SYED ALLY MADAD SHAH (CHAIRMAN).--All the appeals are of identical nature. They have been heard together and are disposed of by this one judgment.
2. All the appellants namely M/s. Sikandar Hayat Shaheen, Syed Kamal Shah, Asif Ali Shah, Khalid Yar Tiwana, Mushtaq Ahmad, Mian Zaheer Ahmad and Malik Asif Hayat were Majors in the Army.
They were inducted in the All Pakistan Unified Grades (Service) Police Group and were appointed as Superintendents of Police (Grade-18). The appellant Mian Zaheer Ahmad was appointed as such in 1974, while the other appellants were appointed by one order dated 1-7-1975. M/s. Saadatullah Khan, Saad Sharif, Abdur Razzaq and Muhammad Saeed Alrai, who are the respondents Nos, 2 to 5 in Appeal No, 311 (R) 87 and are also respondents in other appeals, were selected for appointment in the Police Service of Pakistan through competitive examination held in 1970. They were sent for training in Sardah Academy in East Pakistan where they joined in December, 1970 January, 1971. To their ill luck, they were taken prisoners of war on the out-break of war in East Pakistan. They were repatriated to Pakistan on their release in the year 1974. They joined the Academy for Administrative Training, Lahore. On completion of their training, they were given postings on 27-2-1975 in the respective provinces they were allocated to before going for training in Police Academy. Sardah, East Pakistan. They were promoted as Superintendents of Police (Grade-18) with effect from 14-4-1976. They were placed below the appellants in the seniority lists issued in the years 1976 and 1978. They made representations for getting seniority over and above the appellants on the basis of their earlier appointments. Their representations were upheld and they were assigned seniority over and above the appellants in the revised seniority list issued in 1980. The appellants objected to the revised seniority list. The matter remained under consideration. Ultimately, a gradation list was issued in 1987, wherein the respondents Nos, 2 to 5 were placed above the appellants. The appellants filed these appeals on 30-6-1987 for assignment of their seniority over and above the respondents Nos, 2 to 5. They have also impleaded Ch. Muhammad Amin as respondent No,
6. He belonged to the Provincial Police Service of Punjab. He was promoted as Superintendent of Police (Grade-18) in January, 1976, His name too was placed in the seniority list above the names of the appellants and his seniority also has been challenged.
Likewise is the case of Ch. Iftikhar Ahmad, who has been made respondent No,6 in Appeal No, 312 (R)/87.
3. The appeals have been resisted. Written objections have been filed by the Federal Government (the respondent No,1) and also by the respondent No,2 (Mr. Saadatullah Khan) and No,6 (Ch. Muhammad Amin). The respondents Nos,3, 4 and 5 have not filed written objections. Ch. Iftikhar Ahmad (R-6 in appeal No 312 (R)/87) also has not filed written objections.
4. The case put forth by the Government is that the respondents Nos, 2 to 5 were selected for appointment in the Police Service of Pakistan in the year 1970 and they were allocated to different provinces and were deputed for training at Sardah Academy (East Pakistan) but before they could complete the training and return to take over duty, they were taken as prisoners of war and they could return on repatriation only in 1974. It is stated that their case was considered by the President under the provisions of section 23 of the Civil Servants Act, 1973 and they were allowed seniority just below the officers of 1969 batch and they were accordingly promoted as DIGs (Grade-19) in the year 1983/1984. Legal pleas also have been raised that these appeals are time barred and they are also hit by the bar contained in proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, as no departmental appeal was filed.
5. The respondent No, 2 has stated that he was accorded seniority by the President in exercise of powers under section 23 of the Civil Servants Act, 1973.
6. The respondent No, 6 has stated that he was appointed as Inspector of Police on 9-3-1961 and he was, in due course, confirmed in the rank of S.P. (Grade-18) in January, 1976 and was promoted as DIG on 1-11-1976 in accordance with the relevant rules and his seniority was not liable to be assailed. He has disclosed that he has challenged the seniority of respondents Nos, 2, 3, 4 and 5 separately and filed appeal against them before this Tribunal.
