Qazi Khalid Ali, Chairman. --Since in all the titled appeals, the appell ants have claimed similar relief, therefore, through this single judgment we are inclined to dispose of the titled appeals and Appeal No. 1280(R)CS/2018 along with Misc. Petitions for interim relief as also for condonation of delay is taken as the lead appeal.
2. Through the instant appeal, under Section 4 of the Service Tribunals Act, 1973, the appellant has prayed that "while accepting this appeal, the respondents be directed to set aside the order dated 05.06.2018 through which the order dated 30.01.2017 stands revived with immediate effect" and that "the appellant may graciously be reverted back to his rank I post with all back benefits".
3. In the earlier round of litigation, the Tribunal after hearing the learned counsel for the appellant dismissed the appeal in limine on 03.08.2018 alongwith connected Appeals [No. 1281 to 1298 & 1313 to 1316(R)CS/2018], being time barred. The operative para-6 of the order is as follows:- "6. For the foregoing reasons, we hold that the present appeals are time barred by more than 11/2 years and hence not worthy of admission to regular hearing. Therefore, we are constrained to dismiss the same in limine being time barred. Since main appeals are dismissed, thus consideration of MPs is of not avail."
4. The appellant along with others assailed the aforesaid order of the Tribunal dated 03.08.2018 before the Hon'ble Supreme Court of Pakistan through Civil Petition Nos.3797 to 3819/2018 wherein leave to appeal was granted vide order dated 25.04.2019. Subsequently , the Hon'ble Supreme Court vide order dated 17.09.2019 passed in Civil Appeals No. 1196 to 1218/19, set aside the order of the Tribunal dated 03.08.2018 and remanded the matter to the Tribunal for deciding the appeals. Operative paras of the order passed in aforesaid CAs are reproduced hereunder: "It is noticed that while hearing the appeals, the FST has non-suited the appella nts and dismissed their Service appeals on the basis that these were time barred. Learned counsel for the appellants states that the appellants had filed applications for condonation of delay in filing of the appeals and have explaine d that the appellants had on the advice of the counsel approached the Islamabad High Court by way of filing writ petitions bona fide and after such writ petitions were dismissed by the Islamabad High Court on the ground of their non-maintainability , the appellants availed the remedy before the FST. He contends that the appeals before the Tribunal were in time while, taking into consideration the ground give in the applications for condonation of delay but such ground has not been addressed by the FST in the impugned judgment. In the circumstances, the learned counsel for the appellants as well as the learned Advocate General, Islamabad agree that the impugned judgment be set aside and the matter be remanded to the FST for deciding the appeals of the appellants. Though the question of limitation will also be considered but the law point as noted in the leave granting order may also be addressed by the Tribunal while disposing of the appeals.
The appeals in the above terms stand allowed."
5. Appeals No. 350 to 352(R)CS/2017, [shown at SI.No. 27 to 29], were also dismissed by the Tribunal on the point of limitation vide judgment dated 25.08.2017 which was challenged by them before the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court remanded the matter to the Tribunal for deciding the same afresh, vide order dated 08.1 1.2019 passed in Civil Petitions No. 3710 to 3712 of 2017. The relevant portion of the order is as follows: "Additionally , the learned ASC for the respondents has candidly taken an objection that the very service appeals filed by the petitioners before the Tribunal were not maintainable for that the petitioners have directly filed service appeals against the order dated 06.01. 2017 without availing remedy of depar tmental representation, as it is mandatory requirement under Section 4 of the Service Tribunal Act. We note that the Tribunal, in its impugned judgment, has not dealt with this aspect of the matter , thus by consent, the impugne d judgment dated 25.08.2017 is set aside and the matter is remanded to the Federal Service Tribunal, Islamabad for hearing and deciding all the three appeals afresh in accordance with law. Consequently , all the petitions are converted into appeals and are allowed in the above terms".
