' S. AEDUL JABBAR KHAN (CHAIRMAN).-Before this Tribunal there are four appeals filed by M/s. Mian Zakauddin Shafi, Malik Muhammad Khan, Sultan Muhammad Asghar and Malik Muhammad Waris, ex-Superintendents of Police who have been retired under section 12 (ii) of the Punjab Civil Servants Act, 1974, by the order of the Governor of the Punjab, after they had completed 25 years services qualifying for pension and other benefits, in the public interest. All these appeals have been filed under section 4 of the Punjab Service Tribunals Act, 1974 whereby they have challenged the impugned orders as passed by the incompetent authority as they have claimed that they were in fact employees of the Central Government and the order of their retirement could only be passed by the President of Pakistan and not by the Governor of the Punjab. By virtue of these appeals they have prayed that the impugned orders be set aside as being void and they may be re-instated in service with all back benefits. The points of law involved in this case are almost identical therefore, we will decide all these appeals by one common judgment.
2. Brief facts relating to each and every appellant are as under : ' MIAN ZAKAUDDIN SHAFI : While serving as S. P. He was retired by the Governor of the Punjab vide Notification dated 5th January, 1980. He filed a Review Petition before the Governor of the Punjab on 20th January, 1980 which was rejected on 11th August, 1980.
' MALIK MUHAMMAD KHAN : While serving as S. P. Was retired by the Governor of the Punjab vide Notification dated 5th January, 1980. He filed a Review Petition which was rejected by the Governor of Punjab on 7th August, 1980.
' MALIK MUHAMMAD WARIS : He is aggrieved against the order dated 5th January, 1980 passed under section 12 (ii) of the Punjab Civil Servants Act, 1974, whereby he was retired from service by the Governor. His Review Petition was rejected on 28th October, 1980.
' SULTAN MUHAMMAD ASGHAR : He was retired by the order dated 5th January, 1980 and his representation against it was rejected on 22nd October, 1980 as being barred by time
3. We have heard the learned counsels for the appellants as well as learned District Attorney assisted by Malik Azam Rasul alongwith representative of the Department as well as representative of the Establishment Division, Government of Pakistan, and have perused the record of their cases carefully with their assistance.
4. It has been submitted on behalf of the appellants that for the purpose of maintainability of the appeals the appellants were civil servants of the Provincial Government whereas for the purpose of retirement they were members of service APUG (Police Group), therefore President of Pakistan was the competent authority to take any action against them (including retirement under section 12 (ii) of the Punjab Civil Servants Act). To support the first line of their arguments it has been sub- mitted-
(1) that when they were retired from service they were serving in the Punjab Province as S. Ps.
(2) that their pays etc. Were part of the Provincial budget.
(3) that Punjab Government itself in the written statement has accepts ted that all the appellants are civil servants of the Province.
(4) that they are confirmed D. S. Ps. And officiating S. Ps.
' However, they have taken a different plea with regard to the competency of the impugned order by submitting that the Promoting/Appointing Authority in their cases was the President of Pakistan which was apparent from the noting on the file of Musa Khan Saatchi's to the learned counsel it was noted on that file that up to 12 months Governor of the Punjab Province could promote the persons like appellants but after that if they were allowed to continue in service, it was the President of Pakistan who was the competent authority in their cases. For this purpose they have relied on the notification dated 21st September, 1976, placed as Annexure 'E' on the record, it has been issued by the Government of Pakistan, Cabinet Secretariat Establishment Division with regard to their promotion. In the arguments it has been further elaborated by the learned counsel pointing out that all the ACRs and other relevant record of their service were in the custody of the Central Government and the same was returned to the Provincial Government when they were brought into the fold of N. P. S.
18. It has further submitted that notification regarding their induction in N. P. S. 18 was also issued by the Central Government and not by the Provincial Government.
5. On the other hand learned counsel for the respondents have completely relied on the parawise comments filed by the Provincial Government as well as by the Federal Government and has submitted that under rule 4 (I) (b) of the Police Service of Pakistan Composition and Cadre Rules, 1969 and in terms of Establishment Division contained in their letter No, 10/74/78-Police dated 23rd May, 1979, the appellants were still unconfirmed S. Ps. And as such were the employees of the Provincial Government. It has been further submitted by the learned counsel on behalf of the respondents that the stand of the appellants is self-contradictory and they have been breathing hot and cold in the same breath. According to the learned counsel for the respondents that when it has been admitted by the appellants that they were officiating S. Ps. It stood clearly proved that their claim of being Members of APUG (Police Group) was a hollow claim. The learned counsel on behalf of the Central Government has further added that the names of the appellants did not appear in the list meant for Police Group and as such they would not be in the category of officers of APUG, irrespective of the fact that their promotion to grade-18 was notified by the Federal Government.
