Malik Muhammad Riaz, Deputy Collector has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the impugned orders dated 23-8-1983 and 19-1-1984/14-4-1986, passed by the respondents. The appellant has impleaded the Seniormost Staff Officer, Irrigation, Multan Region, Multan , Chief Engineer, Irrigation, Multan Region, Multan and Raja Bashir Ahmad, Deputy Collector, Balloki Division, LBDC Renala Khurd, District Okara, as respondents. During the pendency of appeal, on the application of Yusaf All he was allowed to be impleaded as respondent No, 4 by this Tribunal vide order dated 19-12-1987. The appellant has prayed that the impugned orders be set aside and he be declared senior to the respondents.
2. Brief facts of the case are that the appellant was selected for training as a candidate Zilladar in Soil Reclamation Board vide order dated 23-12-1959 and was imparted training by the Irrigation Department under the Zilladar Service Rules, 1954. Subsequently the appellant was appointed as Zilladar in the Irrigation Department on 1-11-1963. As the appellant had already' obtained training by the Irrigation Department under the Zilladar Service Rules, 1954, his selection in 1959, as Zilladar candidate and training were duly adopted by the Irrigation Department as such he was not subjected to fresh selection as Zilladar candidate and training in 1963. The appellant was confirmed as such on 13-1-1970, while the contesting respondent No, 3 was selected as Zilladar candidate on 13-10-1961 and was appointed Zilladar On 1-2-1964. He was confirmed on 10-11-1974.
Similarly respondent No, 4 was selected as Zilladar on 21-12-1962 and was confirmed on 11-2-1970.
In the seniority lists of Zilladars prepared from time to time the appellant had throughout been shown senior to the contesting respondent No, 3 who is senior to respondent No,
4. However, by letter dated 23-8-1983, the appellant was declared junior to the respondent by Superintending Engineer (Hqr), Office of the Chief Engineer Irrigation, Multan, by applying Zilladar Service Rules, 1963. The appellant submitted representation on 6-10-1983 to the next higher authority which was rejected by respondent No, 2 vide order dated 19-1-1984 and the same was communicated to the appellant on 14-4-1986, hence this appeal.
2. I have heard the learned counsel for the appellant and respondent No, 3 as well as respondent No, 4 who appeared in person and learned District Attorney on behalf of respondents Nos, 1 and 2. I have also gone through the record so produced with due care with the assistance of the Departmental representative.
4. The main contention of the learned counsel for the appellant is that the appellant is senior to respondents on the basis of the date of confirmation. Learned counsel for the appellant has submitted that the appellant as well as respondents were selected and appointed under the provisions of P.W.D. Irrigation Zilladar Service Rules, 1954, which were in force at the relevant time.
The appellant had already been selected on 23-12-1959 and after training he was appointed on 1- 11-1963 whereas the respondents Nos, 3 and 4 were also selected under the old Rules. Therefore, having been inducted into service under the old Rules of 1954 these will regulate their seniority. The appellant has relied on the ruling of the highest Court of the realm reported as 1985 SCM R 904 as well as other authoritative pronouncements in support of this contention. Learned counsel for the appellant further contended that Zilladar Service Rules, 1963, are not applicable in the present case as these were enforced on 2-12-1963. He has argued that even if Rules of 1963 are made applicable in that case as well, the appellant was selected earlier than the selection of the contesting respondents Nos, 3 and 4 and as such he is senior to both the respondents under these rules.
5. Learned District Attorney on the other hand fully supported the stand taken by respondents Nos, 1 and 2 in the written objections and stated that the impugned orders passed by the respondents in the light of Zilladar Service Rules, 1963, are in accordance with the Rules and be allowed to stand.
Learned counsel appearing on behalf of contesting respondent No, 3 submitted that the appeal filed on behalf of the appellant is beyond prescribed period of limitation as it was filed after 2 years and 4 months and as such liable to be dismissed solely on this ground. Yusaf Ali, respondent No, 4 also supported the same contention.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and find that according to the provisions of P.W.D. Irrigation Zilladar Service Rules, 1954, seniority of members of service is determined from the date of their confirmation as Zilladars. In the present case the date of confirmation of the appellant as Zilladar is much earlier than the dates of confirmation of both' the contesting respondents. Even for the sake of arguments assuming the Rules of 1963 are applicable even in that case also `Selection' of the appellant is much earlier than that of both the contesting respondents. As already pointed out the appellant was selected on 23- 12-1959 and that selection was duly adopted by the Irrigation Department at the time of his appointment, therefore, the appellant was assigned seniority properly by the respondents Nos, 1 and 2 over the contesting respondent No, 3.
