' SHAHID ANWAR BAJWA, J.--- Factual contest of this petition is that when the first Motorway, M-2, between Islamabad and Lahore, was about to be inaugurated, a summary was put up before the Prime Minister on or about April 15, 1997 for establishment of Motorway Police and regarding manpower, training and budget, it was inter alia, stated in that summary that "considering the time constraint it is proposed to initially take police officers on deputation from the Provinces and Islamabad Capital Territory for a period of 2 to 3 years. Criteria for selection included physical fitness, age limits and unblemished service record. In deserving cases one stage promotion would be considered."(underlining added). Subsequently in 2001 jurisdiction of the Motorway Police was extended to National Highways and force was, re-designated as National Highway and Motorway Police. Respondent Nos.6 to 268 were working in police departments under various Provincial Governments and in certain cases in Islamabad Capital territory and by giving one step promotion were taken on deputation basis in the Motorway, Police as Senior Patrol Officers in BPS-16. The petitioners were directly taken in employment as Senior Petrol Officers in BPS-16 after due advertisement and after going through the selection process in 2001. Although private respondents were taken in the Motorway Police as deputationists from their parent departments, after selection by an Induction Committee, they were promoted at the time of being taken as deputationists and thereafter, after lapse of a few years, they were absorbed in the employment of National Highway and Motorway Police. Question that has arisen is regarding inter se seniority between the petitioners who were directly taken in employments as S.P.Os. And the private respondents who came on deputation, were promoted and subsequently absorbed in National Highway and Motorway Police. In order to settle the question of seniority a number of writ petitions were filed in the Lahore High Court and the following order was passed on 21.3.2007:--- "This order shall dispose of Writ Petitions Nos.1183, 1184, 1185, 1186, 1187 and 1524 of 2005 because identical question of law and facts are involved in all the cases.
(2) Learned Standing counsel has placed on record summary circulated to all concerned vide letter No,NH&MP43(11)/06/EA dated 17th July, 2006 by Inspector-General of Police National Highways and Motorway Police, Islamabad. On instructions of DSP (Legal) learned Standing counsel states that seniority of the petitioners shall be considered in accordance with the Esta Code Chapter-H. Serial No, 204 page No,197 Edition 2003 which provides; fundamental rules regarding the seniority of officers inducted into civil cadres which shall be based on the following considerations:---
(i) the date of induction of the officer:
(ii) the grade in which he is initially inducted:
(iii) his seniority in that particular grade in which he is inducted, is fixed with reference to his date of induction, and
(iv) his seniority in his original service to which he belonged becomes irrelevant after he has been inducted into a civil cadre with effect from a particular date.
(2) It has been decided that the criteria to determine the seniority while inducting the police officers shall be as under:---
(a) Date of joining in NH&MP in a particular rank.
(b) Ranks in Parent Department.
(c) Date of Promotion in Parent Department.
(d) Date of Birth.
(3) Officiating officials shall be treated as confirmed after .They complete three years service in a particular rank from the date of their promotion on officiating basis. The petitioners shall be promoted according to their policy contained in the above said summary.
(4) The petitioners state that their grievance has been redressed. This writ petition has borne fruit.
Disposed of as such."
2. After this order was passed, on 27-3-2007 a seniority list of senior Patrol Officers BPS-16 was circulated by the Inspector-General of Police, National Highway and Motorway Police. The last para of covering letter of the list reads as under:--- "(2) It is requested that this Seniority List of SPOs may kindly be circulated amongst all concerned Senior Patrol Officers presently serving under your administrative control and the objections regarding entries, if any, may kindly be sent to this office within 15 days i.e, up to 12-4-2007. If no objection is received in this office within stipulated time, the entries mentioned in the seniority list will be considered as final/correct." (underlining supplied).
