' MUHAMMAD AZIM KHAN AFRIDI, CHAIRMAN.---Mr. Riffat Ali, Ex-Sub-Inspector presently constable Traffic Police, Peshawar, hereinafter referred to as the appellant has preferred the instant service appeal under Section 4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 against order dated 02.09.2014 whereby he was awarded major penalty by reducing him from the rank of Sub-Inspector to that of Constable where-against his departmental appeal dated 15.09.2014 followed by revision petition dated 12.2.2015 were rejected vide orders dated 29.1.2015 and 06.05.2015, respectively.
2. Brief facts giving rise to the present service appeal are that the appellant was initially enlisted as Constable/Driver (BPS-5) Traffic Police vide order dated 27.08.2008 where-after he was absorbed as a regular constable vide order dated 20.03.2009. He was then promoted as Head Constable on 12.10.2012 and then as ASI on 14.2.2013 and then notified to serve as officiating Sub-Inspector.
3. A preliminary enquiry followed by a regular enquiry was conducted for the alleged illegal absorption followed by illegal promotions and, finally, vide impugned order dated 02.09.2014 major penalty in the shape of reduction in rank from Sub-Inspector to Constable by forfeiting all, his promotions with immediate effects was passed. Appellant failed to secure any relief through departmental appeal followed by revision petition under the rules and hence the instant service appeal.
4. Learned counsel for the appellant has argued that the appellant initially appointed as.
Constable/Driver in Traffic was absorbed as Constable and promoted in due course to the rank of Sub-Inspector. That he was subjected to enquiry on the allegations of maneuvering his promotion which allegations were neither established nor substantiated during enquiry. That the appellant was made 'a scape-goar on the allegations of "managing" and "maneuvering" his promotion as, in such eventuality, all officers involved in the process were also liable to be departmentally proceeded against. That the allegations attributed to the appellant do not amount to misconduct under Police Rules, 1975. That penalty of reduction in rank cannot be passed in excess of reduction in one rank which, in case of appellant, is made from the rank of Sub-Inspector to that of Constable. That the impugned orders are against facts and law and, therefore, liable to be set aside.
' Reliance was placed on case-law reported as 2004 SCMR 1662 (Supreme Court) and 2008 SCM R 1296 = PLC 2008 (C.S.) 1230.
5. Learned Addl. A.G. Has argued that the appellants was illegally enrolled as Constable and then illegally absorbed within a short span of 7 months. That to extend him undue favours, mandatory rules and essential requirements for training and promotions were violated so much so that promotion orders were signed by an officer other than the competent authority. That apart from preliminary enquiry a regular enquiry was conducted and charges of maneuvering and managing promotions were proved against him beyond any shadow of doubt. That impugned orders are passed in accordance with Police Rules, 1975 and therefore warrant no interference. That though no proceedings against other officials involved in the process were initiated yet such omission, if any, would not justify setting aside the penalty awarded to the appellant.
6. We have heard arguments of learned counsel for the parties and perused the record with their assistance.
7. Points for determination before us are;
(i) Whether the charges attributed the appellant come within the mischief of "misconduct" under Police Rules, 1975?
(ii) Whether the allegations of "maneuvering" and "managing" promotion were established?
(iii) Whether the penalty imposed i.e, reduction to lowest rank is permissible under the law? AND
(iv) Whether the role of relevant authority sparing those involved in "maneuvering" and "managing" promotions would justify setting aside the penalty imposed against the appellant?
7. Before dilating on the points involved we deem it necessary to refer to material available on record according to which an Enquiry Committee of high profile comprising of (i) Mr. Shaukat Hayat, PSB Add. Inspector General of Police, Investigation, Khyber Pakhtunkhwa Peshawar, (ii)
Muhammad Ali Babakhel, Deputy Inspector General of Police, Investigation, Hazara at Peshawar and (iii) Mushtaq Ahmad, AIG Legal, CPO, Peshawar was constituted with a mandate to dig out facts regarding irregular promotion of the appellant from the rank of Constable to Sub-Inspector.
