Muhammad Mushtaq Jadoon, Member. Briefly stated the facts of the Case are that the appellant joined Khyber Pakhtunkhwa (KPK) police service, on the recommendations of Provincial Service Commission (PSC) in BS-17 as Divisional Superintendent Police (DSP) on 31.12.2001 and was promoted as Superintendent Police (SP) to BS-18 in March, 2008. He was considered for appointment and encadrement in PSP by Departmental Promotion Committee (DPC) held on 04.9.2012. Appellant was deferred due to incomplete record which was provided by Respondent No. 2 & 3. As he was abroad no decision was conveyed to him. He filed Departmental appeal on 25.2.2019, which has not been responded to. Hence this service appeals under Section 4 of Services Tribunal Act, 1973.
2. The learned consul for the appellant argued that the limitation does not attract in this case as it is continuous cause of action. It was not a case of suppression to be appealed against. Deferment is temporary disability. Appellant was deferred doe to incomplete record of PERs, which was otherwise the duty of respondents. Later on, complete record of PERs was sent by the Respondents 2 and 3 to Respondent 1. Thus, the appellant was wrongly prevented from encadrement and his junior Colleagues were encadred in PSP. In all others services overall 12 years length of service is required for promotion in BS-19 from BS-17 i.e. Five years from BS-17 to BS-18 and seven years from BS-18 to BS-19. The appellant has twenty years length of service from BS-17 onward. Late encadrement, on the basis of deferment, has placed him in junior position to his colleagues; some among them have served under him. Any provincial Police Officer is due for encadrement after regular promotion to BS-18 by the Governor/Provincial Government. Thus, the appellant is entitled to encadrement in PSP from date of his regular promotion in BS-18 i.e. 03.3.2008.
3. He further referred to Office Memorandum (OM) dated 05.05.2015 issued by Ministry of Law, Justice and Human Rights frame Rules and Procedure, in response to the Establishment Division, guidelines issued in pursuance of Supreme Court judgment dated 15.12.2014 in case titled as Zafar Ali vs. the Federation of Pakistan. In above referred OM of Law Division reliance placed on Section- 8 of the Civil Servant Act, 1973, whereby it has been clearly laid down that seniority in a post, service or cadre to which a Civil Servant is promoted, shall take effect from the date of regular appointment to that post. The Law Division OM reiterates the promotion and seniority criteria based on the Police Rules, 1985. Rule-7 of the Police Rules 1985, Prescribes that 40% quota shall be fixed for appointment of members of police cadre of a province, as specified in the schedule. For the purpose of seniority, as per Rule-11(c) of Police Rules, 1985, the seniority shall be reckoned from the date of regular appointment to the service and the day respective vacancy arose in the Senior Police Cadre reserved in that province. The appellant was deferred in CSB meeting held on 4.9.2012 due to incomplete record. Subsequently, the appellant was promoted in the CSB meeting held on 03.4.2019 whereby he was appointed in PSP w.e.f. 2015 as per previous recommendation of DPC held on 28.4.2015, 14.3.2015, 3.5.2015. Learned counsel concluded that deferment is temporary phenomenon. Complete PERs, later on, forwarded by the Provincial government which were satisfactory. In the light of guidelines, set by the Government of Pakistan, Ministry of Law & Justice Division O.M. dated 5.7.2015 the' appellant was entitled to be encadred in PSP from the date of his regular appointment to the service. The appellant was promoted as S.P. (BS-18) on 3.3.2008 by the Competent Authority. Similarly Rule-3(b)(a) of Civil Servants (Seniority) Rules, 1993 and Rule-11(c) of Police Rules, 1985 entitles the appellant to regain inter-se-seniority, on promotion, due to deferment Without supersession, with his batch. Thus, the appellant is entitled to promotion w.e.f.
03.3.2008 when he was regularly appointed in BPS-18 as S.P.