6. The issue of limitation being foremost importance is to be decided first. We have perused the Misc. Petition filed by the appellant for condonation of delay . The learned counsel for the appellant contends that the impugned order was challenged before the Hon'ble Islamabad High Court, Islamabad in Writ Petition and the same was dismissed on 20.04.2018 on the point of maintainability . The appellant has been prosecuting his case with due diligence and that technicalities should not be allowed to hamper the smooth course of justice. The instant appeal was filed before the Tribunal on 24.07.2018 is within time from the order passed by the Hon'ble Islamabad High Court, Islamabad. The period spent in seeking remedy before the wrong forum i.e. High Court was not deliberate and willful but was in good faith and deserved to be condoned. In support of his contention he placed reliance on 2002 SCMR 82 (Engineer Naraindas and another vs. Federation of Pakistan and others and 1994 PLC (CS) 522 (Dr. Fazlullah Pechuho vs. Federation of Pakistan, Cabinet Secretariat, Establishment and 2 others). In such view of the matter and in peculiar circum stances of the case, the Misc. Petition filed for condonation of delay is accepted.
7. On merit, the facts as enumerated in the memo of appeal succinctly are that the appellant was initially inducted as Constable (BS-5) in the Islamabad Police on 25.09.1984. Due to his hard work, he was awarded out of turn promotion as Head Constable on 15.07.1992 and he was recommended for regular promotion time and again. On 01.03.2001, the appellant was given selection grade from BS-07 to BS-09 on the basis of seniority-cum-fitness criteria. The appellant has 34 years long service record which speaks volume about his hard work and honesty . On 08.12.2016, a Show Cause Notice was issued to the appellant on the charge of misconduct / inefficiency in view of the judgments passed by the Hon'ble Supreme Court of Pakistan reported as 2013 SCMR 1752 [Contempt Proceedings Against Chief Secretary , Sindh and others] and 2015 SCMR 456 [Ali Azhar Khan Baloch and others v. Province of Sindh and Others] that the police officials and civil servants are not entitled to out of turn promotion on account of gallantry award or otherwise and declared that antedated seniority and change of cadre without adopting proper procedure is in violation of law. The appellant filed reply to the Show Cause Notice but his reply was not considered satisfactory . Thereafter the impugned order dated 30.01.2017 was passed whereby out of turn promotion of the appellant as Head Constable and confirmation was cancelled/ withdrawn by reverting him back to the rank of Constable. After availi ng the departmental remedy , the appellant instead of filing service appeal before the Tribunal, approached the Hon'ble Islamabad High Court for redressa l of his grievance. The Hon'ble Islamabad High Court vide order dated 15.02.2017 suspended the impugned order of reversion of appellant dated 30.01.2017. The respondents in compliance of the order of the Hon'ble Islam abad High Court, Islamabad, suspended the order dated 30.01.2017 of his reversion vide their order dated 10.03.2017. Later on the Hon'ble Islamabad High Court, Islamabad dismissed the said Writ Petition alongwith connected writ petitions vide order dated 20.04.2018 passed in Writ Petition No. 868/2017 being not maintainable. After dismissal of the writ petition, the respondents through order dated 05.06.2018 restored their earlier order dated 30.01.2017 of cancellation/withdrawal of out of turn promotion of the appellant. Aggrieved by the same, the appellant filed the instant appeal before this Tribunal.
