SHOUKA T ALI MEMON, MEMBER-I --- The appellant herein has prayed as under:---
(a) To direct the Respondents No, 2 & 3 that the promotion of appellant as ASI may kindly be treated from 19.09.1996 and may be promoted as Sub-Inspector in Karachi Range from due date i,e, 19.09.1996 was promoted to the batch-mates (who are promoted as ASI FROM 19.09.1996 and promoted to S.L in Karachi Range.
(b) To direct the Respondents No, 2 & 3 after promotion as S.L may be allowed to undergo Upper School Course before becoming overage to make the appellant eligible for further promotion.
(c) To direct the Respondents No, 2 & 3 to make payment of the salary from the date of eligibility of promotion which has been knowingly and deliberately by taking the law in their hands deprived the appellant from his legitimate right of promotion."
2. According to the appellant, he was appointed as Constable in Sindh Constabulary on 06.02.1982; transferred to Sukkur District in the year 1988; again transferred to District Ghotki on creation of a District; passed departmental courses A-1, B-1 & LSC and brought on the list of C-1 w.e.f 23.06.1996; promoted as Head Constab le on 1996 brought on list `D' w.e.f 01.12.2001; promoted as ASI as a special case in the year 2005 and thereafter transferred to Karachi in September 2012. It appears that in the wake of Supreme Court Suo Motu Case No, 03/2012, as a case of out of turn promotion, the appellant was reverted/demoted to the rank of Head Constable in pursuance of Rule 12.2(3), but on appeal to the Addl. I.G., his promotion of ASI was treated w.e.f. 29.01.1996 by adjusting his seniority vide notification dated 02.08.2013 and was transferred from Karachi Range to Sukku r Range. However , his seniority is stated to be existing in Karachi Range due to his basic appointm ent there. The grievance of the appellant is that while circulating the final seniority list of AS Is dated 03.04.2015, the seniority of the appellant as ASI was changed from 29.01.1996 to 02.08.2013 creating a gap of 17 years and according to the appellant, this policy is not in consonance with the provisions of Police Rule 12.2(3), therefore, he has approached this Tribunal after filing the departmental appeal, praying as above.
3. Initially , this appeal was filed against four respondents including Section Officer, Home Secretary , Government of Sindh and since no relief was claimed against him, therefore at the request of appellant his name was deleted vide order dated 07.08.2017.
4. The respondent No, 1 did not file comments, therefore, was proceeded ex parte , while respondent No, 2 denied the claim of the appellant for restoration of promotion with effect from 29.01.1996. It is further stated that his seniority is being maintained by respond ent No, 3 and promotion would be made as per rules/policy guide lines subject to availability of vacancy .
5. The respondent No, 3 in his comments admitted the appointment of appellant as Head Constable alongwith his clearance of various courses as well as transfer from Sukkur Range to Karachi and his promotion as ASI w.e.f 29.01.1996 vide notification dated 02.08.2013 as a case of Anti-dated seniority . It is further stated that in pursuance of judgment of this Tribunal in Service Appeal No, 128/2014, (Meraj Anwer v. The State ), the antedate/retrospective seniority in the rank of ASI was modified vide notification dated 02.08.2013. It is further stated that in pursuance of the judgment of the apex Court dated 06.05.2016, a policy/guideline for determination of seniority of upper and lower subordinates of Sindh Police has been issued. The prayer is made for dismissal of the appeal.
Heard arguments.
6. It is argued by the learned counsel for the appellant that seniority of the appellant has not been properly determined, thus the appellant has been deprived of his legitimate right guaranteed under Constitution of Pakistan and the decision overrides the order of Supreme Court in Suo Motu Case No, 02/2012, dated 06.05.2016.
