SHAH ZAMAN BABAR, J.---This is a letters patent appeal from the judgment dated 17-3-1971, passed by his Lordship Qaisar Khan, while sitting in Single Bench, in R. S. A. No. 41 of 1970, whereby his Lordship dismissed the defendant's second appeal and upheld the judgments and decrees of the first appellate Court and the trial Court.
2. Abdur Rashid Khan was officiating as Sub-Inspector Police in 1943, in the year 1945 his name was entered in Promotion List E. In the year 1947, he got C report and his name was removed from Promotion List E. In the year 1952 his name was once again entered in the Promotion List and he was promoted to the rank of officiating Sub-Inspector. He was confirmed as Sub-Inspector in the year 1958. It appears that after this his name was brought on Promotion List F. In the year 1962, the then Deputy Inspector-General of Police, on the basis of an adverse entry in his record, removed his name from list F. On 10-8-64 Abdur Rashid Khan moved an application before the Deputy Inspector-General of Police, Peshawar, probably for bringing his name on promotion List F. The D. I.
G. Recom--mended the case to the Inspector-General of Police, vide his memo. No. 762/C, dated 8-9-64. This letter has not been produced. However, the Inspector-General of Police, West Pakistan, Lahore, by his memo. (Exh. D. W. 1/1) No. 16734/EIII, dated 2-11-1964, informed the Deputy Inspector- General of Police, Peshawar Range, Peshawar, with reference to the memo. No. 762/C, dated 8-9- 1964, on the subject "Promotion List F, case of Sub-Inspector Abdur Rashid Khan No. P/145"
"You should recommend Sub-Inspector Abdur Rashid Khan if you are then so minded when next recommendations are call--ed for List `F'."
Abdur Rashid Khan again applied to the Inspector-General of Police, West Pakistan, Lahore, on 25- 11-64, probably with a prayer that his name be brought on List F. This request was turned down. In the year 1966-67 the Deputy Inspector-General of Police, Peshawar, again recommended Abdur Rashid Khan to the Inspector-General of Police for bringing his name on list F, vide endorsement No. 332/C, dated 15-5-1967. This letter of the D. I. G. Is also not placed on record. However, by memo. No. 9795/E-3, dated 4-7-1967 (copy Exh. D. W. 1/2) the Inspector---General of Police, West Pakistan, Lahore, informed the D. I.-G. Police, Peshawar, with reference to his endorsement No. 332/C, dated 15-5-1967 1 "There are other reports of adverse nature in the record of S. I. Abdur Rashid P/145, which stand in the way of his name being brought on list `F'. He will have to wait till he earns good reports. He should please be informed accordingly."
3. Abdur Rashid Khan instituted the present Suit No 307/1, on 14-11-68. The plaintiff arrayed the Inspector-General of Police, West Pakistan, Lahore, and the Deputy Inspector-General of Police, Peshawar, as defendants. This is a suit for the grant of a decree for declaring the order of defendant No. 1, dated 4-7-67 refusing to admit the name of the plaintiff on List F, as illegal, without lawful authority, and hence null and void, and that the plaintiff be declared to be an officer on list F, with effect from the date in 1964 and 1966 when the D. I: G. Considered the plaintiff fit for promotion to list F. In the plaint it is averred that the recommendation of the D. I. G. In 1964 and 1966 amounted to bringing the name of the plaintiff on list F as under the former N: W. F. P. Police Rules, the defendant No. 2 is the competent authority to bring the name of the plaintiff on list F and the defendant No. 1 assumed powers in respect of the same matter without any lawful authority.
The suit was contested by the two defendants. The pleadings of the parties gave rise to the following issues;
(1) Whether the plaintiff has no cause of action?
(2) Whether the civil Court has no jurisdiction to entertain this suit in its present form?
(3) Whether the defendant No. 1 was competent to reject the plaintiff's recommendation for being brought on list 'F'?
(4) Whether the defendant No. 1 has acted in accordance with Rules in rejecting the plaintiff to be brought on list F'?
(5) Whether the plaintiff is governed by the former N.W.F.P. Police Rules for the purposes of being brought on list F'?
(6) Relief?
