' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Muhammad Siddique, P.D.S.P., has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Home Department, Lahore, Inspector-General of Police, Punjab, Deputy Inspector-General of Police, Rawalpindi Range, Rawalpindi and Messrs Fazal Mohammad Khan, P.D.S.P., Raja Khan Zaman, P.D.S.P., Muhammad Jamil Bhatti A.D., Intelligence, Muhammad Shoaib, P.D.S.P., Sakhawat Ali, P.D.S.P., Athar Zahoor Butt, P.D.S.P., Shabbir Ahmad, P.D.S.P. Ishtiaq Hussain, P.D.S.P., Malik Muhammad Ashraf, P.D.S.P., Muhammad Ilyas Kayani, P.D.S.P. And Imdad Hussain, P.S.D.P., as respondents.
2. By virtue of this he has prayed that the impugned orders, dated 24-9-1980, 8-11-1980, 22-11-1980 and 9-12-1980 be set aside and original orders, dated 16-4-1979 and 23-4-1979 as well as Seniority List, dated 4-6-1979 be restored and the appellant be declared to have been promoted as P.D.S.P.
From 15-6-1972, confirmed in the same rank w,e,f, 1-7-1976 and permanent Special Grade P.S.I. From 14-4-1960, and he be declared senior to all contesting respondents.
3. Brief facts of the case are that this appeal was filed on 28-12-1980, and later on admitted to regular hearing. On 3-6-1981, notices were issued to all the contesting respondents out of which Messrs Fazal Muhammad Khan and Muhammad Ilyas Kayani filed their written comments. Sh.
Imdad Hussain was present before the Tribunal and was directed to file the comments. Rest of the respondents were proceeded ex parte. Learned counsel for the appellant as well as respondents argued at a number of times and ultimately Malik Muhammad Ashraf one of the contesting respondent brought to the notice of the Tribunal that the notification issued by the D.I.G. Police Rawalpindi, giving anti-date promotion as well as selection grade to the appellant, has been cancelled under the direction of the Inspector-General of Police. When this was brought to the notice of the appellant he moved two miscellaneous applications on 3-6-1982, through his learned counsel, one for supply of copy of order of D.I.G. Police, dated 16-4-1979 and other of directive of the I.-G. Police, Punjab; and in the second application he prayed to amend his appeal accordingly. The order was placed on the record and notices were issued to the learned District Attorney. On 28-7- 1982, the appellant was allowed to amend the appeal vis-a-vis the two documents so that the matter could be thrashed out accordingly with the direction that the case will not be argued on merits as the case had been fully discussed, but only point of law involved. The comments from the D.I.-G. Police were received and D.I.G. Was impleaded as party in this case; and on 11-1-1983, the case was concluded. On 8-6-1983, it was considered necessary to re-hear the case by the Full Bench. However the case could not be heard due to the sudden illness of the Chairman of the Tribunal. We also adjourned the case to 17-1-1984, to Rawalpindi Circuit in order to know whether the appellant had availed the remedy of filing an appeal before the next higher authority or not.
The case has now been conducted on all the issues.
4. With regard to the history of the case vis-a-vis its merits, we relate the same as under: ' The appellant was enrolled as Prosecuting Sub-Inspector on 10-3-1955, alongwith respondent No,3 Fazal Muhammad Khan, and was promoted as Prosecuting Inspector on 20-10-1958, after passing his P.S.I. Examination held in February, 1958. Respondent No,3 was promoted as P.I. On 6-1-1960, more than one year after the promotion of the appellant. Meanwhile respondent No,3 was awarded selection grade on 14-4-1960 and appellant on 7-2-1962. The appellant as well as contesting respondent No,3 were confirmed on the same date as P.I. Viz. 14-5-1966. It so happened that the contesting respondent No,3 was promoted as P.D.S.P. On 15-6-1972 and the appellant was promoted as such on 6-3-1975, by ignoring the seniority principle laid down for the purpose. The Respondent Department issued seniority list of Prosecuting Inspectors in which the Contesting Respondent No,3 was shown at serial No,6 whereas the appellant was shown at serial No,11. The appellant represented against the said seniority list vide his representation dated 27-1-1979, Annexure 'C', which was forwarded to the D.I.-G. Police, Multan Range, Multan by the Superintendent of Police, Multan. The representation of the appellant was accepted and the date of permanent selection grade of the appellant was ante-dated from 7-2-1962 to 14-4-1960, vide order, dated 16- 4-1979, of the D.I.G., Rawalpindi Range, Rawalpindi. After the list was so corrected the appellant was also granted promotion as P.D.S.P. From 16-6-1972 instead of 6-7-1975, vide order, dated 23-4-1979.