7. I also find force in the argument of the learned counsel for the appellant that when there is conflict between the old and new rules, the rules whereby the appellant and contesting respondents were originally selected/inducted into service shall prevail. The point raised by the learned counsel for the appellant lends support and strength from the various judgments of the superior Courts whereby this matter has been thrashed at length. Reliance is placed on 1985 SCM R 904,1977 SCM R 509, 1973 PLC(C.S.) 213 and 1974 PLC(C.S.) 11. in Police Group from the date of his promotion to Grade-18, viz. 24-9-1975 and determination of his seniority vis-a-vis the respondents 5 to 187.
2. The appellant's case, in nutshell, is that he joined the Punjab Police as a Sub-Inspector on 10-9- 1953. He was promoted as a Deputy Superintendent of Police and was confirmed in that rank with effect from 1-6-1973. He was promoted as a Superintendent of Police (Grade-18) with effect from 24-9-1975. He held the post of Deputy Director, F.IA., Islamabad from 24-9-1975 to 15-12-1976.
Thereafter, he held the post of the Superintendent of Police at different stations. Lastly, he was holding the post of Superintendent of Police (Security), Prime Minister's House, Rawalpindi, when he preferred this appeal on 17-3-1988. He expected his induction in the Police Group of the All-Pakistan Unified Grades (APUG) with effect from 24-9-1975 when he was promoted as a Superintendent of Police (Grade-18). He was surprised to know that he was inducted in the Police Group with effect from 23-7-1985 as per Establishment Division Notification No, 10/4/87-E.3 (Police), dated 7-10-1987.
He made representation on 22-10-1987 for ante-dating his encadrement in the Police Group. He was informed under the I.-G. Police, Punjab's endorsement No, 795- 96/NGO-1, dated 28-2-1988 that his representation was not accepted by the Establishment Division. He, therefore, filed this appeal on 17-3-1988.
3. The grounds urged by the appellant in the memo. of appeal are:
(1) That the appellant was promoted to the post of Superintendent of Police with effect from 24-9- 1975 in accordance with para. 4 of the Establishment Division Office Memorandum No, 3/2/75-ARC, dated 31-5-1975 and he held that post in that grade continuously and he was entitled to his induction in the Police Group with effect from that date viz. 24-9-1975.
(2) That seniority of the Police officers promoted to Grade-18 was to be determined from the date of their regular continuous officiation in the grade as per para. 8 of the Establishment Division Office Memorandum No, 3/2/75-ARC, dated 31-5-1975, and his seniority should have been reckoned from that date.
(3) That Provincial Police Officers of Grade-18 and above were inducted in the Police Group in accordance with subsection (4) of section 8 of the Civil Servants Act, 1973 as per list of the Police Officers of the Police Group circulated by the Establishment Division on 1-10-1975.
(4) That the appellant's encadrement with effect from 23-7-1983 instead of 24-9-1975 was arbitrary and prejudicial to the rights and terms of his service.
4. The appeal is directed against the Prime Minister of Pakistan, through the Secretary, Establishment Division; the Secretary, Establishment Division; the Governor of the Punjab through the Secretary, Services and General Administration Department; the Secretary, Services and General Administration Department, Government of the Punjab; and 183 Officers of the Police Group. Written objections have been filed on behalf of the respondent No, 1 (the Prime Minister) by a Section Officer, Establishment Division. Written objections have also been filed by the respondents 14, 15, 29, 31, 32, 43, 44, 45, 47, 64, 80,'87, 95, 97, 106, 108, 118, 123, 124, 125, 126, 131, 135, 139, 141, 165, 172 and 175. Other respondents have not filed written objections.
5. The Establishment Division has raised four legal objections that the appeal, as framed, is not maintainable in law or on facts, the appellant has no legal cause of ,action for preferring the, appeal, the appeal is not maintainable against the seniority list of P.S.P. Officers issued in, 1980 and 1987 and it is time-barred as against the order dated 8-2-1988 and it is also barred by, proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973.