7. These appeals involve determination of seniority in the rank of Superintendent of Police (Grade- 18) in the All-Pakistan Unified Grades (formerly and presently known as the Police Service of Pakistan), amongst the three groups of officers viz. inductees from the Armed Forces, direct recruits and the promotees. The appellants belong to the first category i,e, the inductees; while the respondents Nos, 2, 3, 4 and 5 are direct recruits in the Police Service of Pakistan; and the respondents M/s. Ch. Muhammad Amin and Ch. Iftikhar Ahmad are the promotees from the Provincial Police Service. As indicated above, the appellant Mian Zaheer Ahmad was inducted in the All-Pakistan Unified Grades (Police) as Superintendent of Police (Grade-18) in the year 1974. and the other appellants were inducted in the same grade in the same service on 17-1975; whereas the respondents Nos, 2, 3, 4 and 5 were promoted as Superintendent of Police (Grade 18) on 14-4- 1976: and the respondent Ch. Iftikhar Ahmad was promoted as Superintendent of Police (Grade-18) from the Provincial Police Service on or about 18-5-1975, and the respondent Ch. Muhammad Amin was promoted as Superintendent of Police (Grade-18) from the Provincial Police Service in January 1976. The dates of entry to Grade-18 of the appellants as well as the respondents, as aforesaid, are not disputed. The inter se seniority of the appellants and the respondents Nos, 2 to 5 was maintained accordingly in the seniority lists issued in the years 1976 and 1978. But the position was reversed in the revised seniority list issued in the year 1980 consequent to the acceptance of the representation for seniority made by the respondents Nos, 2 to 5. This gave cause of action to the appellants for making representation. However, the same position was maintained in the gradation list published in the year 1987, i,e, the respondents Nos, 2 to 5 were placed above the appellants.
The appellants, therefore, preferred these appeals. The respondents Ch. Muhammad Amin and Ch. Iftikhar Ahmad also have been impleaded as their names have been placed above those of the appellants in the gradation list of the Police Officers in Grade-19.
8. As pointed out above, the seniority of the appellants vis-a-vis the respondents Nos, 2 to 5 as maintained in the years 1976 and 1978 was reversed in the seniority list published in the year 1980.
This was done on the representation made by the respondents Nos, 2 to 5 that they had entered the Police Service of Pakistan in the year 1970 and they were sent for training in Sardah Academy in East Pakistan where they were taken as prisoners of war and were released in the year 1974 and thereafter they joined the Academy for Administrative Training, Lahore and after completion of their training, they were given postings on 27-2-1975 and were promoted later as Superintendents of Police in Grade-18 with effect from 14-4-1976 and they were pushed behind on account of the said unfortunate circumstances which were beyond their control. Their cases is candidly stated in the Summary submitted to the President on 10-6-1979, reproduced below:- SUMMARY FOR THE PRESIDENT Subject-PROTECTION OF SENIORITY.
Officers of the former PSP of 1970 batch have represented that they Sd/-N.H. JAFAREY Establishment Secretary may be placed immediately below the 1969 batch of their service in the Gradation List of Grade-18 officers of the Police Group.
2. The background of the case is that on the result of CSS Examination 1969, five candidates were allocated to the former PSP and went for training to the Police Academy, Sardah (East Pakistan).
While they were under training at Sardah they were abducted to India on 10-4-1971. On their repatriation to Pakistan on 6-7-1974, they were directed to report for training to Academy for Administrative Training, Lahore on 7-8-1974. On successful completion of training they were confirmed as ASPs from the date of their induction into the PSP cadre under Rule 11 of the Police Service of Pakistan (Probationary Service) Rules, 1950. They were promoted to the rank of Superintendent of Police from 14-4-1976. The position of these officers stood at serials 111 to 115 of the then Gradation List.
3. The representationists could not complete their training at Sardah and be considered for promotion in 1973 against 66-1/2 per cent quota reserved for them due to reasons beyond their control as explained in para. 2 above. Had they not become POWs. they would have been considered and promoted against 66-1/2% quota reserved for direct recruits. The request of the officers that they should have been considered for promotion to the rank of Superintendent of Police in 1973 against their promotion quota of 66-1/2%, irrespective of the fact that they were POW, therefore, deserves consideration. The promotion of 66-1/2% for the officers of former PSP, now APUG, against 33-1/2% for the ranks is covered under the proviso to rule 4 (b) of the Police Service of Pakistan now APUG (Composition and Cadre) Rules, 1969. The officers of 1970 batch of the old PSP, on promotion as Superintendents of Police, are therefore, entitled, without any financial benefits, to be placed below 1969 batch of direct recruits and Provincial Police Officers (rankers) against not more than one-third quota reserved for them by rule 4 of PSP, now APUG (Composition and Cadre) Rules, 1969. If protection of seniority is approved accordingly. Messrs Sajjad Ahmad Javed Bhatti, Saadatullah Khan, Saad Sharif, Abdur Razzaque and Mohammad Saeed, appearing at S. Nos, 102, 106 of Gradation List of Grade-18 of Police Group would be placed at S. Nos, 25 to 29 of this list after Mr. Shamsuz Zaman Khan (S. No, 24), the last Provincial Police Officer holding the post of PSP within 33-1/2% promotion quota prior to introduction of Administrative Reforms and the affected numbers of seniority will be re-numbered accordingly.
