A. R. SHEIKH, J. The facts relevant for disposal of this petition are these. Ibne Hasaan petitioner was posted as officiating Moharrir Head Constable, Police Station Old Anarkali, Lahore, when on the 2nd of November 1963, a case under section 409 of the Pakistan Penal Code was registered against him. Subsequently he was proceeded against departmentally and was charge-sheeted for performance of his duties negligently which resulted in loss of Government money. After a regular enquiry a show-cause notice was served on the petitioner and ultimately on the 29th of September 1967, the Senior Superintendent of Police, Lahore, passed the following order:-- "In view of his gross misconduct and carelessness as well as the finding of the enquiry officer, I hold him guilty of the charge and atop his increment, for to years with cumulative effect. The period of suspension will be treated as such."
Under the rules, the petitioner was entitled to go in appeal to the higher authorities, but he presumably remained satisfied with the order and filed no appeal. On the 10th of October 1967, a further order was passed by the Senior Superintendent of Police, Lahore. In the following terms:- "In partial modification of the orders issued over this office No. 33752-56/B, dated 29-9-67 H. C. Ibne Hassan No. 4513 of this district may be considered to have been re-instated permanently from the date of his provisional re-instatement i.e. 6-5-64.
(2) Issue orders for O. B. And all concerned to note for necessary action."
On the 30th of September 1968, the petitioner's name was removed from list 'C' pertaining to promotion to Head Consta--bles and by his order dated the 5th of October 1968, the Additional Superintendent of Police, Lahore, reverted the petitioner from the post of officiating Head Constable to that of a Selection-Grade Constable, under the provisions of rule 13.8-A(1) of the Punjab Police Rules. The petitioner claims to have preferred an appeal against orders of his reversion, but the same was dismissed as barred by the and he has now come up to this Court under Article 98 of the abrogated Constitution Act of 1962.
2. The orders of removal of petitioner's name from list 'C' and subsequent reversion from the rank of officiating Head Constable to that of a Selection-Grade Constable are assailed on the ground that because the petitioner had been re-instated permanently by order dated the 10th of October 1967 of the competent authority after the imposition of penalty of stoppage of increment for to years with cumulative effect, the order of reduction in rank passed without show-cause notice is illegal for to-fold reasons: firstly that it is violative of the provisions of Article 177 of the Constitution Act, and, secondly, that it is a case of double punishment which is not warranted by law. It has been further contended that the entire action against the petitioner is actuated by malice because as a matter of fact the Station House Officer, who was responsible for the alleged loss of Government money; has not been proceeded against, and the petitioner has been made a scape-goat.
3. The relevant rules pertaining to promotions of various employees of the Police Department appear in Chapter XIII of Punjab Police Rules, 1934. Under rule 13.1-(3), it has been laid down that Lists 'A', 'B', 'C' and 'D' shall be maintained in each district as prescribed in rules 13.6, 13.7, 13.8 and 13.9, and will regulate promotion to the selection' grade of constables and to the ranks of head constables and Assistant Sub-Inspector. Under rule 13.6, the Superintendent of Police is to maintain List 'A' of constables eligible under rule 13.5 for promotion to the selection grade of constables, while under rule 13-7. List ---B--- is to be maintained (divided into to parts) of candidates selected for admission to courses at the Police Training School namely :-
(1) Selection grade constables considered suitable as candidates for the Lower School course at the Police Training School.
(2) Constables (selection or the-scale) considered suitable for drill and other special courses at the Police Training School.
List 'C' pertaining to promotion to Head Constables is dealt with in rule 13.8, which reads as under :- "(1) In each district a list shall be maintained . . . . Of all constables who have passed the Lower School Course . . . . And are considered eligible for promotion to head constable . . . .
(2) Promotions to head constable shall be made in accordance with the principle described in sub-rules 13.0)(1) and (2). . . . . . . : '
Under rule 13.8-A(1) it has been laid down that the infliction of any major punishment shall be a bar to admission to or re--tention in lists 'A', B' or 'C', provided that (a) for special reasons to be recorded by the Superintendent in each case, and subject to confirmation by the Deputy Inspector-General, this disqualifica--tion may be waived and (b) after six months' continuous good conduct in the case of censure or confinement to quarters or on expiry of the period of reduction in the case of reduction for a specified period, a constable may be re-admitted at the discretion of the Superintendent. The term 'major punishment' is defined in rule 16.1(3) as 'any authorised punishment' of reduction, with--holding of increments, forfeiture of approved service, dismissal and every judicial conviction on a criminal charge'. Rule 16.10 relating to punishment of officers officiating in higher rank is reproduced below:- "16.10. The misconduct of a police officer must be judged in relation to the position he was occupying at the the when such misconduct is alleged to have taken place. For purposes of punishment, therefore, an officer officiating in a higher rank shall be treated as belonging to that rank. This rule shall not prevent an officer being reverted to his substantive rank on being placed under suspension."
