' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Muhammad Ali, an officer in the Police Service of Pakistan, has preferred this appeal for determination of his seniority vis-a-vis the respondent No, 2, ex-Capt. Shaukat Javed.
2. The appellant's case, briefly stated, is that he joined the Police Service of Pakistan as A.S.P., through competitive examination held by the Federal Public Service Commission, on 30-12-1974. He was promoted to the rank of S.P. (Grade-18) on 20-7-1981. On the other hand, the respondent No, 2 (Ex-Capt. Shaukat Javed) was selected for the Police Service of Pakistan in the year 1968 in accordance with the recruitment policy introduced vide Establishment Division No, 11/4/66-Police, dated 3rd April, 1968. He completed prescribed graduation course in the year 1970. Pending finalisation of his selection by the Federal Public Service Commission, he joined the Army. He was promoted there to the rank of Captain in the Army. After formation of Police Group in the Federal Police Service in the year 1975, he switched over to the Police Service of Pakistan by way of his selection as A.S.P. (Grade-17). In the gradation list of the Police Service of Pakistan issued in the year 1987, the appellant found his place at S.No, 46, whereas the respondent No, 2 was placed at S.No, 4.
He, therefore, preferred this appeal on 21-7-1987 for the relief that he may be declared senior to the respondent No, 2.
3. The appeal has been resisted by the Government as well as by the respondent No,
2. They have raised legal pleas that the appeal is not maintainable in law and it is barred under proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, as no departmental appeal was filed against the seniority list of 1987 and that the appeal is also time-barred. The department has given detailed history of the entry of the respondent No, 2 in the Police Service of Pakistan and pleaded justification for placing the respondent No, 2 above the appellant in the seniority list. The plea advanced by them will be discussed herein below. The respondent No, 2 has adopted the same line to justify his earning seniority above the appellant.
4. This is a case of peculiar nature. The entry of the appellant into the Police Service of Pakistan and assignment of his seniority has a long story which has been narrated in the written objections filed by the Government in answer to facts stated in paragraphs 7 to 10 of the memo of appeal. The Government version needs to be reproduced for proper appreciation of the contentions advanced for and against the appeal. The facts stated read as under:-- "Para. 7-10:--Mr. Shaukat Javed, respondent No, 2 was, one of the 14 candidates 10 from West Pakistan and 4 from the East Pakistan who had been pre-selected in 1968 to fill 5 vacancies under that scheme. Two persons from East Pakistan were dropped. After their graduation, a written test for these said 12 candidates was held in October,' 1970. The viva voce of 10 candidates from West Pakistan was held in March, 1971 but the final result (Annexure R-2) was communicated to the Establishment Division as late as July, 1971. The FPSE selected 5 candidates from West Pakistan and both the candidates from East Pakistan for P.S.P. Of the remaining 5 candidates from West Pakistan, one had failed, and the other four had qualified. Mr. Shaukat Javed had the lowest merit from West Pakistan (S.No, 9) but was above East Pakistani candidates (S.No, 11). Due to the political situation at that time, the Government selected all the 9 candidates from West Pakistan including Mr. Shaukat Javed and 2 from East Pakistan for appointment to P. S. P. The President approved their appointment as A.S.P. On 21-7-1971. The first communication (Annexure R-3) to the candidates was made on 21-8-1971 by the Health Division calling upon them to appear for medical examination on 30-8-1971. After their medical examination and police verification, offers of appointments were sent to the candidates in December, 1971. For the reasons shown in the succeeding paragraphs, Mr. Shaukat Javed (who had joined the army) could not appear in the medical examination and no offer was sent to him.