4. Learned AAG along with DR relied on the pre-admission comments/objections submitted by the respondents and contended that FST judgment dated 5.5.2011 in Appeal No. 33(L)CS/2008 annulled, encadrement of 12 Police Officers of KPK w.e.f. the date of arising of vacancy. While the Hon'ble Supreme Court of Pakistan in the reported case 2015 SCMR 365 dated 15.12.2014 held that encadrement is to be with prospective effect and retrospective effect can be given to such appointment only for the limited purpose of determination of their own inter-se seniority in accordance with Rule-11(c) of Police Rules, 1985. He further contended that retrospectively was violation of Rule-7 of Police Rules, 1985. Resultantly, the Establishment Division implemented the judgment of Apex Court dated 15.12.2014 and revised antedated encadrement of 24 officers from the province. The appellant was considered for encadrement in PSP whereby he was appointed in PSP w.e.f. 2015 as per previous recommendations of DPC against which he made representation to the Establishment Division which is under consideration. The respondents prayed for the dismissal of the appeal.
5. We have heard the learned counsel for the parties and have Perused the record.
6. The appointment of Provincial Police Officers (PPO) in Police Service of Pakistan (the Service) is governed by Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (the Police Rules, 1985) which has been made in exercise of the powers conferred by Section 25 of the Civil Servants Act, 1973 (LXXI of 1973). For consideration relevant rules are reproduced as under;
7. Appointment of members of Police cadre of a Province. Members of the Police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor Provided that appointment of members of the police cadre of a Province under this rule Shall not exceed 40% of the senior cadre posts in that Province as specified in the Schedule.
11. Seniority.--(1) The members of the Service referred to in clauses (a) and (b) of sub rule (2) of rule 3 shall retain the same seniority as is shown in the gradation list as it stood immediately before the commencement of these rules.
(2) Persons appointed to the Service in accordance with these rules shall count seniority from the date of regular appointment against a post in the Service subject to the following conditions, namely:
(a) Persons selected for initial appointment on the basis of the same competitive examination shall on appointment reckon seniority inter se in accordance with the merit position obtained in that examination;
(b) officers of the Armed Forces selected for appointment to a cadre post on regular basis in a batch shall on appointment retain their seniority inter se: Provided that officers of the Armed Forces appointed in basic Grade 17 in a year shall be treated as senior to probationers appointed in the same year on the basis of the competitive examination held by Commission.
(c) members of the police cadre of a particular Province selected in a year shall on appointment to the Service take seniority inter se as in the Provincial cadre and in keeping with that sequence, each such member shall reckon his date of regular appointment to the Service from the day the respective vacancy arose in the senior cadre posts reserved in that Province for such officers as specified in the schedule: Provided that, If the date of regular appointment of officers of two or more Provinces be the same, their seniority inter se shall be determined on the basis of their date of regular appointment to the post of Superintendent, of Police; (emphasis added)
(d) officers selected for promotion in the same batch shall on promotion retain their seniority as in the lower post; and
(e) the general principles of seniority set out in the Establishment Division O.M. No. 1/16/69-D. II dated the 31st December, 1970, shall apply in matters not covered by these rules.
(Emphasis added)
7. According to rule 7 of the Police Rules, 1985 when a PPOs is promoted to BS-18 he becomes eligible for encadrement/appointment in the Service (PSP) against 40 percent. provincial quota to the posts enshrined in the Schedule of the Police Rules, 1985. The PPOs, who are recommended by the provincial Governor, shall be selected for appointment in the Service. As per rule 11 (c) the seniority of the PPO shall be from the date of his/her appointment in the Service and if more officers are appointed the seniority among them in the province shall prevail.
