1. SHAFIUR RAHMAN, J.-Leave to appeal was granted under Article 212(3) of the Constitution in nine petitions to examine the legal questions generally arising in these and certain other appeals governing the applicability of the Punjab Police Rules, 1934 (hereinafter referred to as the4 Police Rules) as against rules framed on the same or similar subjects under the Civil Servants Act and the applicability of the Police Rules to the former Sergeants of the Punjab Police with regard to their seniority and pro forma promotion.
2. ' The factual background of these appeals is that there existed in the Punjab Police and after its integration in 1955 into West Pakistan Police, a separate cadre of Police Sergeants. Rule 121 of the Police Rules provided "Sergeants shall be borne on a separate provincial roll and shall receive separate provincial constabulary numbers". Their appointing authority, as of Sub-Inspectors of Police and Assistant Sub-Inspector of Police, was the Superintendent of Police. Sub-Inspectors and Inspectors were borne on range rolls. The Sergeants were required to pass the training course (rule 19.27) for their names being brought on list 'F' (for promotion to the post of Inspector) maintained under rule 13.15. The Pay Scales of the Sergeants, the Sub-Inspectors and the Assistant Sub- Inspectors were as follows : (reproduced from page 128 of Lahore Police Rules, 1934, Vol. 1). {{TABLE}} #TBS Post Year of Service Pay Remarks #TBE Sergeants Sub-Inspectors (Selection Grade)
3. Sub-Inspectors (Time-scale)
4. Assistant Sub-Inspectors 9 9 If ,, Rs, 150-5-200 (Efficiency Bar at Rs, 175)
5. 130 4th Grade.
6. 140 3rd Grade.
7. 150 2nd Grade.
8. 160 1st Grade.
9. 80-5-130 (Efficiency Bar at Rs, 110).
10. 55-4-75 (Efficiency Bar at Rs, 65).
11. Pay Scales were revised in the year 1951 and the revised scales were as follows- Post Pay Sergeants Sub-Inspector (Selection Grade)
12. Sub-Inspector (Time-scale) Assistant Sub-Inspector Rs, 185-195-15-300 1st 250 IInd 240 IIIrd 230 IVth Grade 220 120-8-160/ EB/70-210 75-5-120 On the 30th of May, 1959 the Governor promulgated the West Pakistan (Non-Gazetted Civil Servants) Pay Revision Rules, 1959. It was promulgated pursuant to the Presidential Proclamation of the serventh day of October. 1958 and in exercise of all powers enabling him in that behalf. In the schedule attached to this pay revision rule the scales were revised as follows - Sub-Inspector Assistant Sub-Inspector Rs, 120-10-200 Selection Grade Rs, 200 80-5-120 including training period. {{TABLE}} ' A controversy arose due to the omission of the Pay Scales of Sergeants from the Pay Revision.
13. Rules of 1959. Such an omission was interpreted on the one hand as abolition of the posts and cadre of Sergeants and on the other of their existence and continuance but on the pre-revised scale of pay. The latter conclusion gets support from the fact that the Inspector-General of Police, West Pakistan continued to recruit even after the promulgation of Pay Revision Rules of 1959 the Sergeants and all the Sergeants who are the beneuciaries of revised orders of the Government impugned before the Tribunal are in fact recruits of dates later than the enforcement of these pay revision rules.
14. ' On the 19th of December, 1963 a question arose about the grant of special pays already enjoyed by various officers of the Police before the revision of their Pay Scales in 1959. The Government on the 19th of December, 1963 issued an order with regard to the grant of Special Pay to non-gazetted staff in the Police Department the concluding portion of which provided that : "These orders are in supersession of all previous orders regarding grant of special pays to non- gazetted staff in Police Department. Thus all special pays to non-gazetted staff in Police Department, not covered by these orders, will cease to be admissible with effect from 1st December, 1963."
15. ' In the schedule attached permitting special pays certain class of Inspectors were mentioned along with the special pays admissible to them. As regards, Sergeants and Sub-Inspectors, those Sergeants who were posted at M. T. .Shop were allowed Rs, 50 p.m. As Special Pay and Rs, 30 per month was prescribed as Special Pay for those Sergeants who were posted as Tear Gas Instructors at Police Training Centre, Sihala. The Sergeants in the Prosecuting Branch, serving as Instructors at 1 raining Institution and Line Officers were allowed Special Pays of Rs, 35 to 30 per month. Sub- Inspectors, Telecommunications and Special Crime Branches and Finger Print Bureau were also allowed Special Pay of Rs,
35. Here was found the further recognition of the existence and continuance of the post of Sergeants.
16. ' Home Department which is the concerned department in the Provincial Government for the Police issued an order on 4th of January, 1964 converting the post of Sergeants into that of Sub- Inspectors. The order is reproduced as hereunder :- "The Governor of West Pakistan is pleased to accord sanction to the conversion of 27 (twenty- seven) permanent posts of Police Sergeants into those of Sub-Inspectors in accordance with the Government Notification No, FD(FR) 18-16/59 (772), dated the 30th May, 1959 according to which the posts of Police Sergeants stand abolished. No special pay shall be allowed to any post so converted, except in the case of 20 posts referred to below.
