' S. ABDUL JABBAR KHAN (CHAIRMAN).-The appellant, Iftikhar Ahmad Butt has filed an appeal under section 4 of the Punjab Service Tribunals Act, in which he has impleaded L-G. Police, D. L-G. Lahore Range, D. I.-G., Gujranwala Range and others (list at Annexure 'A') as respondents. It may be observed at this stage that out of the respondents at list 'A', respondents Nos, 4 and 19 have filed the written statements whereas the other respondents have been proceeded ex parte. These two respondents are also not present today and, therefore, ex parte proceedings are also ordered against them.
2. The brief facts of the case are that the appellant joined police service in the year 1953 as Urdu Stenographer. Under the rules he was absorbed as Sub-Inspector in the Lahore Range Vide order, dated 20th August, 1971 of the D. I.-G. Police, Lahore Range and in pursuance of the orders of the L- G. Police, dated 22nd May, 1971 was allotted Range No, L/45. It was provided therein that on his absorption in Lahore Range the appellant will remain on deputation to the Special Branch from Lahore Range. The appellant came to know that the D. I.-G. Had made recommendations for promotion of the Snb-Inspectors to special grade. Since the name of the appellant was excluded from the above recommendation, he submitted an application on 14th December, 1971 with the prayer that his name may also be recommended. This prayer of the appellant did not find favour and according to him the junior persons were promoted as such. On appellant's representation the L-G. Police Vide order, dated 19th June, 1972 decided that appellant be given special grade after his reversion to Lahore Range. It was followed by another order, dated 22nd July, 1972 which the appellant has reproduced in para. 4 of his appeal. In consequence of these orders the appellant was granted special grade with effect from 1st January, 1972. The appellant was brought on list 'F' with effect from 27th November, .1975 which order was subsequently modified and the appellant was brought on list 'F' with effect from 30th December, 1975. The appellant was promoted as Inspector with effect from 19th January, 1976. The appellant took exception to the aforesaid promotion and represented to the I.-G. Police that he should be brought on list 'F' with effect from 15th May, 1975 and promoted as Inspector from the date to which he was originally entitled. By an order dated 16th September, 1978 the appellant was informed that his representation was under consideration and he will be informed of the decision in due course. The appellant submitted further applications on 11th February, 1979 and 9th July, 1979 and was informed Vide letter, dated 16th August, 1979 that his representation for the grant of special grade from retrospective effect has been rejected after due consideration. Ultimately on appellant's further representation an order, dated 8th December, 1979 was issued by the L-G. Police which indicated that appellant's representation has been filed.
3. We have heard the learned counsel for the appellant as well as the Government Pleader assisted by Mr. Muhammad Afzal P.
1. And have perused parawise comments and the record of the case with their assistance. It has been contended by the learned counsel for the appellant that he was entitled to be brought on list 'F' with effect from 1st June. 1972 under the amended rules 13.14 of the Police Rules and the condition of having worked for five years as incharge of a 1st class Police Station was not applicable in his case. He was granted special grade with effect from 1st January, 1972 and as such is entitled for promotion list 'F' with effect from 1st June, 1972.
4. On the other hand the learned Government Pleader has submitted that the claim of the appellant that he should be brought to list with effect from 1st June, 1972 and promoted as Inspector with effect from that date is untenable on the ground that this is in violation of section 4(lXb of the Punjab Service Tribunals Act and the request for pro forma promotion by the appellant is also not justified under section 9(2) of the Appointment and Conditions of Service Rules which does not envisage this claim. In the end the learned Government Pleader has raised the plea of time limit by pointing out that as the representations of the appellant for his promotion retrospectively were considered and rejected vide orders, dated 7th August, 1979, 15th December, 1979 and 2nd February, 1980, therefore, his failure to appeal against the final order, dated 7th August, 1979 would be operative against him and thus his case would be hit by section 4 of the Punjab Service Tribunals Act.
5. We have given our anxious thoughts to the contentions raised by both the learned counsel and find that the appellant was considered fit for promotion Vide I.-G.'s letter, dated 22n July, 1972 in which it was observed as under :- ' S. Is. Iftikhar Ahmed But and Abdul Majid Lodhi were to be promoted immediately on reversion to Lahore Range, to Special Grade, with effect from 1st January, 1972 i,e, the date on which their juniors had been promoted as such, provided vacancies were available otherwise their seniority was to be safeguarded through pro forma promotion."
' However, there was a confusion with regard to a condition appended by the authority that he should have a prerequisite qualification of holding charge of a first class Police Station for five years. It is on the record that the rules had already been amended in this respect vide Notification, dated 17th October, 1960 in which the following sub-rule (3) was inserted :-- "P. R.
13.14(3): Sub-Inspectors in the C. I. D. And the prosecuting pay, clerical and other similar branches of the Police Department shall also be eligible for promotion to the Special Grade, and service in these branches shall, for the purpose of sub-rule (2) be deemed to be at par with the holding of charge of a Police Station of 1st Class Importance."
