' MUHAMMAD AZAM KHAN, J.--- These two appeals by leave of the Court arise out of judgments of the Service Tribunal dated 22nd October, 2008 and 9th February, 2009. Since common questions of law are involved in both the appeals, these are being disposed of by a single judgment.
2. The facts of Appeal No,139 of 2008 titled Zaker Hussain Shah and others v. Muhammad Ismail and others are that respondents Nos.1 to 5 filed Appeal No,88 in the Service Tribunal on 8th March, 2007, whereby they challenged Order Book No,235 dated 28th February, 2007. They claimed that they were entered in list 'B' prior to the respondents and have a right to be sent for training but the Deputy Inspector-General Police Headquarters, sent the respondents for training prior to them due to apprehension of their being over-aged. An order was issued on 2nd August, 2001, with the consent of the appellants, that if they are sent for training, they will have no objection if the seniority of appellants is kept intact. Later on they were also sent for training. After completion of training, their names were entered in list 'C' prepared for promotion but their names were entered later than the respondents. On the basis of this entry, respondents Nos.4 to 6 were promoted as Head Constables vide Order Book No,235 on 28th February, 2007. The Service Tribunal accepted' the appeal, set aside the order dated 28th February, 2007 to the extent of respondents Nos.4 to 6 and the appellants, therein, were declared entitled to promotion from the said date. Hence this appeal.
3. The facts of Appeal No,51 of 2009 titled Rabnawaz and others v. Imtiaz Hussain and others are that respondents Nos.1 to 8 filed Appeal No, 28 against Rabnawaz and others, appellants herein, whereby they challenged the Order Book No,27 dated 24th January, 2007. They also filed Appeal No,334, whereby they challenged Order Book No,182 dated 30th July, 2007, whereby appellants, herein, were promoted as Head Constables. They claimed that they were recorded in list B' on 17th July, 1998. The respondents were entered in list B' in the year 2000. They were senior to them in list B'.
Respondents were deputed to Lower Training Course prior to the appellants due to apprehension of their being over-aged. The Deputy Inspector-General Police ordered on 2nd August, 2001 that instead of appellants, the respondents' case being sent for the training but their inter se seniority will not be affected, but after completion of the training the' names of the respondents were entered in, list 'C' prior to the appellants and were promoted. Similarly, the other respondents were promoted prior to them. The Service Tribunal accepted both the appeals and set aside the promotion order of Rabnawaz, Muhammad Azad, Muhammad Aslam, Muhammad Anees and Nazarat Hussain The department was also directed to prepare a new list 'C' keeping in view the entries in list B' as well as length of service of the Constables. Hence this appeal by leave of the Court.
4. Syed Nazir Hussain Shah Kazmi, counsel for the appellants in appeal titled Zaker Hussain Shah and others v. Muhammad Ismail and others, argued that for the purpose of promotion it is the entries in list 'C' which are to be considered and not the list B'. The appellants were entered in list 'C' which is prepared after the training course. Their promotion orders were rightly passed. The entries in list B' are immaterial for the purpose of promotion. Entries yin list B' ace made only for the purpose of sending the Constables for training. The appellants were promoted vide Order Book No,235 on 28th February, 2007, according to rules. He referred to rules 13.7 and 13.8 of Chapter XIII of Police Rules, 1934. He also argued that all the promotions in Police Department are made under rule 13.1 of Chapter XIII of the Police Rules. He referred to the case titled Muhammad Riaz Khan v.
Inspector-General of Police and 19 others [2010 SCR 131].
5. Kh. Muhammad Nasim, counsel for the appellants in appeal titled Rabnawaz and others v. Imtiaz Hussain and others, argued that order dated 2nd August, 2001 was against rules. The Deputy Inspector-General Police has no jurisdiction to impose a condition while sendipg the Constables for training that they will forego their seniority. The appellants challenged this order by way of representation and in the result of representation, order dated 2nd August, 2001 was amended on 13th December, 2001 to the extent of condition of foregoing seniority. This order was not challenged by the respondents in any forum, so the appellants were correctly entered in list 'C' "after completion of the training and their promotion orders have been passed in a legal fashion. The appellants are entered in list 'C' at serial Nos.1 to 5 while the respondents are entered in the list at serial Nos.9, 11, 15, 18, 21, 22 and 24. He contended that their names were entered in list 'C' on 5th January, 2005 vide Order Book No,3. This order was never challenged before the Service Tribunal but the Service Tribunal set aside the order illegally. He argued that the Service Tribunal has travelled beyond its jurisdiction and passed the judgment against the pleadings. He referred to the cases titled Zahid Mahmood v. Muhammad Sabir Khan and 5 others 2000 YLR 1011 and Azad Government and others v. Farhat Shaheen [2007 SCR 62].
