MUNAWAR ALI KHAN (CHAIRMAN).--Three appeals with Nos,104, 105 and 106 of 1988 respectively filed by Messrs Hadi Bux, Abdul Razak and Niaz Hussain are being disposed of by this common judgment, as the issues, factual as well legal, involved in these appeals are identical.
2. All the three appellants were serving as Police Constables in Larkana District when they were promoted out of turn to the rank .of Head Constable. The factual background leading to their promotions is as follows. Two of them namely Hadi Bux and Abdul Razak were posted at Police Station Dhamrah when the police party including the said appellants led by the S.H.O. of the above police station had an encounter with dacoits on 17-1-1988. Due to extraordinary courage and bravery displayed by the said two appellants the S.H.O. succeeded in arresting two dacoits namely Neukar alias Abdul Rasool Kalhoro son of Ghulam Rasool Kalhoro with Klashinkov held by him and Abdul Sattar Shaikh son of Moghal Shaikh carrying a gun. Accordingly F.I.R. No, 3 of 1988 under section 307/353/34, P.P.C. and 13-D Arms Ordinance was registered at Dhamrah Police Station.
Similarly as disclosed in the case relating to Cr. No, 44 of 1987 filed under sections 307--353, P.P.C. and section 13-D of Arms Ordinance at Warrah Police Station, on account of unusual good performance of appellant Niaz Hussain, not only two dacoits: Aitbar Kartio and Ali Gul Kalhoro were killed but also the abductee Baghali Jagirani was recovered. In recognition of the meritorious performance, of all the three appellants, they were promoted, out of turn, to the rank of Head Constable. The promotion of Niaz Hussain was made under the order of S.P. Larkana dated 18-4- 1987 whereas the promotion of other two appellants was notified by order of the S.P. of the same District, dated 23-1-1988. The appellant Niaz Hussain enjoyed the promotion for about one year and four months and the promotion of Hadi Bux and Abdul Razak lasted for about seven months. When their promotions came to the notice of the D.I.-G.P. he held the same as irregular and against the spirit of the rules and directed the S.P. to cancel the said promotions. Thus, the appellants' promotions were cancelled vide order of the S.P. Larkana dated 16-84988. They preferred usual departmental appeals against the cancellation of their promotion orders and after waiting for the statutory period of 90 days for decisions of the said appeals they filed the present service appeals.
We heard the arguments of the learned counsel for the parties and also went through the relevant record.
The substantive part of the order sought to be set aside in these appeals reads as under: "The Deputy Inspector-General of Police, Sukkur called for list of all those Head Constables who were awarded special promotions during the years 1985, 1986, 1987 and 1988 by the S.P. of Larkana District without obtaining prior approval from D.I.-G.P., Sukkur as required vide P.R. Rule 13.8(2). D.I.- G.P. Sukkur after examining the list held promotions of all those Head Constables irregular and against the spirit of rules who are promoted in their own rank and pay and ordered that their promotion orders should be cancelled vide--his message No, E-11/27616-81, dated 16-8-1988.
Accordingly promotion orders of the following Head Constables are hereby cancelled."
3. The above order shows that the D.1.-G.P. had held the promotion orders of appellants as irregular and against the spirit of the rules and it was under his directions that the said promotion orders were cancelled. In support of the above order, the official stand taken in the written statement was that appellants were junior to a number of constables on list C-1 and that they were promoted in excess of the sanctioned strength of the Head Constable's posts and that prior approval of the D.1.- G.P. as required by rule 13.8(2) was not obtained.
On the other hand the learned counsel for the appellants assailed the impugned order on the following grounds:
(a) that the irregularity caused in the appellants' promotions due to lack of prior approval of the D.I.-G.P. was curable and as such the promotions' could not be rescinded on that ground;
(h) that once appellants' promotions were implemented they could not be cancelled; (c)that the appellants were not afforded opportunity of personal hearing before cancellation of their promotion and in this way the principle of natural justice namely "no one shall be condemned unheard" was violated; (d)that the appellants having cleared- the prescribed examination from P.T.S. Shandadpur, had already become eligible for promotion; (e)that a number of Constables who like the appellants were promoted as a special case in the years 1986, 1987 and 1988 without prior approval of the D.I.-G.P. were allowed to continue as Head Constables despite the fact that they were junior to the appellants.
Taking up the first argument of the appellants' counsel that lack of the D.L-G.P's. approval for the appellants' promotion was merely an irregularity which was curable, it may be pointed out that the D.I.-G.P's. approval was the requirement of the rules. In this connection we may refer to sub-rule (2) of rule 13.8 of Police Rules which reads as under: "(2) Promotions to head constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the police force shall he the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to head constable upto a maximum of ten per cent of vacancies.
'It would he noticed that in case of promotions made in normal course, approval of the D.I.-G.P. was not required. The approval was necessary only when the promotion was made out of turn as a special case. This means to say that in the latter case the S.P. had no power to order promotion of constable without first obtaining the D.I.-G.P.'s approval. Obviously the appellants' promotions fell within the category of special case, and as such prior approval of the D.I.-G.P. was a must. We are unable to accept the argument that the D.I.- G.P's. approval was merely a formality, the observance of which was the internal affair of the Department. However, if for certain reasons prior approval could not be procured, post facto approval would be necessary to validate the special case promotions. In the present case instead of according approval to the promotions made by the S.P. the D.I.-G.P. ordered him to cancel the same. In these cumstances the promotions made by the S.P. could not be held to have been alidly made. In this connection the case of Dacca reported as Abdul Majid ardar v. General Manager, P.E. Railways PLD 1963 Dacca 801 has been relied upon by the appellants' learned counsel. The facts and issues involved in the reported case are totally different. Accordingly it is distinguishable and not helpful to the learned counsel.