3. Various objections were filed. It is the case of the petitioners that they had filed objections and no decision was communicated to them. In this regard it is stated in Para-10 of the petition that the petitioners filed their objections against the Seniority List circulated vide letter dated 27-3-2007. It was also stated that one of the copies of the objections (by petitioner No,16) is enclosed. It is stated by the respondents that the objections were decided and they enclosed a letter dated 7-10-2007 which letter evidences that the objections raised by petitioner No,1 were rejected. It is stated by the learned counsel for petitioner that this letter was never communicated to the petitioner. On 24-6- 2010 learned D.A.-G. Was directed to file final Seniority List of SPOs. D.A.-G. Filed copy of letter dated March 27, 2007 along with Seniority List circulated with that letter. Last para from that covering letter has been already reproduced above.
4. Some of the persons similarly placed as the petitioners approached the Federal Service Tribunal and their appeals were dismissed by the Federal Service Tribunal vide judgment dated 13-5-2010. A perusal of that judgment reveals that the grievance expressed in that appeal was against promotion of private respondents therein, who incidentally, and substantially, are the same as private respondents in this petition. However none of the present petitioners was appellant before the Federal Service Tribunal. Seniority List dated 27-3-2007 was referred to. Since this list was prepared keeping in view the order passed by the Single Judge of Lahore High Court on 21-7-2008 it was argued by the appellant before Federal Service Tribunal that judgment was per incuriam.
This aspect was not accepted by the Service Tribunal and it was held by the Service Tribunal that all are bound by the order of the High Court and reliance in this regard was placed by the Service Tribunal on Hameed Akhtar Niazi's case 1995 SCMR 1185 and finally the Service Tribunal concluded as under:--- "(6) Similar question had arisen in Appeal No,338(R)CS of 2003 and 715(R)CS of 2008. Appeal No,338(R)CS of 2003 was decided on 18-2-2009 by a Bench comprising Mr. Zaheer Ahmed and Mr. Ismail Hassan Niazi whereas Appeal No,715(R)CS of 2008 was decided on 7-1-2010 by a Bench comprising Syed Bilal Ahmed and one of us Mr. Farrakh Qayyum. In both the judgments of the Federal Service Tribunal it was held that seniority fixed under the order of the Lahore High Court in the light of relevant provisions of Esta Code could not be disturbed. The respondents are thus armed with judgment of the Lahore High Court and the aforementioned judgments of the FST. In the presence of these judgments no relief can be given to the applicants. It may be mentioned here that the judgment of the Tribunal dated 18-2-2009 passed in Appeal No,338(R)CS of 2003 has been upheld by the honourable Supreme Court of Pakistan vide its Order dated 19-2-2010 passed in Civil Petition No,513 of 2009 and C.M.A. No,2168 of 2009. The relevant paras of the Order are reproduced:- "(2) Learned counsel for the petitioner submits that while dismissing the appear, the learned Service Tribunal did not consider the effect of Rule 4(b) of the Civil Servants (Seniority) Rules, 1993, and that the impugned judgment on that score is not sustainable.
(3) Having heard learned counsel for the petitioner at some length, we are of the view that the Rule to which learned counsel has made reference has no relevance with the instant case as the said Rule pertains to inter se seniority of those who joined the organization in one batch. Learned Service Tribunal while dismissing the appeal, considered the seniority position of the petitioner and he said criteria has not been found by us to be against the law or rules. That being so the impugned judgment is unexceptionable. Finding no merit in the petition, it is dismissed and leave refused."
' The honourable Supreme Court has confirmed the findings of the Federal Service Tribunal that parameters for the promotion of the employees of National Highways and Motorways Police were correctly fixed by the High Court were in accordance with Esta Code. Thus there are many judgments of the FST and the honourable Supreme Court which go against the applicants.
(7) For the above reasons, we find no merit in the appeals which are hereby dismissed."
5. Appeal against similar promotions was decided by the Federal Service Tribunal in another appeal and matter was taken to the Supreme Court and the Supreme Court dismissed the C.P.L.A..
Entire order of the Supreme Court has been reproduced in the order of the Federal Service Tribunal quoted above.
6. Learned counsel for the petitioner made the following submissions:---
(1) The petitioners were taken on deputation. They were taken a step higher and were then subsequently absorbed. It is essential that D.P.C. Be held for promotion and promotion could only be given to a person who is already in employment or has already been absorbed and not to a person who is on deputation.
