QAZI QAMAR-UD-DIN (MEMBER-I).--- This appeal is filed by the appellant under section 4 of the Sindh Service Tribunals Act, 1973 to seek promotion and other benefits in accordance to his seniority position duly allowed along with his batch mates by the respondent No,3 (Capital City Police Office, Karachi, herein after called CCPO) in response to his departmental appeal, vide order dated 5-3-2009. Whereby though the seniority position of the appellant is restored, but the consequential benefits are not allowed. Appellant submitted departmental appeal/ representation to the respondent No,1, which was rejected through the letter of respondent No,1 dated 17-7-2009, hence this appeal.
2. Facts in brief for the disposal of the appeal are that, the appellant was appointed as constable on 1-3-1975 in Sukkur range, in due course after passing of prescribed courses/examinations, he was admitted to list "D" and subsequently promoted to the rank of officiating Sub-Inspector on 6- 7-1995. Sukkur range was divided into two ranges i.e, Sukkur and Larkana and the appellant being domiciled of Larkana was taken on the strength of Larkana range.
3. Subsequently, appellant with others was transferred from Larkana range to Karachi range (District Central) on purely administrative grounds vide order dated 10-7-1995, whereby appellant and his colleagues were assigned seniority in Karachi range from the date of report on duty at Karachi. Accordingly he was confirmed in the rank of Assistant Sub-Inspector of Police and admitted to List-"E" and promoted to the rank of Officiating Sub-Inspector on 7-12-2001 vide order dated 22-1-2002 in Karachi, permanently. Thereafter. Appellant was transferred from Karachi range to Larkana range on exigency of service basis, however his name was struck-off from the seniority list of Sub-Inspectors of Karachi range unlawfully. Later on appellant was repatriated back to Karachi range vide order dated 5-7-2008. Hence, appellant is entitled for seniority and all back benefits per rule 12.2(3) of Police Rules.
4. It is further submitted by the appellant that in the meantime when he was in Larkana range, his junior batch mates of Karachi range were promoted to the rank of Inspectors. Appellant made representation to the respondent No,3, who allowed his representation to the extent of original seniority in the rank of Sub-Inspectors of police, Karachi range but was not allowed promotion to the rank of Inspector and other consequential back benefits vide order dated 5-3-2009.
5. Written statements were filed by the respondents. The respondent No,3 while responding to para 4 is in agreement as stated in the facts, however while replying to para 5, it is contended that the names as, indicated by the appellant originally belonged to the Karachi range and were promoted as S.-Is. On 30-5-1996 and confirmed as such on 31-5-1998, as such they were senior to the appellant in terms of promotion to the rank of Inspector. More over those officers who were promoted in the rank of S.-I. On 7-12-2001 are still holding rank of S.-I. Respondent No,1 and No,3, however have opposed the appeal.
6. Advancing the arguments, learned counsel for the appellant invited our attention to the notification dated 22-1-2002, wherein the junior of the appellant, respondent No, 5 namely Khuda Bux has already been promoted to the rank of Inspector vide Notification of respondent No,2, dated 10-4-2003, when appellant was posted at Larkana. Learned counsel also contended that respondent No,5, at the time of his transfer to Karachi was a Police Constable, whereas the appellant was A.S.-I. At the time of transfer to Karachi range during the same period, and averred that when seniority position of the appellant is restored by impugned notification of 5-3-2009, the appellant deserves the promotions along with his batch mates under Police Rule 12.2(3), reliance placed before us of reported case 1991 PLC (C.S.) 2008.
7. Learned Additional Advocate-General has conceded to the appeal.
8. We have heard the parties, perused material placed before us and the case-law.
9. The order dated 5-3-2009, of the CCPO, Karachi, whereby seniority position of the appellant was restored (Annexure-A) is precise, persuasive and cogently speaking order. We would like to reproduce relevant operative paragraphs of the said order for the convenience. Para 5 and para 6 of the order elaborate;
5. It is cleared that the appellant has suffered because of his transfer from Karachi range to PTS, Larkana in a way that his name was struck-off from the seniority list of CCP, Karachi and on his repatriation or transfer back to CCP Karachi, he is assigned lowest seniority as per policy referred above.
6. It is also clear from the record that the appellant was transferred from Larkana District to Karachi owing to exigency of service, Although Policy dated 20.11-1997 did not apply to him because his transfer had taken place in the year 1995 but still he was made to suffer and was given lowest seniority in the rank of A.S.-1. Let it be as it is admitted fact that he was accepted by CCP, Karachi and was later on promoted and confirmed as such in the rank of Sub-Inspector on 8-12-2003. The second transfer of the appellant was also made by the IGP, Sindh on exigency of service. Therefore struking of his name from seniority of CCP Karachi was not required. On his repatriation of transfer of CCP Karachi, appellant is being made to suffer again through same policy i.e, on transfer to CCP Karachi he will get seniority from the. Date of arrival of CCP Karachi, which is neither legal nor logical. It is wrong to apply the said policy in case of appellant because policy is confined."
