RAJA MUHAMMAD ASHRAF KHAN KAYANI (MEMBER).--These two appeals have been directed against the Government Order No, Admin/A-8(33)/11548-64/81, dated 9-6-1981. Since both the appeals arise out of similar facts and involve the same questions of law and facts, therefore, they will be disposed of by this single judgment.
2. Messrs Khizer Mahmood Qureshi and Raja Ghulam Sarwar Khan, appellants, were directly appointed as Prosecuting Sub-Inspectors vide Order Book No, 40/1862-78, dated 27-3-1974. By the same order respondent, Mr. Muhammad Feroz Khan, Head Constable was promoted as Prosecuting Sub-Inspector. Respondent Syed Nazir Hussain Shah, Head Constable was promoted as officiating Prosecuting Sub-Inspector vide Order Book No, 63/3552-57, dated 10-6-1974 w,e,f, 27- 3-1974. Raja Shah Jahan Khan, appointed as Prosecuting Sub-Inspector on 27-9-1968 has been impleaded as respondent in Appeal No, 172.
3. Fifteen posts of Prosecuting Sub-Inspectors were upgraded as Prosecuting Inspectors vide Notification No, Admin/396-403/76, dated 7-1-1976 w,e,f, 30-11-1975 and all the contesting incumbents alongwith four others were promoted according to their seniority as Prosecuting Inspectors vide Order No,901-11/CPO/76, dated 2-2-1976 w,e,f, 30-11-1975.
4. Four posts of Prosecuting Deputy Superintendent of Police were created vide Notification No, 1925-30/Home, dated 18-5-1981, and a proposal was submitted to the Government to fill up these posts by promotion from amongst the Prosecuting Inspectors. On the recommendations of Selection Board Raja Shah Jahan Khan, Muhammad Mumtaz Khan, Syed Nazir Hussain Shah and Mr. Muhammad Feroz Khan were promoted as Procecuting Deputy Superintendent of Police vide Government Order No,Admin/A-8(33)/1548- 64/81, dated 9-6-1981.
5. Feeling aggrieved by the impugned order, the appellants after availing of the departmental remedy invoked the jurisdiction of this Tribunal under Section 4 of the Service Tribunals Act, 1975 (hereinafter referred to as the Act). The grievance of both the appellants is that in spite of their admitted seniority vis-a-vis respondents Syed Nazir Hussain Shah and Muhammad Feroz Khan, they were not considered for promotion by the Selection Board while making the recommendations in favour of respondents. Mr. Khizer Mahmood Qureshi, appellant, has also arrayed Raja Shah Jahan Khan as respondent on the ground that the latter was awarded the, punishment of censure and as such service record of the appellant was better than the said respondent.
6. The respondents apart from controverting the claim of the appellants have challenged the competence of appeals on the question of lack of the jurisdiction and limitation. The respondents' submissions are that the Tribunal has no jurisdiction to decide the matter and the appeals are time-barred. The respondents also submit that the appeals are liable to be dismissed as the necessary parties have not been impleaded.
7. We have heard the arguments and perused the record alongwith the written arguments. We may proceed to take up the preliminary objections referred to in the preceding paragraph and also raised during the course of arguments by the learned counsel for respondents. The first preliminary objection relating to the maintainablity of the appeals shall be determined in a proper succeeding paragraph. However, it was contented by Raja Muhammad Hanif Khan, the learned counsel for the respondents in support of next preliminary objection that no departmental remedy by way of representation was available to any aggrieved civil servant under Section 4(a) of Azad.
Jammu and Kashmir Service Tribunal (Amendment) Ordinance, 1988 (hereinafter referred to as the Ordinance) read with Section 21 of the Civil Servant Act, 1976. The appellants could have preferred their appeals directly to this Tribunal, but as the appellants have failed to do so, the period spent by them in pursuing the departmental remedy cannot be excluded, therefore, both the appeals are time-barred. On the contrary it was argued by Mr. Abdul Rashid Abbasi, the learned counsel for the appellants that amended law relied upon by the respondents is irrelevant in the present controversy. Both the appeals were filed in 1981 against the impugned order passed on 9-6-1981, therefore, the provision of law as it stood in 1981 vis Section 4 of the Act, will govern the matter. We find lot of force in the contention of learned counsel for the appellants. It would appear from the plain reading of Section 21 of the Civil Servant Act, 1976 that though under the provision of its subsection (2), the remedy by way of representation is not available in case of promotion but at the same time there is no such obstacle for preferring an appeal or an application for review under its subsection (1). Section 4(1)(a) of the Ordinance is inapplicable in both the appeals preferred in 1981 when Section 4 of the Act was applicable. The relevant part of the Section 4 of the Act reads as under:-- 4(1)(a). Where an appeal, review or representation to a departmental authority is provided under any law, regulations or rules for the time being in force, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representation was preferred.