(2) Seniority List circulated vide letter dated 27-3-2007 is a tentative Seniority List. Objections were raised in respect of the seniority list and no decision on the objections has been communicated. In any case, it is admitted by the official respondents that objections were received and no document has been placed on record evidencing that final seniority list was ever circulated.
(3) Since criteria for promotion in Grade 2 to 18 is seniority-cum fitness, no promotion could be made without determining the seniority in the first place and since the private respondents having been promoted without preparation of final seniority list, their promotion is without lawful authority and of no legal effect.
(4) Seniority under the law is to be reckoned from the date of regular appointment. The private respondents were on deputation and their appointment would become regular with effect from the date of absorption and it is only thereafter that D.P.C. Could be held and they could be promoted.
(5) Learned counsel referred to Rule 3(3) of the Civil Servants (Appointment, Promotion & Transfer)
Rules, 1973 (hereinafter referred to as the Rule of 1973), and other provisions of Rule 3 to contend that unless a person is declared as surplus he could not be absorbed in another organization and therefore unless a person has become surplus there could not be any question of his being absorbed.
(6) Learned counsel also referred to Rule 9 of the Rules of 1973 to contend that appointment by transfer can only be made in the same grade in which a person had been before such transfer.
(7) Learned counsel referred to rule 7 of the Rules of 1973 and contended that without holding DPC no promotion can be awarded to a Civil Servant. Learned counsel relied, upon Secretary to Government of The Punjab, Education Department, Tahore v. Mrs. Kishwar Aslam and others PLD 1997 SC 578 and Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185.
(8) Seniority can only be assigned from the date of regular appointment and the private respondents can become regular employees only after they are absorbed and it is only thereafter that DPC can be held and they can be promoted. Learned counsel in this regard referred to Muhammad Yousuf and 4 others v. Abdul Rashid and Others 1996 SCMR 1297.
(9) Although in exercise of powers under Rule 3 of the Rules of 1973 qualifications were laid down in respect of various posts in the National Highway and Motorway Police vide notification dated 26-2- 2007 but firstly the notification is prospective in operation and secondly under the notification as far as Senior Patrol Officers are concerned, only 60% are to be appointed by promotion while 40% are to be on deputation basis.
(10)Regarding maintainability of the petition in view of the position that question involves seniority, learned counsel submitted that firstly no final seniority list has been issued and he could approach the Service Tribunal only and only after final seniority list has been issued and not before that. In this regard learned counsel relied upon S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and unreported judgment of this Court in Wali Muhammad Khan Warsi and others v. Government of Sindh and others Constitution Petition No,1077 of 1990 decided on 7-5-1995.
Learned counsel further submitted that in the writ the has also sought a relief in the nature of quo warranto and in the case of quo warranto only three things are to be seen: the competence of the competent authority which appointed the person; qualification of the person appointed qua qualification laid down by the law and the rules and third whether the procedure prescribed in law was followed or not. Learned counsel further submitted that a writ petition in the nature of quo warranto cannot be issued by the Service Tribunal and the Tribunal cannot grant relief to that effect.
7. Mr. Muhammad Nawaz Shaikh, learned counsel for the respondents submitted that moot question involved in the petition is seniority and seniority is one of the terms and conditions of employment and jurisdiction of this Court is barred by Article 212 as exclusive jurisdiction vests in the Service Tribunal. Learned counsel relied upon Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer Muhammad v. Government of Balochistan, through Chief Secretary and others 2007 SCMR 54; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S.)
120. Mr. Munsif Jan, who appeared for some of the private respondents, adopted arguments of Mr. Muhammad Nawaz Shaikh.
8. Mr. Mian Khan Malik, learned D.A.-G. Submitted that Motorway Police was established under a summary approved by the Prime Minister of Pakistan. He admitted that all the persons from Provincial Police Department and Islamabad Capital Territory who were taken on deputation were taken a step higher than the post in which they were serving in their parent departments at the time of deputation. He submitted that a proper Induction Committee scrutinized all the cases and that Induction Committee can be, and should be treated at the same footing as Departmental Promotion Committee. Learned counsel further submitted that question regarding seniority cannot be gone into by High Court. Learned counsel relied upon Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297, Fasihuddin Siddiqui and 7 others v. Government of Pakistan and others 1998 SCMR 637. He also submitted that as far as the petitioners are concerned they were considered for promotion after they had completed five years of service and were promoted to BPS-17 as Chief Patrol Officers.