8. The appellant was encadred/appointed in Police Service of Pakistan on 2015 and his seniority is to be reckoned from the date of his appointment in the Service and not from the date his seniority was maintained in Provincial Police cadre. Appointment of encadred police officers from the Provinces was to be made with prospective effect and not with retrospective effect. The service of the appellant, being in Police Service of Pakistan, shall be governed under Police Rules, 1985 and not by Civil Servants (Seniority) Rules, 1993. The stance has been held by the Hon'ble Supreme Court of Pakistan in case titled Secretary establishment Division, Government of Pakistan vs. Imtiaz Ahmad Malik, Director Anti-Corruption (2021 SCMR 166).
9. The Apex Court in case titled Muhammad Zafar Ali vs. Asim Gulzar (2015 SCMR 365) (Zafar Ali ease) while elaborating rule 11 (2)(c) of the Rules, 1985 has held that the same will be restricted to determine seniority in the encadred group and could not be made applicable for determination of their sonority vis-a-vis the other two groups i.e. officers inducted into the Service through initial appointment and from Armed Forces. It further says that for the purposes of determining inter se seniority of such cedared provincial police officers, their date of initial appointment will not the date of sonority rather in such case their date of appointment in the Service shall be the date of seniority.
10. Learned counsel for the appellant assailed vires of Police Rules, 1985 and competency of Parliament to legislate for the provincial employees. of Police. He furthers contented that in other Provincial Services like Provincial Management Service (PMS), Provincial Civil Services (PCS) and other departments the provincial Governments are competent to promote the provincial employees up to BS-22 but in case of Provincial Police the provincial Government is only empowered to promote up to the level of BS-18 there onward the PPOs are encadred/appointed by the Federal Government as member of the Service. Delay in encadrement and utilization of quota of the provinces tantamounts to double jeopardy.
11. Stance of learned counsel for the appellant in regard to delay, encadrement preventing promotion to higher grades viz a viz other provincial employees is correct to some extent but it also offers opportunities to PPOs to serve in other provinces and the Federal entities including Federal Secretariat Besides it provides quality input for the policies of Federal Government having officers from all the provinces with vast local and regional experience.
12. The Supreme Court of Pakistan in Zafar Ali case (ibid) declared issue of seniority with retrospective effect is violative of the Police Rules, 1985 and Section 8 (4) of the Civil Servants Act, 1973. Section 8(4) makes it clear that seniority in a post, service or cadre, to which a civil servant is promoted, shall be effective from the date of A regular appointment to that post, provided that the civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter-se seniority as in the lower post.
13. While the Hon'ble Supreme Court in Zafar Ali case (ibid) set the guidelines, and principles for encadrement of PPOs in PSP in an earlier case titled Government of NWFP and others petitions versus Buner Khan and others (1985 SCMR 1158) directed that the promotes shall be considered for promotion to Grade 18 post with effect from the date when vacancies in their quote become available and that there after a joint seniority list of the officials directly recruited and those promoted shall be assigned according to the rules. Most recent case titled Badshah Zamin (appellant) versus Siraj Khan and others (2022 SCMR 1471) which was regarding seniority of those whose services were regularized under the KP Act, 2009 and those- recommended by the Provincial Public Service Commission (PSC) with regard to date of appointment with retrospect effect was elaborated. It was held, as under: "Determination of seniority. The employees whose services were regularized under this Act, or in the process of attaining service at the commencement of this Act or in the process of attaining service at the commencement of this Act shall rank junior to the same service or cadre, as the case may be, who are in service on regular basis on the commencement of this Act and shall also rank to such other purpose if any, who in pursuance of the recommendations of Commission made before the commencement of this Act, are to be appointed to the respective service or cadre, irrespective of their actual date of appointment. Inter-se-seniority of regularized as per Section 4 of KP Regularization Act, 2009, "the employees whose services are regularized pursuance to that Act, shall also rank junior to such other persons, if any, who in pursuance of the recommendations of the Commission made before the commencement of this Act, are to be appointed to the respective service or cadre, irrespective of their actual date of appointment ..... the date of the recommendations of the first batch sent to the competent authority for the appointment shall be considered as the date of recommendations for all"