The departmental remedy by way of review petition was available to the appellants under Article 49 of K.S.R. (Vol. II). However, under section 21(1) Azad Jammu and Kashmir Civil Servants Act, 1976 the period fixed for preferring an appeal or application for review was sixty days from the communication of the order instead of ninety days as was provided under Article 50 of K.S.R. (Vol. II). Both the appellants preferred applications for review against the impugned order dated 9-6- 1981 respectively on 2-7-1981 and 6-7-1981. After waiting for a period of ninety days for exhausting the departmental remedy the appellants preferred the present appeals on 8-10-1981 and 26-10- 1981 within next thirty days. Both the appeals are, therefore, held to he preferred before this Tribunal well within the prescribed period.
8. The objection regarding the competency of the appeals without impleading the necessary parties, has also been argued by the learned counsel for the respondents that the appellants have not impleaded each other as a party in their respective appeals, as such both the appeals are liable to be dismissed. He placed his reliance on PLJ 1979 Tr. C. 18 and 1983 PLC 533-A. On the contrary, it was contended that both the appellants not being beneficiaries from the impugned order were not necessary parties. It has been held in PLD 1956 Lah. 242 and PLD 1985 Kar. 633 that "parties are either necessary or proper. Necessary parties are those persons in whose absence no effective decree at all can he passed. Test in such cases is to determine whether a party is necessary or not if a fruitful decree can be passed in the case". Both the appellants have challenged the impugned order on the grounds that despite their inter se seniority vis-a-vis respondents they were not considered by the Selection Board for promotion. Both the appellants have already expressed their willingness in writing that they sought no relief against each other, therefore, keeping in view the principle laid down in PLD 1956 Lah. 242 and PLD 1985 Kar. 633, it is held that the appellants are not necessary to be impleaded as party in their respective appeals.
The citations quoted on behalf of the respondents are inapplicable to the present controversy. The objection, therefore, is repelled.
9. Coming to the merits of the case, it appears that on the recommendations of Selection Board, Mr. Muhammad Feroz Khan, a law graduate Head Constable was promoted as Prosecuting Sub- Inspector while both the appellants were directly appointed as Prosecuting Sub-Inspectors on 27- 3-1974 vide order Exh. PF in appeal file No, 172 in the following order:-- (1)Mr. Javaid Rafique Bhalli.
(2)Muhammad Arif.
(3)Muhammad Feroz Khan.
(4)Raja Ghulam Sarwar Khan.
(5)Khizer Mahmood Qureshi.
The copy of the order Exh. PA in Appeal No, 173 is incorrect to the extent that Mr. Muhammad Feroz was appointed as Prosecuting Sub-Inspector rather he was promoted and as such the copy Ex. PA being contrary to the order passed in the original File No, A-3(12)66-73 is incorrect. This order dated 27-3-1974 was made effective from the date of the joining report of the incumbents in the Police Line Muzaffarabad. Mr. Nazir Hussain Shah respondent, another Law Graduate Head Constable, was promoted as an officiating Prosecuting Sub-Inspector on 10-6-1974 w,e,f, 27-3-1974 with the directions that his name shall be placed at the bottom of the then trainees of the same branch. It was submitted by the learned counsel for Mr. Khizer Mahmood Qureshi, appellant, that in terms of appointment order dated 27-3-1974, his client Mr. Qureshi joined the duty on the same day forenoon while Mohammad Feroz Khan respondent joined duty on 1-4-1974. Syed Nazir Hussain Shah, respondent was selected and promoted as an officiating Prosecuting Sub-Inspector on 10-6- 1974 w,e,f, 27-3-1974, (an order which was never challenged by any of the appellants, therefore, according to the seniority list No, 16794/SSP, dated 24-11-1975, Mr. Qureshi was senior as Prosecuting Sub-Inspector to Messrs Muhammad Feroz Khan, Raja Ghulam Sarwar Khan and Syed Nazir Hussain Shah. It was further submitted that Mr. Qurehsi is senior to the respondents because he passed his departmental examination with credit. Raja Ghulam Sarwar Khan, appellant, submits that he reported for joining the service vide Roznamcha No, 9, dated 27-3-1974 whereas Mr. Qureshi reported for duty vide Roznamcha No,
11. His joining report being first in point of time, he is even senior to Mr. Qureshi. On the contrary it was contended by Raja Muhammad Hanif Khan, learned counsel for respondents that the seniority list relied upon by Mr. Qureshi was tentative whereas the seniority list was finalised in 1981 by the Inspector-General of Police who submitted the same to the Selection Board on 19-5-1981 according to which Syed Nazir Hussain Shah and Muhammad Feroz Khan, respondents being promotees were senior vis-a-vis both the appellants. It was further submitted on behalf of the parties that the matter of inter se seniority of the contesting incumbents shall be determined in' accordance with the provisions of K.S.R. It was also contended by them that the Police Rules, 1934 are also relevant. It is our considered view that the Police Rules, 1934 as are enforced in Azad Jammu and Kashmir are equally applicable to the prosecution branch and the Police Rules, 1934 are the only determining factor for inter se seniority of incumbents of the prosecution branch.