9. Both Mr. Muhammad Nawaz Shaikh and Mr. Munsif Jan, strenuously emphasized that the private respondents came in employment in 1997 and so much water has passed under the bridges over the years, that it would create resentment if at this stage questions touching their initial induction are decided.
10. We have considered the submissions made by the learned counsel and have gone through the record as well as the case-law cited at the bar.
11. In the petition principally the following two prayers have been made:-- "(A) That the official respondents be directed to prepare and issue final seniority list of Senior Patrol Officers (BPS-16) in accordance with. Rule 3(3), Rule 7 and Rule 9 of Civil Servants (Appointment, Promotion and Transfer) Rules 1973, read with section 8 of the Civil Servants Act, 1973 read with Rule 4 of Civil Servant (Seniority) Rules, 1993 read with departmental Rules pertaining to seniority.
(B) That the private respondents be called upon to show as to under what authority of law they are holding the posts of Senior Patrol Officer (BPS-16) and in case of their failure to show the legal authority, their appointments be declared as illegal, void ab initio with the direction that they be ceased to hold the office from the date of their failure to show the lawful authority."
12. We will first discuss question of maintainability of the petition. It was strenuously argued by the respondents and D.A.-G. That essentially the petition involves a question relating to seniority and therefore it was their contention that jurisdiction of this Court is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan. There is no manner of doubt that seniority is always one of the terms and conditions of employment. It is not disputed by any of the parties that both the petitioners and the answering respondents are in the service of Pakistan as well as are Civil Servant as defined in section 2(b) of the Civil Servants Act, 1973. The law is so well-settled on the point that seniority is one of the terms and conditions of service and therefore is within exclusive jurisdiction of Service Tribunal that it does not need any authority. One may refer to Khalid v. Dr. Farzana and others 2001 PLC (C.S.) 1239 and Dr. Rehman Ibad Khan v. Employees Old Age Benefits Institution and 3 others 2002 PLC (C.S.) 2032. Learned counsel for the answering respondents relied on Dr. Mir Alam Jan's case (supra). The question involved in the reported case was regarding an appointment in Lady Reading Hospital and question at issue was of seniority between petitioner in the High Court on the one hand and respondent on the other hand and the Supreme Court observed that "in exercise of constitutional jurisdiction, the High Court was not expected to perform functions of selection Authority in service matters so as to substitute its opinion for that of a competent authority." In Khalid Mahmood Wattoo's case (supra) a Joint Director Labour of Punjab applied to the Federal Government for being posted on deputation as Community Welfare Attached. He was recommended both by the Ministry as well as Selection Board. Prime Minister ordered that two posts from Punjab be allocated to the Province of Balochistan and Sindh and it was this particular decision that was challenged the writ petition. The Supreme Court held that in question of terms and conditions of employment writ petition would not be maintainable. In Peer Muhammad's case (supra) it was contended that posting of respondent against post of Director- General, Agricultural Extension Balochistan has been made in violation of the Agricultural Service Rules. Supreme Court held that in such a situation, the High Court did not have jurisdiction as its jurisdiction was barred by Article 212 of the Constitution of the Islamic Republic of Pakistan. In Ghulam Muhammad Mallah's case (supra) the matter related to transfer and posting of 200 School Teachers and it was held by a Division Bench of this Court that this related to terms and conditions of employment of a Civil Servant and the petition was held not maintainable. The petitioner in that case was working as Superintendent in BS-16. Seniority list was issued where he was shown junior to private respondents. After exhausting departmental remedy the appeal was filed before Service Tribunal which was dismissed. Tribunal dismissed the appeal because it came to the conclusion that seniority list was issue in consequence of a view taken by the Supreme Court. The Supreme Court dismissed C .P.L. A.