4. Approval of the President is solicited to the proposal made in para. 3 above.
Sd/- N.H. JAFAREY Establishment Secretary COS to the President: Estt. Divn. U.O No, 10/5/79-Police (A), dt. 10-6-1979.
5. Please get the views of the Law Division on the above proposal.
Sd/ Maj Gen. COS to CMLA, (K.M. ARIF)
13 June 79.
Establishment Secretary:
5. Law Division may kindly see paras 1-5 of the Summary for the President and let us have their views if the proposal made in para 3 is in order from the legal point of view. Sd/ Syed Ijlal Haider Zaidi ESTABLISHMENT SECRETARY Law Secretary (Mr. Justice K.M.A. Samdanil, Islamabad: Estt. Divn U.O. No, 10/5/79-Police (A), dt. 20-6-1979.
LAW DIVISION I do not think it is possible for us to support the proposal made in para 3 of the summary for the President. Rule 11 of the Police Service of Pakistan (Probationary Service) Rules, 1950 says that a probationer who has satisfied the Central and the Provincial Government concerned as to his conduct during probation and has passed or been exempted by the Central Government from passing prescribed examination shall be confirmed by the Provincial Government as an Assistant Superintendent of Police and shall thereafter be governed by the rules and regulations applicable to the Police Service of Pakistan in force on the date of his appointment as a probationer. Thus the officers concerned were to be confirmed and they were confirmed as Assistant Superintendents of Police after completion of their training at the academy for administrative training in Lahore, sometime after the 7th August, 1974. The proviso to Rule 4 (1) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969 is to the effect that the number of appointments under clause (b) of the members of the Police Service of Pakistan shall not exceed one-third of the number of senior cadre posts in the province. No doubt, according to these rules, two-third of the number of senior cadre posts is reserved for the members of the Police Service of Pakistan. But I do not think that the rule also implies that if a member of the Police Service of Pakistan is not available when a vacancy occurs or is not promoted, but a member of a Provincial Service -is promoted and if afterwards the member of the Police Service of Pakistan is also promoted, the latter shall rank senior to the officer of the Police service of a Province who is promoted earlier. It is not possible to spell out such an intention from the proviso to Rule 4 (1) ibid. In my opinion, the above-mentioned rules mentioned in the summary do not advance the case of the officers mentioned therein.
8. No doubt, the training of the officers concerned was interrupted due to the circumstances beyond their control. It is also true that if they had successfully completed their training without interruption and according to schedule they might have been promoted earlier than the officers of the Provincial Police Service and they might have ranked senior to them. But as the facts are, it is not possible to treat them senior to the officers of the Provincial Service mentioned in the summary.
Section 8 (4) of the Civil Servants Act, 1973 is a complete answer to the proposal made in the summary. It says that seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to a post in that grade. This provision is subject to only one proviso to the effect that civil servants who are selected for promotion to a higher grade in one batch shall on their appointment to the higher grade retain their inter se seniority as in the lower grade. Section 8(4) ibid does not take notice of any circumstances which may have stood in the way of promotion of an officer to the higher grade. We may, therefore, advise against the proposal.
Sd/ Muhammad Ismail Loona Joint Secretary 30th June, 1979 Tele: 22763 SECRETARY:
8. I agree with the opinion recorded in the preceding minutes but would like to draw the attention of the Establishment Division to section 23 of the Civil Servants Act, 1973, which reads as follows:-
23. Saving. Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
In view of this provision it is open to the President to grant seniority to the representationists as prayed for, if he considers this to be just and equitable. On this question, however, the Establsihment Division will have to advise the President.
Sd/ K.M.A. SAMDANI SECRETARY 15-7-1979 (Syed Ijlal Haider Zaidi)
Establishment Secy.