10. Both the appellants were directly appointed under Rule 12.3, which provides as under:-- 12.3. Direct appointment of Inspectors and Assistant Sub-Inspectors.--Except as provided in Rules 12.1 and 12.4, direct appointments shall not be made except in the rank of Inspector, Prosecuting Sub-Inspector and Assistant Sub-Inspector. Such appointments in the rank of Inspector and Assistant Sub-Inspector may be made up to a maximum of ten per cent and twenty five per cent of vacancies, respectively.
Muhammad Feroze Khan and Syed Nazir Hussain Shah were in Police service as Head Constables, the former was promoted as Prosecuting Sub-Inspector while the latter was promoted as an officiating Prosecuting Sub-Inspector. Under rule 13.1(2) well-educated constables are entitled for accelerated promotion. Under Rule 13.4(2) officiating promotion up to the rank of Sub-Inspector and Assistant Sub-Inspector is within the competency of Superintendent of Police while in Azad Jammu and Kashmir these powers are generally exercised by the Inspector-General of Police.
Under rule 13.18 all promotees and under rule 19.26(4) any Prosecuting Sub-Inspector appointed on officiating basis shall be on probation for two years. Both the rules read:-- 13.18.Probationary period of promotion.--All Police Officers promoted in rank shall be on probation for two years, provided that the appointing authority may by a special order in each case, permit periods of officiating service to count towards the period of probation. On the conclusion of the probationary period a report shall be rendered to the authority empowered to confirm the promotion who shall either confirm the officer or revert him. In no case shall the period of probation be extended beyond two years and the confirming authority must arrive at a definite decision within that period whether the officer should be confirmed or reverted. While on probation, officers may be reverted without departmental proceedings. Such reversion shall not be considered reduction for the purpose of rule 16.4.
19.26(4).In the case of officers who are appointed officiating Prosecuting Sub-Inspectors against temporary or deputation vacancies and are subsequently absorbed in substantive vacancies the Inspector-General of Police may, by special order in each case permit period of officiating service as Prosecuting Sub-Inspector to count towards the period of probation provided the courses of training and the examinations prescribed in rule 19.28 have been undergone and passed.
It would appear from the plain reading of the foregoing rules that the appointing authority may permit the period of officiating service to count towards the period of probation. An appointment to a post can be made through promotion, transfer or initial recruitment but the officiating service rendered by Syed Nazir Hussain Shah has been left uncounted towards his period of probation.
However, the incumbent was later on promoted as Prosecuting Inspector alongwith eight others including the contesting incumbents on 2-2-1976 w,e,f, 30-11-1975 according to their inter se seniority. The impugned order has been assailed mainly on the grounds that officiating service rendered by Syed Nazir Hussain Shah cannot be counted while determining his inter se seniority with appellants who were directly appointed as Prosecuting Sub-Inspector and they joined the service on the same day, therefore, they are senior to respondents Syed Nazir Hussain Shah and Muhammad Feroz Khan. On the other hand it was contended vehemently that both the respondents being promotees are senior to both the appellants. Syed Nazir Husain Shah, though was promoted as officiating Prosecuting Sub-Inspector but was subsequently promoted as Prosecuting Inspector and again as P.D.S.P., even holding higher post continously. Officiating appointments are by their nature tentative but it has been held in PLD 1970 Quetta 115 that "Continuous officiation for an indefinite period is not specifically authorised by any law, and where the incumbent of a post is treated as officiating for an indefinite period, the purpose is that Government should retain extra-disciplinary powers. Determination of the question whether a post is really an officiating post cannot be left entirely to the discretion of the Government. Where the condition of officiation is found to he unlawful, the Courts cannot permit Government to retain extra-Constitutional power or arbitrary termination of service so as to defeat Constitutional guarantees available to the civil servants. In proper cases, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character, and when it is so found to give legal effect to it. The view expressed in above case finds supports in another case reported as PLD 1973 Lah. 411, where it was held "in proper cases scrutiny could be made by the Court as to whether in particular circumstances of the case, appointment despite being shown as officiating was in reality substantive or permanent."