14. While deciding the review petitions of Zafar Ali case (ibid) the Apex Court vide its order dated 07.3.2019 in Criminal Review Petition No. 15 of 2015 held: 24.1 Direction of Apex Court vide order dated 10.5.2016 to Secretary, Establishment Division and Chief Secretaries of all the Provinces to reconcile the issue of seniority of Provincial Police Officers whose names were not sent for encadrement on account of lapse on the part of the Provinces and on account of any other reason in violation of rules. It was further noticed that Establishment Division is not adhering to 60% quota reserved for promotion of direct appointees under the garb of deputation, training and leave (DTL); 24.2 In pursuance of direction of Apex Court Secretary, Establishment Division convened a meeting on 16.5.2016. Pursuant to above directions Secretary, Establishment, Government of Pakistan on 16.5.2016 convened a meeting, which was attended by all the four Provincial Chief Secretaries, Secretary Services (S& GAD), Joint Secretary, Interior, Additional and Joint Secretaries Establishment Division, DIG, HQ, & MG Police Establishment KPK, IG Police Islamabad and Punjab, discussed the points noted above and arrived at consensus as recorded in the minutes of meeting dated 16.5.2016 filed through Cr.M.A. No. 816 of 2016, which was responded by some of the review petitioners.
Para-6 "We have examined the minutes of the meeting dated 16.5.2016. In the light of directions of this Court dated 10.5.2016, points noted for consideration were identified in paragraph 4 of the minutes as follows:-- a) Appointment of Police Officers of Provinces in PSP is often delayed inordinately by the Provinces which adversely affects their, seniority in PSP Cadre. Thus, results in heartburning of these officers. b) The Establishment Division appears to have exceeded 60% quota reserved for promotions by incorporating 25% DTL in this head which needs to be reassessed. c) The Establishment Division in consulting with all Chief Secretaries may attempt to reconcile the issue of seniority at administrative level;"
After discussion and due deliberation between all concerned Secretaries consensus arrived at is as recorded in paragraph 6(c) is recorded as follows: "6 (c) The Chief Secretaries consented to give an undertaking that the schedule issued by the Establishment Division for holding encadrement meeting twice in a year will be followed religiously so that issues like delay in encadrement do not surface in future. Furthermore, it was conceded by the Chief Secretaries that the cases of officers of Provinces will be sent immediately for appointment in PSP immediately after the promotion to BS-18 in Provinces. At the time of submitting summary to the Governor for seeking approval of promotions from BS-17 to BS-18, a specific recommendations will be incorporated in the said Summary and their cases may also be approved for passing on the Establishment Division for appointment in PSP as is required in Rule 7 of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985."
15. The Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (the Police Rules, 1985) were framed under Section 25 of the Civil Servants Act, 1973 (the Act, 1973). Thus, for all purposes the Act, 1973 is the parent law. Section 5 of Civil Servants Act, 1973 ordains that appointment to all Pakistan Services shall be made in the prescribed manner and in case of police the same has been prescribed through the Police Rules, 1985. As regard to seniority, under Section 8(4) of the Act, 1973 in service of cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post provided that civil servants were selected for promotion to a higher post in one batch shall, on their promotion, to the higher post, retain their inter-se-seniority as in the lower post. In case of Provincial Police Officer, the main issue is of encadrement after promotion to BS-18. Section 7 of the Police Rules, 1985 deals with the members of the police cadre of a Province who shall be appointed to the service on the basis of selection made on the recommendation of the Governor. Quota for appointment/encadrement has been described as 40% in the schedule. The moment PPOs are promoted to BS-18 in a province, they become eligible for encadrement in PSP against senior posts subject to availability of senior cadre posts in 40% provincial quota. The spirit of the law and the Constitution is that under no circumstances the senior cadre post of a province shall be allocated to other province or to the direct appointees through FPSC or other Federal institutions including Deputation, Training and Leave.