The said Enquiry Committee examined the service record of the appellant and procedures followed regarding recruitment, absorption, selection for training courses and promotions of appellant at different stages and after a thorough scrutiny, the said Committee came up with the findings which are reproduced herein for facilitation and ready reference:- "Findings. a. Since Traffic wing is a borrowing unit therefore it cannot enroll a constable. b. It was observed that Rifat Ali was absorbed within short span of 07 months. It was also learnt that rules regarding absorption are silent. c. The essence incorporated in PTC manual Rule 10(2) was also compromised. From training branch CPO to PTC Hangu including Traffic Unit PTC Hangu no one felt the need to filter the required eligibility for the Lower Course. d. His promotion to the rank of Head Constable vide O.B. No 3754 dated 12.10.2012 the order quoted reference of Police Rule 13.5(A) in reality PR-13.5(A) highlights the required physical standards for the promotion to the selection grades of the constables. Therefore 13.5(A) has nothing to do with promotion orders. The promotion orders to the rank of Head Constable also cites his posting as AMHC Police Station Agha Mir Jani Shah for a period of six months. Ironically the order also assured a tenure of six months to work as AMHC. Interestingly the promotion orders to the rank of Head Constable and officiating AS1 were signed by other officer. The order carries "for signature".
Question arises if the head of Capital City Police is not having time to do justice with the constabulary how that office will be taking care of the society. As per essence of Police Rules 13.8 those who are qualified Lower School Course their names are to be on List C maintained by Superintendent of Police but in his case his name did not exist on List C. e. The official was nominated for Intermediate Course by creating one extra seat as a special case vide order No,21998-22000/E-1, dated 20.11.2012. Surprisingly he was included in the course 50 days after the commencement of the course (01.10.2012).
It is worth to be mentioned that the official attended Intermediate Course from 01.10.2012 to 20.3.2013 and then after 11 days he went for Upper Course from 01.04.2013 to 20.09.2013. Such practice itself speaks of the low priority we attach to the training where training seems to be more of a jumping board to he promoted instead to enhance the professional capacity. g. Vide order No, 2079-85/EC-I, dated 14.02.2013 he was promoted as officiating AR within 04 months without observing the required procedural formalities. h. Surprisingly he was first placed on List-E and latter placed on List-D. i. On 14.2.2-13 vide order No,2079-85/EC-I, he was promoted as officiating ASI and within 17 days vide O.B. No, 2803/EC, dated 04.03.2013 was confirmed as ASI."
' The following Recommendations were made by the said Committee in the concluding part of its report:-- "Recommendations.
' A to d Not reproduced being irrelevant for our discussion. e. All those who violated the procedure are recommended for departmental enquiry. Those who opted silence needs to be sensitized regarding their actual role. f. Procedure regarding selections and promotions were managed for a lower ranking official therefore, Rifat Ali is recommended to be placed in his actual rank and grade."
8. On the strength of the report of the enquiry committee dated 21.05.2014, Inspector General of Police, Khyber Pakhtunkhwa ordered departmental enquiry and pursuant thereto Mr. Awal Khan, PSP, Deputy Inspector General of Police, Traffic, Khyber Pakhtunkhwa confronted the appellant with the following charges, reflecting in the charge sheet and summary of allegations which are reproduced herein for facilitation and ready reference:--- "2. That you Sub-Inspector Rifat Ali while posted in Traffic Police Khyber Pakhtunkhwa, Peshawar have rendered yourself liable to be proceeded under Rule-5 of the Khyber. Pakhtunkhwa Police Rules, 1975 for following misconduct; a. That you managed to get enrolment as driver/constable in the year 2008 in Traffic Branch which is a borrowing unit. b. That you got yourself absorbed illegally as constable within 07 months without any rules and regulations. c. That you did Lower College Course in year 2012 without qualifying the required criteria for the said promotion course. d. That you managed to get promotion orders as H. C. And accordingly as Offtg. ASI from CCPO Peshawar and got it implemented e. That you managed an extra seat for the Intermediate College Course and joined it 50 days late in the year 2012. f. That you also managed selection for Upper College Course within 11 days on completion of Intermediate College Course. g. That you also got promotion as Offtg. ASI. Within 04 months i.e, 14.02.2013 without observing required procedure and later on within 17 days confirmed as ASI on 04.03.2013 and finally. h. That you got placement in list "E" earlier to placement in list "D" against the procedure and rules hence.