In the light of above authorities, we have no hesitation to hold that though initially Syed Nazir Hussain Shah was promoted as an officiating Prosecuting Sub-Inspector but not only he was allowed to hold the appointment/promotion continuously but he had even been promoted to higher posts, therefore, the service rendered by him as officiating Prosecuting Sub-Inspector would be deemed to have been counted towards his period of probation under rules 13-18 and 19-26(4) of the Police Rules, and as such Syed Nazir Hussain Shah is to be treated as promotee like Mr. Muhammad Feroz Khan. Therefore, the inter se seniority of the contesting incumbents except Raja Shah Jahan Khan shall be determined in accordance with the rule 12.2(3), which provides as under: -- All appointments of enrolled Police Officers are on probation according to the rules in this chapter applicable to each rank. Seniority, in the case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by dates of confirmation, the seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment: provided that any Officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall on being promoted or confirmed, regain the seniority which he originally held vis-a-vis any officers promoted or confirmed before him during his deputation. A plain reading of the foregoing rule reflects that officers promoted from a lower rank shall be considered senior to the persons appointed directly on the same date; and among the officers appointed directly on the same date the inter se seniority shall be determined according to their age, therefore, the inter se seniority of the contesting incumbents promoted or appointed on or with effect from the same date could not be determined from their joining report. Mr. Javed Rafique Bhalli, a Prosecuting Sub-Inspector, from this batch left the department and joined as Sub- Judge. Being promotees Syed Nazir Hussain Shah and Mr. Muhammad Feroz Khan are senior vis-a- vis the other incumbents directly appointed on 27-3-1974 while Raja Ghulam Sarwar Khan and Mr. Muhammad Arif are older than Mr. Qureshi respectively. Syed Nazir Hussain Shah being older shall be senior to Mr. Muhammad Feroz Khan. Therefore, we hold that in the first instance the inter se seniority of the contesting incumbents except Raja Shah Jahan Khan shall be as follows:-- Syed Nazir Husain Shah. Muhammad Feroz Khan. Raja Ghulam Sarwar Khan. Muhammad Arif.
Khizer Mahmood Qureshi.
A promotee shall be on probation for a period of two years under rule 13.18 while under rule 19.26(1) directly appointed Prosecuting Sub-Inspectors shall be on probation for a period of three years.
Rule 19.26(1) reads as under:-- 19.26.Training of Prosecuting Sub-Inspectors.--(1) (i) Directly appointed Prosecuting Sub- Inspectors shall be on probation for a period of three years. They shall normally be appointed in the end of February or the beginning of March and shall be deputed to attend the 12 months Prosecuting Sub-Inspectors course at the Training School commencing from the 15th March each year. The directly appointed Prosecuting Sub-Inspectors shall be confirmed in their appointments on the conclusion of the period prescribed under 19.26(3) of the Police Rules which reads as under:- - Practical training of directly appointed Prosecuting Sub-Inspector.--(3) On successfully completing the course at the school, directly appointed Prosecuting Sub-Inspectors will be posted to rural Police Stations for six months' practical training under experienced selected Sub-Inspector, after which they will work for 1-1/2 years as Prosecuting Sub-Inspectors. On the conclusion of this period, provided they have given satisfaction, they shall be confirmed in their appointments. Their confirmation shall, however, depend on the reports received from the Principal, Police Training School, and from the Superintendent of Police off the district to which they are posted. The Principal shall make a report on the capacity and character of each officer as evidenced by his conduct while under training at the school, and the Superintendent of Police shall submit half-yearly reports showing his progress in practical work.
' Seniority under Police Rules is to be finally settled from the date of the confirmation but none of them was confirmed by any formal order at the completion of his probation period, therefore, Messrs Syed Nazir Hussain Shah, Muhammad Feroz Khan, Raja Ghulam Sarwar Khan, Mr. Muhammad Arif and Khizer Mahmood Qureshi would be deemed to have been confirmed on the conclusion of their respective probationary period.
