1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal by 14 persons employed in the Wireless Telegraph Establishment of the Police Department, notified as a technical district under the Police Rule 12.3.
2. The appellant No. 1 is officiating Assistant Sub-Inspector of Police and the remaining appellants are Head Constables of Police. They challenge the vires of the order, dated 17th May 1969, passed by the Inspector-General of Police, by which the staff of the Wireless Telegraph Establishment was integrated with the Staff; of the Tele printer Establishment of - the Police Department, recruited in 1955. The challenge is on the ground that the approval of the Provincial Government (i.e. a S. & C & A G. D.), which was not obtained, was necessary for a change in the terms and conditions of the service of the appellants, which could not be altered to their disadvantage, that Since the integration is purely for the purpose of seniority, it is illusory and has no real basis, because the two Establishments have different functions and duties to perform, require different qualifications, and there is no inter-transfer of staff from one Establishment to the other. It is also complained that by reason of integration of the two Establishments and fixation of seniority on illegal basis, there has been a violation of Rule 12.2 of Police Rules, and the seniority lists annexed as 'C' & `D' are invalid and inoperative.
3. The Establishment of Tele printer Service introduced in 1955 consisted in West Pakistan of one Sub- Inspector. Two Assistant Sub-Inspectors and 89 Head Constables. They were not recruited on Provincial basis. It is bifurcated on zonal basis. Initially the Tele printer Staff was attached to the Commissioners Office. They were later placed under the administrative control of Officer Incharge of the Wireless Telegraph Service.
4. The Wireless Telegraph Scheme was first introduced in the Police Department in 1945. Its Establishment consisted of seven Inspectors, 38 Sub-Inspectors, 67 Assistant Sub-Inspectors, 395 Head Constables and 1149 Foot Constables, bifurcated into two Zones. Recruitment was made on the basis of certain technical qualifications. Admittedly prospects of promotion of this Staff are much better than of the Tele printer Staff.
5. No one has, unfortunately, appeared on behalf of Assistant Inspector-General of Police, Telecommunications, respondent No. 1, and the Inspector-General of Police, respondent No. 2. Of the respondents, Muhammad Sher, Bashir Ahmed, Muhammad Haneef, Hassan Ali and Omer Hayat have appeared to contest the appeal. Respondents Nos. 4 and 6 are not present. These respondents belong to the Tele printer Establishment of the Police Force.
6. The appellants and respondents having been appointed or enrolled under section 2 of the Police Act and employed in the Province are under Police Rule 1.1, governed by the Police Rules.
7. The Tele printer and the Wireless Establishments were set up separately as two distinct organisations. The technical qualifica--tions needed for employment in each organisation is different. The trade or vocation of each is different, though the two Establishments were placed under the Assistant Inspector-General of Police, Telecommunications. Yet members of one Establishment could not be transferred to the other, and separate seniority lists were maintained for them.
8. On 30th April 1969, the Assistant Inspector-General of Police, Telecommunications, West Pakistan, moved the Inspector General of Police for merger of the two Establishments in order to improve the prospects of promotion of the Tele printer Staff for the reason that a large number of them had left the Police Service or managed their transfer to district units, merely to improve their chances of promotion. The amalgamation of the Wireless Telegraph Stag' with the Tele printer Staff was considered by the Inspector General of Police, and approved by him. He also agreed that a combined seniority list on zonal basis of all Head Constables of both the sections should be maintained to provide the Tele printer Staff an incentive for further advancement. He directed the Assistant Inspector General of Police to revise the standing order governing the promotion etc. of the personnel of Telecommunications Wing and to obtain the approval of the D.
1. G., Police Headquarters. He also ordered that seniority lists on zonal and provincial basis of Head. Constables on List ---D--- Assistant Sub-Inspectors/Sub-Inspectors on List `E' and confirmed Sub-Inspectors maybe prepared and circulated amongst all the concerned officers. In consequence of this direction, lists "Annexures C and D" were drawn up, They were called combined seniority Lists of T. P., W. P. and Mechanical. Head Constables and Seniority List of Officiating A. S. Is it is, obvious therefore, that conditions of service including prospects of promotion the appellants, who belong to the Wireless section of the Police Force and objects (sic) to the amalgamation are affected their seniority has been fixed contrary to Police Rule -12.2.
9. The question, which falls for determination, is whether the Inspector General of Police bad the power to order the amalgama--tion of the two Establishments of the Telecommunication Wing of the Police Force, and whether it was not necessary for him to obtain the approval of the Provincial Government. It is true that the power of appointment in the, case of Inspectors, Sub-Inspectors Assistant Sub-Inspectors, Head Constables and Constables has been delegated by the Provincial Government under clause (b) of subsection (1) of section 241 of Government of India Act, 1935 to the authorities mentioned in the Notification, but the question involved here is not one of appointment; but one of change in the conditions of service and the rule of seniority. It is true that the seniority as a condition of service is not protected under the institution, but rules affecting conditions of service have to be approved by the Provincial Government, as clearly emerges from Rule 13 (ii) (d) of the West Pakistan Rules of Business, 1962. It provides that no Department shall, without the concurrence of S. & G. A. D., authorise any order, than an order in pursuance of any general or special delegation made by the S. & G. A. D., which involved any change in the terms and conditions of service and statutory rights and privileges of the Government servants.
