' S. ABDUL JABBAR KHAN (CHAIRMAN).-Mr. Muhammad Ayyaz, Sub-Inspector Police,' has filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Superintendent of Police Multan, D. L a Police Multan Range, I. G Police Punjab, Mr. Abdul Hamid Tahir, Inspector Police, Multan Range, Mr. Zulfi gar Ali, Inspector Police, Multan Range, Mr. Mushtaq Hussain, Inspector Police Multan Range, Mr. Jamshed Alam, Inspector Police, Multan Range and 19 others as respondents. By virtue of this appeal the appellant has prayed that the order dated 24th October, 1979 and final order dated 12th December, 1979 (communicated on 18th December, 1979) may be set aside and he be confirmed as Sub-Inspector Police from 1st June, 1973 according to his original seniority. He has further prayed that his name may be considered for promotion to list 'F' from the date his junior was brought on the said list.
2. Brief facts of the case are that the appellant was officiating as Sub-Inspector Police with effect from 17th July, 1971. On 12th November 1975 in consequence of a charge of obtaining illegal gratification he was reverted to the post of A. S. I. An enquiry was instituted to probe into that charge so levelled against him but due to the fact that the witnesses appearing against him resiled, the Enquiry Officer reported that case against him was not proved. The Superintendent of Police, Muzaffargarh, however, did not accept the report of the Enquiry Officer and observed that the appellant was guilty of corruption. No positive punishment was inflicted upon him as a result of the said enquiry or views of the Superintendent of Police. Muzaffargarh, yet it was considered that the reversion which. Had already been ordered before the start of the enquiry would be a sufficient deterrent against the appellant. Appellant filed a departmental appeal which failed. Aggrieved against the attitude of his Department an appeal No, 6/876 of 1977 was filed before this Tribunal.
While the appeal was pending the respondent No, 2 (D.
1. G. Police, Multan Range) reconsidered the matter and passed an order No, 4606, dated 17th February, 1979 by which he was promoted as Sub-Inspector Police with original seniority. The said order of the D. I. G. P. Was produced before the Tribunal which was pleased to hold the appeal as infructuous as the claim laid before the Tribunal was accepted by respondent No,
2. The respondent No, 2, vide an order dated 12th March, 1979 (Annexure 'C') irrespective of the appellant's original seniority placed him on probation with effect from 1st March, 1979 thus disturbing the appellant's seniority whereas the appellant was entitled to be considered senior from the date of officiating appointment and from the date of his confirmation. This led four of his juniors to be placed on 'F' list without appellant's case being considered alongwith their case.
Aggrieved against this unwarranted act of respondent No, 2, a representation was made by the appellant on 10th April, 1979 (Annexure 'D') but the same was rejected by successor of the respondent No, 2, vide his order dated 24th October, 1979. The said order was communicated to the appellant on 18th December, 1979 vide Urdu Parwana issued by Superintendent of Police, Multan (Annexure 'K') on 12th December, 1979.
3. We have heard the learned counsel for the appellant as well as the Government Pleader and have perused the record of this case carefully with their assistance. Before we go into the merits of the case it will be necessary to point out that vide order dated 12th October, 1980 of this Court ex parte proceedings were ordered against the absentee respondents. Similarly, vide order dated 12th November, 1980 of this Court respondent No, 26, Malik Tasawwar Hussain, was also proceeded ex parte.
4. It has been contended that order of respondent No, 2, dated 12th March, 1979 (Annexure 'C') by which the appellant was placed on probation with effect from 1st March, 1979 was negation of the original order of the same authority dated 17th February, 1979. In other words the effect of this order (Annexure 'C') would tantamount to withdrawal of the earlier order dated 17th February, 1979 in favour of the appellant. It was further submitted that the order dated 17th February, 1979 (Annexure 'A') was order of re-instatement when the same was due to exoneration of the appellant from the allegation of corruption, etc. According to the learned counsel on behalf of the appellant there could be no two interpretations of this order of 17th February, 1979 otherwise the appellant would have pursued his legal remedy before the Tribunal. The reversion of appellant without any charge sheet and enquiry has also been assailed being violation of mandatory rule 16.24 of Police Rules.
The learned counsel has submitted that charge-sheet and enquiry was ordered after the appellant's reversion. The case of the appellant is that in regular enquiry he was exonerated from the charge of obtaining illegal gratification. Therefore, his case was at par with Mr. Jamshed Raza, Sub-Inspector Police of Lahore Range in Appeal No, 147/55 of 1978 which was decided by this Tribunal,
5. On the other hand perusal of parawise comments and arguments addressed on behalf of respondents by the learned Government Pleader it has been urged that the case of the appellant is hit by rule 13.18 of the Punjab Police Rules 1934, Vol. II, as well as rule 1316 of the said Rules. It has been further elaborated that the case of the appellant is also liable to fail by the mischief of section 4, clause (b) of Punjab Service Tribunals Act, 1974. In view of the above-mentioned rules and section this Court has no jurisdiction to entertain this appeal as no appeal would lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. While relying on the impugnel order of D.I.G.P. Multan,Chaudhry Muhammad Siddique Dogar, successor- in-office to the author of order dated 17th February, 1979 it has been argued that the denial of seniority for the intervening period was in fact due to repromotion of the appellant to the rank of S.