16. Delay on part of Provinces in forwarding the cases for encadrement, as soon as the PPOs have been promoted to BS-18, and non-convening of meeting by the Establishment Division tantamounts to wrongful prevention of Provincial Police Officers for no fault of theirs.
17. The Establishment Division and the Chief Secretaries of all the provinces are bound to follow the instructions of the Apex Court given in review petitions of Zafar Ali case (ibid), referred above, to preserve of 40% quota and promptly sending the cases of officers of provinces for appointment in PSP immediately on their regular promotion to BS-18. Non-Observance of guidelines given in the cited review judgment of the Apex Court tantamounts to wrongful prevention of encadrement.
18. Law Division O.M. dated 05.5.2015, issued in pursuance of the Judgment of Hon'ble Supreme Court of Pakistan dated 15.12.2014. Opinion was offered vide para 6 & 7 of the cited O.M: "6. Therefore, in partial modification of this Division opinion dated 30 April, 2015. It is opined that: A Member of the Police cadre of a Province, selected in a year on the basis of the recommendations of the Governor shall on appointment to the service taken seniority from the date of his regular appointment to the service with effect from the day when the vacancy arose in the senior cadre post reserved in that Province for such officers and if the date of the regular appointment of officers and if the date of the regular appointment of officers of two or more Provinces be the same, their seniority inter se shall be determined on the basis of the date of their regular appointment to the post of Superintendent of Police in the Province."
7. It is further added that in the matter of determination of seniority between the members of the Police Service who are promoted to the rank of S.P. (a federal scheduled post) the inter se seniority between those who were inducted directly in the Pakistan Police Service and those who were encadred from the Provinces it out to be the date on which they were promoted against existing vacancy by the Provinces against the scheduled posts in the federal Government. The object is to treat them equally and not to create classes. It may also be noted that vested rights need to be protected."
19. The appellant was considered by DPC for encadrement held on 04.9.2012 but was deferred due to his incomplete record; the deficient record was provided by the provincial authorities within two months his case was reconsidered in DPC held on 28.4.2015, 14.5.2015 and 05.6.2015 i.e., after an Unexplained lapse of about two and a half years, and was conditionally recommended for encadrement in PSP with immediate effect subject to satisfactory PER/certificate for the period from 23.4.2013 to 18.8.2013. As per stance of respondents he could not be recommended w.e.f.
4.9.2012 in the Light of the judgments of Service Tribunal and Hon'ble Supreme Court which have been apparently wrongly quoted. As per reported case as PLD 1987 SC 271, PLD 1991 SC 1118, 2001 PLC (CS) 654, 1998 SCMR 88 crux of all these Judgments is that antedated proforma promotion in BS-17 the affecters are entitled to seek promotion with effect from the date when post in question became available and/or the date when their case was deferred by DPC.
20. Interestingly in the minutes of meeting, held on 28.4.2015, one Syed Muhammad Ali Raza was recommended for encadrement subject to recommendations/approval of Governor Sindh, which means he was cleared for encadrement in anticipation of approval of Governor.
21. Minutes of the cited meeting and decision of DPC in regard to Syed Muhammad Raza from Sindh establish the fact that as soon as a Provincial Police Officer is approved for promotion by the Governor for BS-18 as Superintendent of Police (SP) he becomes eligible for encadrement in PSP.
Any delay on part of holding DPC meeting of Establishment Division is wrongful prevention. The Establishment Division's DPC cannot sit over and act as second judge once a Provincial Police Officer is recommended by the Governor that would be vexing an officer twice for the same cause.
As regard to fitness for encadrement after recommendations by the Governor the only hindrance can be disciplinary proceedings, or a criminal case. But once such barrier to fitness is removed and the officer is cleared, he is entitled to encadrement w.e.f. the date of encadrement of his batch mats. In case there is one post of encadrement for a process and there are more than one officers the fitness criteria such as older in age or PERs Grading can be applied.