ESTABLISHMENT DIVISION
10. The case was referred to the Law Division as desired in para. 5 ante.
11. Joint Secretary, Law Division has maintained that under section 8 (4) of the Civil Servants Act, 1973, seniority in the grade to which a civil servant is promoted takes effect from the date of regular appointment to a post in that grade. Seniority cannot, therefore, be granted with retrospective effect in this case. The Law Secretary has agreed with this opinion but has drawn the attention of the Establishment Division to section 23 of the Act which gives the President the power "to deal with the case to be just and equitable". According to the Law secretary "In view of this provision it is open to the President to grant seniority to the representationists as prayed for if he considers this to be just and equitable. On this question, however, the Establishment Division will have to advise the President".
10. The Establishment Division is of the view that these officers became prisoners of War in the line of duty. Any loss which they have suffered on this account has to be compensated by the State in public interest. If those who suffered for the country are not protected against rules which do not cater for such eventualities the civil servants will not expose themselves to such hazards in future. It is, therefore, proposed that all those civil servants who have suffered in seniority of service because of the exigencies of service, due to no fault of their own, may be allowed the benefits which would have accrued to them under normal circumstances in their service on the merits of each case.
11. Approval of the President is solicited to the proposal made in para. 3 above.
Sd/ SYED IJLAL HAIDER ZAIDI Establishment Secretary 27-8-1979 COS to the President:
14. Did a problem of this nature arise in respect of defence service officers. If so, how was it solved.
Sd/ Maj Gen COS to CMLA (K.M. ARIF) 15 Sep 79.
S.G. Defence: MINISTRY OF DEFENCE
15. Reference paras 1-14-/N ante.
16. The position in regard to the protection of seniority of officers of the Armed Forces officers taken P.O.W. during the last Indo Pakistan War, as indicated by them, is as under:
(a) Army: Cases of promotion were considered on their repatriation to Pakistan and, those promoted, were given seniority, from the date of commission in accordance with the normal rules.
(a) Navy: Cases of promotion of officers while they were P.O.W. were considered and those considered fit were promoted in absentia.
(a) Air Force: Question of protection of seniority of officers taken P.O.W. did not arise because there had been no case of substantive seniority, of a PAF officer promoted after his repatriation to Pakistan, having been disturbed.
17. In cases of time-scale promotion in all the three Services relaxations in time limit in the promotion examinations were granted.
18. As such the problem of the nature mentioned in the Establishment Divisions Summary at paragraph 1-13 N ante, did not arise on the Defence side.
Sd/- GHULAM JILANI KHAN Secretary General 29-9-1979 COS to the President CMLA: ESTABLISHMENT DIVISION 19. It appears from para. 16 that the officers of Army and Navy were given normal seniority in higher ranks (to which they would have been entitled but for their being taken as POW). There was no such case in Air Force. It was exactly in this spirit that the case of restoration of the seniority was initiated.
20.Approval of the President may now be accorded to the proposal made in para. 3.
Sd/- Syed Ijlal Haider Zaidi Establishment Secretary COS to the President:
20. The seniority rules in the Armed Forces are quite different to those in the civil service. The comparison drawn in para. 19 is, therefore, valid to a limited extent only.
21. Para. 3 above be approved as recommended.
Intd.
27/2 PRESIDENT: Para. 3 above is approved without any monetary benefits.
Sd/- 5-6-1980"
9. The learned counsel for the appellants urged that the appellants' appointment/induction in the Police Service was made in accordance with the provisions of the Civil Servants Act, 1973 and the rules made thereunder viz. Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter referred to as the Promotion Rules). He made pertinent reference to rules 3 and 7 thereof. He also made reference to section 5 of the Federal Public Service Commission Act, 1973 and Rules 3, 4 and 5 of the Federal Public Service Commission (Functions) Rules, 1978. He placed much reliance on the provisions of the Establishment Division 0.M., dated 31-5-1975 with specific reference to para. 8 thereof. He next urged that the respondents Nos, 2 to 5 were regularly appointed as Assistant Superintendents of Police in Grade-17 after completing their training and they were promoted to Grade-18 in December, 1975. He advanced the argument that seniority was to be determined from the date of continuous officiation in a post as laid down in section 8 of the Civil Servants Act, 1973, read with the Establishment Division 0.M., dated 31-5-1975 and, therefore, the appellants were rightly placed above the respondents Nos, 2 to 5 in the seniority list issued in the years 1976 and 1978, which were not objected to by the respondents. He placed reliance on the decision of Lahore High Court in the case of Justice Faizullah. Khan, reported in PLD 1964 Lah. 519, upheld by the Supreme Court as reported in PLD 1974 SC 291. He contended that the respondents Nos, 2 to 5 were not entitled for, their promotion from any earlier date on any hypothesis as none of their juniors was promoted at an earlier date. He also contended that the respondents Nos, 2 to 5 had not put in requisite service of five years in Grade-17 for earning promotion to Grade-18. He made grievance that the appellant's case was not considered altogether in the Summary submitted to the President for ante-dating seniority of the respondents Nos, 2 to 5 in Grade-18. He emphatically urged that the case of the respondents Nos, 2 to 5 did not fall within the purview of section 23 of the Civil Servants Act, 1973 which was invoked in their favour.