The respondent No,1 issued revised seniority list of P.D.S.Ps. Vide letter dated 4-6-1979. In this list the appellant was correctly shown at serial No,14 whereas the contesting respondents at serial Nos, 15 to 27. This list was issued in order to implement the aforesaid two orders dated 16-4-1979 as well as 23-4-1979, and the said orders were duly implemented and acted upon. Respondent No,3 or any of the contesting respondent No,1 challenge the impugned seniority list before this Tribunal, as required under the Rules, which was the only forum for the purpose, but instead sought a remedy by filing writ petition No,4231 of 1979 in the Lahore High Court, Bahawalpur Bench. This writ petition was contested by respondent No,1 who filed parawise comments which fully supported and defended on merits the aforesaid Seniority List as well as the two orders, dated 16-4-1979 and 23- 4-1979, on the strength of which the said Seniority List was issued. This was done by the respondent No,1, while filing the parawise comments on the petition. The Writ Petition was dismissed by the High Court on the point of jurisdiction before the said forum. However, the respondent No,1, issued order, dated 9-12-1980, whereby he cancelled earlier order, dated 23-4-1979, regarding ante-dating promotion and confirmation of appellant as P.D.S.P. In the first part of the said order the date of promotion of the appellant as P.D.S.P. Was drawn back to 7/1975 and in second part seniority list dated 4-6-1979 was revised and appellant was relegated in seniority 14 steps down from Serial No,14 to serial No,27. Hence this appeal.
5. We have heard the learned counsel for the appellant as well as appellant in person and the contesting respondent Malik Muhammad Ashraf, P.D.S.P., Lahore, and have perused the entire record of this case carefully with the assistance of the learned District Attorney who represented the Government.
6. Learned counsel for the appellant as well as appellant has argued that earlier orders dated 16- 4-1979 and 23-4-1979, were duly issued and implemented, therefore, those orders had become absolutely final qua the respondents and the Government/Respondents Nos,1 & 2, and there remained no locus poenitentiae with the Respondent No,1 to review or rescind those orders and to take away the existing rights of promotion from earlier dates, pay in the higher scales, as well as seniority in various ranks which had accrued in favour of the appellant by virtue of those orders.
Learned counsel for the appellant as well as appellant himself stoutly defended the validity of the earlier orders which according to them was issued to rectify injustice which has been extended to the appellant in matter of promotion and seniority. It has been further argued that the appellant was not given any notice or hearing while giving him seniority to lower position, which according to them was an act of great high handedness, and violation of principle of natural justice; as no order could be passed without affording opportunity of personal hearing to the affected person. It has also been stressed on behalf of the appellant that the respondents have accepted those earlier orders as they never challenged the same and failed to file appeal (s) against the same before this Tribunal on the expiry of the period of limitation, when a valuable right of enjoying (i) the aforesaid dates of promotion, (ii) higher rates of pay and (iii) right of seniority over the Contesting Respondents had accrued in favour of the appellant; and thus Government was not within their competency to take away these valuable rights, which had so accrued.