3. That by the reasons above, as sufficient material is placed before the undersigned which depicts to proceed against you in general Police proceeding (with enquiry officer).
4. That the misconduct on your part is prejudicial to good order of discipline in the Police force.
5. That your retention in the police force will amount to encourage inefficient and unbecoming of good Police officers.
6. That by taking cognizance of the matter under enquiry, the undersigned under the said rules, proposes stern action against you by awarding one or more of the kind punishments as provided in the rules.
7. You are, therefore, called upon to show cause as to why you should not be dealt strictly in accordance with the Khyber Pakhtunkhwa Police Rules, 1975 for the misconduct referred to above.
8. You should submit reply to this charge sheet within 07 days of the receipt of the notice failing which an ex-parte action shall be taken against you.
9 . You are further directed to inform the undersigned that you wish to be heard in person or not.
10. For the purpose of scrutinizing the conduct of the said officer with reference to the above allegations Mr. Faisal Shahzad, SSP/Traffic, Capital City Police, Peshawar is appointed as Enquiry Officer and is directed to get enquiry finalized within 25 days and furnish report.
11.Summary of allegations. Is also enclosed with this notice."
9. Mr. Faisal Shahzad SSP/Traffic, Capital City Police conducted the departmental enquiry on the said charges and recorded the following findings and recommendations:- "Findings Following are findings of the Enquiry. i. The whole journey of Riffat Ali from the rank of constable to present status is illegal against existing rules/procedure. Ii. Mr. Riffat Ali was enlisted in Traffic Police as recruit driver constable in BPS-05 by the recruitment committee vide order book No, 356 and allotted constabulary No,52.
The orders were issued by the then AIG/Traffic, NWFP. Since the Traffic Unit is a borrowing unit therefore it cannot enroll constable. Iii. On 20.03.2009 vide O.B. No, 52, the then AIG/Traffic, NWFP absorbed him from driver constable to constable within 07-months of his first appointment. Iv. On 12.3.2012 he was selected for Lower College Course as a Special Case vide No,4953-54/E-1, dated 12.03.2012 in violation of Chapter No,13 of Police Rules. The Police Rules clearly mentioned that it is mandatory that a constable to be selected for Lower -College Course had been on List "A" and "B".
It means that he neither qualified A-1 nor B-I examinations. Furthermore, PTC Manual Rules 10(2) requires that a candidate who intends to undergo Lower College Course should be on promotion B-1.
' On 12.10.2012 vide OB No,1354 he was promoted as Head Constable under Police Rules 13.5(A.) but in reality Police Rules 13.5(A) highlights the required physical standards for the promotion to the selection grades of the constables. Therefore, 13.5(A) has nothing to do with promotion orders. As per essence of Police Rules 13.8 those who are qualified Lower College Course their names are to be on List "C." maintained by the Superintendent, of Police but in this case his name did not exist on List "C". v. He was not only nominated for Intermediate College Course by creating one extra seat as a special case vide order No,21998- 22000/E-1, dated 20.11.2012 but he was included in the course 50 days after the commencement of course (01.10.2012). Furthermore, PTC Manual Rule 10(3) requires that a candidate who intends to undergo Intermediate College Course should be on promotion list C.I. vi. It is worth mentioning that the official attended Intermediate Course from 01.10.2012 to 20.3.2013 and then after 11-days he went for Upper College Course from 01 4.2013 to 20.09.2013. vii. Vide order No, 2079-85/EC-I dated 14.2.2013 he was promoted as officiating AS1 within 04- months without observing the required procedural formalities. Viii. And surprisingly he was first plated on List-E and later on placed on List-D. ix. On 14.02.2013 vide order No, 2079-85/EC.I he was promoted as Officiating ASI and within 17-days vide order No, 2803/EC, dated 04.03.2013 was confirmed as AS1.