17. ' The Governor of West Pakistant is further pleased to order that the present permanent incumbents of 20 posts should, however, continue to draw their existing pay scales till they wither away by superannuation or otherwise."
18. ' By the same order, the posts of Sergeants which were converted into the posts of Sub-Inspectors were distributed as follows :- "The distribution of the 27 posts of Sergeants converted into those of Sub-Inspectors is given below :- {{TABLE}} Quetta ... 5 Lahore ... 4 Sialkot 1 Multan ... 1 Rawalpindi ... 4 Railway Police ... 11 P. T. C., Sihala 1 Total 27 "
19. ' West Pakistan (Non-Gazetted) Civil Services (Pay Revision) Rules were enforced on 1963. There was again an omission in these pay revision rules of the consolidated pay scales of Sergeants.
20. However, the Home Department, Government of West Pakistan on the 15th of March, 1965 took a decision which was expressed as hereunder :- "The Government of West Pakistan is pleased to accord sanction to the fixation of consolidated scales of pay of the existing incumbents of the posts of Sergeants and Deputy Inspectors as under :- {{TABLE}} Desig- Last prescribed Consolidated nation scales scales Sergeants Rs, 185-10 Rs, 220-15-325/ 195-15-300 15-400 ' In view of the fact that the above consolidated scales of pay have been prescribed for the existing incumbents of the posts, it is not considered desirable to include these designations in the Schedule appended to the West Pakistan (Non-Gazetted) Civil Services (Pay Revision) Rules, 1963.
21. Their pays in the new scales will be fixed in accordance with the provisions of the above- mentioned Rules."
22. ' The Sub-Inspector special grade were given the consolidated scale of Rs, 305-15-350, the S. I.
23. Time-scale were given consolidated scale of 175--10-215/15-305.
24. ' On the conversion of posts of Sergeants and abolition of their separate cadre, the inspector- General of Police issued on 13th of May, 1965 instructions giving effect to the decision of the Provincial Government. These are summarised hereunder :-
(1) There was to be no longer any provincial roll for Sergeants as provided in Police Rule 12.1(4). They were to be allotted new Range numbers.
(2) Distribution of the posts of Sergeants as well as the incumbents over the ranges on merger was indicated.
(3) The Sergeants were required to undergo training in the upper school course and any other course prescribed from time to time to become eligible for further promotion under the rules.
(4) Against 27 permanent posts of Sergeants there were 20 confirmed officers of the rank on the rolls. Nine of them (five in QuettaKalat Range and four in other Ranges) were officiating as Inspectors then. Their names were borne on List 'F'. In order to sustain their position as officiating Inspectors they were adjusted as Sub= Inspectors special grade except in Quetta-Kalat Range. The rest of the Sergeants were adjusted as S.-Is. Time-scale.
(5) There were 11 temporary Sergeants. They were adjusted as officiating S.-Is. And on qualifying under rule 13.10(2) they were to be confirmed as S.-Is. In due course.
25. ' A slight modification was made by the Inspector-General of Police, West Pakistan on 7th of August, 1965 in the above instructions to the following effect :- "It has been decided that former Sergeants will not have to earn pro forma promotion to Special Grade in the rank of S.-I. But can be considered for admission of their names into List 'F' directly on the completion of 8 years' service. It will nevertheless be necessary for them to undergo training in the Upper School Course and any other course prescribed from time to time before becoming eligible for further promotion under the rules. This training is necessary in order to make them eligible for holding the posts of S.H.Os."
26. ' The rule of seniority on such a merger was spelt out in another instructions of the I.-G. P. West Pakistan, dated 31-8-1965 in the following words - "It is further decided that the temporary, Sergeants will take seniority in List `G' vis-a-vis Offg. Sub- Inspectors according to their date of Offg., appointment in the rank of Sub-Inspectors. They will remain temporary till their turn for confirmation comes on the basis of seniority in list `E'."