' Mr. Shaukat Javed had been writing for declaration of result and also for filling all the 11 vacancies, which occurred in 1970, from pre-selected candidates. He was informed by Establishment Division on 20-4-1971 that his request to fill all the vacancies from the preselected candidates could not be accepted. On 1st May, 1971 he again wrote a letter (Annex. R-4) to Establishment Division saying that he had been selected for army and had received a call on that day, and that he was required to join by 12-5-1971. He asked the Establishment. Division to state whether or not he had been selected for the P.S.P., and if no reply was received by 8-5-1971 he would presume that he had not been selected and would not be liable to the execution of bond. He again wrote a letter (Annexure R-5) on 10-5-1971 intimating that since he could not lose the job opportunity, he was joining the army but, if he was finally selected for the P.S.P. Then it would be for the Government to have him transferred to Police Service of Pakistan. He, thereafter joined the army. The first communication (Annexure R-3) about his selection for P.S.P. And calling him to appear for medical examination was received at his home address in August, 1971 when he had already joined the army. On receipt of that communication, his father wrote a letter on 26-8-1971 (Annexure R-7) to the Secretary, Defence for release of his son and endorsed a copy to Establishment Division. The Establishment Division also sent a similar O.M. (Annexure R-8) to the Ministry of Defence on 18-9-1971 informing them of his selection and requesting for his release. However, the Ministry of Defence on 7th December, 1971 declined (Annexure R-9) to release him in view of the defence requirements at that crucial time vide their O.M. Dated 7-12-1971. He was also posted to East Pakistan at that time. After fall of Dacca, he became a prisoner of war. In April, 1972 his father again approached the Ministry of Defence for his release, after repatriation for joining P. S. P. This was followed by his letter, dated 31- 1-1974 to Establishment Secretary stating that his son had since been repatriated and posted to Kharian Cantt. On 17-1-1974 and requested for obtaining his release from the army to join the P.S.P.
The Establishment Division wrote (Annexure R-10) to the Ministry of Defence on 12-2-1974 inquiring whether Mr. Shaukat Javed could be released for appointment to Police. The father of Mr. Shaukat Javed again wrote a letter on 28-5-1974 to the Establishment Secretary saying that the GHQ had informed him that his son could resign and pay compensation to the army. In his letter, he asked the Establishment Division to confirm that in view of the bond executed by him at the time of pre- selection, his son would be taken in P.S.P. And he also requested the Establishment Division to take the case of exemption from payment of compensation with the appropriate authority. Capt.
Shaukat Javed, according to the advice of G.H.Q., submitted his formal resignation (Annexure R-11) from the army to join the P.S.P. In response to the OSD Cabinet Division D.O. Letter of 29-8-1974 forwarding his resignation, the Ministry of Defence intimated (Annexure R-12) to the Joint Secretary, Establishment Division that they had no objection to release of Capt. Shaukat Javed and to his appointment in P.S.P. They added that he would be retired from the army w,e,f, the date he was actually inducted in P.S.P. The Establishment Division accordingly issued an offer (Annexure R-1) to him on 21-5-1975 offering him appointment in P.S.P. "on the results of the former P.S.P. (Pre- selection) Examination, 1970". However, while issuing this offer, and ignoring that he was being taken in P.S.P. In pursuance of his selection of 1970 and approval of 1971, the Establishment Division inserted a condition in the letter of offer that he would "count seniority in the Police Group from the date of his joining the Police Group". He joined the Police Group on 12-7-1975, and was accordingly placed in seniority from that date below 1974 batch. Since then Mr. Shaukat Javed has been unsuccessfully agitating for placement of his name in seniority with his batch-mates appointed in December, 1971. (The two persons from East Pakistan below him in merit were left out in view of the political and military situation obtaining in December, 1971).
' The facts of the case given above would show that Mr. Shaukat Javed was not inducted from the army. He resigned from the army and was released to join an appointment for which he was selected before he joined the army. It will also be clear that since 5 out of 10 candidates were to be appointed, it was natural for him to worry about the final result and in view of the delay in the final result, to be anxious not to lose the opportunity of getting commission in the Army, he kept the Establishment Division consistently informed of the position and developments because he was also under bond to serve P.S.P. If finally selected. However, sufficient time was taken by the Government from the time the pre-selected candidates graduated from the University and took the final test to the time of their final selection. The delay occurred because the FPSE could not interview candidates from East Pakistan though the result of West Pakistan candidates was ready.