22. The record indicates that the appellant was selected as DSP (BS-17) on 31.12.2001 and promoted to BS-18 as S.P., on regular basis, on 03.3.2008. His probation period ended on 02.3.2009. The minutes of the meeting held, on 04.9.2012 in Establishment Division also indicates that the officers from KP like Mr. Waheed uz Zaman promoted to ES-18 on 16.6.2009 and recommended for encadrement with immediate effect and Mr. Sarfraz Khan promoted to BS-18 on 16.6.2009 was recommended for encadrement with immediate effect. On the other hand, appellant was promoted to BS-18 (SP) rank on 03.3.2008. He was recommended for encadrement with the other PPOs seven years after regular promotion in BS-18 (SP rank). The appellant, alongwith others, was deferred due to incomplete record. Deferment is technical disability of temporary nature. As the case law indicates that the deferment is not punishment. For these very reasons the government framed FR-17(1) providing relief to the officers who were entitled to be promoted from a particular date or, for no fault of his own, wrongly prevented from rendering service to the Federation in the higher post. FR-17(1) now modified vide O.M. dated 22.5.2022. As held in 2011 SCMR 408 "seniority is vested right of an employee." Also, held in 2013 PLC (CS) 223, 2011 SCMR 389, 2010 PLC (CS) 946, 2001 PLC (CS) 654 "if an officer is deferred for promotion but subsequently approved for promotion the officer will regain his seniority with his original batch match". If promotion of civil servant is deferred without any fault on his part such civil servant can be given antedated promotion when his juniors were promoted". Similarly, if an officer is not found fit for promotion for want of certain requirements the moment the said requirements are completed the officer will take his promotion. with effect from the date when his juniors were promoted as he was deferred and not superseded.
Applying the same principle, the appellant should have been appointed/encadred from the date when his case was deferred due to deficiency of record i.e., with effect from 04.9.2012, by the DPC held in 2015. Non-consideration of appellant's case by DPC for almost three years, when the deficiency was met and PERs record was provided by the provincial government vide its letter dated 20.11.2012, is unexplainable and depriving the appellant of his lawful right.
23. In regard to encadrement of provincial police officers against vacancies of respective province and subject to their eligibility (regular promotion to 13S-18 (SP rank) and recommendations of Governor/Provincial government plus fitness (no disciplinary proceedings) suffice to state that all such Provincial Police Officers are entitle to encadrement.
24. In the circumstances and the reasons cited above, appeal is accepted:
(i) The appellant is allowed encadrement in PSP w.e.f. 04.9.2012, when he was deferred for incomplete record and his juniors were encadred. The appellant shall retain his seniority from the date of this Appointment/encadrement in PSP;
(ii) With further directions to the respondents as under: a) In light of the judgment of Hon'ble Supreme Court dated 07.3.2019 in Criminal Review Petition No. 15 of 2015 in Criminal Appeal No. 436 of 2011 and Cr. Misc. Application No. 163 of 2015 the Provinces to ensure and process the cases for promotion of Provincial Police Officers to BS-18 and encadrement of Provincial Police Officers simultaneously in the same summary; b) The Provinces to ensure submission of cases of Provincial Police Officers twice a year to the Establishment Division for encadrement in PSP; c) The Establishment Division shall ensure encadrement meeting twice a year; d) As per spirit of Article-38 (g) of the Constitution of Islamic Republic of Pakistan, the Provincial quota of 40% reserved for Provincial Police Officer, as per schedule of Police Rules, 1985, shall not be allocated either to other provinces or to direct appointees through FPSC and inductees from armed forces, or to federal entities; e) In case of non-availability of Provincial Officers from the province in a year their provincial quota of senior cadre posts shall be carried forward;
(f) Establishment Division shall, share on annual basis data of 40% Province wise quota of senior cadre posts with the provinces as under.
Name of ProvinceSenior cadre posts as per vacancies 40% quotaNumber of Provincial police officers encadred, so far against the quotaBalance of provincial available quota
25. No order as to cost. Parties be informed.