8. Learned counsel for the appellant has contended that the appellant has served the respondent Department for almost 34 years. He was granted selection grade in the year 2001 which was taken back from him by reverting him to the post of Constable (BS-05). The impugned order has been passed arbitrarily and unlawfully by the respondents in violation of the order dated 28.03.2018 passed by the Hon'ble Supreme Court of Pakistan in Review Petition No. 13212016 titled Muhammad Saqlain etc. vs. Govt. of Sindh through Chief Secretary Sindh wherein it has categorically been stated that the employees who are in BS-01 to BS-07 should not be transferred to their parent departments. Since the appellant was inducted in the post of BS-05 and given out of turn promotion in BS-07, therefore, he is entitled to the benefit of the observations passed by the Hon'ble Supreme Court of Pakistan in their order dated 28.03.2018. Further he relied on the judgment passed by the Hon'ble Supreme Court reported as PLD 2016 SC 961 wherein promotions made in the Hon'ble Islamabad High Court were declared illegal and a large number of employees were reverted back to their previous posts but while deciding the said case, the Hon'ble Supreme Court of Pakistan made an exception for the employees who were working below or in the rank of BS-07 should not be transferred. Learned counsel for the appellant has stated that the respondents are withdrawing their reversion order on the direction of this Tribunal as well as other provincial Tribunals for the reasons that the employees have served a long period of time in the service and prayed for acceptance of the appeal.
9. The appeal is resisted by the respondents by filing their para-wise comments. Syed Muhammad Raza, Assistant Attorney General, who is accompanied by the departmental representative states that the appellant was appointed as Constable on 25.09.1984 and promoted to the rank of Head Constable (BS-07) on 15.07.1992 due to extraordinary performance during recovery of stolen cars, narcotics and busting car lifting gangs. He was granted Selection Grade on 01.03.2001 (BS-07 to BS-09) due to his length of service i.e. 34 years. He was served with a Show Cause Notice in pursuance of judgments passed by the Hon'ble Supreme Court of Pakistan reported as 2013 SCMR 1752 , 2015 SCMR 456 & 2017 SCMR 207 wherein all kind of out of turn promotion were declared illegal. The Apex Court vide its order dated 26.01.2016 in CA. No. 184-L of 2013 has held that "all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today as contained in the aforesaid judgment". It is further stated that the Hon'ble Supreme Court of Pakistan in CP No. 492-95 of 2009 dated 23.05.2009 passed a detailed judgment and marked a copy of the same to all the Inspectors General of Police for strict compliance wherein it is held that "out of turn promotion, as envisaged in the impugned instruction is not only against Constitution but also against injunctions of Islam. Out of turn promotion in a public department generates frustration and thereby diminished the spirit of public service. It generates undue install the spirit of service of community but it should not be made basis of accelerated promotion." The learned Assistant Attorney General further states that the action was taken by the authority in compliance of the judgment passed by the Hon'ble Supreme Court regarding out of turn promotions and prayed for dismissal of the appeal.
10. After remand of the matter , we have heard the learned counsel for the parties and have gone through the record minutely with their able assistance.
11. The issue of out of turn promotion has been dealt with by the Hon'ble Suprem e Court of Pakistan in the case reported as 2013 SCMR 1752 Contempt Proceedings Against Chief Secretary . Sindh and others and it was held that out of turn promotions were violation of Articles 240, 242, 4, 8, 9 & 25 of Constitution of Islamic Republic of Pakistan, for the reasons incorporated in Paras 158 to 164 which may be reproduced as under: "158. On the issue of out of turn promotions, the impugned enactments are discriminatory persons/class specific and prejudicial to public interest, as it would be instrumental in causing heart burning amongst the police officers whose inter se seniority and legitimate expectation of attaining upper ladder of career would be affected. The out of turn promotions to the police officers and other civil servants by virtue of Section 9A would affect- the performance of hundreds of thousands of the civil servants serving in the Sindh Government. The impugned instruments on out of turn promotions are neither based on intelligible differentia nor relatable to lawful objects and by the impugned instruments the entire service structure has been distorted, affecting the inter se seniority between the persons, who are serving on cadre posts after acquiring job through competitive process and their seniorities were and are superseded by the powers granted to the Chief Minister through Section 9A.