The F.P.S.C. Could have intimated their result immediately after March, 1971 because there could be no clash with East Pakistan candidates who were too he allocated against East Pakistan quota of 2 posts. For this abnormal on the part of the Government he cannot be blamed for joining army which he did as any other person would have done.
' In any case, the appointment of Mr. Shaukat Javed to the P.S.P. Along with other 8 candidates from West Pakistan was approved by the competent authority on 21-7-1971 and said approval was never revoked or rescinded at any stage. By that time he had already joined the army and he had kept the Establishment Division informed about it. It was on the basis of this approval of 21-7-1971 that he was ultimately issued a letter of offer in 1975 as is clearly mentioned in that letter. The proposal of his appointment was not at that stage submitted to the President as it was already available. He has, therefore, to be treated as belonging to the batch of pre-selected candidates (of 1968) approved for appointment in a batch by the President on 21-7-1971 and who were appointed in pursuance of that approval.
' Prior to 1973, the seniority was not reckoned in terms of grades but ' used to be in the service. The candidates recruited through a competitive examination were assigned seniority inter se on the basis of their merit position. However, there were no formal rules specifically for P.S.P. Direct recruits excepting P.S.P. (Direct Recruits) Seniority Rules, 1964 which merely regulated seniority of war service recruits, of direct recruits (Competitions) viz-a-viz ad hoc recruits appointed in 1950, 1952 and 1953 and inter se seniority of ad hoc recruits (on the basis of inter se order of merit). In the absence of any specific rules, the general principles of seniority in vogue from time to time since 1947 including the general principles of seniority promulgated vide Establishment Division O.M. No, 1/2/36-D-lI, dated 31-12-1970 were applicable. In 1973, the Civil Servants Ordinance was enacted on 15-8-1973 and it came into force from that date. The Civil Servants Ordinance 1973 was replaced by the Civil Servants Act, 1973 from 26-9-1973. The general principles of seniority of 31-12-1970 continued as rules deemed to be rules made under that Act. On 31-5-1975, the Police Group was formed. In para. 8, the principle of inter se seniority in the order of merit (in Grade-17) was maintained.
' The general principles of seniority of 1970 promulgated vide Establishment Division O.M. No, 1/16/69-D.II, dated 31-12-1970, were in force during 1971 when the batch of pre-selected candidates, including Mr. Shaukat Javed, was approved for appointment and joined the P.S.P. Prior to 31-12-1970, the general principles of seniority promulgated vide O.M. No, 1/12/56-D-II, dated 9-11-1962 read with Establishment Division O.M. No, 7/35/62-D-II, dated 6-11-1964 (Estacode, 1983 pages 154-156) were in force. Both the 1962 general principles of seniority and the 1970 general principles of seniority lay down that the seniority into se of persons recruited direct in a batch shall be fixed in the order of merit and those selected on the basis of an earlier advertisement are to reckon seniority over those selected on the basis of a subsequent open advertisement. The date of actual joining has, therefore, no effect on such inter se seniority. Since Mr. Shaukat Javed cannot be isolated from the batch with whom he was selected and approved for appointment on the basis of an earlier examination. Mr. Shaukat Javed, on his actually joining the P.S.P. On the basis of 1970 test and 1971 approval, was required to be placed at the bottom of that batch in the order of his merit in that batch. The provision about seniority from the date of joining made in the offer of appointment was inadvertently put in against the then existing rules and as such cannot work against the right given by rules."
5. The learned counsel for the appellant has contended that mere selection of the respondent No, 2 in 1968 for getting entry into the Police Service of Pakistan and his final selection by the Federal Public Service Commission in 1971 did not entitle him to claim seniority earlier than the day he actually joined the service on 12-7-1975. According to him, the respondent No, 2 abandoned his prospects for getting entry into the Police Service of Pakistan and joined the service in the Army of his volition before the results were announced by the Federal Public Service Commission regarding the selection in Police service. He has urged that the appellant is governed by the rules applicable to the Police Group constituted under the Administrative Reforms on 31-5-1975. He has made reference to the order of appointment of the appellant dated 21-5-1975 which contained a condition that he was to reckon seniority in the Police Group from the date of his actual entry in the service. He has also contended that the appointment of the respondent No, 2 was not made by the competent authority.