' It would be seen that this amendment existed much earlier to the date on which he became eligible for promotion but it was overlooked and the appellant was made to suffer for this lack of information already present on the anvil of the rules. In view of the above, therefore, we do not find any force in the contention raised by the learned counsel for respondents as well as reiterated in the parawise comments that the appellant did not qualify in the absence of his holding charge of a Ist class Police Station, for the relief demanded by him. As regards the mischief of section 4(b) it would be sufficient to rely upon the authorities quoted before us by the learned counsel for the appellant.. Firstly, he has relied on NLR 1979 Service Kar. 121 in which it has been held by the learned Judge of the High Court as follows :- SS . Because the question in this case is not whether the order of the Department Promotion Committee was erroneous or unjustified on merits as to the fitness of respondent No, 1, to be promoted (which question would obviously be solely within the descretion of the competent authority not subject to agitation by appeal), but the question was whether any authority could refuse promotion to respondent No, 1 in view of the relevant rules having the force of law that the passing of the Qualifying Examination was ipso facto sufficient to entitle the successful candidate to promotion to the higher grade. Clearly, therefore, clause (b) relied upon by the learned counsel for the appellants was not attracted in the present case "
' Seeondly, he has relied on NLR 1978 Service 162 In re : Ch. Muhammad Aslam v. Province of Punjab, wherein it was observed as under :- ' "As regards the objections as to our power to interfere with the order of promotion, it is correct that we cannot appropriate upto ourselves the power to examine the merits of the determination by the departmental authority as to the fitness or otherwise of a civil servant to hold a post or to be promoted, but we do not find that the said provision in any manner precluded us from examining the fact that a valid determination had in fact been made by the departmental authority. Learned counsel for the respondent has failed to produce anything to the contrary. We, therefore, do not find any force in this contention of the Government Pleader also. We are of the view that in the changed context the appellant is entitled to have a determination as to his fitness for promotion on 29th August, 1973 alongwith respondents Nos, 3 to 5 to whom he was admittedly senior.
Consequently the appeal is accepted to this extent that the Director-General, Excise and Taxation, Government of the Punjab is directed to determine afresh the case of promotion of the appellant with effect from 29th August, 1973 in the light of our observation above. The parties to bear their own costs."
' In view of the law laid down above, was are of the considered opinion that the case of the appellant is not hit by section 4(b) of the Punjab Service Tribunals Act, 1974.
' With regard to the objection raised by the learned Government Pleader that the appellant's case is barred by time as he failed to file an appeal within time when he was informed on 16th August, 1979 that his case has been filed. We have seen the letter and find that the observation of the I.-G.
Police is with regard to seeking grant of special grade by the appellant a matter which is factually incorrect. In fact the appellant had already been given the special grade, and he was seeking his promotion to list 'F' as Inspector. The appellant in his representation after he received the above letter is self-explanatory. He has made it clear that his case has been judged from a different perspective totally against the claim made by the appellant, therefore, same may be examined in the light of his real claim. To this h was informed vide I.-G. P.'s letter, dated 8th December, 1979 that after due consideration his claim has been rejected. In view of the above the time would start running against him after the abovementioned letter and he would be in time vide this appeal before us.
7. In the light of the above discussions when we have clearly held that the appellant does not suffer from any inherent infirmity in view of the amended rules with regard to his qualifications of being placed on list 'F' we have no hesitation to hold that the department is legally bound to give effect to the two letters of the I.-G. Police, dated 1st February, 1972 and 26th September, 1973 particularly in terms of pars. 9 of the letter (dated 26th September, 1973) reproduced below :- "It is true that in this office Memo. No, 10239/E-I, dated 22nd April, 1972 the Sub-Inspectors were stated to be not in possession of the most important qualification about holding the charge of a first class Police Station but at the same time it had also been pointed out that the Range Office should have withdrawn them from Special Branch long before for a trial. When it was established that they had been retained by the Special Branch authorities against their wishes or they were allowed to continue there by the Deputy Inspector-General of Police, Lahore Range, Lahore without a request from there, it was decided vide this Office Memo. No, 13595/E-1, dated 19th June, 1972 read without Endorsement No, 15642-44/E-I, dated 2nd July, 1972, in order to save them from any further loss of seniority/promotion prospects, that their promotion to the Special Grade with effect from 1st January, 1972 should be notified as soon as they revert to Lahore Range. Simultaneously, however, their trial as S. H. O. Or Addl. S. H.
0. Had been made mandatory. Such a post-promotion trial is possible because now we have also Inspector S. H. Os. For certain Police Stations. In this connection your attention is also invited to a precedent case of Mr. Muhammad Rafique Butt No, L/165 who even had been admitted to list 'F' and promoted as Inspector with similar condition vide this Office Endorsement 12467/E-II, dated 1st June, 1972.
' With the observations above, the appeal is accepted with no orders as to costs.