159. On account of the promulgation of impugned legislative instruments, employe es brought on contracts and or appointed or transferred on the basis of deputation were absorbed in the Sindh Government against the law declared by this Court and the Sindh High Court and thereafter they were granted out of turn promotions. The Sindh Government through the impugned legislation have conferred undue favour on a select group of undeserving and unmeritorious persons by way of deputation, posting,- induction, out of turn promotion, ante-dated seniority , re- hiring. The impugned legislation protects and promotes the interests of select group of officers! individuals to the disadvantage of hundreds of thousands of civil servants, depriving them of the equal protection of law under Articles 4 and 25 of the Constitution.
160. The impugned legislative instruments are violative of Article 143 of the Constitution. Article 240 of the Constitution provides for service structure of civil servants. It refers (i) Federal Service (ii) Provincial Service (iii) All Pakistan Service. The last category of service, among others, can be exemplified by All Pakistan Unified Group.
The provincial civil servants join All Pakistan Unified Group or Police Service of Pakistan in accordance with their provincial quota when they acquire BS-19. They retain their original inter se seniority with the provincial cadre, but they also compete, within the given federal quota, for their promotions to the higher grades i.e BS-20 and above.
This policy of encadrement is regulated by the ESTACODE. These guidelines/instructions are applicable to all the Federal civil servants including those joining the All Pakistan United Group/Police Service of Pakistan on their provincial quota. By the impugned instruments, the civil servants have been granted out of turn promotion with backdated seniority .
161. Therefore, it is important to ensure that both provincial and federal laws should be complementary rather than conflicting, or else the smooth progression from the provincial service to the All Pakistan Unified Group/P .S.P would become impossible and there would be an administrative chaos caused by conflicting laws and a myriad of litigation. The ultimate casualty of the impugned instruments would not only be the establishment of meritocratic public service but more ominously the certainty of law which undermines both legitimate expectancy individually among the civil servants as regards the smooth progression of their career , but also the overall administrative environment. Article 143 of the Constitution has been promulgated to harmonize and regulate the service of the civil servants from Federal Government and Provincial Governments on their opting for All Pakistan Unified Group/PSP . The impugned legislation would distort inter se seniority of the civil servants not only within the province but also the federal civil servants.
162. The absorption and out of turn prom otion under the impugned legislative instruments will also impinge on the self respect and dignity of the civil servants, who will be forced to work under their rapidly and unduly promoted fellow officers, and under those who have been inducted from other services/cadres regardless of their (inductees) merit and results in the competitive exams (if they have appeared for exam at all) and as a result the genuine/bona fide civil servants will have prospects of their smooth progression and attainment of climax of careers hampered, hence the impugned instruments are violative of Article 14 of the. Constitution. The laws are made to achieve lawful object. The impugned legislative instruments do not advance this concept while conferring powers on the Chief Minister to grant out of turn promotions, on the contrary the unstructured discretion vested in him has infringed the valuable rights of the meritorious civil servants of legitimate expectancy of attaining climax of careers.
163. In order to discover the intent and wisdom behind the impugned legislation, we required the Additional Advocate General to place before us the debates of Assembly during the passage of the Bills. Such record was placed before us. After perusal of the record, we found that the Bills/proposed laws were not sent to the Standing Committee. No debate had taken place on the proposed laws which had far reachin g effect on the rights of the civil servants. One of the impugned Acts contained statement of objects and reasons for promulgating the impugned legislation, which is reproduced hereunder: "The law enforcement personnel of Sindh Police in the past have risked their lives and exhibited exceptional acts of gallantry in the line of duty. Therefore, in order to retain the morale of the Force, it is expedient to make certain amendments in the Sindh Civil Servants Act, 1973. The Bill seeks to achieve the above object."