4. Elaborating his contentions with reference to the rules detailed above, learned counsel argued that although the petitioner was an officiating Head Constable at the the he was suspended and subsequently punished, because he had been re-instated permanently with effect from the 6th of May 1964, the date of his provisional re-instatement, he was to be treated as a permanent Head Constable and his reversion from that post to a lower post of Selection Grade Constable amounts to reduction in rank and as the said penalty has been imposed on the petitioner without resort to the show cause procedure, the action taken against the petitioner lacks in jurisdiction. It has been further argued that in any case as the petitioner was an officiating Head Constable, he was to be awarded punishment by virtue of rule 16.10 as an officiating Head Constable and not as an official in the lower rank and the action taken against the petitioner at to stages is a case of double jeopardy. On a closer examination of the various orders passed it will be noticed that the order, dated the 10th of October 1967, reproduced above, merely reiterates re-instatement of the petitioner permanently (as officiating head constable) from the date of his provisional re- instatement, i.e. 6th of May 1964. This re-instatement is referable to the Government Policy Instructions, dated the 16th of November 1957, appearing in O & M Establishment Manual, Volume I, 1964 Edition, at page 325. Admittedly, the petitioner was arrested on the 2nd of November 1963 and was put under suspension, and as the Inquiry was protracted and was not likely to conclude in the near future, the petitioner was put back to duty provisionally on the 6th of May 1964, immediately on the expiry of six months' the. However, when the petitioner was finally punished, in the form of stoppage of his increment for to years with cumulative effect, it was further ordered that the period of suspension shall be treated as such and in order to regularise his provisional re-instatement the aforesaid order of the 10th of October 1967 was issued saying that provisional re-instatement on the 6th on May 1964 will be treated as permanent re-instatement. This, however, does not mean and cannot be interpreted to say that the petitioner, who was an officiating Head Constable, had in any manner been absorbed permanently or had been confirmed in the post of the Head Constable. For all intents and purposes, he was an officiating Head Constable and he continued as such. The argument that a show-cause notice was necessary because his reversion from Head Constable to that of selection grade Constable came within the mischief of Article 177 of the Constitution Act, falls to the ground in view of the interpretation placed by us on this order of the 10th of October 1967, because reversion from an officiating post has never been considered to reduction in rank.
5. The contention that it was a case of double punishment` is without merit for the reason that there has been no reduction in rank. Assuming without conceding that removal of the petitioner's name from list 'C', which made him eligible for promotion as a Head Constable, is a penalty imposed in addition to stoppage of increment, even, then it cannot be said to be a case of double jeopardy.
Rule 16.10 provides that in the case of misconduct of a police officer, for purposes of punishment an officer officiating in a higher rank shall be treated as belonging to that rank. All that it means is that when misconduct of the petitioner was being inquired into it was as an officiating Head Constable and not as a selection grade constable. It says neither more nor less. Rule 16.10 further provides that this rule shall not prevent an officer being reverted to his substantive rank on being placed under suspension. It clearly envisages that at the the when the petitioner was suspended for having been arrested, it was open to the competent authority to pass an order of his reversion simultaneously.
In that case the penalty of stoppage or to increments could not have been said to double punishment for the same offence. If, however, the reversion is not ordered at that stage, it does not mean that subsequent reversion under rule 13.8-A as a consequence of the major punishment awarded, could be treated as a second punishment. But differently reading rules 16.10 and 13.8-A(1) in juxtaposition, it is manifest that an officiating head constable when proceeded against departmentally for misconduct has to be treated as an officiating head constable for the purposes of the inquiry. The competent officer could have reverted the petitioner to his substantive rank immediately on his being placed under sus--pension and if that procedure is not resorted to, when the inquiry completes against the petitioner (officiating head constable) and he is awarded a major punishment, rule 13.8-A will come into operation automatically because rule 13.8-A provides in unequivocal terms that the infliction of any major punishment shall be a bar to retention of a person's name on list 'C' unless the Superintendent of Police otherwise passes a special order when the major punishment of stopping his increment for to years has been passed against the petitioner, his name could not be retained on list 'C' any more and that consequence had to flow out of the order of the major punishment itself. If the said order has not been passed simultaneously with the order of stoppage of increment or promptly-thereafter, it does not mean that the department was in any manner precluded from taking any steps under rule 13.8-A. The contention under this limb of the argument that the order of removal of petitioner's name from list 'C' and his reversion to the post of a selection grade constable has not been passed by the Senior Superintendent of Police but by the Additional Superintendent of Police, is of no avail to the petitioner for the action to be taken under rule 13.8-A is not prescribed to be passed by the Superintendent himself. It being a consequential order, i. e. An order flowing out of the order imposing a major punishment, it has to take effect auto--matically and any officer of the department could have made the said order.
6. The further contention that the action against the petitioner was actuated by malice has not been established before us. An attempt was made by learned counsel to raise some factual objections, but as this Court is not to constitute itself into a Court of appeal, we are not called upon to express any opinion on that aspect of the case, which is otherwise not patent on the record of the case.
7. The petitioner had a right of appeal against the order imposing upon him a major punishment and as a matter of fact the relevant order of the Senior Superintendent of Police clearly indicates that a copy of the order be given to the defaulter Ibne Hassan free of cost, and he is at liberty to go in appeal to the higher authority. It is not denied that such a copy was furnished to the petitioner.
He having failed to have recourse to the appellate authority at the relevant the is clearly indicative of petitioner's satisfaction with the said order. When his name was removed from list 'C' and he was reverted to the substantive rank of selection grade constable, he filed an appeal impugning the first order but the same has been rightly dismissed as beyond the. In the circumstances the petitioner cannot claim any relief in equity. Mumtaz Khan v. Chief Settlement and. Rehabilitation Commissioner and another (PLD 1966 SC 276) is in point.
8. For the reasons above, the writ petition fails and is dismissed. However, we leave the parties to bear their own costs.