27. ' By a decision taken by the Governor of West Pakistan and communicated by the Home Department on 14th of January, 1966 not only the permanent incumbents of 20 posts of Sergeants but also 11 incumbents of 7 permanent and 4 temporary posts of Sergeants converted into those of Sub-Inspectors were allowed to draw their existing emoluments in their existing pay scales till they withered away by superannuation or otherwise with retrospective effect.
28. ' The affected Sergeants made numerous representations to the I.-G. P. And the Government with regard to various clogs imposed on their promotion, seniority, etc. And in particular with regard to rendering of 8 years service passing of the departmental examination and application of the rules applicable to Sub-Inspectors of Police with all its strictness and in derogation of rules earlier applicable to them. Not succeeding in the department, four of the ex-Sergeants, namely, Khalilur Rahman, Abdul Wasey, Raza Ahmad Khan and Muhammad Shad, describing themselves as Sub- Inspectors of Police filed a constitutional petition challenging these adverse conditions on their.
29. Terms and conditions of service. The High Court found no force in the writ petition which was dismissed on 29th of March, 1966.
30. ' The matters would have remained so in the Punjab had it not been for the treatment given by the Government of Baluchistan to the case of Muhammad Shafi one of the temporary Sergeants recruited in 1961. He was equally affected by the orders then passed concerning the Sergeants.
31. However, he happened to be posted in Baluchistan where he instituted a civil suit challenging the various orders affecting his seniority and enlistment. The I.-G. P., Baluchistan gave an assurance to him that if he were to withdraw his civil suit, he would be suitably dealt with on merits. After the disintegration .Of West Pakistan in 1970 he continued to serve for two years in the Province of Baluchistan and in 1972 was repatriated to the Province of Punjab. Pursuant to the assurance extended to him, the Government of Baluchistan, we are told in consultation with the Public Service Commission of that province recognised bis claim. The I.-G. P., Baluchistan passed orders on the 30th of November, 1974 allowing claim of Muhammad Shafi and his grievance was redressed inasmuch as his date of entry on list !F' was fixed at 12-7-1966 instead of 8-11-1969 and on list 'G' as 11-8-1970 and his pro forma promotion as D. S. P. Was ante-dated to 31-8-1970. All this was done on the assumption that even after conversion of the posts and their merger, the Police Rules concerning the seniority and promotion of Sergeants continued to hold good.
32. ' At first, the effort of I.-G. P., Punjab was not to honour the treatment afforded to Muhammad Shafi by I.-G. P., Baluchistan in 1974 i,e, after he had come over and had been repatriated to the Punjab, but as it related to a period when Muhammad Shafi had rendered service in Baluchistan and there was a provision in the Presidential Order No, 1 of 1970 and a policy decision with regard to repatriated officers, the position allocated to Muhammad Shafi in Baluchistan was honoured. This led to the reexamination of the grievances of other police Sergeants serving in the Punjab equally affected and differently treated. The matter was discussed time and again between the various concerned departments and officers of the Government including the Advocate-General and ultimately a decision was taken by the Government that similar treatment as had been extended to Muhammad Shafi Sergeant, should be extended to all the other Sergeants similarly affected. The Home Department which acts for the Government of the Punjab in matter's concerning Police addressed the I.-G. P. On 30-5-1981. The order was communicated that - "The seniority position of Mr. Muhammad Shafi, formerly Traffic Sergeant-now D. S. P. And his batch mates may please be refixed in the inter se seniority 14t of D. S. Ps. But excluding those Traffic Sergeants who in course of time have been reverted, awarded punishments under the disciplinary Rules or have left service."
33. ' It was also directed that memo., dated 7-8-1965 may also be withdrawn and a compliance report with respect to the implementation of the Governor's orders may please be furnished within a week". Following this decision, the consequential actions were taken by the I.-G. P. Extending to the Sergeants the same treatment as they were entitled to under the Rules their entry into various promotion lists and promotion itself was ante-dated. This led to widespread grievance on the part of regular Sub-Inspectors with whom at one time the Sergeants were merged practically for all purposes except renumeration under the I.-G. P's. Order. On the one hand they challenged before the Service Tribunal the treatment afforded to Muhammad Shafi and on the other to other Sergeants in the Punjab Police whose cases were more or less past and closed.
