' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Muhammad Akhtar Bajwa and respondent No, 5, Mr. Aurangzeb Khan, are officers in BPS-18 in the Pakistan Railways Police. There is dispute between them over their inter se seniority. The appellant claims seniority over the respondent No, 5, which was denied to him. The appellant has challenged in this appeal seniority of the respondent No, 5 and even his appointment in the Pakistan Railways Police.
2. The appellant entered the Pakistan Railways Police Service in the following manner. He was appointed as a P.S.I. (Prosecuting Sub-Inspector) in the District Police, Punjab, in the year 1958. He was promoted as P.I. (Prosecuting Inspector) in the year, 1969. In the year 1971, he was posted as P.I.
Railway Police, Punjab. He was confirmed on 1-1-1974. On promulgation of the Pakistan Railways Police Ordinance (Ordinance No, XLI of 1976), on 25th October, 1976, a separate Force called as the Pakistan Railways Police was established, whereby all persons holding any rank or post up to the rank of Superintendent under the Railway Police of any Province stood transferred and appointed to the corresponding ranks or posts in or under the Pakistan Railways Police, as notified by the Federal Government. The appellant, therefore, became an employee in the newly constituted force known as the Pakistan Railways Police. However, he was promoted as PDSP (Prosecuting Deputy Superintendent of Police) by the Inspector-General of Police, Punjab vide notification dated 9-5- 1977. He continued serving with the Pakistan Railways Police. He was promoted to the rank of Superintendent of Police, Railways (BPS-18) in the Pakistan Railways Police with effect from 3-4- 1982.
3. The respondent No, 5 was appointed as an ASIP (Assistant Sub-Inspector of Police) in the Punjab Police in the year 1966. He was promoted as SIP (Sub-Inspector of Police) in due course of time. He was inducted into the Federal Security Force as an Assistant Director (BPS-17) vide notification dated 3-5-1976. In the year 1977, the Federal Security Force Act, 1973 was repealed under the Federal Security Force (Repeal) Ordinance, 1977 and the Force was disbanded with effect from 1-12- 1977 and the officers and the members of the force were either repatriated to the parent departments or were transferred to the other forces, except few retained temporarily on making arrangements with other forces/organisations for their absorption with them, for winding up the affairs of the force. The respondent No, 5 was one of the officers who were so retained. He was assgined the job of an Assistant Director, Special Cell, Ministry of Interior, vide notification dated 26- 11-1977. He was relieved from the Ministry of Interior and his services were placed at the disposal of the Pakistan Railways Police for temporary appointment as a Deputy Superintendent of Police (BPS-17) vide notification dated 31-1-1978. He was appointed accordingly vide notification dated 23-2-1978 issued by the Inspector-General, Pakistan Railways Police, Lahore. By notification dated 9-12-1981 issued by the Railway Board, Ministry of Railways, he was appointed as Deputy Superintendent in the Investigation/Proseeution Wing of Pakistan Railways Police in Grade-17 on regular basis with effect from 31-12-1980 against the quota reserved for direct recruits, under Rule 15(2) of the Pakistan Railways Police Rules, 1980 and to count his seniority from the date of his regular appointment. Subsequently, the respondent No, 5 was allowed to count his seniority from 30-4-1976, i,e, the date of his joining the Federal Security Force vide notification dated 2-4-1986 addressed to the General Manager/Police, Pakistan Railways, Lahore, from the Railway Board.
4. The Inspector-General of Pakistan Railways Police circulated a seniority list of Grade 17/18 officers of Pakistan Railway Police vide letter dated 20/ 22-4-1982, wherein the appellant was placed at S.No, 2 and the respondent No, 5 occupied place at S,No,
3. The appellant's date of appointment to Grade-17 was mentioned as 6-5-1977 and that of the respondent No, 5 as 31-12-1980. The respondent No, 5 made representation for determination of his seniority with effect from 30-4-1976.
His representation was rejected by the Chairman, Railway Board (the respondent No, 2) as per letter dated 11-4-1982. The respondent No, 5 prefered an appeal before this Tribunal. During the pendeney of the appeal, he made another representation to the Chairman, Railway Board, who by his letter dated 22-2-1983, allowed seniority to him (the respondent No,5) with effect from 23-2- 1978 when he had joined the Pakistan Railways Police. The respondent No,5 yet made another representation for allowing him seniority from the date he had entered the service in the Federal Security Force. He was informed vide letter dated 20-8-1984 issued from the office of the Chairman.
Railway Board that his seniority would be reckoned from 22-2-1978 as decided earlier and no further change was called for. In the the meantime, the respondent No,5 was promoted as S.P.