6. The .case put up on facts by the Establishment Division is that the appellant was an officer of the Punjab Police. Notification of his promotion to the rank of Superintendent of Police in Grade-18 was issued in pursuance of. Establishment Division's O.M. No, 3/2/75-ARC, dated 31-5-1975, whereunder all police posts in BPS-17 and above, namely. posts of ASPs, SPs, DIGs, Additional I.-Gs and I.-Gs, as specified in the schedule of the cadre of the former Police Service of Pakistan (Composition and Cadre) Rules, 1969 constituted an occupational group called as the Police Group. However, he was not inducted in the Police Group in accordance with the relevant rules. He was recommended by the Provincial Government of the Punjab in 1984 for his encadrement in the Police Group against the Provincial quota of 40 per cent. He was not inducted in the Group due to his indifferent record.
He was' again recommended by the Government of the Punjab in the year 1987 and he was approved and was inducted in the Police Service of Pakistan with effect from 23-5-1985 when there occurred a vacancy in the PSP cadre in the Province of the Punjab quota. It is the contention of the department that mere promotion of the appellant to the rank of S.P. did not induct him in the Police Group or Police Service of Pakistan and he could not claim his encadrement from the date of his promotion as S.P. viz. 24-9-1975. According to them, the appellant could count his seniority from the date of his regular induction in the superior service of the Police. It has further been stated that by a Policy Letter No, 10/74/78-Police, dated 23-9-1979 issued by the Establishment Division, all the Provincial Governments were required that cases of promotion of the Provincial Police Officers against the posts in Grade-18 above reserved for them in the Police Group should be referred to the Establishment Division for further action. According to them, the appellant was encadred in the Police Service of Pakistan with effect from 23-5-1985 in accordance with Rule 4(1)(b) of Police Service of Pakistan (Composition and Cadre) Rules, 1969 and Rule 7 of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 and he was not entitled to his encadrement in the Police Service of Pakistan from any earlier date.
7. Amongst the private respondents, who have filed written objections, as indicated in paragraph 4 ante, the respondents M/s. Nazar Khan Jatoi (respondent No, 80), Akhtar Hussain Memon (respondent No, 106), Muhammad Aftab Azeem (respondent No, 108), Muhammad Imran Khan (respondent No,135) and Sher Taj Khan (respondent No, 139) have supported the appellant's case that he was entitled to the assignment of the seniority from the day he was promoted as a Superintendent of Police with effect from 24-9-1975 as his promotion was supposed to be his induction in the Police Group and they too have claimed protection of their seniority on that analogy. Mr. Ali Sher Bugti (respondent No,29) has opposed the appellant's appeal claiming seniority over him, although history of his service is like that of the appellant, but he has shown the events of his promotion earlier than those of the appellant. Similar plea has been taken by Malik Yasrab, respondent No,
31. All other contesting respondents have opposed the appeal contending that the promotion of the appellant as a Superintendent of Police vide notification dated 24-9-1975 did not confer on him induction in the Police Group and he could claim seniority in the Police Service of Pakistan from the day he was assigned seniority in accordance with the relevant rules, i,e, 23-7-1985. They have also challenged the maintainability of appeal on legal grounds.
8. The appellant seeks determination of his seniority in the Police Service of Pakistan. He, admittedly, belongs to the Police Service of the Punjab. He was promoted as a Superintendent of Police (Grade-18) with effect from 24-9-1975 vide Establishment Division Notification No, 11/3/75- Police (ii), dated 23-9-1975 (Annexure 'A') to the memo. of appeal), reproduced below:- "No, 11/3/75-Police (ii)
Government of Pakistan Cabinet Secretariat Establishment Division Dated Rawalpindi the September 23, 1975.
NOTIFICATION The following Deputy Superintendents of Police (Grade-17) of the Punjab Province are promoted to the rank of Superintendent of Police in Grade-18 with immediate effect and until further orders and their services are placed at the disposal of the Interior Division for appointment as Deputy Director in Grade-18 in the Federal Investigation Agency--
(1) Khan Nisar Khan.
(2) Mr. 'Malik Muhammad Yunus Khan.
Sd/- Abdul Khaliq Awan, Deputy Secretary to the Government of Pakistan."