34. ' Three such service appeals were filed and these were allowed. The Service Tribunal held that the order of merger of Sergeants with Sub-Inspectors passed by the Governor of West Pakistan was duly implemented, acted upon and the Sergeants stood merged completely with the general police cadre. Rule 13.14, therefore, became applicable to the Sergeants and the I.-G. P by his orders which were withdrawn by the Government subsequently did nothing but enforce the rules against them. It concluded by holding that the condition of 8 years' service imposed by the I. G. P. . Was "neither whimsical nor arbitrary" and the same was imposed in accordance with the Police Rules, 1934 framed under the Police Act, 1861. From the fact that the posts were abolished, it was inferred that the incumbents thereof ceased to be covered by the rules still on the statute book and governing the Sergeants. The case of Muhammad Shafi was, however, distinguished on the ground that it was not at par with the case of other respondents and "it would he not a matter of good taste to dishonour the decision of the Province with regard to its subordinates particularly when the same has been taken in accordance with the rules and the procedure so laid down in this behalf".
35. Besides, the appeal of Sardar Muhammad against Muhammad Shafi was held to be time-barred.
36. The other three appeals of the Sub-Inspectors challenging the orders of the Government were allowed and the order was struck down maintaining the validity of the I.-G. P's. Order of 1965 and after.
37. ' The learned counsel for the appellants, i. e., the Sergeants and the Government have contended that it was within the powers of the Provincial Government under the Police Act particularly its sections 2 and 7 to pass orders with regard to the terms and conditions of service of the police upper subordinates. The I -G. P's. Order could be counter-manded and recalled as all orders passed by the I.-G. P. Under section 12 of the Police Act had to receive the approval of the Provincial Government and were subject to it. It is also contended that the object of the orders passed by the Provincial Government was to treat those affected by the same orders similarly 'and to remove avoidable causes of heart-burning and unhealthy rivalry in the Police Force. The decision had been taken in consultation with all the authorities dealing with the subject or concerned with it and no vested right of the Sub-Inspectors was at all adversely affected.
38. ' The learned counsel for the respondents on the other hand contended that with the abolition of the posts the rights of the Sergeants to remain in service itself disappeared. The fact that the posts of Sergeants were converted into that of Sub-Inspectors of Police and distributed in the ranges implied that the incumbents of such posts were to be made Sub-Inspectors and to be governed by the rules applicable to the S.-Is. Of Police. The I.-G. P., therefore, was justified in applying the rules framed by the Government itself governing the Sub-Inspectors to the Sergeants as from 1964 after the abolition of the posts and the matter had concluded with the dismissal of the writ petition of a few of the affected Sergeants. It could not be re-opened in a summary fashion and rights vested in the Sub-Inspectors of Police so adversely affected.
39. ' Before taking up the merits of the contention, the framework of the law within which the Police Force is required to function must be taken note of. Section 2 of the Police Act provides as follows - "2. Constitution of the force.-The entire police establishment under a Provincial Government shall, for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled ; and shall consist of such_ number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the Provincial Government.
40. ' Subject to the provisions of his Act the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may determined by the Provincial Government."
41. It has to be noted at this stage that it is the Provincial Government which alone has the power to determine the pay and all other conditions of service of members of the subordinate ranks of the Police Force. Section 12 empowers the I.-G. P. To frame orders and rules but it is conditional, on his obtaining approval of the Provincial Government and its being in conformity with the provisions of the Act. Section 12 provides, as follows -- "12. Power of Inspector-General to make rules.-The Inspector-General of Police may, from time to time, subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organization. Classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them ; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them ; the collecting and communicating by them of intelligence and information; and all such other orders and rules relative to the police force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
42. 'Section 12 of the Police Act does not concern the subjects covered by specific Rules framed by the Government on recruitment, seniority, promotion etc. Besides the approval of the Provincial Government for such rules or orders of the I.-G. P. Was a precondition to lend them the legal efficacy and to make them capable of conferring indefeasible rights on those concerned. It is not claimed by the parties that the orders of the I.-G. P. Had the approval of the Provincial Government.
43. What is contended is that the abolition of the posts and cadre of Sergeants and their merger with Sub-Inspectors had such a legal effect and the I.-G. P's. Order was only consequential and not determinative.
44. The omission of the category of Sergeants from the Pay Revision Rules of 1959 did not and could not lead to the inference that their posts stood abolished as from the date these Pay Revision Rules were enforced.
45. The periodical Pay Revision Rules as the very name, their promulgation and legal effect suggests are not evidence of creation or abolition of posts. The abolition and creation of posts, their numbers and location invariably taken care of by separate orders. Pay Revision Rules are only evidence of restructuring of pay scales, merger or separation of a few, their rationalization and updating by reference to the inflationary trends in the country's economy. If a post does not find mention in the Pay Revision Rules, it only implies that the pay scales of such posts remain unrevised till these are included in the schedule of Pay Revision Rules failing which the old scales of pay remain intact.