Railways (B-18). He withdrew his appeal filed before this Tribunal and it was dismissed by order dated 24-7-1983. Later, the respondent No,5 filed an appeal No,276 (L)/84 before this Tribunal for getting his seniority from 30-4-1976 when he had joined the defunct Federal Security Force as Assistant Director (B17). During the pendency of that appeal, the seniority of the respondent No,5 was revised as to reckon from 30-4-1976 as per letter dated 2-4-1986 addressed to the General Manager Police, Pakistan Railways, Lahore, from the Railway Board, Ministry of Railways.
5. The appellant challenged the redetermination of the seniority of the respondent No,5 by preferring a departmental appeal on 30-4-1986. Failing to find any response within 90 days prescribed under Section 4 of the Service Tribunals Act, 1973, he preferred this appeal on 27-8-1986 on various grounds.
6. The appeal has been resisted by the Government as well as by the respondent No,5. They have raised preliminary objections that the appeal is not only time-barred but is also not maintainable, contending that the appellant is an employee of the Provincial Government of the Punjab and he is not a civil servant of the Federal Government and he could not invoke jurisdiction of this Tribunal.
Reliance has been placed on a case of the Supreme Court, reported in PLD 1985 SC 195. The over- all contention of the department as well as the respondent No,5 is that all the orders in respect of service career of the respondent No,5 were made in accordance with the relevant rules and orders.
7. At the hearing of the appeal, the learned counsel for the respondents urged that the legal objections touching the question of limitation and the maintainability of the appeal may be determined first. The learned counsel for the parties embarked on arguing the appeal which necessitated the recital of the facts in the background. However, the emphasis was laid on the questions of law involving limitation and maintainability of the appeal and they could not conclude their arguments on the factual side and, therefore, the hearing was concluded for determining the question of limitation and maintainability of the appeal.
8. The events in the background of the appeal are reflected in paragraph 2 and 3 ante. Dealing with the question of limitation first, the appellant's case is that he was placed senior to the respondent No,5 in the seniority list circulated in the year 1982 by showing his date of appointment to grade 17 as 6-5-1977 and that of the respondent No,5 as 31-12-1980. His grievance is that by refixation of seniority of the respondent with effect from 30-4-1976 under the impugned letter dated 2-4-1986, he would stand relegated to the lower position in the seniority list and that letter dated 2-4-1986 furnished him cause of action to resist challenged to his seniority and he, therefore, preferred departmental appeal on 30-4-1986, and awaiting decision thereon for statutory period of 90 days, he filed this appeal on 27-8-1986. The parties have placed on record several documents, although unsystematically. The respondent No, 5 has filed, along with his objections, a copy of the letter dated 4-11-1980 from the Inspector General, Pakistan Railways Police, Lahore, where under list containing names of officers in Grade 18 and 17 appointed in pakistan Railway Police under section 5 of the Pakistan Railways Police Act, 1977, was circulated, marked. The name of the appellant is mentioned therein along with the date of his entry in the grade as 2-5-1977, whereas the name of the respondent No, 5 stands at S. No, 3, showing date of Thins entry to the grade as 30-4-1976. This document has been pressed in aid to be the starting point for counting the period of limitation. The appellant has placed on record a copy of the representation dated 7-1-1981 made by him against the aforesaid letter relied upon by the respondent No, 5 but he did not make a mention of those letters in the memo. Of his appeal. There is nothing on record as to what was the fate of his representation, but it was thereafter that a seniority list of Grade 17 and 18 officers in the Pakistan Railways Police was circulated vide letter dated 20/22-4-1982. Wherein the name of the appellant was shown at S.No,2 with date of his appointment to the grade as 6-5-1977, and the name of the respondent No,5 was mentioned at S.No,3 with the date of his appointment to the Grade 17 as 31- 12-1980. The respondent No,5 vigorously agitated for redetermination of seniority and all those events are mentioned at paragraph 3 ante. He succeeded in his efforts when the impugned letter dated 2-4-1986 was issued by the Railway Board. Ministry of Railways to the General Manager/Police, Pakistan Railways Police, Lahore, where under his seniority was reckoned from 30- 4-1976. The appellant made representation to the Prime Minister on 30-4-1986. It was submitted through proper channel and it was forwarded to the Establishment Division by the Railway Board vide O.M. Dated 22-6-1986 (Page 38 of the documents filed along with the memo of appeal). The appeal was filed on 27-8-1986. It would appears that the question of seniority of the appellant and the respondent No, 5 in the Pakistan Railways Police came on the scene when the list of the officers appointed under section 5 of the Pakistan Railways Police Act, 1977 was notified vide letter dated 4- 11-1980 and the appellant made representation against it and a seniority list was circulated in 1982 wherein the appellant was placed above the respondent No,5 and that position was reversed when the impugned letter was issued and the appellant made representation and he awaited decision thereon for the statutory period of 90 days and failing to get decision, he preferred this appeal within the period of 120 days. Accordingly, the appeal was filed within the period of limitation in the light of the Supreme Court decision in the case of Haji Kadir Bux v. Government of Sind, reported in 1982 SCM R 582. It is accordingly held that the appeal is not time-barred.