By virtue of the aforesaid order, he was promoted to the rank of a Superintendent of Police in Grade-18 for appointment as a Deputy Director in Grade-18 in the Federal Investigation Agency. As per history of the service given by him in the memo. of appeal, he held the post of Deputy Director, F.IA. upto 15-12-1977. Thereafter, he remained as Superintendent of Police, Anti-Corruption (Establishment), Rawalpindi from 25-1-1977 to 3-8-1978. His next assignment was that of Superintendent of Police, Crime Branch, Lahore from 12-8-1978 to 31-12-1978. Later, he became Superintendent of Police, Anti-smuggling, Punjab, from 1-1-1979 to 5-9-1979. He remained as Superintendent of Police, Jhelum from 5-9-1979 and held that post till 20-1-1981. He held the post of Superintendent of Police (Crime), Rawalpindi Range, Rawalpindi from 21-1-1981 to 25-12-1981.
Thereafter, he was posted as Superintendent of Police (Security), Prime Minister's House, Rawalpindi from 26-12-1985 and held that post till he filed this appeal on 17-3-1988. Thus, he held several assignments under the Federal Government throughout, except for the period from 5-9-1979 to 21- 1-1981 when he remained as S.P. Jhelum. However, it needs to be determined whether his promotion as S.P. in Grade-18 vide notification dated 23-9-1975, reproduced above, amounted to his encadrement in the Police Service of Pakistan. The Police Service of Pakistan (hereinafter abbreviately referred to as the PSP) was constituted under the Ministry of Interior (Home Division) letter No, 10/1/60-Police, dated 11th March, 1950 as a service common to the Federation and all the Provinces in pursuance of agreement made under section 263 of the Government of India Act, 1935 (26 Gee. 5 c. 2) at the Prime Ministers' Conference held on 27th December, 1949. It was regulated by the rules and regulations issued from time to time. In the year 1969, the Police Service of Pakistan (Composition and Cadre) Rules, 1969, issued under Notification No,10/10/53-Police, dated 26th November, 1969 were made to regulate the Police Service of Pakistan in supersession of all previous rules and orders. By All-Pakistan Services (Change in Nomenclature) Rules, 1973, the Police Service of Pakistan was changed, with immediate effect, to All-Pakistan Unified Grades and all persons who were then members of the Police Service of Pakistan stood appointed in their existing posts to All Pakistan Unified Grades. In the year 1975 an occupational group called as the Police Group comprising police posts in Grade-17 and above viz. ASPs, SPs, DIGS, Additional I.-Gs and I.-Gs. etc. specified in the schedule annexure of the cadre strength of the former PSP (later called as APUG) was constituted vide 0.M. No, 3/2/75-ARC, dated 31-5-1975. The appellant's promotion as SP vide notification dated 23-9-1975, reproduced above, was, therefore, subsequent to the constitution of the Police Group. Since the appellant was a Deputy Superintendent of Police in the Provincial Government of the Punjab, he did not occupy a place in the Police Group, as constituted ipso facto.
He could seek entry into the Police Group in accordance with the rules and procedure laid down in the said O.M. dated 31-5-1975. Appointments in the Police Group in Grade-18 and above are regulated under paragraphs 5, 6 and 7 of the Establishment Division O.M. dated 31-5-1975, referred to above. Paragraphs 4 and 5 are relevant for the purpose of this case and they are reproduced below:-- "4. Grade-18 and above.--Officiating appointments to Grade-18 were hitherto made by the Provincial Governments. As already decided in the case of the District Management Group, all appointments to Grade-18 will henceforth be made by the Federal Government.
5. Appointments to posts in Grade-18 will be made by promotion of officers of Grade-17 of the Police Group and also of Grade-17 officers of the Provincial Police of the rank of DSP of requisite service and experience who are recommended by the Provincial Governments. Selection for appointment to posts in Grade-18 and above will be made on the recommendations of the Central Selection Board."