4. The suit was tried by the Civil Judge 1st Class, Peshawar. Abdur Rashid Khan plaintiff appeared as his own witness. No document or other witness was produced by him. Iqbal Ahmad, P. S. L, Peshawar was the solitary witness on behalf of the defendants
5. The learned trial Judge while dealing with issues 3 and 4 held that the I. G. P. (defendant No. 1) has not acted in accor--dance with the service rules and cannons of justice and fair-play and that he had not exercised his discretion in a reasonable manner. Both the issues were, therefore, decided in favour of the plaintiff. On issue No. 2, the learned trial Judge observed that the defendants did not address any argument on the issue and as such decided issue No. 2 against the defendants. Issue No. 5 was decided in the affirmative in view of the Home Department Notification, Government of West Pakistan, issued on 30-1-1958. On issue No. 1 It was held that the plaintiff has a cause of action. The learned trial Judge, thus, by his judgment and decree, dated 19- 6-1969, granted the plaintiff a decree against the defendants for declaration that the order of defendant No. 1, dated 4-7-1967, refusing to admit the name of the plaintiff to list F is illegal, con-- trary to the statutory rules, null and void, and the plaintiff is a member of the officers borne on list F since 8-9-1964. Parties were left to bear their own costs.
The defendant's appeal failed before the Additional District Judge, Peshawar, on 20-9-1969.
In second appeal, Khan Qaisar Khan, J., by his judgment, dated March 17, 1971, observed:-- "I am of the opinion that the findings of the learned lower Courts are perfectly correct. According to the Government of West Pakistan Home Department Notification No. F. 2/5-HP--(1)/57; dated 30-1- 1958 the petitioner was governed by the North, West Frontier Province Police Rules of 1937 so far as his going to the "F" List was concerned. This was not denied by the learned counsel for the appellants. Rule 13 of Chapter XIII of the N.-W. F. P. Police Rules, 1937 is with respect to the pro-- motion of Police Officers and a perusal of Rules 13.19 and 13.20 clearly shows that unless a Sub- Inspector was brought on the "F" List, he could never be promoted as Inspector. This posi--tion was conceded by the learned Advocate-General. In the circumstances the refusal of the authorities to bring the plaintiff---respondent on the "F" List, therefore, clearly amounted to withholding of promotion from him and in the circumstances since he had no other remedy, he could very well come to the Court to establish his right if the refusal of the authorities to bring him on the "F" list was contrary to the rules. A perusal of Rule 13 clearly shows that Sub-Inspector had to be brought on "F" list by the Deputy Inspector-General of Police and not by the Inspector-General of Police. In the circumstances the recommendation by the D. I. G. To the Inspector-General for bringing the plaintiff-respondent on "F" List was clearly made under misunderstanding. The Inspector-General had no power either to bring the plaintiff respondent on "F" List. It was for the Deputy Inspector- General of Police to do so and since the D. I. G. Recommended him to be brought on the "F" List on 8-9-64, the plaintiff-respondent is, therefore, deemed to have been placed on "F" List with effect from that date. Learned counsel for the appellants could not show any rule under which the Inspector-General had to accept or to reject a recommenda--tion for bringing a Sub-Inspector on "F" List. The findings of the lower Courts are, therefore, perfectly correct."
Consequently the appeal was dismissed with no order as to costs.
6. Sardar Fakhre Alam, Advocate-General, argued for the defendant-appellants. He contended, firstly, that strict non-com--pliance with the Police Rules gives no remedy to the plaintiff by a law suit, and secondly, that the suit does not fall within the scope of section 42 of the Specific Relief Act, as no right to property or legal character is involved in the case.
7. Mr. Zahurul Haq, Advocate appearing for the plaintiff-respondent, argued that the recommendation of the D. I. G. (defendant No. 2) for bringing the plaintiff's name on List F in 196; and 1966 per se amounted to bringing the plaintiff's name on List F, as the D. I. G. Was the competent authority to do so, and that the I. G. Police (defendant No. 1) assumed powers in respect of the same matter without any lawful authority.
8. The N. W. F. P. Police Rules, 1937 have been framed under sections 7 and 12 of the Police Act (Act V of 1861), Chapter 13 of Volume 2 of the Rules pertains to promotions. For the facility of reference the relevant --rules from this chapter are reproduced: "13.1. Promotion from one rank to another.-(1). Promotion from one rank to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection.
(2)--------------------------- 13.2. Promotion lists.--For the purposes of regulation promotion amongst enrolled police officers the following records will be maintained:
(1) ---------------------------
(2) ---------------------------
(3) ---------------------------
(4) ---------------------------
(5) ---------------------------
(6) ---------------------------
(7) ---------------------------
(8) ---------------------------.