10. The learned counsel for the Government urged that the case of the respondents Nos, 2 to 5 was definitely a case of hardship as the stream of their service career was blocked by the unfortunate circumstances of their capture as prisoners of war during the course of their training at Sardah Academy in East Pakistan and they completed their training after their release and repatriation to Pakistan in 1974 and they were regularly appointed and confirmed as Assistant Superintendents of Police (Grade-17) with effect from 7-3-1975 and were subsequently promoted to Grade-18 with effect from December, 1975. He raised legal pleas that the gradation list was revised in favour of the respondents Nos, 2 to 5 in the year 1980 and the appellants did not challenge it till the final seniority list was issued in 1987 and, therefore, their appeals are time-barred and they are also not maintainable as no departmental remedy was availed of before filing them and they are hit by the proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973.
11. The respondent No, 2 (Mr. Saadatullah Khan) contended that the appellants were relieved/retired from the Army service much after they had joined Police Service and they could claim seniority after they were relieved from the Army service. He made reference to Appeal No, 200(R)/87. The respondent No, 4 (Mr. Abdur Razzaq) adopted the same arguments. The respondent No, 5 has remained ex parte. Respondent Ch. Iftikhar Ahmad also remained absent at the hearing of the appeal. There was no appearance by or on behalf of respondent Ch. Muhammad Amin. It may be mentioned that the respondent Ch. Muhammad Amin has filed a separate appeal bearing No, 163(R)/88 for determination of his seniority whereunder the respondents Nos, 2 to 5 have been impleaded as the respondents. These appeals were heard when the appeal filed by Ch. Muhammad Amin had not become ripe. At subsequent stage, an application was moved in that appeal that hearing of these appeals may be reopened for their hearing alongwith that appeal of Ch. Muhammad Amin. That request was objected to by the Advocate for the appellants herein and the application was rejected with the observation that these appeals and that appeal would be decided simultaneously. That appeal is being decided by separate judgment.
12.The peculiar features of the service of the respondents 2 to 5 are reflected in the Summary submitted to the President, reproduced above, for redressing hardship faced by them. They were appointed to the Police Service of Pakistan constituted by the Ministry of Interior (Home Division)
Letter No,10/1/50-Police, dated 11th th March, 1950 as a service common to the Federation and the Provinces through the competitive examination held by the Public Service Commission in accordance with Rule 4 of the Police Service of Pakistan (Composition and Cadre) Rules, 1969 [since repealed by the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985].
Sub-rule (2) of Rule 4 of the former rules laid down that a person appointed to the service under sub-rule (1) was to be appointed to the service as a probationer in terms of the Police Service of Pakistan (Probationary Service) Rules, 1950 (hereinafter referred to as the Probationary Service Rules), a probationer has been defined in Rule 2 as under:-- "2. xxx a 'Probationer" means a person appointed on the results of a selection or competitive examination held by'the Pakistan Public Service Commission to the Police Service of Pakistan who has not been confirmed as such under the provisions of these rules. A member of the Provincial Police Service will not be a probationer within the meaning of these Rules."
Other Probationary Service Rules relevant for the purpose of these appeals are Rules 3, 8 and 11, which are reproduced below:-- "3.(i)Every probationer shall be on probation for a period of not less than two years from the date of his appointment.
(ii) Every probationer shall on appointment undergo training for a period of not more than a year at the Central Police Training College; the remaining one year of probation shall be spent partly with a Military Unit and partly in a selected District Headquarters. At the end of the period of training at the Central Training College, every probationer, unless exempted under Rule 5, shall be required to attain such standard at the final Examination as the Central Government may decide. The subjects of the said examination shall be prescribed by the Central Government from time to time.
' If any probationer is prevented by sickness or any other cause which the Central Government consider adequate for this purpose, from completing his course of study at the Central Police Training College or from attending the examination referred to in Rule 3, the Central Government may arrange for him to be specially examined in any or all of the subjects prescribed for the examination after such interval as may seem to them suitable having regard to the circumstances of the case.