13. On the other hand, learned counsel for the petitioners relied on S.H.M. Rizvi's case (supra). In this case firstly section 4(1) of the Service Tribunal Act was reproduced. Thereafter the Supreme Court observed as under:--- "Right of appeal has been conferred by subsection (1) of section 4 only against a "final order whether original or appellate." A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words "whether original or appellate" in the enacted law itself."
14. Mr. Nawaz Shaikh was quick in pointing out that the word final used in section 4 of the Service Tribunals Act was deleted by the Amending Act of 1997 with the result that now the position is that order whether original or appellate can be challenged in appeal before the Service Tribunal and it need not be final order. This he stated in response to the contention of Mr. M.M. Aqil Awan that seniority list circulated alongwith the letter dated 27-3-2007 is not the final list but is only a proposed list and therefore in terms of S.H.M. Rizvi's case (supra) it could not have been challenged in appeal before the Service Tribunal. So it was contended by Mr. Awan.
15. The effect of deletion of word final came up for consideration before the honourable Supreme Court in case of Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 PLC (C.S.) 409 effect of deletion of the word 'final' from clause (1) of section 4 of the Service Tribunals Act was examined by the honourable Supreme Court and it was observed as under:--- "(5) Placing reliance on the omission of the word 'final' from. Section 4, it has been vehemently contended before us that the object of introducing amendment was to make even an interim order appealable before the Service Tribunal and, therefore, the show-cause notices issued to the appellants amounted to order because the same had been issued after conscious application of mind by the competent Authority having decided to proceed against the appellants under the Service Regulations and as such the order was within the contemplation of section 4 after its amendment and, therefore, the appeals filed by the appellants were maintainable. It may be stated here that before 10-6-1997, the Civil Servants Act and the Service Tribunals Act governed the civil servants as defined n the Civil Servants Act and only they could have recourse to the remedy to knock the door of the Tribunal for the enforcement of terms and conditions of their service. A large number of statutory bodies and corporations are controlled and managed by the Government of Pakistan and their employees fell outside the pale of the Civil Servants Act and the Service Tribunals Act. With a view to provide a remedy to such employees the amendment was introduced so as to provide a remedy to such employees to seek the redress of their grievance for enforcement of terms and conditions of their service. Alongwith such amendment, section 4, as already stated, was also amended and the word 'final' was omitted meaning thereby that any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, could file an appeal. The crucial question arising for determination is whether after the omission of the word 'final' from section 4 of the Service Tribunals Act, all orders whatever their nature may be, are appealable or not. In this behalf, it may be stated here that the "order" within the meaning of the Service Tribunals Act has to be interpreted and has to be confined within the four-corners of the Civil Servants Act and the Service Tribunals Act and an appeal against an order is relatable to the terms and conditions of a civil servant. In this context, it is to be seen that if a civil servant like the appellants is being proceeded for disciplinary action, then what type of orders can be issued or passed by a competent Authority. The answer to these questions has been elaborately dealt with by the Tribunal. In such proceedings, as rightly observed by the Tribunal, the following orders are to be passed within the contemplation of the rules governing disciplinary action:
(1) Appointment of Inquiry Officer or Committee.
(2) Show-cause notice.
(3) Framing of charge-sheet,
(4) Preparation of statement of allegations.
(5) Second show-cause notice.
(6) Appointment of authorized officer.
(7) Decision of the authorized officer whether inquiry should be conducted by the Inquiry Officer or a Committee.
(8) Decision of the authorized officer not to hold an inquiry by an Inquiry Officer or a Committee.
(9) Information to the officer about the action proposed to be taken.
(10) Adjournment during any proceedings.
(11) View of the Inquiry Officer or Committee that the officer was hampering the progress of inquiry.
(12) Various other steps to complete an inquiry.
' In our view, the Tribunal rightly observed that if in the light of the amendment in section 4 of the Service Tribunals Act, appeals were maintainable against all the above-noted orders, then it would be an endless inquiry and no inquiry could reach its logical conclusion. In this behalf, it may be stated. Here that while interpreting a provision of statute or rules, such interpretation is not to be placed, which would render the object of the statute or rules as futile or which in other words would frustrate the very object of the statute or the rules.