The above lists will be maintained in card index from lists . . . . . And D in Form 13.8 (i) (a) : . . . . Under the personal supervision of the Superintendent.
The fact of entry in or removal from these lists shall be recorded in the order book as well as in the character roll of the officer concerned.
(9) List E.
(10) List F. . . Sub-Inspectors eligible for promotion to the rank of Inspector in Form 13.19. To be maintained in accor--dance with rule 13.19 by the Deputy Inspector-General.
The fact of entry in or removal from lists E & F shall be recorded in the character roll of the officer concerned and shall be published in the Police Gazette.
13.16. Removal of names from lists D and E. The conduct and efficiency of men on lists D and E shall be at all times watched with special care. Any officer who, whether in his substantive rank or while officiating as an Assistant Sub-Inspector or Sub-Inspector, is guilty of grave misconduct of a nature reflecting upon his character or fitness for responsibility, or who shows either by specific acts or by his record as a whole that he is unfit for promotion to higher rank shall be reported to the Deputy Inspector-General for removal from list D or list E as the case may be. In interpret--ing this rule discrimination shall be shown between faults which are capable of elimination by experience and further training, and those which indicate definite incompetence or defects of character. Officers whose names have been removed from either list D or list E may be restored by order of the Deputy Inspector-General in recognition of subsequent work or conduct of outstanding merit.
13.19. List F -- Promotion to Inspector.-- Sub-Inspectors and Sergeants selected by the Deputy Inspector-General as eligible for promotion to the rank of Inspector will be entered in list F to be maintained in his office in card index Form 13.19.
No Sub-Inspector will be eligible for admission to list F' who has not a good knowledge of English.
Exceptions to this rule may only be made with the sanction of the Inspector-General of Police.
(Correction Slip No. 403, dated 17th October 1941). Sub. Inspectors on the time-scale will not be entered in list F, except for very special reasons. . , 13.20. Promotion to the rank of Inspector.-(1) Substantive' vacancies in the rank of Inspector shall be filled by promotion of officers from list F selected according to the principles laid down in rule 13.1 (I). Sergeants are eligible for promotion in the appointments reserved for European Inspectors.
(2) Temporary vacancies in the rank of Inspector will be filled by the officiating promotion of officers on F list by the Deputy Inspector-General. Such officiating promotions will be made in accordance with the principles laid down in rule 13:15 in the case of E list, and rule 13.16 shall, mutatis mutandis govern the scrutiny of the work of F list officers and the removal from that list of the names of those who are found unfit for the rank of Inspector."
After the establishment of West Pakistan in 1955, by Home Department, Government of West Pakistan, Notification No. F (2)/3-HP(I)/57, dated the 30th January 1958, the Governor of West Pakistan was pleased to direct that (besides some other rules) Rules 13.1 to 13.22 of Chapter XIII together with relevant Appendices and Forms to the North-West Frontier Province Police Rules, 1937, will continue to apply to the police officials holding appointments on the date of issue of the Notification.
On a bare reading of the rules, referred to above, it is clear that list F is maintained by the Deputy Inspector-General in his office for the purposes of regulating promotions. The list pertain to Sub- Inspector selected by the D. I. G. As eligible for promotion to the rank of Inspector. However, no Sub- Inspector will be eligible for admission to list F who has not a good knowledge of English, except with the sanction of the Inspector-General of Police. Vacancies in the rank of Inspector shall be filled by promotion of officers from list F selected according to the principles laid down in rule 13.1 viz. Selection tempered by seniority; efficiency and honesty being the governing factors. Entry of a name in list F is, therefore, made by selection based on some principles rather than as of legal right. In the event of entry of the name of Sub-Inspector in the promotion list F by selection, it makes him only eligible for promotion to the rank of Inspector. It cannot, therefore, be argued that failure to enter the name of a Sub-Inspector in list F will amount to withholding of his name from promotion to the rank of Inspector. Apparently in view of rule 13.19 and the Notification of 1958, the selection of the names to list F is to be made by the Deputy Inspector---General. D. W. 1 Iqbal Ahmad has deposed that "F list is a cadre of Inspectors and it is dealt by I. G. P. To bring certain official on list F. It is purely the discre tion of I. G. P., based on record of the official in character Roll".