11. A probationer who has satisfied the Central and the Provincial Government concerned as to his conduct during probation and has passed or been exempted by the Central Government from passing the prescribed examination shall be confirmed by the Provincial Government as an Assistant Superintendent of Police and shall thereafter be governed by the Rules and Regulations applicable to the Police Service of Pakistan in force on the date of his appointment as a probationer."
13. By virtue of Rule 3 of the Probationary Service Rules, the respondents Nos, 2 to 5 had to remain on probation for two years, during which they had to undergo training for a period not exceeding a year at Police Training College and for the remaining period they had to receive training partly with a Military Unit and partly at selected District Headquarters, and after satisfactory completion of the probationary period, they were to be confirmed as Assistant Superintendents of Police by the respective Provincial Governments they were allocated to. They did go for training at Sardah Academy in Fast Pakistan but they were taken as war captives before they could complete the training. In any case, they had to remain as probationers upto the end of '1972 and they could expect their confirmation as Assistant Superintendents of Police in Grade-17 on the completion of the probationary period, had they not been taken as prisoners of war. They could have been granted exemption by the President from remaining on probation as provided in sub-rule (2) of Rule 4 of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, but they were not granted exemption under that rule and their case for relaxation was dealt with under the provisions of section 23 of the Civil Servants Act, 1973. No doubt, the case of the respondents Nos, 2 to 5, stated above, did attract the provisions of section 23 of the Civil Servants Act, 1973 for restoring them to the position they would have occupied had they not been taken as prisoners of war during the probationary period. In normal'course, they must have remained as probationers upto the end of 1972. In that situation, they could claim confirmation as Assistant Superintendents of Police in Grade-17 in the respective Provinces they were allocated to on the expiry of the probationary period of two years at the end of 1972 and they could be given due place in the seniority with the Assistant Superintendents of Police in Grade-17. The next step for consideration was their placement in Grade-18 in normal course and their seniority in Grade-18 could be reckoned accordingly vis-a-vis that of the inductees and the promotees from the Provincial Police Service. It is not mentioned in the Summary submitted to the President when they could have earned promotion in normal circumstances. It was not a correct approach to recommend in paragraph 3 of the Summary that their names in the seniority list of Grade-18 Officers in the Police Group should be detached from the seniority list at S. Nos, 102 to 10.6 and placed at S. Nos, 25 to 29 as to. place them just below the names of the PSP Officers of 1969, Their seniority vis-a-vis the other officers in Grade-18, particularly promotees from the Provincial Police Service had to be worked out in accordance with paragraph 8 of the Establishment Division 0.M., dated 31-5-1975, whcreunder the Police Group was constituted, providing that seniority in Grade-18 and above of officers had to be determined from the date of regular continuous officiation in a grade. The . seniority of the respondents Nos, 2 to 5 vis-a-vis the appellants needed to be determined on the dates of the respondents' presumptive entry into Grade-18 by virtue of the relief given to them under the provisions of section 23 of the Civil Servants Act, 1973 and the dates of actual entry into Grade-18 by the appellants and the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin. Looking at the seniority list of APUG officers of Police Group (Grade-18), published on 28-8-1980 (a copy whereof is Annexure 'C' to the memo. of Appeal No, 311(R)/87), it appears that the first promotion from amongst the direct recruits to Grade-18 after 1972 was that of Mr. M. Rafiq Haider (at S.No, 5) on 25- 1-1973. His entry into the Police Service by direct appointment is shown as 3-12-1969 and he was, obviously, senior to the respondents Nos, 2 to 5. The next promotion to Grade-18 from amongst the direct appointees was that of Mr. Sajjad Ahmad, Javaid Bhatti (at S.No, 7), on 19-1-1976. The date of his entry in the Police Service is mentioned as 20-1-1971. Thus, he had entered into the Police Service soon after the entry into the service by the respondents Nos, 2 to 5 in December, 1970 and 18th January, 1971. It follows that no promotion of direct appointees in the service to Grade-18 was made between 25-1-1973 and 19-1-1976 except the respondents Nos, 2 to 5, who were promoted to Grade- 18 on 27-12-1975, 25-12-1975, 25-12-1975 and 17-1-1975 respectively. The appellants were directly appointed in Grade-18 earlier than the promotions of the respondents Nos, 2 to 5 to grade, as stated above, and, therefore, the respondents Nos, 2 to 5 could not legitimately be planted over the appellants in the seniority list of 1980 in any manner whatsoever.