6.The events which are not disputed are that the appellant joined the Police Service of Pakistan as A.S.P.On 30-12-1974 through competitive examination held by the Federal Public Service Commission. The respondent No, 2 actually entered the Police service on 12-10-1975. Normally, they should reckon their seniority from the respective dates of their entry into the service and the appellant should rank senior to the respondent No,
2. The normal course has been subverted in favor of the respondent No, 2 on consideration of exceptional circumstances disclosed in the narration of facts of the case by the department, reproduced above. It is not necessary to recapitulate long chain of events in the background of the entry of the respondent No, 2 in the Police Service reflected in the history of the case given by the department as above. It would suffice to mention that the selection of the respondent No, 2 to the Police Service of Pakistan under the scheme he was selected to was finalised when the results were announced by the Federal Public Service Commission in July, 1971 and the appointment of the candidates including the appellant was approved by the President on 21-7-1971. However, one more requirement was to be met with for actual entry into the service and that was of medical fitness of the candidates. The candidates were called upon by the Health Division to appear for the medical examination on 30-8-1971. The respondent No, 2 had already entered service in the Army and he did not appear at the medical examination. His batch-mates selected alongwith him were issued appointment orders and they joined the service. To the ill luck of the respondent No, 2, he remained stuck up in military service and was taken as a prisoner of war in 1971 and he was lucky to have been repatriated in the year 1974. He could not find his way to get himself inducted in the Police Service from the Army service.
He was released from the Army service only on his tendering resignation. He was taken in the Police Service on 12-7-1975 on his release from the Army on his tendering resignation there. He was assigned seniority on the basis of his entry into the Police Group with effect from 12-7-1975. His seniority position was reviewed as to place him along with his hatch-mates, who were appointed in the year 1971, on the consideration that he was appointed in the Police Group on the basis of his selection made in 1968 and his final selection made by the Federal Public Service Commission in the year 1971, as stated above. The question, therefore, for consideration is whether the seniority of the respondent No, 2 could he jumped up to the year 1971 although he did not actually join the Police Service but was serving in the Army. The only argument that needs consideration is that according to general principles of seniority enunciated in Annexure 'I' to Office Memorandum No, 1/16/69-D-II, dated 31st December, 1970, the officers recruited directly by the Federal Public Service Commission through an earlier open advertisement would rank senior to those recruited through a subsequent open advertisement. This principle of seniority has been pressed into aid by the department as well as by the respondent No, 2 for assigning him seniority along with his batch- mates appointed in the year 1971, although he actually joined the service in July, 1975. Of course, there is wisdom behind this principle of seniority as to give protection of seniority to a candidate recruited through an earlier open advertisement as against that of a candidate recruited through a subsequent open advertisement, but that rule does not seem to have universal applicability. In my opinion, it would be applicable in case of a candidate selected in earlier selection who could not join service earlier due to the circumstances beyond his control. In the instant case, the respondent No, 2 was, no doubt, selected at an earlier competition conducted through the Federal Public Service Commission, but he did not wait for the declaration of the results by the Commission and switched over to his employment in the Army and got himself stuck up there of his volition. He did not appear at the medical examination which was a condition precedent for regularly getting into the service. It has been stated in the objections filed by the department, the extract of which has been reproduced above, that the letters of offer of appointment were issued to the other candidates of the batch of the respondent No, 2 in December, 1971, but no such letter was issued to the respondent No, 2 as he had not appeared at the medical examination. Of course, he and his father had made attempts to get release from the Army as to join the Police Service but he could not be released due to exigency of service in the Army. He could not succeed in getting himself inducted in the Police Service from the Army and he had to resign from the Army service as to join the Police Service. He joined the Police Service (which was by that time re-organised as Police Group Service) on 12-7-1975, i,e, after more than 4-1/2 years of his selection in the Police Service of Pakistan. He was taken into Police Service on the express terms contained in the letter of offer of appointment dated 21-5-1975 that he would count his seniority from the date of his entry into the service. This was a fair and just condition and it was in accordance with the principle of seniority laid down in paragraph 8 of the Establishment Division Office Memo., dated 31-5-1975 laying down the Government policy to constitute an Occupational Group called the "Police Group" the appellant was taken into service of. There was no justification in taking a contrary view and giving the seniority to the respondent No, 2 from the day his batch-mates were appointed in the year 1971-72.