10. Therefore, the amalgamation of the two Establishments in, so far as it affected the conditions of service and the rule of seniority had to be referred to the S. & G. A. D. for its approval. No one has appeared before us on behalf of respondents Nos. 1 and 2 and other respondents are not in a position to say whether the approval of the Provincial Government was obtained to the change. Mr. Mushtaq Ahmed, Head Clerk of the Superintendent of Police, Telecommunications happens to be here. He informed us that the approval of the Provincial Government was not obtained to the merger.
11. We also directed the Registrar of the Tribunal to contract the Office of the Inspector General of Police to determinewhether the approval of the Provincial Government was obtained. Mr. Hidayat Ali, an Assistant in the Office of I.G. Police has brought the relevant file, which we have seen. It does not show that the matter was referred to the Provincial Government for its approval. He conceded that final approval to the scheme of amalgamation was given by the Inspector General of Police without reference to the Provincial Government.
12. Since we find that under rule 13 (ii) (d) of the West Pakistan Rules of Business, 1962, the approval of the S. & G. A. D. had t be obtained to' the proposed amalgamation and as section 12 of the Police Act directs that the Inspector General of Police may, a from time to time, subject to the approval of the Provincial Government, frame such 6rders 'and rules, as he shall deem expedient and relevant to the organisation, classification and distribution of the Police Force, necessitating approval of the Provincial Government, and as this approval was not obtained, we hold that the merger of Wireless send the Tele printer. Establish--ments into one was beyond the power, of the Inspector General of Police. Some of the respondents attempted to argue that the Wireless as well as the Tele printer sections initially formed part of the Telecommunication system in the Police Force, but they were unable to produce any evidence or document in support, of the claim. The impugned order itself shows that there were two different Establishments, which needed to be amalgamated, and to this end orders of the Inspector General, of Police were solicited and obtained. There can thus be little doubt and is even admitted that the terms and conditions of service and prospects of promotion of the Wireless Staff is adversely affected.
13. Not only were the two Establishments merged, but combined seniority lists of Tele printer and Wireless Staff were prepared. The seniority lists of Head Constables are annexed as 'C' and of A. S. Is as 'D'. These seniority lists have not been prepared according to Police Rule 12.2, which govern the fixation of seniority, but on the principle proposed by A. I. G. and approved of by the Inspector General of Police, namely that seniority will count from the date of admission to promotion lists 'D' of Head Constables 'E' of S. Is and A. S. Police Rule 12.2 provides that seniority in the case of upper subordinate (i.e., S. Is. and A. S. Is.---) will be reckoned, in the first instance from the date of first appointment, Officers promoted from a lower rank being considered senior to persons, appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by dates of conformation, the seniority inter se of other officers confirmed on the same day be allotted to them on first appointment. In the case of lower subordinates: (i.e., Constables and Head Constable the same rule provides that seniority shall be reckoned from, dates of appointment subject to the conditions of rule 12.24 had provided that a promoted officer shall rank senior to an officer appointed direct to the same rank on the same day.The seniority of the integrated staff had to be determined in accordance the rule 12.2, and not on the basis of promotion lists 'D' and E. The preparation of promotion list 'D' is provided in Rule 1310 as follows: A list shall be maintained in each district in card index form 13.9 (i) of those Head Constables, who have passed the lower school course and the intermediatecourse at the Police Training Centre and are approved of by the Deputy Inspector General of Police as eligible for officiating or substantive promotion to the rank of A. S. I. No Head Constable shall be admitted to this list, who is not thoroughly efficient in all-branches of duties, of Constables and Head Constable and of established integrity. Its sub-rule 2 provides that officiating promotion; to the rank of A. S. I. shall be made from the list prescribed in sub-rule 1, as far as possible in rotation, so as to give each man a trial in the duties of the higher ranks. Substantive promotion shall be made by the Deputy Inspector General in accordance with the principles prescribed in rule 13.1,- and officiating promotion shall be made in accordance with sub-rule 13.4 (ii).
14. A List which is-a promotion List is not a seniority list, which is to be maintained undef rule 12.2 quoted above. If the Inspector General of Police intended to lay d6wn that the seniority lists, could be prepared in violation of rule.12.2, he exceeded his powers and lists prepared in accordance with his directions are invalid and ultra vines of the rules, as the seniority lists have C to be prepared on the basis of Police Rule 12.2. The lists 'D' &'E' for the purposes of promotion had to be maintained separately and are not to be called or treated as seniority lists, but are promotion lists.
15. In the result we find the order of Inspector-General of Police directing preparation of seniority lists of the Wireless and Telecommunications Establishments jointly and in violation of Police Rule 12.2 to be in excess of his powers, invalid and ultra vires.Until approval of the Provincial Government is obtained, seniority lists of the two Establishments have to be prepared separately in accordance with rule 12.2 of the Police Rules.