11. We are unable to uphold the contention that Mr. Khizer Mahmood Qureshi is senior on account of his passing the departmental examination with credit. Since the seniority is to be determined under rule 12(2)(3) of Police Rules, therefore, the passing of the departmental examination under rule 19.28(4) with credit is no criterion for determination of seniority. Reliance may be placed on 1971 PLC 228 (CST) (Punjab) and 1974 PLC 23 (CST) note 44 (Punjab). Before parting with this paragraph, it will be relevant to resolve the controversy vis-a-vis Mr. Khizer Mahmood Qureshi, appellant and Raja Shah Jahan Khan, respondent. It has been claimed by Mr. Khizer Mahmood Qureshi in the memorandum of his appeal that his service record is better than Mr. Mohammad Feroz Khan and Raja Shah Jahan Khan who were awarded punishment of censure. Mr. Qureshi further claimed that the respondents deserve no right of promotion even on merit. We find no substance in the submission as it has already been held earlier that the passing of departmental examination with credit under rule 19.28(4) of the Police Rules is no criterion for determination of seniority, which shall be determined in accordance with provision of law provided under rule 12(2)
(3) of the Police Rules. Authorised punishments including censure are provided under rule 16(1)(2) of the Police Rules while under rule 16(1)(3) the punishment of censure is a minor punishment. Rule 16(1)(3) provides:--
(3) For the purpose of these rules, the term major punishment shall be held to mean any authorised punishment of reduction, withholding of increment, forfeiture of approved service, dismissal and every judicial conviction on a criminal charge.
The term "minor punishment" shall mean all other authorised punishments.
Therefore, the incumbents awarded with a minor punishment like censure could not be deprived from their further promotion specially when it has been provided under rule 13.14 (2) of the Police Rules that those Sub-Inspectors shall not be eligible to be promoted to a Selection Grade who had been punished by reduction, stoppage of increment, or forfeiture of approved service for increment. Raja Shah Jahan Khan was directly appointed as Prosecuting Sub-Inspector on 27-9- 1968, therefore, contention relating to promotion of Mr. Khizer Mahmood Qureshi vis-a-vis Raja Shah Jahan Khan could not be upheld.
12. In the preceding paragraph the inter se seniority of the contesting incumbents appointed or promoted w,e,f, 27-3-1974 has been reckoned in the first instance under rule 12(2)(3) of Police Rules; while Raja Shah Jahan Khan, respondent is admittedly senior to all other contesting incumbents, thus the respondents were senior vis-a-vis both the appellants. Four posts of P.D.S.P. were created in Police Department on 18-5-1981 and a proposal was submitted to the Government by the C.P.O.
(Central Police Office) for filling up these posts by promotion amongst the strength of Prosecuting Inspectors. The I.-G.P. recommended the names of six Prosecuting Inspectors on 19-5-1981 in the following order:-- (1)Raja Shah Jahan Khan.
(2)Muhammad Mumtaz Khan.
(3)Raja Ghulam Sarwar Khan.
(4)Khizer Mahmood Queshi.
(5)Muhammad Feroz Khan.
(6)Muhammad Arif.
A meeting of Selection Board was held on 20-5-1981, wherein the panel of the above six Prosecuting Inspectors was placed before the Board but the meeting was adjourned till next day to determine the inter se seniority of the five incumbents who were promoted or appointed on or w,e,f, 27-3-1974.
On the following day the following names were placed before the Selection Board:-- (1)Raja Shah Jahan Khan.
(2)Muhammad Mumtaz Khan.
(3)Syed Nazir Hussain Shah.
(4)Muhammad Feroz Khan.
(5)Raja Ghulam Sarwar Khan.
(6)Muhammad Arif.
The Selection Board recommended the first four persons to be promoted, as P.D.S.P. on the basis of their seniority-cum-fitness. It was alleged by the appellants that they were not considered by the Selection Board but the mission of the name of Mr. Khizer Mahmood Qureshi from the panel placed before the Selection Board on 21-5-1981 reveals that his name was dropped from the panel after due consideration while the name of Raja Ghulam Sarwar Khan was included in the panel which was considered by the Selection Board. We are, therefore, unable to uphold this contention that the appellants were not considered by the Selection Board to be promoted as P.D.S.P. Under section 4(b)(i) of Service Tribunals Act, 1975, no appeal can be preferred in this Tribunal against an order or decision made by competent authority determining the fitness or otherwise of a person to be appointed to a particular post or to be promoted to a higher post or grade. The relevant part of the section 4(b)(i) reads as under:--
(b) no appeal shall lie to a Tribunal against an order or decision of departmental authority determining--
(i) The fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; It is abundantly clear from this provision of law that any appeal preferred contrary to this clause shall not be maintainable before this Tribunal. The preliminary objections have been rightly raised in this connection in both the appeals, therefore, it is held that both the appeals are not maintainable before this Tribunal under section 4(b)(i) of Service Tribunals Act, 1975.
13. For the foregoing reasons, both the appeals being devoid of force as well as not maintainable