6. Raja Gul Majeed Khan, Advocate-General, while repudiating the arguments of counsel for the appellants, argued that for the purpose of promotion entries in list 'B' are not material. It is the order of merit determined after the training which is to be considered for entering the names in list 'C'. He referred to rules 13.7 and 13.8(2) of Chapter XIII of Police Rules and also referred to rule 13.1 that all promotions are made on the basis of this rule.
7. Mr. M. Tabassum Aftab Alvi, counsel for private respondents in both the appeals, argued that all the private respondents as well as appellants have been promoted as Head Constables. The appellants have surrendered their seniority. They are estopped. The question of promotion has to be resolved in the light of rules 13.1 and 13.8(2) of Chapter XIII of the Police Rules. He defended the judgments of the Service Tribunal on all counts. He referred to a case titled Ch. Abdul Latif Superintendent, Central Excise and Sales Tax, Mirpur Circle AJ&K and others v. Secretary Azad Jammu and Kashmir Council and others 2000 PLC (C.S.) 210.
8. We have heard the learned counsel for the parties and perused the record. Chapter XIII of Police Rules, 1934, deals with the promotions in the Police Department. All the promotions in the Police Department are regulated under this Chapter. Rule 13.1 postulates that promotions from one rank to another and from one grade to another shall. Be made by selection tempered by seniority. For the purpose of regulating promotion amongst the enrolled Police Officers six promotion lists 'A', 'B', C', 'D', 'E' and 'F' are to be maintained. List 'B is maintained under rule 13.7 by each Superintendent of Police and list 'C' is maintained for promotion of Head Constables. For resolving the controversy, it would be useful to reproduce below rules 13.7 and 13.8:--- Rule 13.7: "13.7. List B. Selection of constables for admission to courses at the Police Training School.--- List B (in Form 13.7) shall also be maintained by each ' Superintendent of Police and shall be divided into two parts:-
(1) Selection grade constables considered suitable as candidates for the Lower School course at the Police Training School.
(2) Constables (selection or time- scale) considered suitable for drill and other special courses at the Police Training School.
' Selection shall be made from this list as vacancies occur for admission to the courses concerned at the Police Training School, provided that no constable shall be considered eligible for any such course until the entry of his name in list 'B' has been approved by the Deputy Inspector-General of the Range. Ordinarily seniority in age shall be given prior consideration in making such selections, irrespective of the date of admission to the list, and care must be taken that a constable borne on the list is not allowed to become over age for admission to the school before being selected. The restrictions on admission to the lower school course and Instructors' courses at the Police Training School limit the conditions for admission to list B. No constable shall be admitted to that list whose age is such that he cannot in the normal course be sent to the Training School before he attains the age of 33 years. No constable, who has failed to qualify at the Training School, shall be re- admitted to the list unless the Superintendent and the Principal of the School are in agreement that he is deserving of another chance of qualifying in the courses in the event of disagreement as to such a case the Deputy Inspector-General shall decide."
Rule 13.8.
"13.8. List C. Promotion to head constables.--- (1) In each district a list shall be maintained in card index form [Form 13.8(1)] of all constables who have 'passed the Lower School Course at Phillaur and are considered eligible for promotion of head constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2), and notes by the Superintendent himself, or furnished by gazetted officers under whom the constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection.
(2) Promotions to head constables shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to head constable up to a maximum of ten per cent of vacancies."
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9. It is evident from rule 13.7 that purpose of maintaining list 'B' is that Constables who are considered suitable for Lower Training School Course at Police .Training School and for drill and other special courses at Police Training School are entered in list 'B'. The rule postulates that no Constable shall be considered eligible for any such course until the entry of his name in list 'B' has been approved by the Deputy Inspector-General of the Range. The rule imposes a condition that no Constable shall be admitted to that list whose age is such that he cannot in the normal course be sent to the Training School before he attains the age of 33 years. The rule further lays down that a care must be taken that a Constable borne on the list is not allowed to become over age for B admission to the school before being selected, meaning thereby that if the name of a Constable is entered in list 'B', seniority in age shall be prior consideration for selections for course. The rule imposes no condition that a person whose name appears in list 'B' prior to others must be sent for training before the others. There is no room for the interpretation that a Constable entered in list 'B' at later serial number if sent for training prior to those whose names appear in the earlier numbers on the consideration of age has to surrender his seniority. The argument of Advocate-General that seniority is not to be determined on the basis of entry in list 'B' but according to order of merit determined after the training has to be considered, appears to be correct. The list 'C' which is maintained for the purpose of promotion as Head Constable has to be prepared on the basis of order of merit determined after the training.