164. We support that morale of police personnel be boosted, as intended in the aforesaid impugned legislations, and on their exhibiting exceptional acts of gallantry , they should be given awards and rewards on merits. In order to confer award or reward on the police officer for his act of gallantry the Sindh Government will constitute a committee under Rule 8-B, to evaluate the performance of the police officer upon whom the proposed award or reward has to be bestowed. However , out of turn promotion in police force would not boost the morale of the police force, on the contrary by impugned legislative instruments granting out of turn promotion to police officers, has demoralized the force. This Court in the case of Watan Party reported in (PLD 2011 SC 997) has already directed the Sindh Government to depoliticize the police force. The out of turn promotions have engendered inequalities and rancor among the batch mates/course mates, rendering many of them junior/ subordinate to their junior colleagues.
Under Section 9A, the Sindh Governmen t, has granted out of turn promotions to the civil servants, who do not belong to police force. By using the word 'Gallantry' in Section 9-A of the Act of 1973, the legislature never intended to grant out of turn promotion to civil servants other than police force, but the Sindh Government has extended this benefit to civil servants. We for the afores aid reasons stated hereinabove, are clear in our mind that the impugned legislations on the issue of out of turn promotion and grant of backdated seniority are violative of Articles of the Constitution referred to hereinabove and are liable to be struck down".
The principle laid down by the Hon'ble Supreme Court of Pakistan in the case supra was also reiterated and re- affirmed in case reported as 2015 SCMR 456 Ali Azhar Khan Baloch and others v. Province of Sindh and Others. Para 254 of the judgment is reproduced as under: "254. This judgment shall also be sent to the Chief Justices of all the High Courts through Registrars for their information, perusal and circulation amongst all the Hon 'bk. Judges. This judgmen t shall also be sent to the Chief Secretaries of all the Provinces as well as the Secretary , Establishment Division, Government of Pakistan, Islamabad, with the direction that they shall streamline the civil service structure in light of the principles laid down in this judgment. In addition, the office shall also send copies of this judgment to the Chairmen of the Federal Service Tribunal, Islamabad and the Sindh Service Tribunal, Karachi, through their Registrars, for information and compliance.
12. The bare perusal of this para it is very clear that the Hon'ble Supreme Court of Pakistan has been pleased to direct the Secretary Establishment Division, Government of Pakistan, Islamabad to streamline the civil service structure in light of the principles laid down in this judgment. In addition, the copie s of this judgment were sent to the Chairman of the Federal Service Tribunal, Islamabad and Sindh Service Tribunal, Karachi through their Registrars, for information and compliance.
13. We have also been able to lay our hands to the dictum laid down by the Hon'b le Supreme Court of Pakistan in the case of Shahid Pervaiz vs. Ejaz Ahmad and others (2017 SCMR 206), by a 5 Members Bench, headed by the then Hon'ble Chief Justice Mr. Anwar Zaheer Jamali, CJ and four Hon'ble Judges, wherein the Hon'ble Apex Court has been pleased to observe in Para.8 of the Judgment as under:- "8. The present proceedings emanate from an order of this Court, which was passed on 26.01.2016 in Civil Appeal No.184-L of 2013, wherein this Court has ordered as under: We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be re-fixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from constable to any gazette officers shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I. G.
Police Punjab, Home Secretary , Punjab and Chief Secretary , Punjab, shall submit compliance report with the Assistant Registrar of the Court for our perusal in chambers. This order shall be communicated to the I.G. Punjab, Home, Secretary , Punjab and Chief Secretary , Punjab, for their information and compliance and non-compliance of this judgment shall expose the concerned officials to contempt proceedings".
It is pertinent to point out that all the above cited three judgments have been autho red by Amir Hani Muslim, J., (as his Lordship then was).
14. The case laws relied upon by the learned counsel for the appellant are distinguishable in the peculiar circumstances of the case.
15. Foregoing in view, the appeal being devoid of any merit is hereby dismissed. Since the main appeal has finally been decided, the Misc. Petitions field for grant of interim relief has become infructu ous and the same are disposed of accordingly .
16. This judgment will also apply mutatis mutandis to the appeals listed above.
17. Parties be informed accordingly .