However, we may further add that it will depend upon the nature of each order as to whether appeal against such order is maintainable or not because the abovementioned situations deal with procedural matters. The questions of mala fides and coram non judice, would stand on a different footing.
(6) We may further add here that right of appeal is a statutory right and is conferred upon the person aggrieved and the statutes conferring such right also define its scope. No extraneous consideration or matter can be imported in the relevant statute so as to abridge or enlarge scope of appeal. The omission of the word "final" from section 4 of the Service Tribunals Act does not enlarge the scope of the appeal as envisaged by section 4 of the Act." (emphasis supplied)
16. Therefore it appears that effect of deletion of word 'final' from section 4 of the Service Tribunals Act, does not have effect of making each and every step taken by the competent authority as challengeable under section 4 of the Service Tribunals Act. If that was so an order appointing an Inquiry Officer would be challengeable; an order of adjournment by Inquiry Officer would be challengeable; an order of change of Inquiry Officer would be challengeable; entertainment of objections to provisional seniority list would be challengeable; decision on each objection would be separately challengeable and there would be no end to it. Even order to issue provisional seniority list (before the actual list is issued) would be challengeable. No interpretation can be placed on legislation for creating such absurdities. What is challengeable must be an 'order' in some sense of the word. Black's Law Dictionary defines the word 'order' in the following words:--- "Order. A mandate; precept; command or direction authoritatively given; rule or regulation. Brady v.
Interstate Commerce Commission, D.C.W. Va., 43 F.2d 847, 850. Direction of a Court or Judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings."
17. In Judicial Dictionary by K.J. AIYAR 13th Edition the following is said about word order:- "Order' as a noun, has been held equivalent to or synonymous with 'decision' [see 26 CJS, 767, Note 72; 'regulation', 'rule', `resolution', 'shipment' and 'warrant', as has been compared with, distinguished from, 'regulation' and 'warrant]
18. Therefore, in order to constitute and "order" for the purpose of section 4 of the Service Tribunal Act, an order is an official and authentic decision which may not be absolutely final but which must have shade of finality, or some semblance of it. When the competent authority itself is saying that what it is put forth is not final because it is subject to objections and decision thereon. Putting forth of such a document by the competent authority cannot be said to be an order which could be challenged in proceedings under section 4 of the Service Tribunal Act. At most it would be a tentative opinion, a proposal or even a trial balloon, because the matter is still being considered at least there is clear indication that the competent authority has till then not reached a definite decision.
19. As quoted above, the letter dated 27-3-2007 itself invites objections regarding entries and then it says if no objection is received within stipulated time the entries made in the seniority list would be considered as final. It is every-one's case that objections were filed. It is contended by the petitioners that each one of them filed objections and such a contention is specifically made by them in para 10 of the petition. With the comments filed by the department reply given to one of the petitioners has been annexed. There is no statement that only one person filed the objections.
Therefore, the record indicates that many objections were received. Assuming for the sake of arguments that all these objections were decided and all the petitioners were communicated the decision, the question would still be as to how would a particular petitioner come to know that all the objections have been decided and the seniority list is now final. It could not also be lost sight of that it is stated in the letter dated 27-3-2007 that "if no objection is received" then the seniority list will be treated final. Certainly objections were received. Therefore in any case seniority list dated 27-3-2007 cannot be considered to be the final list and therefore it cannot be clothed with the mantle of "order" within contemplation of section 4 of the Service Tribunals Act, 1973. It is conceded by the respondents that after issuance of letter dated 27-3-2007 no letter declaring that seniority list dated 27-3-2007 is now final has been issued. Therefore in our opinion, no final seniority list has been issued so far by the departmental authorities. List circulated with letter dated 27-3-2007 is merely a proposal or loud thinking and not an order. When there is no final seniority list issued obviously the petitioners cannot approach the Service Tribunal. Therefore, in the circumstances, jurisdiction of this Court is not barred by Article 212 of the Constitution. This constitutional petition is therefore held to be maintainable.