1. Police after the receipt of a special report from Superintendent of Multan. According to the learned Government Pleader the period during which appellant stood reverted was not counted towards probation and he was placed on probation afresh with effect from 1st March, 1979. He has also taken support from the parawise comments in reply to the appellant's contention in para. 8 that the appellant had adverse entry in the A. C. R. For the year 1971 and also appellant was dealt with departmentally for corruption in the year 1975 and Superintendent of Police, D. G. Khan, found him guilty to the said charge. However, he has conceded that the Department has not disturbed the seniority of the appellant which was so bestowed upon him by the D. I. G. P. Multan Range, vide his order dated I7th February, 1979.
6. After taking into consideration the points raised for and against the appellant from both sides, respectively, we are of the considered opinion that the case of the appellant can only be resolved by keeping before us the order dated 17th February, 1979 by Mr. Lftikhar Rashid, D. I. G. Police, Multan Range and that of his successor, Chaudhry Muhammad Siddique Dogar, dated 24th October, 1979 so made on the representation of the appellant. We will reproduce the operative portions of both the orders in order to make assessm ent of the same.
' Order dated 17th February, 1979 `Read a representation submitted by A. S. I. Muhammad Ayyaz No, 64/M against the order of his reversion passed by the Superintendent of Police, D. G. Khan on 12th November, 1975. He was dealt with departmentally op the charge of extortion of illegal gratification and high handedness while posted in C. I. A. Staff Rajanpur. As a result he was reverted from the rank of Officiating S. I. To that of A. S.
1. With effect from 21st November, 1975.
' I have gone through the enquiry file along with the appeal and have also heard him in person on 21st March, 1978. It was considered necessary to put him on Special Report. Hence the Superintendent of Police, Multan was asked to send Special Report on his working and conduct. The Superintendent of Police, Multan has submitted the aforesaid report stating therein that he handled 15 cases and all were challaned. That he is honest and hard-working and his promotion case may be considered favourably. In view of this report and after going through his record I order that he is promoted as S. I. And will retain his original seniority".
' Order dated 24th October, 1979 ' The orders of my predecessor with regard to his repromotion from 17th February. 1979 and placing him on probation from 1st March, 19/9 have been rightly and correctly made. It was clearly specified in this office Memo. No, 7710-71/E, dated 26th March, 1978 that in view of his unsatisfactory record he was not reinstated in the rank of Sub-Inspector at that time. He was placed under a special report for a period of three months on receipt of which his promotion to the rank of Sub- Inspector was to take effect. In all fairness the S. I. Was also transferred to District Multan so that he could have no further grievance that might have been entertained by him with regard to his assessm ent of S. P., D. G. Khan. Obviously, therefore, he was repromoted after the receipt of Special Report from S. P. Multan to the rank of S.4. And was given the old seniority. However his past period of service was not counted towards probation and he was placed on probation afresh with effect from 1st March, 1979. His claim is, therefore, not justified and he shall be confirmed after completion of the period of probation with effect from the date already specified in this office order No, 6847/E, dated 12th March, 1979 relating to his promotion on probation."
(Undermarkings are by the Court ; here in italics)
7. By comparing the two orders above we find that earlier order of D.
1. G., Multan Range has nowhere specified that the appellant was repromoted and not 'promoted'.
The word 're' is significant for the reason that if it is a case of repromotion then the implication would be different and if it is the case of ipso facto promotion the case of the appellant shall have to be adjudged in that perspective. We fail to understand how the later order by the successor-in- office of D.
1. G. P. Multan Range has assumed that the appellant was a fresh promottee without reference to his previous service when the earlier order itself has clearly bestowed the original seniority on the appellant. The restoration of original seniority by the order dated 17th February, 1979 was made after looking into the record of the appellant as stated therein. This would clearly show that the order was by conscious application of mind to the earlier enquiry conducted against the appellant and keeping in view his performance at Multan it was deemed fit that he should be reinstated and the spell of misfortune which he encountered during all these years did not stand in his way anymore. The impugned order dated 24th October, 1979 does not provide us with any details to come to the conclusion that this was a case of repromotion and past service could not be counted in favour of the appellant. The use of. Word 'original' would positively justify the claim of the appellant that this would relate back to his officiating appointment under the Police Rules. If it would have been in the mind of D. I. G. P. That the appellant was corrupt or the charges of corruption so levelled against him by the Superintendent of Police. Muzaffargarh, were in any way justified he would not have promoted him with the 'original seniority'. He could have easily explained that in view of the past conduct of the appellant he was not eligible to have original seniority but would stand promoted from the date of repromotion after the completion of probation period and report of good conduct so received in his favour from Superintendent of Police, Multan. The absence of such elucidation or explanation on his part leaves no room for doubt that the appellant was reinstated and was restored to his original seniority.
The legal contentions raised by the Government Pleader with regard to jurisdiction of this Court are not applicable to the facts of this case. We have no dispute with the proposition that this Court cannot hear appeals with regard to the denial of promotion to the civil servant or in any manner to substitute their opinion in place of the competent authority for these matters. Therefore, we proceed to ignore the same. With regard to his claim that the appellant earned bad reports and had bad record it would be sufficient to say that the same argument was considered by the D.
1. G. P. Multan at the time when lie made the order of reinstatement and restoration of original seniority in favour of the appellant.
' In view of our above discussions we set aside the impugned order dated 24th October, 1979 being without any force and justification alongwith the seniority list so formulated ignoring the rights of the appellant in that matter. We maintain the order dated 17th February, 1979 of D. I. G. P., Multan, in favour of the appellant with all its force. Before parting with this case we would observe that in the matter of promotion this Court is not empowered to give any directions and leave the matter entirely to the departmental authority.