3. The learned counsel's another contention was that once the promotions were implemented they could not be rescinded. In support of his contention he placed reliance on the case reported as Pakistan v. Muhammad Himayatullah PLD 1969 SC 407. In the reported case principle of locus poenitentiae was taken into consideration and their Lordships of the Supreme Court expressed the view that the order made by competent authority could not be withdrawn or rescinded once it had taken legal effect and certain rights were created in favour of any individual. This authority, in our opinion, was not applicable in the present case. As pointed out above the S.P. was not competent to order appellant's promotions without first obtaining the approval of the D.I.-G.P. Accordingly the promotion orders were legally defective as they were not competently made. Such orders could not be held to have taken legal effect and as such they were liable to be revoked at any time.
4. The next argument of the learned counsel for the appellants was that the appellants were entitled to show-cause notice before cancellation of their promotions. This argument is far from impressive. As required by rule 13.8(2) reproduced hereinabove, the appellants' promotions which were made out of turn as a special case had to be supported by the D.I.-G.P's approval. Somehow the DA.-G.P. refused to accord the requisite approval, rendering the promotions legally ineffective.
Accordingly the question of affording the appellants opportunity of personal hearing before cancellation of their promotions did not arise. Even otherwise the cancellation of promotion orders amounted to reversion of the appellants. It is not disputed that the appellants are civil servants.
Notwithstanding the fact that the police rules are applicable to them, they are also governed by the substantive law namely Sindh Civil Servants Act, 1973. As provided in section 12 of the said Act no show-cause notice was necessary before the appellant's reversion from higher officiating position.
5. The learned counsel for the appellants further submitted that the appellants had cleared the prescribed examination from the P.T.S. Shandadpur and hence were eligible for promotion. Without controverting the learned counsel's assertion, it may be suffice to say that mere passing of the prescribed examination by the appellants was not enough for their promotion for which other requirements such as existence of vacancies and prior to approval of D.I.-G.P. had also to be fulfilled.
6. Apart from what has been discussed above we noted that the impugned promotions were really not promotions in the strict sense of the term. The order of the impugned promotion in each case is, inter alia, worded as under: ..............is promoted as officiating Head Constable as a special case in his own pay and grade till further orders"
Since the appellants were not allowed the pay and grade of the higher post of Head Constable, their promotion obviously did not involve any financial implications. They were rather required to perform duties of higher post of Head Constable in the pay and grade of Constable which they were already enjoying. This being the position, we are of the view that the appellants' elevation from post of Constable to that of Head Constable without allowing the monetary benefit of the higher post could not be strictly construed as promotion. At best the appellants' so-called promotion would be termed as their posting as Head Constables until further orders. Such practice is rampant in Government Departments. The posting of lower grade official in higher post in his own pay and grade (i,e, pay and grade enjoyed by him in lower post) has never been treated as promotion. Consequently non-observance of the formalities obligatory for the process of promotion would not in any manner adversely affect the postings of the above kind. In other words if prior approval of the D.I.-G. was not obtained, the appellants' postings as Head Constables in the above circumstances would not be rendered illegal or irregular.
6. Having arrived at the above conclusion the question would arise if the appellants' postings as Head Constables could be restored? In reply to this question the respondents' plea was that the appellants were appointed as Head Constables in excess of the sanctioned strength of Head Constables. In other words, there were no vacant posts against which their appointments were made. The appellants have not been able to controvert this factual position. If so, they could not be restored to the position of Head Constables until and unless new posts of Head Constables were created for them.
7. In the end our attention was drawn to some promotions of the Constables made during the disputed period (i,e, 1986; 1987 and 1988) as special case like the appellants' promotion. Somehow their promotions were regularised and were allowed to continue but the appellants' promotions were cancelled. This is not denied by the respondents in their written statement. Their reply in this connection is: "The cases of the remaining Head Constables who were awarded promotion on out of turn basis, over and above the sanctioned strength in their own rank and pay without obtaining prior approval from the D.I.-G.P. Sukkur as required under Police Rules 13.8(2) and later on absorbed/regularised against clear vacancies are under process and final decision will be taken at appropriate time".
8. The above statement is clearly definite inasmuch 'as that some promotions like the promotions of appellants were not only regularised but also the promotees were absorbed against regular vacancies. We see no justification in making discrimination in case of the appellants. After all they too were awarded promotions out of turn in recognition of their unusual courage and bravery in difficult situations and on recommendations of the officers who had the opportunity to watch for themselves, the appellants' excellent performance. We are of the firm view, that police officials of the appellants' type need encouragement. Therefore, we wish that the appellant too would receive better deal at the hands of their superiors. Like their colleagues who have succeeded in retaining their out of turn promotions, the appellants' promotion would also be restored and they would be absorbed and regularised not only in the available vacancies but also in the vacancies which may be created for their accommodation. Subject to above observations the appeals are dismissed with no order as to costs.