7. It is next contended that in order to bring uniformity in the process of determination of seniority in a particular rank and subsequent promotion in accordance with Police Rules, 1934, policy guidelines were issued vide order dated 14.05.2016 by respondent No, 2 wherein at page No, 04 it is mentioned that when a Police Head Constable is promoted to the rank of ASI on regular basis, he will be treated as ASI subject to completion of probationary period and contended that according to this criteria, the date of promotion of the appellant as Head Constable would be from 19.09.1996 and not from as determined and circulated thus, the appellant has been deprived of his further promotion from ASI to SI etc. Learned counsel concluded his arguments, insisting to allow the instant appeal as prayed.
8. Conversely , the learned Addl. A.G. submitted that there is no cavil regarding the facts as stated by the appellant except that his interpretation of the guideline/policy issued by respondent No, 2 is not in accordance with its spirit.
Learned State Counsel with reference to Annexure 'A' of the written statement of Respondent No, 3 referred to page No, 04 of the Guidelines/policy reading as under: "....4. According to Rule 12.2(3), seniority of upper subordinates will be reckoned from the date of initial appointment as ASI, which means the date of either promotion as ASI from HC or direct appointment of ASI. Such date is the benchmark for the determining seniority . This date will not be challenged and no appeal in this regard shall be entertained.
Provided that, if a lower subordinate is promoted as ASI and such promotion is done in violation of rules or ignorance of some essential facts which if discovered at the time of promotion, he would not have been promoted, then his seniority is subjected to challenge/review . However , in absence of such grounds mentioned hereinabove, requests of review of seniority should not be entertained amongst upper subordinates based on their date of appointment as lower subordinates. As a general rule, once the date of appointment or date of confirmation has been settled in the rank of upper subordin ates, the claims of seniority shall be subje cted to strict checks for genuine reasons to do so.
5. In accordance with Rule 13.18 of Police Rules, 1934, Police officers promoted from rank of HC to ASI shall remain on probation for 2 years. In accordance with Rule 12.8, ASI who is directly appointed will remain on probation for 3 years. Illustration: If is promoted to the rank of ASI on 1.2.2014 and B is directly appointed as ASI on 1.7.2013. As per Rule 12.2(3), B will be initially senior to A as per date of appointment as ASI. A will be confirmed in the rank of ASI after 2 years (being promoted to the rank) on 1.2.2016 according to Rule 13.18, whereas B will be confirmed in the rank of ASI on 1.7.2016 after 3 years (being directly appointed as ASI). After confi rmation, A will be senior to B as per provisions of Rule 12.2(3)... ..."
9. In view of the above, the learned Addl. AG submitted that the appeal of the appellant is meritless based upon wrong/incorrect of the guidelines/policy , thus be dismissed with costs.
10. We have gone through the submissions made at Bar as well as the case history and the order of respondent No, 2 dated 14.05.2016 on the subject of policy guidelines for determination of upper and lower subordinates of Sindh Police.
11. Admittedly , the appellant was appointed as Constable therefore, he belongs to the category of lower subordinates who was promoted as Head Constable w.e.f 19.09.1996. No doubt the appellant was promoted as a special case to the rank of ASI in the year 2005 and on an appeal also succeeded in getting his promotion as ASI counted with effect from 29.01.1996 by Addl. I.G., Karachi Range by way of adjustment of the seniority statedly in accordance with Police Rules. However , it does not appeal to reason that when for the first time the appellant was promoted in the year 1996 on 19.09.1996 as Head Constable, how come he could have been treated to be promoted as ASI from 29.01.1996 even 8 months earlier to his promotion from Constable to Head Constable on 19.09.1996.
12. It is also an admitted fact that the promotion of the appellant as ASI in the year 2005 was an out of turn promotion, which stood withdrawn under the directions of the Hon'ble Supreme Court, therefore, taking shelter under guidelines/policy order that his seniority be counted as ASI w,e,f, date of his promotion as Head Constable on 19.09.1996 is uncalled for and does not fall within the purview of Police Rules so relied upon by the appellant.
13.The policy/guidelines order dated 14.05.2016 of respondent No, 02 relied upon by the appellant is very much clear and supported by illustration, hence we do not find any force in the submis sions of learned counsel for the appellant to allow the appeal as prayed, thus dismiss the same with no order as to costs.