Discrimination within same class of persons is prohibited under Article 25 of the Constitution but reasonable classification is allowed for the purpose of legislation. Test of reasonable classification and distinction among the two sets of people are fulfilled on the basis of intelligible differentia which distinguishes them from those who are grouped together as against from those who left out from their group, and such differentia must have rational nexus to the object sought to be achieved by the statute in scrutiny. [1991 SCMR 1041, PLD 1993 SC 341, 1997 SCMR 641 rel. 2004 YLR 1856(g)].
(II) If a statute would purport to confer absolute unbridled powers upon the executive to pick and choose parties for the purpose of more beneficial or prejudicial treatment. It was liable to be struck down for being repugnant to Article 25 of the Constitution. (2004 CLC 1353(m))
The crux of above discussion is that the action of the respondent .No,3 is discriminatory, and in contradiction to the law.
20. Regarding point raised in the memo. Of appeal for the recent promotions of 5 Sub-Inspectors to the rank of Inspectors, respondent No,3 has contradictory statement while replying in w.s. And in the reply to the letter of CCPO, Karachi. Said letter is reproduced below being relevant; "From ' The Provincial Police Officer, Sindh Karachi.
' To, ' The Additional Inspector-General Capital City Police Officer, Karachi.
' No, 3171 E-II Inspr. Karachi dated 24-5-2006.
' Sub: Out of turn promotion case of S.-I. Aslam Pervaiz Bhutta (K/3150).
' Please refer to your office letter No, EB RFW (78'06)
' Prom 06-20728 dated 29-3-2006 on the subject noted above.
(2) The case of above named S.-I. Has been considered and filed by the competent authority on the grounds that his case pertaining to the year-2002 and recommendation sent to CPO in the year 2004 and documents received on 1-4-2006. As such it is in accordance with the Circular issued by the PPO Sindh, Karachi issued vide No,1166 dated 25-2-2006.
(Sd.)
(Dr. Amir Ahmed Shaikh) AIGP/ESTT. for Provincial Police Officer, Sindh Karachi."
' Whereas in the written statement of same respondent, it is said that; "That the serials 1 to 3 were considered by Committee on their old performance as well as shown in the years 2008 and 2009 and approved for promotion, whereas officer at Serial No,4 was considered for his performance given in 2003. No any Sub-Inspector with the name of Intisar Ahmed was promoted" (Underlining is ours)
' This statement of the respondent 3 is contradictory to what has already been stated in the letter of 24-5-2006 (ibid) as if the case of S.-I. Muhammad Sufyan Malik is granted for out of turn promotion on the performance of year 2003, vide order of PPO, Sindh office dated 4-3- 2009, then what was the difficulty to do so in the case of appellant to grant him promotion as recommended.
As a result thereof, the contention of respondent No,3 in the letter (supra) is without force and not sustainable in the eyes of law.
21. Before parting the judgment, we feel it appropriate to discuss the jurisdiction of this Tribunal regarding such cases of out of turn promotion. The honourable Supreme Court of Pakistan in an appeal case of The Chief Secretary, Government of Punjab v. Raja Mumtaz Ahmed, Superintendent of Police, CIA Staff, Rawalpindi 1996 SCMR 1945 while dismissing the appeal against the judgment of the Punjab Service Tribunal, Lahore has held that:--- "(5) It is not denied that the respondent was granted out of turn promotion because of his act distinguished and outstanding performance relating to busting of racket dealing in foreign exchange. He therefore, legitimately claimed his promotion with effect from the back date when he was recommended through a D.O. Letter referred to above. The Tribunal has taken into consideration the fact that in cases of officers mentioned in the memo. Of appeal and in 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 dates of gallantry. The Tribunal has in those cases repelled the same contention 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 promotions."
22. Same principle was followed in Appeal No,139 of 2001 of Moula Bux v. Government of Sindh and 3 others while allowing the appeal decided on 4-3-2003, by this Tribunal and also recently decided Service Appeal of Mumtaz Soomro v. Government of Sindh in Appeal No,65 of 2009. The fitness for promotion is encompassed with terms and conditions of the civil servants, so falls under the jurisdiction of the Service Tribunal. Honourable Sindh High Court, Karachi in a reported case Talat Qamar v. Zafar Iqbal, Collector Customs (Preventive) and 3 others 2002 PLC (C.S.) 1506 has held that:-- "(23) Condition of eligibility implies a qualification of a Civil Servant to higher post is dealt with under section 9-A of the Civil Servants Act, 1973.. It is settled law that criteria either for appointment or promotion are eligibility and fitness at the same time. In M. Rahim Khan v. Chief Secretary N.- W.F.P. (1999 SCMR 1605=1999 PLC (C.S.) 1368) it was held by the apex court that:-- "Concept of eligibility implies a qualification to be appointed or promoted, whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion. This test for eligibility is objective and open to scrutiny by a judicial forum i.e, Service Tribunal."
"By now it has been settled principle of the law, that the dispute as to whether a civil servant is qualified for promotion to next higher grade, being relatable' to terms and conditions of his service falls within exclusive jurisdiction of Service Tribunal. [rel. PLD 1994 SC 345 in case of Syed Badaruddin and 10 others v. Government of N.-W.F.P. Through Agriculture Forest and Cooperative, Peshawar and 11 others; and. 1996 SCMR 1945].
23. The upshot of the above discussion is that, the appellant is meted out with discriminatory treatment by the respondents. He deserves to be awarded with out of turn promotion to the rank of Inspector, as given to his subordinate team members duly recommended by D.1.-G.I(Investigation- I) and CCPO, Karachi. Order accordingly.
24. Appeal is allowed in the above terms. There shall be no order as to cost.
25. Announced in the open court by us on this day of Wednesday the 31st March, 2010.