' IQBAL HAMEEDUR RAHMAN, J.---The instant Civil Appeal, with the leave of the Court, arising on account of judgment dated 17-4-2012 whereby the learned Federal Service Tribunal, Islamabad (hereinafter to be referred as "the Tribunal") had partially accepted the appeal of the appellant but had not considered that the seniority of the appellant had to be determined according to the law in the matter i,e,, rule-13.8(2) of Police Rules, 1934 (hereinafter to be referred as "the Rules"), hence this appeal has been preferred by the appellant.
2. Brief facts to be considered for the adjudication of this appeal are that the appellant joined the Police Department of Islamabad Capital Territory, Islamabad, as Constable on 15-6-2000. After joining the department the appellant had passed the departmental examination and was accordingly placed in the consolidated List "A" and "B" on account of which the appellant qualified for the Lower School Course vide order dated 15-2-2006 along with other 413 Constables. Further stated that the appellant was placed at Sr. No, 370 of the list of the candidates selected for the Lower School Course that was to commence from 15-2-2006. The respondents in view of convenience had divided the course into three batches or groups. The appellant was accordingly placed in the third batch. Thereafter the appellant successfully completed the course and it is stated that he was placed at Sr. No, 4 of the final result of the Lower School Course Group-3 while overall position of the appellant in the said course from all the three batches was the 6th position as per the result announced by the school management. Thereafter the S. P. Headquarter of Islamabad Capital Territory Police issued promotion lists dated 16-8-2006, 26-8-2006 and 2-9- 2006 for groups 1, 2 and 3 respectively and the appellant was placed at Sr. No, 4 of the promotion list of Group No, 3 on account of which the appellant and other affectees made representation to the Inspector-General of Police, Islamabad, on 16-1-2007 wherein they agitated that the constitution/formation of batches by taking into consideration the result of each batch separately has affected their seniority and the same should be determined as per rule-13.8(2) of the Rules and a joint seniority list be prepared for all the three batches of the Lower School Course which had not been acceded to by the S. P. Headquarter, Islamabad, and he issued seniority list of 147 Constables vide letter No,1080-83/Admin dated 16-3-2009 against which the appellant filed representation.
The same also stood ignored in view of which an appeal was filed by the appellant before the Inspector-General of Police, Islamabad, against the said seniority list. The same was also not responded by the authorities. Thereafter, when the appellant came to know on 4-9-2009 that 12'7 Constables have been promoted vide order No,2658-65/Admin dated 11-6-2009 despite the fact that the appellant, on the basis of the result of the course" being at Sr. No, 6, was eligible for promotion. He filed departmental appeal which too remained un-responded by the competent authority on account of which he approached the Tribunal who vide impugned judgment as acceded to the contention of the appellant that his seniority could not be adversely affected with the constitution of three batches, however, it held that the Constables who had been promoted earlier, had completed the course and had to be senior in rank to him. As regards other Constables he had to retain his original seniority and it was not affected by the constitution of the batches and it had directed the respondents to complete the process within a period of three months, hence this appeal has been preferred.
3. The learned counsel for the appellant has vehemently argued that the Tribunal has completely failed to take into consideration the provisions of the Rules with regard to promotion particularly rule-13.8(2) and that the order of merit is to be taken into consideration for determining the seniority of the appellant. It is further asserted that the result of the whole batch was to be taken into consideration for the determination of seniority' of all the 413 course mates. The seniority could not have been determined on the basis of the batch results. The passing out of Lower School Course of all the batches was held on the same day hence it would be deemed that all the batches are one and the same and no distinction is to be made in the same. The course has to be considered as one on account of which the seniority is to be determined. The appellant being at Sr.
No, 6 in the result announced by the school management was to be taken into consideration and was to be accordingly promoted as Head. Constable.
4. On the other hand the learned Deputy Attorney-General has taken a preliminary objection firstly that the relief had already been granted by the Tribunal as such on the same grounds the instant appeal is not maintainable in the eyes of law. He has further stated that limitation would also be applicable in the instant case of the appellant as the same is being urged after a delay of five yeaRs, Further stated that the seniority had been determined on the basis of their previous seniority position and the procedure has been adopted to protect their service career and in this manner the seniority of Constables for promotion to the rank of Head Constable is maintained on the basis of order of merit in the Lower School Course examination results in their respective batches.' It is further stated that the said view had already been endorsed by the learned Lahore High Court, Rawalpindi Bench, in W.P. No,1280 of 2010. Further stated that already more than 300 Constables have been promoted to the rank of Head Constables. Out of 413 Constables the appellant Mehmood Amjed got 4th position in Batch-3 and accordingly he will be considered. Further stated that rule-13.8(2) of the Rules is not applicable as it is the prerogative of the Inspector-General of Police or an officer authorized by him in this behalf.
5. We have heard learned counsel for the appellant as well as learned Deputy Attorney General for the respondents and have carefully gone through the relevant provision of law cited by the learned counsel for the appellant i,e,, rule-13.8(2) of the Rules and the same is reproduced herein below for convenience:-- "13.8(2). Promotions to head constable 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."
6. The seniority lists being prepared by the respondents does not conform to the above referred provision of the Rules. It is admitted fact that the appellant had been duly selected along with 413 Constables for the Lower School Course and had successfully passed the course and his overall position in the course stood at 6th position. The respondents on A account of administrative expediencies have divided the course into three patches and thereafter have determined their seniority in accordance to their batches instead of considering all the course mates of the batches as a whole which is clear violation of rule-13.8(2) of the Rules. We have observed that by doing so it appears that the respondents have given an impression that favoritism has been shown to accommodate blue eyed boys. There can be no distinction between the batches as admittedly passing out of all the three batches was held on one and the same day, therefore, they would be considered to have passed simultaneously and as such the combined result all the course mates is to be taken into consideration as per rule-13.8(2) of the Rules. This factum has not been taken into consideration by the Tribunal delivering the impugned judgment which needs to be rectified.
Accordingly this appeal stands accepted. The respondents are directed to proceed in accordance with rule-13.8(2) of the Rules, wherein it has been prescribed that the order of merit in the examination shall be taken into consideration and the same shall be the deciding factor for granting of selection grade to the Constables, and thereafter determine the seniority.