9. The next contentious issue is whether the appellant is an employee of the Provincial Government or of the Federal Government. It would appear from the service career of the appellant depicted above that he had entered the service with the Government of Punjab when he was appointed as a PSI in 1958. He was also promoted there in the year 1%9. He was transferred in the same capacity to the Railway Police in the Province of Punjab in the year 1971 and was serving in that Section of the Provincial Police Service when the Railway Police was taken over by the Federal Government and a separate Force called as the Pakistan Railways Police was established under the Pakistan Railway Police Ordinance, 1976 (Ordinance No,XLI of 1976), promulgated on 25-10-1977, replaced by the Pakistan Railways Police Act, 1977. It was provided under section 5 of the Pakistan Railways Police Act, 1977 (hereinafter referred to as the Act), that all persons holding any ranks or posts, not above the rank or post of Superintendent, in or under ther Railways Police, in the Province, shall stand transferred and appointed to such corresponding rank or posts in or under the Pakistan Railways Police, as may be notified by the Federal Government. The determination of the issue under consideration rests on the interpretation of the provisions of this Section and it is reporduced below in extenso:
5. Transfer of Provincial Railway Police and Railway Watch & Ward to the Pakistan Railways Police.--
(1) Notwithstanding anything contained in any other law for the time being in force or any contract, agreement or any conditions of service--
(a) all persons holding any rank or post, not above the rank or post of Superintendent, in or under the Railway Police of any Province, and
(b) all persons holding any rank or post in the Railway Watch & Ward shall subject to such conditions as may be laid down by the Federal Government stand transferred and appointed to such corresponding ranks or posts in or under the Pakistan Railways Police as may be notified by the Federal Government.
(2) If, at any time, the Federal Government considers that the services of any person referred to in clause (a) of subsection (1) are no longer needed by the Pakistan Railway Police, the Federal Government may, by order in writing revert such person to the Police of the province to which he belonged immediately before the commencement of this Act.
' The appellant's case is that he became civil servant in the Federal Government by virtue of the provisions of Section 5 of the Act. The contention of the respondents, on the other hand, is that by virtue of the provision of subsection (2) of Section 5 of the Act, that any person transferred and appointed to the Pakistan. Railways Police Force under the provisions of sub-section (1) of Section 5 of the Act, could be reverted by the Federal Government to the Police of the Province to which he belonged, the appellant was deemed to have remained as employee of the Provincial Government of the Punjab and he was serving in the Pakistan Railways Police as a deputations. The learned counsel for the Government has placed reliance on the decision of the Supreme Court reported in PLD 1985 SC 195. The learned counsel for the respondent No, 5 has placed reliance on the decision of the Supreme Court in the case of Province of Punjab v. Ikramul Hach reported in 1986 SCM R 1994; and another case of Federation of Pakistan v. Arbab Mukhtar Ahmad reported in 1986 SC MR 236.
He has made reference to the Government instruction in respect of a deputationist contained in ESTACODE at page 217.He has also referred to FR 14-A (b) and S.No,40 in ESTACODE, page 224 and S.No, 41, page 225. He has also made reference to a letter dated 2-8-1977 in an office file wherein the appellant's case is said to have been processed as a deputations. The decision of the Supreme Court reported in 1986 SCMR 1994 is the enlightening authority on what is a deputations and what is the concept of lien. In the instant case, it would appear that the appellant stood transferred to and appointed in the Pakistan Railways Police Force by operation of law viz. The Pakistan Railways Police Act, 1977. Of course, he could be reverted to his parent department viz. The Provincial Police Force, if so desired by the Federal Government, as provided in sub-section (2) of Section 5 of the Act. It follows that the fate of the appellant in service remained uncertain as to how long he would be retained by the Federal Government in the Pakistan Railways Police Force and whether he shall have misfortune of reverting to his parent department in the Provincial Government. It is not asserted that he was ever confirmed in the Pakistan Railways Police Force nor had it been confirmed that the appellant's lien in the Police Service had been terminated. The decision of the Supreme Court in the case of Province of Punjab v. Ikramul Haq, reported in 1986 SCAR 1994, that unless a Provincial Government servant transferred to the Federal Government is confirmed by the Federal Government and his lien in the Provincial Government is terminated, he is deemed to be serving in the Federal Government as a deputations and he continues to be in the service of the Provincial Government does apply to this case. Accordingly, the appellant continues to be in the Police Service of the Provincial Government of Punjab and, therefore, he cannot invoke the jurisdiction of this Tribunal for determination of his seniority in the Pakistan Railways Police Force under the Federal Government. The appeal before this Tribunal is not maintainable.
10. For the reasons recorded above, the appeal is dismissed as not maintainable for want of jurisdiction. No order made for costs.