6. We have given our anxious thought to these two crucial issues advocated before to by the parties and to arrive at a positive conclusion, we have looked into the record and other relevant documents so produced before us by the respondents. In this matter letter No, 10/74/ 78-Police dated 23rd May, 1979, issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division addressed to the Chief Secretary, Government of Punjab, Lahore/Sind, Karachi/N.-W.F.P.
Peshawar and Baluchistan, Quetta, is being reproduced for reference as the contents of this letter would be very much material to resolve this issue ; "In accordance with rules 4 and 5 of the P. S. P. (Composition and Cadre) Rules, 1969 read with paras. 4 and 5 of the Establishment Division Office Memorandum No, 3/2/75-ARC, dated 31st May, 1975 constituting the Police Group, cases of appointment to grade-18' of Ptovincial Police Officers against posts reserved for them in the cadre of the Police group subject to the proviso under rule 4
(1) (b) of the P. S. P. (Composition and Cadre) Rules, 1969 are to be referred to the Establishment Division for obtaining the approval of the President. Appointments of Provincial Police Officers against grade 18 posts borne on the Provincial Police cadre are not to be referred to the Establishment Division, ' It has, however, been Observed that all cases of appointment through promotion to grade 18 posts of police officers are being referred to the. Establishment Division irrespective of the fact whether the posts against which they are to be appointed/promoted are included in the Police Group of APUG or not this is inconsistent with the P. S. P. (Composition and Cadre) Rules, 1969. In future only such cases of appointments of Police officers to grade 18 may be referred to the Establishment Division which fall under rule 4 (1) (b) of the P. S. P. (now APUG) Composition and Cadre) Rules, 1969.
The appointments to grade 18 to be made against posts not included in the cadre of the Police Group but made under rule 5 of the said rules will, however, continue to be referred to the Establishment Division after the expiry of 12 months period as envisaged therein. The Provincial Government is advised to maintain an up-to-date gradation list of Provincial Police Officers. The Establishment Division will only maintain a gradation list of officers directly recruited as Assistant Superintendent of Police and Provincial Police Officers regularly appointed against the quota prescribed under proviso to rule 4 (I) (b) of the P. S. P. (Composition and Cadre) Rules, 1969.
7. The perusal of the above contents clearly reveals that all who entered in N. P. S. 18 would not become automatically members of APUG (Police Group) under the rules and until they stood confirmed in their service and were formally inducted as members of their cadre under rules 4 and 5 of P. S. P. (Composition and Cadre) Rules, 1969, read with paras. 4 and 5 of Establishment Division office memo. No, 3/2/75-ARC dated 31st May, 1975. This position is further made clear when we look into the Gradation List and find that none of the appellant has been brought on that unified gradation list and thus the impact of this letter would be fully applicable in their cases. There is also one thing more apparent from this document i. e. That a method was laid down by the Establishment Division wherein it was required that the Provincial Government would take approval of the Central Government after the expiry of 12 months period as envisaged in the above rules.
8. The appellants in all these cases are positively unconfirmed and officiating S. Ps. Although they stood confirmed in the rank of D. S. P. As admitted by them during the course of arguments. They have also relied on the written statement filed by the Provincial Government that they were civil servants of the Province for all purposes and intents. These admissions although made by the appellants were in support of their claim that they should be treated as Provincial civil servants for the maintainability of their appeals before this Tribunal yet they forgot that this argument like a double edge sword could be used against their second claim that only the Central Government was competent authority in their cases and not the Provincial Government. Assessing the intrinsic value of these two contradictory stands, we are inclined to accept the argument of the learned counsel for the respondents that the appellants were blowing hot and cold in the same breath. If we say that the crux of this contradictory stand is like one's telling his adversary that head I win and tail you loss, we will be near the truth to assess this interesting argument. While referring Musa Khan Salanchi case we did find that in the noting of the Central Government it was claimed that he was the subject of the Central Government but the same was not upheld by the Service Tribunal of Baluchistan wherein it was decided that Musa Khan Salanchi being officiating and unconfirmed S. P. Was not a member of the regular cadre and therefore, the order of the President retiring him from service was not upheld. We will certainly be persuaded by a verdict of a brother Tribunal of the country rather to follow the noting of Departmental Officers. Musa Khan Salanchi was thus re- instated on the judgment of the Balochistan Service Tribunal which ignored the said noting of the file.
9. In the light of the above discussions we have no hesitation to hold that the appellants are members of the Provincial Government and were working as unconfirmed officiating S. Ps. In the Province although in N. P. S. 18 and were validly retired by the order of the Governor of the Punjab who was the competent authority in their cases to take such action against them. The jurisdiction of this Tribunal is barred in view of Article 13 of the P. C. 0 1981, wherein it is laid down that if the person is retired after completing his 25 years' service by the competent authority, no appeal will lie on any ground whatsoever before any Court of law in the country including Supreme Court, High Court and Service Tribunal. The result is we proceed to dismiss all these appeals as being without any merit. However, they can exercise their constitutional right to file fresh Review Petitions before the competent authority as bestowed upon them under the P. C.
0. Itself. There will be no order as to costs.