1. ZAFFAR HUSSAIN MIRZA, J.--These petitions for leave to appeal are directed against one and the same judgment of the Federal Service Tribunal, Islamabad, dated 1st November, 1989, whereby the appeals of respondents Nos.1 to 6 in Civil Petition No. 46-R/1990 were accepted and seniority given to the petitioners in the first four petitions by the Government of Pakistan in Grade-18 as Superintendent of Police, over the said respondents as a result of exercise of power under section 23 of the Civil Servants Act, 1973, was cancelled. The result was that the seniority of respondents Nos.1 to 6 viz-a-viz, the aforesaid four petitioners were directed to be determined on the basis of their dates of entry in Grade-18; whereas respondent No. 7, Ch. Iftikhar Ahmad, was directed to be placed in the seniority list just below the name of the respondent No.5 Major Mian Zaheer Ahmad.
2. So far as the petitioner Ch. Muhammad Amin (C.P.24-R/1990) is concerned it was directed that he be placed in the seniority list below the names of respondents 1 to 6 and the petitioners.
3. It was pointed out at the bar that there are three categories of officers in Grade-18 of the Police Service, namely, (i) the petitioners in the first four petitions herein, who are direct recruits through competitive examination (ii) respondents 1 to 6 who were inducted in the service from the Armed Forces and (iii) Promotees from the subordinate service of the said department.
4. So far as the said four petitioners are concerned, they were selected for appointment through the competitive examination held in 1970. They were sent for training in East Pakistan where they were taken as prisoners of war as a result of the outbreak of war in the then East Pakistan. They were repatriated to Pakistan on their release in 1974. Thereafter they resumed their training after completing which they were given postings in Grade-17. They were promoted as Superintendent of Police (Grade-18) with effect from 14th April, 1976. As they were placed below respondents 1 to 6 in the seniority lists issued in years 1976 and 1978, they made a representation. Eventually a gradation list was issued in 1987 in which the aforesaid petitioners were placed above respondents 1 to 6.
5. Against this gradation list the said respondents filed appeals for assignment of seniority over the said four petitioners. Ch. Muhammad Amin petitioner in (C.P.24-R/1990) was also impleaded as a respondent in those appeals. He belonged to the Provincial Police Service of Punjab and was promoted as Superintendent of Police (Grade-18) on 18th October, 1972. His name was also placed in seniority list over the name of respondents 1 to 6. The case of Ch. Iftikhar Ahmad is identical with Ch. Muhammad Amin.
6. The aforesaid four petitioners were given seniority over respondents 1 to 6, as stated earlier in consequence of an order passed by the President under section 23 of the Civil Servants Act, 1973. In this behalf representation was made by these four petitioners that for no fault of theirs, they had suffered in their seniority because they were taken prisoners of war. Their case was examined and it was found that as their training was interrupted due to the circumstances beyond their control and subsequently upon their release and repatriation, they had completed their training, relief could be given to them under section 23 of the Civil Servants Act, in the interests of justice and equity. Accordingly the President being satisfied allowed them seniority over respondents 1 to 6.
7. The legality of this order was challenged in the appeal before the Service Tribunal which held that in accordance with sub-rule (2) of Rule 4 of the Police Service of Pakistan (Composition and Cadre)
8. Rules, 1969, the appointees to the service were to remain as probationers for a period of two years, during which they had to undergo training and after satisfactory completion of the probationary period they could be confirmed as Assistant Superintendent of Police. Computing the period of probation in this manner the Tribunal was of the opinion that these officers could not expect their confirmation in Grade-17 before the end of 1972 even if they had not been taken prisoners of war.
9. They could be granted exemption under the Rules from remaining on probation but no such exemption was granted to them. It was after this date that they could be given promotion to Grade-18 in the normal course. In Grade-18 their seniority could be determined, vis-a-vis, inductees and promotees in accordance with the normal Rules.
10. However, it was pointed out that the case put up for consideration to the President did not indicate when these officers could have earned promotion in normal circumstances. As the seniority qua other officers in Grade-18 with reference to the date of regular continuous rectification was not considered, the Tribunal was of the view that in these circumstances the four petitioners could not legitimately be placed over the respondents 1 to 6 in the seniority list of 1980.
11. Mr. Abid Hassan Minto, advocate who mainly argued on behalf of the petitioners pointed out that the learned Service Tribunal in spite of conceding that the case of the four petitioners was within the purview of section 23 of the Civil Servants Act, went on to hold that according to the Service Rules seniority could not be. Given to the petitioners over respondents Nos.1 to 6. The submission was that if the case of the petitioners properly fell within the domain of the power under section 23, the application of the. Normal Rules was out of the question. Otherwise the whole purpose and intent underlying section 23 of the Civil Servants Act would be destroyed. Learned counsel emphasised the overriding effect of section 23, vis-a-vis, the normal Rules, in cases of hardship.
12. It was next contended that the Tribunal was not competent to examine in what manner the power under section 23 could be exercised by the President. He submitted that the exercise of power by the President was not open to question before the Service Tribunal. Learned counsel also raised the contention that the appeals before the Service Tribunal were barred under section 4(1) proviso (a) of the Service Tribunal is Act, 1973, in that, no representation was filed against the impugned seniority list. The appeals before the Service Tribunal were challenged as barred by limitation. On behalf of the respondents/caveators Sh.Shaukat Ali opposed the petitions. He reiterated the grounds that found favour with the Tribunal, that the cases of the respondents were not examined in juxtaposition with the case of direct recruits. He submitted that the inductees were taken in Grade-18 much earlier to the petitioners and would, therefore, properly rank senior to them. He also defended the competency of appeals before the Service Tribunal. He further submitted that in view of the clear provisions of law as to determination of seniority of officers, there was no occasion for invoking the powers under section 23 of the Civil Servants Act by the President.
13. After hearing the learned counsel we feel that the petitions raise substantial questions of law which may affect a large number of cases. The contentions touching the interpretation and scope of section 23 of the Civil Servants Act are also of first impression. We, therefore, grant leave to appeal and allow these e petitions.
14. The appeals shall be prepared on the present record but it will be open to the parties to file additional documents, if any. The appeals arising out of these petitions shall be heard together and shall be set down for early hearing.