7. On the other hand Malik Muhammad Ashraf, D.P.S.P. One of the contesting respondents, addressed us at length on various dates and claimed that the authority was fully competent to withdraw the orders as it was within its competency to do so, when it found that the earlier orders were illegal and without any justification. He has also raised a legal issue with regard to the competency of this appeal on the ground that the appellant could not challenge the withdrawal orders at this stage and was under obligation to agitate his right before the next higher authorities and that too, within time. He has submitted that the claim of the appellant that he was senior to him as well as to other contesting respondents, both in the rank of P.S.I., P.I. As well as P.D.S.P. Was incorrect and has prayed that the appeal be dismissed, as being without any merits.
8. It may also be mentioned at this stage that the appellant has vehemently contested that he was deprived of right seniority position dishonestly and fraudulently since 1971 even on the basis of the earlier permanent selection grade dated 7-2-1962, by contesting respondent Malik Muhammad Ashraf etc. In collusion with Mr.Kazmi Supdt: (E) of respondent No,2, and submitted that the appellant and respondents were promoted to List 'F' as P.S.Is. On 27-6-1964 while the appellant was promoted to permanent special/selection grade on 7-2-1962, whereas the respondents No,8 to 13 to temporary Special/Selection grade on different dates. It was further stated that Fazal Muhammad's case No,4/29 of 1971 and order on his miscellaneous application dated 15-1-1974, which came before this Tribunal, it was directed that seniority amongst the appellant and the respondents should be determined in accordance with provisions of Police rule 13.15 (4), which lays down that seniority in list 'F' will be in accordance with date and entry in the list. Sub-Inspectors admitted to list 'F' on the same date, will be placed in list in accordance with their date of permanent promotion to selection grade. In this way the appellant had made a grievance that his name should have been shown above the name of respondent No,8 Athar Zahoor Butt, in the seniority list of 1971. Thus the appellant was dishonestly and fraudulently deprived of right seniority position in 1971 by Mr. Kazmi, Asstt. Supdt: (L) of respondent No,2 with the connivance of Malik Muhammad Ashraf etc. Who was posted at Lahore, and was in a position to maneouvre such like inequities. He has also challenged the contention of Muhammad Ashraf, respondent No,11, that the provision regarding selection grade were amended in October, 1980 and the word selection grade was substituted by the word special Grade, and submitted with reference to chart of Service Particulars and Seniority List of 1971 where respondents Nos,8 to 13 were shown as promoted to Temporary Selection/Special Grade, and moreover only one list of Special Grade and Selection Grade of P.S. Is was prepared by the office of respondent No,2 in 1971. It was argued that there were two types of vacancies i,e, 'Temporary' and 'Permanent'. The respondents were awarded special/Selection grade against temporary vacancies which could not be made permanent in view of section 6 (4) of Civil Servants Act, 1974.
9. We have given our anxious thought to the arguments of them parties and find that the appellant qualified the P.S.Ps. Examination with credit one year earlier to all the contesting respondents. Every P.S.I. Was awarded selection grade within 6 months to 2 years of their qualifications with credit, whereas the appellant was given selection grade after 4 years. We have also seen the seniority list of 1971, and are of the considered opinion that the name of the appellant should have been shown senior as he had qualified with credit in 1955 and in 1956. The appellant had fulfilled all the conditions which the respondents had not and should have been given priority in matter of award of selection grade over all of those who have not done so with credit. We have also taken into consideration the argument of respondent No,3 that the appellant submitted representation long after his first selection grade and the I.G.P. And D.I.G., Police, Rawalpindi Range, favoured him irrespective of the fact that they were not competent authorities because this matter rested with the Government only, who was the authority in respect of the appellant. We have taken into consideration this point and find that the appellant made a representation against seniority list dated 2-1-1979 on 27-1-1979 and it was within time. The Appellate Authority had condoned the time limitation, if any, by accepting the representation of the appellant and the learned I.G.P. Was the competent authority in respect of P.D.S.P. As laid down in rule 4 of the D.S.P. Rules, 1964 and Delegation of Powers, 1958. In this manner we rely on the instance of proforma promotion of D.S.P.