Recommendations ' Central Police Office needs to instruct all such units about their status and authority regarding recruitment procedure.
' Ambiguity regarding absorption needs to be tacked with clearly laid down procedure.
' Since promotion in junior ranks is an important ingredient of carrier planning therefore such cases needs to be personally reviewed by the senior officers like in present case by CCPO himself and put his own signature instead of for signature."
10. The report of enquiry officer was found short of prescribed standards and, therefore, vide memo.
Dated 07.08.2014, the enquiry report was returned to him with a request to probe into matter.
Thoroughly and submit a clear cut findings as to whether the appellant was guilty or otherwise?
11. The said enquiry officer, in response to the said directions, submitted findings in the following words vide letter No,2332/PA, dated Peshawar the 7.08.2014, reproduced herein for facilitation:- "It is submitted that in findings of the subject departmental enquiry, it was established that the whole journey of accused S.I. Riffat Ali is illegal and against the existing rules/procedure. Hence he is recommended for major punishment under the Khyber Pakhtunkhwa Police Rules, 1975."
12 Thereafter the penalty of reduction to lowest rank of constable was imposed against the appellant by the competent authority in the prescribed manners
13. A careful study of record and facts highlighted above had convinced us to hold in unequivocal terms that appellant was up stretched and rocketed to higher ranks in a mode and fashion destructive to service law and rules. The conduct of a civil servant serving in the Force, would be prejudicial to good order of discipline and contrary to Government Servants (Conduct) Rules if the same is in conflict with or derogatory to the prescribed and required standards. Each and every person including appellant serving in the Police Force would oblige to portray conduct of a gentleman and in accordance with good order of discipline. Conduct prejudicial to good order of discipline in the Force or contrary to Government Servants "Conduct" Rules unquestionably fall within the mischief of misconduct defined in Rule 2(iii) of the Khyber Pakhtunkhwa Police Rules, 1975. The appellant was a recipient and beneficiary of the abuse and misuse of authority, exercised offensively by others for extending him illegal favours. Therefore he was liable to face departmental action for his "misconduct" within the meaning of the said Rules.
14. We have highlighted in details the report of the high profile Committee constituted for digging out facts relating to irregular, promotion of the appellant. On the strength of the report of the said Committee, departmental enquiry was conducted wherein it was established beyond any shadow of doubt that rules were sidestepped, evaded and flouted with the sole object to raise the appellant to higher ranks by compromising the dictates and mandates of laws guaranteeing and safeguarding good order and discipline in Police Force. The whole exercise was carried out by the high-ups of the Police Force with the sole object to promote appellant to higher ranks by all concerned in violation of rules on one hand, and to deprive other members of the service from their right for consideration to training courses and promotions on the other hand We, therefore, hold that the allegations and charges of "maneuvering" and "managing"' promotion of appellant to higher ranks were established in fact-ding enquiry and then in departmental enquiry against the appellant.
15. We have examined the facts of the reported case relied on by the learned counsel for the appellant titled Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Gohar Riaz reported as 2004 SCMR 1662 (Supreme Court of Pakistan) and have come to the conclusion that the facts of the said reported case are distinguishable from the facts of the present case as in the said case the issue was relating to irregularity in initial appointment. The said employees were fulfilling the pre-requisites of appointment and therefore their appointments were maintained while in the case in hand apart from irregularity in initial appointment of the appellant, favours in promotions were illegally extended to the appellant. The authority has not done away with the appointment of the appellant despite serious irregularities committed in the process of the said appointment. In such circumstances we are of the view that the appellant was treated in the mode and manners laid down by the August Supreme Court of Pakistan in case referred to above as despite irregularities in his appointment he was not removed from service. He is neither entitled nor deserve to claim further concessions by seeking invalidations of departmental actions on the strength of the judgment of the August Supreme Court of Pakistan.