46. ' The Provincial Government itself recognised the existence of Sergeants as a different category; allowed them special pays on the 19th of December, 1963 and also the benefit of consolidated scales of pay. The Inspector-General continued to recruit Sergeants as most of the recruitments were made in 1960 and 1961.
47. ' Finally, we find that an amendment was gazetted in the Police Rules whereby Rule 12.4 relating to the appointment of Sergeants was amended in exercise of powers possessed under section 40 subsection (2) clause (c) read with subsection (3) of section 46 of the Police Act. This substituted rule was published on the 5th of May, 1961 in West Pakistan Statute at page 191 and is to the following effect .- "12.4. Sergeants-Appointment of.-(1) Sergeants shall be appointed by the-Superintendent of Police on the recommendation of a Selection Board to be constituted in accordance with the orders of the Inspector-General.
(2) No person shall be eligible for direct appointment as Sergeant unless he-
(a) has been certified as physically fit for service by the Medical Superintendent or the District Health Officer, as the case may be ;
(b) has good moral character ; (c)has good physique and is of active habits ;
(d) is between 18 and 21 years of age ; (e)has passed the Cambridge Higher School Leaving Certificate Examination or the Higher Secondary Examination of the Board of Secondary Education, Lahore or any other equivalent examination : ' Provided that the Inspector-General shall have the power in special cases, to relax the upper age limit mentioned in clause (d) and the educational qualification mentioned in clause (e)."
48. If the intention were in 1959 to abolish the posts of Sergeants there was hardly any need in the middle of 1961 to substitute the rule of their recruitment.
49. ' It was only in 1964 (4-1-1964) that an express order was passed by the Secretary to the Home Department which has the heading of 'Abolition of posts of Sergeants' but deals with the conversion of the posts of Sergeants into that of Sub-Inspectors and their distribution over the ranges. It was made clear that there was to be no post of Sergeants in the Police Department and further that the Sergeants and the permanent incumbents of the posts will continue to enjoy their existing emoluments till they withered away by superannuation or otherwise, a concession which was subsequently extended to the temporary Sergeants as well by the subsequent' order dated 14- 1-1966. There is no Government order that on the conversion of the posts of Sergeants into that of Sub-Inspectors either the services of the incumbents would stand terminated or that they will be treated as Sub-Inspectors of Police and would be governed by the rules applicable to the Sub- Inspectors. No doubt, the Inspector-General of Police on such an abolition considered the Sergeants to be Sub-Inspectors and applied all the rules that could possibly be made applicable to them and this was done by the I.-G. P. Without the approval of the Provincial Government and as such did not satisfy the requirement of section 12 of the Police Act.
50. ' It is correct, as contended by the learned counsel for the respondents, that on facts established in the Punjab the case of ex-Sergeants became a past and closed transaction and the ex-sergeants could not have been permitted to resurrect it. What we find is that the entire case was reopened not at their instance or for their benefit. It was reopened because the orders passed by authorities in Baluchistan in the case of Muhammad Shaft who had been repatriated to the Punjab had to be taken note of and its legal effect on him and others determined. The initial attempt of the I.-G. P.
51. Punjab was to ignore it altogether, not to give effect to it even in the case of Muhammad Shall.
52. When confronted with the statutory provisions leaving no options for him, he became aware of a bigger problem of unequal treatment to a host of other ex-Sergeants posted in Punjab who were differently treated to their great prejudice. The anomaly so created came to the attention of the Government which carried out consultations and deliberation over a long period and finally came out with the dispensation which was impugned before the Service Tribunal, This dispensation has the merit of treating equally and uniformly those who, technicalities apart, deserved not to be treated differently from Muhammad Shafi. The Government was possessed of the statutory power.
53. The bar pleaded is not referable to any statutory provision but to the transaction being past and closed and to the vesting of rights in Sub-Inspectors under I.-G. P's. Order of 1965. The authorities charged with the duty of maintaining and overseeing a disciplined force have an abiding duty to hold out even handed and fair treatment to all concerned. The passage of time, and the turn of events may deprive a person of his right to seek redress butt it cannot-prevent the authority from granting relief unless the authority itself has taken an irreversible step, an action beyond recall.
54. None can claim that when the Government abolishes a post, the incumbent must necessarily be thrown out of service, or continued in service on new terms of employment.
55. On a consideration of all the facts and the law applicable, we are of the view that I.-G. P's. Order, dated 13-5-1965 could not bar the exercise of power by the Provincial Government under section 2 of the Police Act and the Provincial Government's order was well within its statutory power a and suffers from no legal infirmity. The result is that all these appeals are allowed and the impugned judgment of the Service Tribunal is set aside. No order as to costs.