14. As regards the seniority of the appellants vis-a-vis the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin, the names of the two respondents do not appear in the seniority list of Grade-18 Officers published in the year 1980. They came in picture in the seniority list of Grade-19 Officers published on 12-4-1987. Their names were placed just below the names of the respondents Nos, 2 to 5 and just above the name of the appellant Major (Rtd.) Mian Zaheer Ahmad (Appeal No, 312(R)/87) and above the names of the other appellants. The dates of their entry in Grade-19 shown as under:- APPELLANTS:
(1) Sikandar Hayat Shaheen (S.No, 40)-- 14-9-1983.
(2) Syed Kamal Shah (S.No, 43). -- 26-1-1983
(3) Asif Ali Shah (S.No, 41).-- 20-11-1983
(4) Khaliq Yar. Tiwana (S.No, 39). -- 11-12-1983
(5) Mushtaq Ahmad (S.No, 42).-- 8-2-1983
(6) Mian Zaheer Ahmad (S.No, 37).--- 5-9-1983
(7) Malik Asif Hayat (S.No, 44).--5-2-1983.
RESPONDENTS:
(1) Saadatullah Khan (S. No, 31).--8-2-1983
(2) Saad Sharif (S.No, 32).-- 9-5-1983
(3) Abdur Razzaq (S. No, 33).-- 11-10-1984
(4) Muhammad Saeed Alrai (S. No, 34).-- 7-9-1983
(5) Ch. Iftikhar Ahmad (S. No, 35).-- 3-9-1976
(6) Ch. Muhammad Amin (S. No, 36).-- 1-11-1976.
The above statement depicts an anomalous position. The respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin are shown to have entered Grade-19 on 3-9-1976 and 1-11-1976 respectively, but their names have been placed below the names of the respondents Nos, 2 to 5 whose entry in Grade-19 has been shown in the years 1983 and 1984 but their names have been placed above the names of the appellants whose entry in Grade-19 also has been shown in the year 1983. It is understandable that the names of the appellants in Grade-19 in the gradation list of 1987 have been placed below those of the respondents Nos, 2 to 5 on the basis of seniority list published in 1980 as stated above, but it is beyond comprehension as to how the names of the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin have been sandwiched between the names of the other two sets. It has already been stated above that the appellants herein are inductees in the Police Service of Pakistan from the Armed Forces, while the respondents Nos, 2 to 5 are direct recruits to the same service, whereas the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin are the promotees from the Provincial Police Service. The question of inter se seniority of the first two groups has been discussed above. The seniority of the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin, the promotees, is claimed on the basis of the dates of their entry in Grade-19 viz. 3-9-1976 and 1-11-1976 respectively. It may be stated at the outset that promotions in the Provincial Police Service are totally different from the promotions to the Police Service of Pakistan, notwithstanding the change of the nomenclature of the service. The respondent Ch. Muhammad Amin has filed a separate appeal against the respondents Nos, 2 to 5 herein and some others, which was heard separately in the circumstances stated above, but is being disposed of simultaneously. His case has been fully discussed in that appeal. However, his case needs to be discussed herein also. The facts in the background of his entry and that of the respondent Ch. Iftikhar Ahmad, are stated in the Summary that was submitted by the Establishment Division to the Minister of State for Establishment for seeking approval in August, 1976 reproduced below:-- "No, 11/5/76-Police GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)SUMMARY FOR THE MINISTER OF STATE FOR ESTABLISHMENT Subject:-Appointment to the post of Deputy Inspector-General of Police through lateral entry: There are at present 9 vacancies of Deputy Inspector-General of Police (Grade-19). Some Army Officers of the rank of Brigadier have been cleared with the approval of the Prime Minister for appointment as Deputy Inspector-General of Police. These officers have yet to be released by the Army whereafter they will undergo training and it will not be until at least six months to a year before they are available for posting. The Committee consisting of Cabinet Secretary, Interior Secretary, Director-General, Federal Investigating Agency, Special Secretary Cabinet, therefore, met to approve officers of the regular Police Cadre for the post of Deputy Inspector-General of Police.
2. The names were taken in order of seniority. There were 7 officers who had not completed the 12 years usual length of service. They were not considered for promotion with the stipulation that if and when subsequently they are promoted their seniority will be maintained as at present.