10. Above report of CCPO confirms;
(a) That the policy framed in the year 1997 can never be applied in the case of the appellant, whose transfer to Karachi range took place before 20-11-1997. Appellant was transferred in the year 1995, but still he was made to suffer by giving lowest seniority in the rank of A.S.-I.
(b) In view of above policy, the appellant was placed in the seniority list of A.S.-Is. Of Karachi Range from the date of his arrival in Karachi range. On the basis of seniority, the appellant was subsequently promoted to Sub-Inspector on 7-12-2001 in Karachi Range and confirmed in the said rank on 8-12-2003.
(c) It is clear that the appellant has suffered because of his transfer from Karachi range to PTS, Larkana in a way that his name was struck off from the seniority list of CCP, Karachi and on his repatriation or transfer back to CCP Karachi, he is assigned lowest seniority as per policy referred to above.
(d) The second transfer of the appellant was also made by the IGP, Sindh on exigency of service.
Therefore striking-off his name from seniority of CCP Karachi was not required. On his repatriation of transfer of CCP Karachi, appellant is being made to suffer again through same policy i.e, on transfer to CCP Karachi he will get seniority from the date of arrival of CCP Karachi, which is neither legal nor logical. It is wrong to apply the said policy in case of appellant.
11. The foregoing milieu as elaborated by the respondent No,3 (CCPO, Karachi) suffices to establish that since beginning appellant is discriminated on his transfer from Larkana range to Karachi range by the authority at some stage in the loop, as a result thereof, he suffered for the same.
12. Though the seniority of the appellant is restored by the respondent No,3 vide order dated 5-3- 2009 (supra), after appellants' second transfer (ref. Para 10(c) above), but it neither fulfils the loss so caused to the appellant from the day one of his transfer to Karachi range, nor sufficient to compensate him in accordance with justice in spite of the admitted facts by the CCPO, Karachi.
Appellant deserves to be dealt in accordance with law. Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 was the relevant rule to assign appellant's seniority in the cadre of A.S.-I. On his 1st transfer at Karachi range on 10-7-1995. Subsequently under Rule 13 he deemed to have been promoted in the same batch as his juniors. Rule 12.2(3) of the Police Rules envisages similar methodology in such type of cases. It is a vested right of the appellant that he should be promoted with his batch-mates and he is entitled for all back benefits under the settled law.
13. Respondent No, 5, namely Khuda Bux, now Inspector of Police No,3264 was transferred from Jacobabad district to district West, Karachi in the capacity of Police Constable (PC 2760) vide order dated 11-7-1995 of respondent No,2 (Sr. No, 110), similarly, appellant was transferred from Larkana range to Karachi range as A.S.-I. On 10-7-1995. In the meantime respondent No,5 was promoted as A.S.-I. And subsequently admitted to List-E and promoted to the rank of Sub-Inspector along with appellant vide Notification dated 22-1-2002 (Annexure-E, appellant at Sr. No,12 and the respondent No,5 at Sr. No,13). Respondent No, 5 was promoted to the rank of officiating Inspector and brought on List-F vide Notification issued by respondent No,2 on 10-4-2003 (Sr. 162).
14. It is an admitted fact that the appellant had been ignored at every IB stage of his career since his transfer to Karachi range in contra-version of the settled principles of the law. If civil servant was not considered for promotion on his turn for no fault of his, he ought not be prejudiced by earlier promotion of his juniors in the lower- grade as provided under Rule 13, Sindh Civil Servants (Probation, Confirmation and Seniority) 'Rules, 1975. Said rule was designed to prevent chaos that could arise through, decisions reconsidering seniority of civil servants and to ensure that instead of claiming mechanical promotion on account of some mistake of the Department, a civil servant must first establish his fitness for promotion and then after being promoted, claim benefit of seniority denied through mistake [rel. PLD 1980 SC 195; 1991 SCMR. 1129; and PLD 1994 SC 539 ref.
2000 PLC (C.S.) 46(a)]. In case of the appellant CCPO Karachi's order 5-3-2009 has already addressed such issue by restoration of seniority making his way clear to seek benefit of rule 1.3 (ibid).
15. For the foresaid reasons we set aside impugned order dated 17-7-2009 and allow the appeal.
However, there shall be no order as to cost.