It would appear that the appellant, who was a Deputy Superintendent of Police in the Provincial Police of the Punjab, could seek entry into the Police Group if he had requisite service and he possessed requisite experience and his name was recommended by the Provincial Government and his selection to the post in Grade-18 was made by the Central Selection Board. The added requirement was that of the availability of a vacancy in the 33-1/3 per cent quota of the senior posts for the promotion of the Provincial Police Officers as per schedule annexed to the O.M. It appears from the endorsement below the promotion order of the appellant dated 23-9-1975, reproduced above, that his name was recommended by the Provincial Government under letter No, SO(S)-18/2/75, dated 25-8-1975. His name was approved for promotion as S.P. in Grade-18. But his promotion was not considered for his induction in the Police Group as it appears from the Summary submitted to the Minister of State for Establishment on 20-9-1975 that the case of the appellant and many other officers of the Provincial Police Service was considered for promotion in ordinary course and was not processed through a Selection Board as required, nor were the length of their service and requisite experience considered. Of course, the appellant was given assignment under the Federal Government, as mentioned above, but that did not mean that he was inducted in the Police Group, as the recommendations were initiated by the Provincial Government for promotion of some police officers including the appellant for filling some vacant posts. This appears to have been done in view of the provisions of paragraph 4 of the O.M. dated 31-5-1975 that officiating appointments to Grade-18, which were being made by the Provincial Governments before, were to be made by the Federal Government. Obviously, the notification dated 23-9-1975 as regards the promotion of the appellant as an S.P. in Grade-18 did not place him in Police Group and he has no case to claim encadrement in the Police Group, now converted into the Police Service of Pakistan under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. It was for this reason that the appellant's name was not mentioned in the seniority lists of the officers in the Police Group published in the years 1975 and 1980. It was in that context that the questions of encadrement of the appellant and his consequential seniority in the Police Service of Pakistan were considered under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. His case was processed along with many other officers and he was not considered fit for promotion at one stage and he was cleared at the second stage and he was given promotion from the date a vacancy was available in the promotion quota for the Provincial Police Officers, as reflected in the seniority list published in the year 1987.
9. The Establishment Division, which is the respondent No, 1, and most of the private respondents have raised the question of limitation. The appellant has mainly called in question the Establishment Division Notification dated 7-10-1987 (filed as Annexure 'B' to the memo. of appeal), whereunder names of as many as 34 Provincial Service Police Officers were notified to have been approved for appointment in the Police Service of Pakistan in accordance with Rule 7 of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, with effect from the dates mentioned against their respective names. The appellant's appointment was shown effective from 23-7-1985. He has stated that he made representation dated 22-10-1987 for his proper encadrement and he was informed through the I.-G. Police, Punjab that his request for refixation of his seniority could not be acceded to and the information was communicated to him by the I.-G.
Police, Punjab, under endorsement dated 28-2-1988, received by him on 2-31988. The appeal was filed on 17-3-1988. It was, therefore, within the period of limitation in view of the events mentioned above. However, the contention of the contesting respondents is that the appellant claimed encadrement in the Police Service of Pakistan on the basis of his promotion as S.P. vide order dated 23-91975 and his name did not appear in the gradation list of the officers in the Police Service of Pakistan published in the year 1975 and 1980 and yet he did not make any representation and, therefore, the appeal filed by him is hopelessly time-barred. No doubt, the appellant's name did not appear in the gradation list, C published in the year 1975 and 1980 but the question of encadrement of the Police Officers from the Provincial Service was still hanging on and it was in 1979 or so that the matter was taken up by the Federal Government and the Provincial Governments were called upon to make recommendations for induction of the Police Officers in the Provincial Service into the Police Service of Pakistan, then called as Police Group. The appellant's encadrement in the Police Service of Pakistan was finally settled vide Notification dated 7-10-1987. Feeling aggrieved thereby, he made representation which was turned down and he was informed accordingly by the I.-G. Police, Punjab under endorsement dated 28-2-1988. Confining his case within the compass of the aforesaid events, the appeal does not seem to be time-barred.
10. Some of the respondents have also contended that the appeal is not maintainable, as it was filed without exhausting the remedy of departmental appeal. As mentioned above, the date of appellant's encadrement in the Police Service of Pakistan was finally determined as per notification dated 7-10-1987 and his departmental representation was turned down and there was hardly any scope for preferring a departmental appeal. This objection is not substantiated.
11. Consequent to the finding arrived at above that the appellant's promotion to the post of S.P. in Grade-18 under notification dated 23-9-1975 did not amount to his induction in the Police Service of Pakistan, then known as the Police Group, and therefore, his encadrement in the Police Service of Pakistan as per notification dated 7-10-1987 was in accordance with the rules, the appeal merits dismissal and is accordingly dismissed. No order is made for costs.