' The condition imposed by the departmental authority while sending the appellants for Lower Training Course that they will not claim seniority against the persons who are entered prior to them in list '13' is against rule 13.1, Chapter XIII of the Police Rules. It is settled proposition of law that there is no estoppel against the law. Such condition was against the clear legal provisions, will not create estoppel. This Court in a case titled Raheela Khalid v. Azad Government and 5 others 2004 PLC (C.S.) 973 was confronted with the similar situation in the circumstances when a civil servant refused to accept the transfer order on the condition of foregoing seniority, the Court observed that it is against the legal provisions. It was observed at page 283 as under:--- ".... If the appellant had refused to accept the transfer order, her seniority could not be disturbed merely by her refusal to join some other place on account of her transfer. Under section 9 of the AJ&K Civil Servants Act, 1976, a civil servant can be transferred anywhere and if he/she refuses to join his/her duty at the place where he/she was transferred, he/she is liable to be proceeded against under the E&D Rules but his/her seniority cannot be disturbed in an unlawful manner."
' In a case titled Ikram Bus Service and others v. Board of Revenue, West Pakistan and others [PLD 1963 SC 564], it was held as under:--- "It was suggested that the appellants were precluded from challenging the order passed in appeal by the learned Member of the Board of Revenue on the ground that it was passed with their consent. This does not appear to be correct. The legal objections to the procedure adopted by the R.T.A. Were pressed before the learned Member and it was only in the alternative that a suggestion was made that some of the permits of the limited company be cancelled and reserved for another company to be formed. There is nothing in the order of the Appellate Authority to indicate that the' appellants had personally assented thereto. The suggestion seems to have emanated from learned counsel and was apparently seized upon as cutting the Godian knot. However, there was certainly no estoppel against the statute and if the R.T.A.'s action was wholly beyond the purview of the Act it could not be sustained."
10. There is another aspect of the case that the appellants in Appeal No:139 filed representation against the order of imposing condition, and while accepting the representation, the condition was removed vide order dated 13th December, 2001 This order was not challenged before the Service Tribunal, therefore, the argument of estoppel was not available to the appellants in the Service Tribunal.
11. It was vehemently argued by Kh. Muhammad Nasim that the names of the appellants were entered in list 'C' on 5th January, 2005 after completing the training. This order was not challenged by the respondents in any forum but the Service' Tribunal set aside the same without being challenged. It may be observed that a Court or Tribunal E cannot travel beyond the pleadings of the parties. The judgment has to be delivered in the light of pleadings of the parties. The above order was not challenged before the Service Tribunal. The Service Tribunal set aside the same against the pleadings of the parties. The proposition finds support from the judgments of this Court titled Muhammad Adalat v. Munshi Khan and 3 others 2000 YLR 2774, Muhammad Hussain v. Abdul Majid and others [1993 SCR 319], Muhammad Amin v. Muhammad Yunus [1993 SCR 340] and Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others [PLD 1994 SC (AJ&K) 13].
12. The Constables are to be promoted as Head Constables when their names are entered in list 'C' which is maintained for the sole purpose. The names shall be entered in the list in light of markings under sub-rules 13.5(1) and 13.8(2). Rule 13.5 postulates that date of admission in list 'C' is not material. It is the order of mer,it in which the examination has been passed shall be taken into consideration in comparing qualifications. When the qualifications are equal, the seniority in Police Force shall be a deciding factor. In a case titled Ch. Abdul Latif Superintendent, Central Excise and Sales Tax, Mirpur Circle AJ&K and others v. Secretary Azad Jammu and Kashmir Council and other 2000 PLC (C.S.) 210 it was observed as under:- ' According to the departmental rules, Inspectors who had passed the departmental examination and had completed five years' service were eligible for promotion of the post of Income Tax Officer-cum-Superintendent B-16. The other condition necessary for promotion was that the case should have been cleared by the Departmental Promotion Committee. It follows that date of passing the departmental examination or the quantum of marks obtained in the said examination had no nexus with the question of promotion. Section 9 supra lays down that against non-selection posts promotion have to be made on the basis of seniority-cum-fitness and in case of selection posts on the basis of selection on merit. It is not on the record that the post of Income Tax Officer B- 16 was ever designated as selection post. The result is that the said post has to be treated as a non-selection post against which promotion has to be made on the basis of seniority-cum-fitness According to rule 13.1, promotion from one rank to another and from one grade to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection. The Service Tribunal misinterpreted the law while accepting the appeals of the respondents.
' The result of the above discussion is that both the appeals are accepted and the judgments of the Service Tribunal dated 22-10-2008 and 9-2-2009 are set aside with no order as to the costs.