3. Officers who had done 12 years of service were then taken up. They were officers promoted from ranks; their educational background was generally not upto the mark. Since their promotion would be in the nature of lateral entry, the Committee decided to make selection strictly on merit, taking into account the officers' educational background, experience in the field, personality, etc. as well as service record. However, all officers were considered in order of seniority. The following officers were recommended for promotion as Deputy Inspector-General of Police:-
(1) Ch. Ghulam Akbar.
(2) Ch. Muhammad Ramzan.
(3) Mian Rafiuddin.
(4) Mufti Muhammad Hasan.
(5) Mr. Muhammad Idris.
(6) Ch. Badar-ud-Din.
(7) Mr. Ghulam Shabbir Kalyar.
(8) Ch. Iftikhar Ahmad.
(9) Mr. Muhammad Asghar Khan.
(10) Mr. Mir Azam Khan.
(11) Mr. Muhammad Tehmash Khan.
(12) Mr. Mir Akbar Khan.
(13) Mr. Muhammad Amin.
(14) Mr. Muhammad Aslam Bajwa.
(15) Ch. Mukhtar Ahmad.
(16) Mr. Muhammad Nawaz Aulak.
4. Those who were not considered fit for the promotion are listed in the Annexure. The reasons for not considering them fit are given against each.
5. Approval of the Minister of State for Establishment is solicited to the promotion of the officers listed in para. 3 above as Deputy Inspector-General of Police through the lateral entry.
Sd/- K. Mahmood, Special Secretary Minister of State for Establishment: Approved.
Sd/- xxx 19/8."
It would appear that both the respondents Ch. Iftikhar Ahmad and Ch. Muhammad Amin did not enter the Police Service of Pakistan then known as the Police Group, by promotion, as provided under the rules, but they found a way of intrusion in the service in the garb of "Lateral Entry" which was meant for transfusion in service of fresh blood by making selection from amongst the officers of the Armed Forces or from other sources subject to suitability and fitness determined by the Selection Board. They could not, therefore, be placed in the cadre of the Police Service in the Police Group at the relevant time and entry of their names in the gradation list did not confirm their entry in the Police Service of Pakistan. They had to find their place in the service through the normal channel of promotion. The name of respondent Ch. Muhammad Amin in the seniority list above the names of the appellants needs to be deleted and placed at appropriate place below the names of the appellants and the respondents Nos, 2 to 5. As regards the respondent Ch. Iftikhar Ahmad, only the appellant Mian Zaheer Ahmad has challenged his seniority, while the other appellants have not questioned his seniority. His name was, therefore, to be placed just below the name of the appellant Mian Zaheer Ahmad (Appeal No, 312(R)/87). The question of inter se seniority between the appellants and the respondents Nos, 2 to 5 has already been discussed and terminated above.
15. The respondents have raised the plea of limitation contending that the appellant's seniority was reversed in the gradation list published in 1980 and they did not challenge that seniority list and the appeals filed after the publication of the gradation list in the year 1987 are time-barred. The appellants' contention is that they had made representations against the gradation list of 1980 and no orders thereon were communicated to them until the publication of 1987 gradation list wherein they were again placed below the respondents and that tantamounted to the rejection of their representations and they preferred appeals within time. Their contention has not been controverted. Moreover, the gradation list published in 1980 was provisional and objections were invited and no appeal lay against it The next gradation list was only that one which was published in 1987 and has been impugned by the appellants. It is stated in the memo. of appeals that the copies of the gradation list of 1987 were received by the appellants on 31-5-1987 and the appeals filed on 30-6-1987 are, therefore, within the period of limitation of thirty days. Thus, the objection that the appeals are time-barred is not sustainable. The respondents have also contended that the appeals are hit by the provisions of subsection (1) of section 4 of the Service Tribunals Act, 1973 as they were filed without preferring departmental appeals. We have not been shown any rule or regulation providing that an appeal lies against the grievance arising from a gradation list. This objection too does not hold the field.
16. For the reasons recorded above, the appeals are allowed to the extent that the seniority of the appellants vis-a-vis the respondents Nos, 2 to 5 shall be determined on the basis of their dates of entry in Grade-18, as discussed above; whereas the respondent Ch. Iftikhar Ahmad shall occupy place in the seniority list just below the name of the appellant Mian Zaheer Ahmad; and the respondent Ch. Muhammad Amin shall be placed in the seniority list below the names of the appellants and the respondents Nos 2 to 5 after settlement of their seniority as discussed and held above. No order is made for costs.