In cross-examination he added that "it is a practice that the I. G. P. In his own discretion brings the name on list F but it is not provided in any rule". The D. I. G's letters of recommendation, dated 8-9- 1964 and 15-5-1967 have not been produced. We, therefore, do not know the con--tents of these letters. In the letter, dated 2-11-1964 the I. G. P. Has given no reasons why he turned down the recommendation. By letter, dated 4-7-1967, the I. G. P. Did not accept the D. I. G's recommendation on ground of "other reports of adverse nature in the record of S. I. Abdur Rashid".
9. It is argued that in the case of the plaintiff Rule 13.19 has not been complied with. But non- compliance of administra--tive Rules is not justicable in a Court of law. Where there has been serious and complete failure to adhere to important anti Fundamental Rules, the remedy of the aggrieved person does not lie by a suit in Court. It would indeed be causing confusion if the Court undertook to do that what is the function of the executive. The question of seniority even is a matter not justici--able is a Court of law. Reference is made to:
(4) Mazhar Hasnain v. State of Uttar Pradesh and others AIR 1961 All. 316 and
(5) Unreported case, Ghulam Sarwar v. D. I: G. Police etc. (Writ Petition No. 250 of 1966, decided on 10-9-1968) by a D. B. Of Peshawar Bench of the erstwhile High Court of West Pakistan.
In Ghulam Sarwar's case the order of removal of Ghulam Sarwar's name from list D was challenged as being without lawful authority and of no legal consequence. 1n para. 12 the learned Judge observed: "On a parity of reasoning the petitioner is not entitled in law to any relief in respect of restoration of his original seniority on 'D' list or for the grant of concomitant benefits as to his pro--motion etc. Either. It is not controverted that `D' list is merely an approved list of police officers in the subordinate rank who at a given time are considered eligible for future promotion. This list is maintained entirely for administrative convenience, without conferring any corresponding right on any member of the police force to claim that his name be brought on the list. The list at best creates an expectancy of promotion to a post above the rank of the Head Constable."
In view of the above discussion, we hold that the plaintiff: respondent has no cause of action to institute the present suit because he has no remedy by law suit, even though there is no strict compliance with the rules framed.
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right . . . . ." `This section contemplates the following conditions
(a) that the plaintiff is entitled (i) to any legal character or (ii), to any right as to any property; and
(b) that the defendant is a person who denied or is interested in denying his title to such character or right."
The phrase "legal character" occurs in section 42 of the Specific Relief Act and in section 41 of the Evidence Act, but the phrase has not been defined in either of the said two Acts. Superior Courts have construed the phrase "legal character" as synonymous to "legal status". "A man's status or legal character is constitut--ed by the attributes which the law attaches to him in his individual and personal capacity." "Legal character" as used in section 42 is equivalent to legal status and legal status is a legal right when it involves a peculiarity of the personality arising from anything un--connected with the nature of the act itself which the person of in--herence can enforce against the person of incidence. Legal status or legal character in case of service personnel is formed of his rank, promotion, grade of pay, and official status conferred by law as a legal right on him. Reference can be made to
(1) Azad J & K Government v. Allahditta PLD 1966 Azad J & K 66 at page 72.
(2) Major-General Shanta Shamsher Jung Bahadur Rana v. Kamani Brothers (Private) Ltd. And others AIR 1959 Bom. 201.
(4) Burmah Eastern Ltd. v. Burmah Eastern Employees' Union PLD 1967 Dacca 190.
Entry of names in a promotion list is effected by selection by the police authorities. The same can, therefore, be not considered as legal character or legal status conferrable as of right by law or the rules on a police officer. The deferment by the I. G. Police to enter the name of the plaintiff- respondent in the promotion list F does not, therefore, involve violation of the rules or denial of legal character or legal status to him. The suit of the plaintiff respondent for the declaration asked for, in the circumstances of the case, as such cannot be brought within the four corners of section 42 of the Specific Relief Act.
It is remarkable that by a notification issued by the Inspector, General of Police, N. W. F. P. The name of the plaintiff has been entered in list F with effect from 12-3-1971.
11. As a result of the above discussion, we accept the letters patent appeal, set aside the judgments and decrees in the second appeal and those of the appellate and trial Courts. The plaintiff- respondent's suit is dismissed.
As complicated questions of law were involved, the parties are to bear their own costs.