The appellant has legitimate case to claim and get seniority over and above the respondent No, 2.
7. The Government as well as the respondent No, 2 have raised legal objections that the appeal is barred under section 4(1) of the Service Tribunals Act, 1973 as it has been filed without exhausting departmental remedy of appeal, and that the appellant cannot be given the relief prayed for as he has not made other officers standing above him in the seniority list as party; and the appeal is also time-barred. These objections are discussed hereinbelow.
8. The respondent No, 2 was accorded seniority with retrospective effect vide Establishment Division Office Memo. Dated 1-2-1987. The appellant made representation against that decision on 9-3-1987 and he has placed on record a Photostat copy thereof bearing the office endorsement and showing that it was diarized on 15-3-1987. It is stated that he did not receive any orders on his representation. In the meantime, a gradation list of the Police Officers, as corrected up to 1-4-1987, was issued on 12-4-1987. It is Annexure 'C' to the memo. Of appeal. It was circulated amongst the Police Officers who were serving in the Province of Punjab under Memorandum dated 17-6-1987 issued from the office of the Inspector-General of Police, Punjab, Lahore. The appellant has stated in paragraph 11 of the memo. Of appeal that he received a copy of the gradation list on 21-6-1987.
The appeal was filed on 21-7-1987. It would thus appear that the appellant had made departmental representation against the decision of the department in favor of the respondent No, 2 giving him seniority along with his batch-mates of 1971 and no order on his representation was communicated to him and, in the meantime, gradation list was issued wherein the respondent No, 2 was assigned seniority along with his batch-mates of 1971 and the appellant preferred this appeal within thirty days of the receipt of the gradation list by him. Of course, the appeal was filed after 131 days of the making of the departmental representation but within thirty days of the receipt of the final gradation list by the appellant, which was considered by the appellant to be the rejection of his representation. It thus appears that the appeal was filed within the period of limitation and in accordance with the provisions of section 4(1) of the Service Tribunals Act, 1973.
The next objection is that of the non-joinder of the necessary parties who are the officers whose names are above the appellant and below the respondent No, 2 in the seniority list. The learned counsel for the appellant has submitted that those officers were not necessary party as the appellant does not claim seniority over them but his prayer is that the respondent No, 2 may be assigned seniority below him. It would have been worthwhile if the officers shown in the gradation list above the appellant and below the respondent No, 2 were made pro forma respondents but considering the prayer of the appellant that formal lacuna does not defeat the relief sought by the appellant.
9. For the reasons recorded above, the appeal is allowed and it is declared that the appellant ranks senior to the respondent No, 2 and shall reckon his seniority from 12-7-1975 when he actually entered service in the Police Group.
10. Before parting with the judgment, it may be mentioned that the learned Advocate for the respondent No, 2 urged at the hearing of the appeal that the hearing may be adjourned till August, 1989 as the respondent No, 2 was out of the country on training, and he made reference to such an application made by the father of the respondent No,
2. The Advocate for the appellant opposed the application contending that the appellant was adversely affected by the filing of the appeal and he was not being considered for promotion on account of the impugned seniority. The objection by the learned counsel for the appellant was considered reasonable and the appeal was heard and it was duly argued by the Advocate for the respondent No,
2. By virtue of the hearing of the appeal, the application made by the father of the respondent No, 2 stood rejected.