Shamasuddin given vide order No, 13727 E/1, dated 19-6-1972. We further find that the representation of the appellant was accepted by D.I.-G. Police as well as the I.-G. Police on 16-4- 1979 and 23-4-1979, therefore, cancellation of the same on 9-12-1980 after the said position was so implemented and acted upon for about 2 years there remained no animus revertendai and locus poenitentiae for respondent No,2 to review, rescind or cancel those order, which they could not have taken away the existing rights of promotion from earlier dates, pay in higher scale as well as seniority in various ranks, which had accrued to the appellant by virtue of the original orders. For this we will rely on PLD 1956 FC 46, PLD 1964 SC 503, PLD 1969 SC 407, 1980 SCMR 268, 1981 SCMR 523, PLJ 1978 Tr. C. Service 258, 1984 PLC (C.S.) 402, PLJ 1982 Tr. C. Service 165, PLD 1982 Lab.
371., 1980 PLC (C.S.)
105. We have also taken into consideration the comments filed in the High Court by respondents Nos,1 and 2 and find that the D.I.-G. Police Rawalpindi, had stated that he, being the competent authority had given the selection grade to the appellant in an existing vacancy after the approval of I.G.-P., respondent No,2. This being the situation we are of the considered opinion that the rights so accrued to the appellant by a valid order of the Government functionaries, who were competent to do so and the same could not be withdrawn without holding departmental inquiry, issuing him charge sheet and show cause notice etc. As cancellation of orders of confirmation amount to reduction in rank which is major penalty under the Civil Servants (E&D) Rules, 1975. All this was done without show cause notice or affording opportunity of defence to the appellant. In this way we rely on 1980 PLC (C.S.T.) 403, 1974 PLC (C.S.T.) Note 25 at p. 13, NLR 1978 Pb. Service 308, PLJ 1978 Tr. C. Service 1258 and 1984 PLC (C.S.) 402. We have taken into consideration the arguments of the respondents that confirmation of the appellant was illegal as the Government has done without seeking prior approval of the Finance Department, we have no hesitation to repel this argument as the order of the promotion were issued by the competent authority and thus they were perfectly legal. Secondly, the preform promotion was given to the appellant as he was deprived of right seniority position in view of clauses (i) and (iv) of Government Instructions contained in letter No,SOR-II(S&GAD)2-52/73. The said instructions regarding the approval of Finance Department were issued long after the issue of orders dated 16- 4-1979 and 23-4-1979, and therefore, would not apply to the case of the appellant.
10. With regard to the point of limitation so raised by contesting respondent Malik Muhammad Ashraf that he made no representation to the next higher authority against the cancellation of seniority in time, therefore, the same was barred by time, we find that those orders were not served on him as he had been transferred from Multan to Rawalpindi and it was only when he applied for a copy of the same, then he became aware of the situation. With regard to the specific plea that he should have agitated his grievance before the Government we find that according to Rules of Business the Government/Home Secretary is final authority with regard to the appellant. According to Rules of Business, 1962, the Government/Home Secretary is the final authority with regard to the case of appellant. Under these Rules the definition of Secretary includes the Chief Secretary and it is none of the functions/ powers of Chief Secretary to hear the appeal against the orders of a Secretary as is clear in rule 6 of the said Rules. We have upheld this principle in case of Ch. Muhammad Sharif v. Secretary Industries Department. We also further find that Fazal Muhammad had preferred an appeal to the Governor through the Home Secretary and the orders passed on it, would be considered to be the orders of Governor/ Government whether the same were passed by the Governor or the Chief Secretary or the Additional Chief Secretary or the Home Secretary.
11. In view of the above detailed discussions of the entire case, which has taken a long time to decide due to the circumstances beyond our control and sometimes due to legal issues, which had to be resolved, we proceed to accept the appeal set aside the impugned orders, dated 24-9- 1980, 22-11-1980 and 9-12-1980 of respondents Nos, 1 and 2 as illegal, void ab initio and against the rules and law. In this manner we restore the original orders, dated 16-4-1979, 23-4-1979, and seniority list, and the appellant shall be entitled to be treated in accordance with the orders so restored and in this manner would be senior to all the contesting respondents. There will be no order as to costs.