16. In case, of Muhammad Sadiq and others reported as NLR 2009 Service 94 the August Supreme Court of Pakistan has observed and ruled that if penalty in the shape of reduction in rank is imposed against a civil servant on account of misconduct or inefficiency then such penalty should not be imposed for pulling down a civil servants to the lowest rank and that it should normally be limited to one stage only and not beyond that. We therefore, hold that the appellant was to be reduced in rank to one stage and not to the lowest one.
17. We would be failing, in administration of justice if we leave the crucial issue of fair-play, equality and treatment in accordance with law unattended. The fact-finding committee of high profile has not only pointed out the illegalities committed and offices involved in maneuvering for up stepping the appellant in manners destructive to law but also suggested that all those who violated the procedures shall be subjected to departmental enquiry.
18. It is not disputable that favour was extended to appellant by appointing him in Traffic, then absorbing him as a regular constable and then raising him from the position of a Constable to that of Sub-Inspector by civil servants responsible for keeping good order and discipline in the Force.
We are of the view that favour was extended by the Provincial Police Officer to those civil servants of the Police Force who had prima-facie committed professional misconduct within the meaning of "misconduct" of Efficiency and Discipline Rules in vogue. An authority responsible for rule of law, good governance and mandated to uphold and command good order of discipline in Police Force may not legally place itself in a position to compromise its mandate. The said authority, after consulting the report and while ordering departmental enquiry against the appellant, was convinced that allegations were of serious gravity and repercussions as so found by the Inquiry Committee of high profile. According to the said report appointment of the appellant in Traffic Wing was not in accordance with rules but those responsible for the said appointment were not subjected to enquiry. Absorption of the appellant as constable was also found illegal but those responsible for the said absorption were also spared. PTC Manual Rule 10(2) was found to have been compromised for favouring the appellant but those compromising the said Rules for favouring the appellant were also undesirably sheltered. The promotion orders of the appellant and procedures adopted including enlistment of the appellant were dig out as unlawful and based on favouritism but those involved in the exercise negating good order and discipline were spared and saved. This was ostensibly done as activities of enlistment of a police personal, nomination for trainings, creation of extra seats for his training, promotion to higher Ranks were made with the intervention and involvement of officers of high ranks of the Police Force. We would be, therefore, justified to observe, that such, practice on the part of the authority was not in conformity with law and, at the same time, the same was also prejudicial to good order of discipline in the Police Force.
19. As argued by the learned Additional Advocate General, we agree that penalty imposed against the appellant cannot be set aside even if other involved were spared due to any act or omission of the authority. Such an action on the part of the authority would not entitle appellant to similar treatment which was extended by the Provincial Police Officer to police officers in a mode and manners contrary to law. A civil servant can claim similar treatment meted out to another civil servant when such treatment is within the domain law and falls within the permissible limits prescribed by law. Appellant cannot be therefore let free, like officers mentioned above, to enjoy undue protection despite frustrating laws under the garb of equal treatment. Safe administration of justice would demand and require the authority concerned to evaluate the roles of those responsible for fanning and spreading disorders and portraying conduct prejudicial to good order of discipline in the Police Force. We therefore direct that the Provincial Police Officer of the Khyber Pakhtunkhwa Province shall undertake an exercise of sorting out all responsible officers involved in the said activities, within a fortnight from the date of receipt of this judgment, for enabling the relevant authorities to proceed against officers involved in maneuvering and managing favours to the appellant. Information so collected shall be shared with the Registrar of this Tribunal who shall place the same before this Tribunal for perusal.
20. In the light of afore-stated discussion we partially allow the instant appeal and as a consequence thereof set aside the impugned order by modifying the penalty of reduction to lowest rank, imposed against the appellant, to a major penalty by reducing him to one rank lower than the one to which he was promoted on regular basis. Parties are left to bear their own costs.
File be consigned to the record room.