20. Judgment .Of Service Tribunal (dated 13-5-2010) does not reveal that question that no final seniority list has been issued, was decided by the Tribunal. The Tribunal merely proceeded on the basis that following the order passed by an honourable Single Bench of Lahore High Court on 21-3- 2007 Seniority List has been issued. A perusal of order of High Court indicates that on 21-3-2007 the High Court ordered that seniority list be prepared and issued. Thereafter the proposed seniority list was issued on 27-3-2010. Because it invited objections and stated that if no objection is received only then seniority list would be final, Seniority list has never been finalized and no final seniority list has been issued so far. We therefore direct the respondent No,3 to issue final Seniority List within a period of four weeks of the date of this judgment.
21. Before we come to the second prayer it may be advantageous to recapitulate the essential facts: (1) private respondents were serving in various provincial police establishments and in some cases in Islamabad Capital territory; (2) summary was approved by the Prime Minister on 15-4- 1997 for posting on deputation police officer from Provinces and Islamabad Capital territory for a period of 2 to 3 years; (3) it was stated in the summary that in deserving cases one step promotion would be considered; (4) the petitioners were taken on deputation and promoted at the same time; (5) an Induction Committee scrutinized all candidates; (6) after sometime the petitioners were absorbed in the employments of National Highway and Motorway Police with retrospective effect i.e, with effect from the date of induction on deputation basis.
22. Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 provides as under:--- "3. ( 1) Appointment to posts shall be made by any of the following methods, namely:--
(a) by promotion in accordance with Part-II of these Rules;
(b) by transfer in accordance with Part-II of these Rules; and
(c) by initial appointment in accordance with Part-III of these Rules.
(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division.
(3) Notwithstanding anything contained in sub-rule
(1) or the method of appointment laid down in the recruitment rules, a person who is rendered surplus as a result of the reorganization or abolition of a Division, Department, Office or permanent post in pursuance of any Government decision or as a measure of economy may be appointed to a post in the basic pay scale to which he belonged, if he possesses the qualifications, and fulfills other conditions, applicable to that post.
23. As far as promotions and transfers are concerned Rule 7 of the same rules provides as under:-- - "(7) Promotions and transfer to posts in basic pay scales 2 to 18 and equivalent shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfer to posts in basic pay scales 19 to 21 and equivalent shall be made on the recommendation of the Selection Boards.
7-A.(1) The Competent Authority may approve the promotion of an officer or official from the date on which the recommendation of the Central Selection Board, or, as the case may be, the Departmental Promotion Committee was made.
24. Reading of these rules indicates that it is essential for every promotion and every appointment by promotion that there be a Departmental Promotion Committee. Contention of the learned counsel for the private respondents that Induction Committee be treated in place of Selection Committee cannot be accepted for three reasons; firstly, the mandate of Induction Committee is different from that of Departmental Promotion Committee; secondly, no material whatsoever has been placed on record that the competent authority at that time conferred the powers of D.P.C. On Induction Committee and thirdly the Departmental Committee is always in respect of the employees in that department and not in respect of employees in other departments. It cannot be lost sight of that present private respondents came on deputation to Motorway and National Highway Police. Therefore, they were essentially and continued to be employees of respective provincial police departments or the police in Islamabad Capital territory. Having come on deputation, thereafter decision to absorb them could have been and it is only thereafter that, in accordance to the mandate given by the Prime Minister, that deserving cases could be considered for promotion. Therefore sequence should have been deputation followed by absorption followed by D.P.C. Followed by promotion in deserving cases. What department did was promotion and deputation occurring at the same time and absorption much later. It may not be out of place to observe that every one was promoted. Therefore, the question as to which one was deserving and which one was not deserving was never considered by the National Highway Authorities.
25. Here we may also refer to Rule 9 of the Rules of 1973 which provides as under:--- "(9) Appointments by transfer shall be made from amongst the persons holding appointment on a regular basis in the posts in the same basic pay scale or equivalent to or identical with the post to be filled."
26. Word deputation has not been defined. However in Islamic Republic of Pakistan v. Israr-ul-Haq and 23 others PLD 1981 SC 531, the Supreme Court quoted from Establishment Manual as under:- "Hitherto, the term 'deputation' has not been formally defined. However, according to the practice in vogue a Government Servant begins to be regarded as a `deputationist' when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
27. A reading of the above indicates that a deputationist continues to hold the new post in an officiating and temporary capacity till either he is confirmed in new post or is reverted to his substantive post. In Office Memorandum dated 15-10-1979 issued by the Establishment Division regarding absorption of a deputationist in the borrowing organization, it is laid down, inter alia, as under:--- "(4) In case a deputationist is proposed to be absorbed permanently in the borrowing Office (either a Government Organization or a corporation etc.), such a proposal shall be initiated by the borrowing office at least six months before the expiry of the deputation period of the deputationist concerned. Such a proposal, with the written consent or request of the deputationist, shall be made by the borrowing office to the lending office for Parent office of the deputationist which shall convey its decision (if necessary, in consultation with the Establishment Division) to the borrowing office as well as the deputationist, by the expiry of the term of his deputation. In the event of non- acceptance of the proposal, the individual shall revert back to his parent office as indicated at (2) and (3) above."
28. Therefore cumulative effect of these provisions appears to be (1) a deputationist as long on deputation continues in the new post in officiating or a temporary capacity; (2) His status shall continue till the deputationist is confirmed in the new post or is reverted to his substantive post. (3)
If a deputationist is sought to be absorbed by the borrowing office, the borrowing.Office is required to initiate the proposal and then obtain the consent of the deputationist and request approval by the lending organization; (4) Under Rule 9 an appointment by transfer can be made only from amongst the persons holding appointment on regular basis in the post in the same basic pay scale or identical grade of the post to be filled in; (4) Under 7 no promotion in Grade-2 to 18 can take place unless there is evaluation in accordance with the rules by a Departmental Promotion Committee.
29. In the present case, Induction Committee's objective was to select the persons for induction in the organization on deputation basis. Therefore logically next step should have been taken to absorb private respondents in the service of Motorway and National Highway Police and thereafter to hold Departmental Promotion Committee and in accordance with the mandate given by the Prime Minister in deserving cases award one step promotion. Obviously such promotion could not be awarded prior to a effective date of absorption.
30. The scheme of National Highway and Motorway Police appears to be to continue with the process of taking employees from police department on deputation. That is why in the rules notified in the Gazette of Pakistan on 26-2-2007, it is provided for posts in BS- 16 and 17 that 60% of the posts shall be by promotion, nil by initial appointment and 40% on deputation basis and for post BS-18, 33% would be by promotion and 67% would be on deputation basis. Thus taking of employees from police departments on deputation appears to be part of the long term personnel policy of National Highway and Motorway Police and obviously such deputees would come to National Highway and Motorway Police in accordance with the rules and in the same grade in which they were working in the police department. That is more so also because a deputee can be returned by the borrowing department or called back by the lending department at any time. Will he be demoted when repatriated? It will be of course available to the National Highway and Motorway Police, to subsequently decide to absorb the deputationist and then consider his case for promotion.
31. Argument of Mr. Nawaz Shaikh that, notwithstanding the present floods, so much water has passed down the river Indus since 1997, it would create unrest if the petition is allowed. Argument is R misconceived. A mere passage of time can never, and should never be allowed to, convert an illegality into pristine purity of legal existence.
32. Consequently we hold that the petition is maintainable. We direct that final seniority list' be issued. We also hold that the private respondents continued to be on deputation in the same scale and grade in which they were serving in the lending police department of the concerned Province (or Islamabad Capital Territory) at the eve of deputation till they were absorbed in the employment of National Highway and Motorway Police. Promotions if any granted to the private respondents at the eve of their being taken on deputation are set aside. However it will be available to the National Highway and Motorway Police to constitute D.P.C. In accordance with the rules to consider the cases for promotion of private respondent in accordance with the law.
33. Constitution Petition is disposed of in the above terms. Listed applications are also disposed of.