MOHAMMAD SIDDIQUE KHATTAK, MEMBER.- This is an appeal filed by Ashfaq Ahmad, Sub Inspector SHO Police Station Palas District, Kohistan, against the order of respondent No. 1 dated 1.9.90 (conveyed to him on 18.9.90) (Annexure-A), whereby his departmental representation for granting him substantive appointment/promotion as Sub Inspector w.e.f. 1.12.88, the date on which his junior were allowed this benefit, was rejected. It has been prayed in the appeal that respondents No.1 and be directed to allow the appellant substantive promotion in the rank of Sub Inspector w.e.f. 1.12.1986 by placing him above respondents No. 3 to 7 and giving any other relief considered appropriate.
2. The back ground of the case as brought in the appeal is, that the appellant was initially appointed as Assistment Sub Inspector on 10.4.1977 and was absorbed against a permanent vacancy on 1.8.1980. Prior to that he was serving in Peshawar Range from where he was transferred to Nazara Range on permanent basis vide order dated 13.9.1977. He was subsequently brought on promotion list "E" with effect from 10.10.1984 vide order dated 31.10.1984 and was promoted as officiating Sub Inspector with effect from 18.11.1986 (Annexure-D). While considering the case of admission to list "E" of the Officiating Sub Inspectors of Police for substantive promotion to this rank, the officers are required to be given independent charge of a Police Station for assessing their suitability and testing their capabilities as laid down in Rule 13.10(2) of the NWFP Police Rules. The appellant was posted as Station House Officer Police Station Phulra where he reported for duty on 24.10.1987 (Annexure-E) but later his posting as such was cancelled by the transferring authority and the appellant was directed to report back to Mansehra. That the appellant's name was never considered for the grant of substantive appointment/promotion as Sub Inspector and as a result of the said omission the appellant could not be promoted substantively alongwith his juniors. Finding no other option the appellant made a representation on 3.2.1989 (Annexure-F) which was forwarded to the authority who observed that the appellant would be considered for substantive promotion to the rank of Sub Inspector on his successful completion of on year's period as S.H.O., as required under the rules. The appellant then moved another petition for review on 22.7.1989 (Annexure-H) as a result of which he was granted substantive promotion as Sub Inspector with effect from 1-1-1990 vide order dated 11.2.1990 (Annexure_J) but this relegated the appellant to a junior position after respondents No. 3 to 7. The appellant therefore, submitted another representation dated 11.3.1990 which was rejected. Hence this appeal.
3. In the grounds of appeal it has been averred that the impugned order is arbitrarily, ultra vires of the law and is liable to be set aside as the appellant's name was not considered for promotion as substantive Sub Inspector in November, 1988 for the reason that the appellant had not held independent charge of SHO of a Police Station for one year at that the as required under rule 13(10)
2 of the Punjab Police Rules. It was for the respondents to have given him a chance to serve as SHO of a Police Station, before he was due for promotion, so as to prove his worth. The appellant was denied this chance whereas other officiating Sub Inspector, including respondents No. 3 to 7, were afforded this opportunity to serve as SHOs, therefore he could not be made to suffer for no fault of his. According to the appellant he is entitled to promotion as Substantive Sub Inspector w.e.f.1.12.1988. Once he was appointed as S.H.O. Palas in October, 1987, and reported there for duty, but his posting was cancelled without any reason and thus the chance given to him to serve as SHO was lost when this opportunity was denied to him then the respondent department was bound to grant him promotion from the date he was due for it i.e. 1.12.1988. That the application of Rule 13.10(2) is advisory and not mandatory, as is evident from the cases in which officiating Sub Inspectors had been promoted as Substantive Sub Inspectors without having served as SHO for a period of one year. According to the appellant granting promotion to officiating Sub Inspectors as Sub Inspectors junior to the appellant was patently wrong and mala fide because, by that way respondent No. 2 wanted to give benefit to certain persons on the costs of the appellant. The impugned omission, on the part of respondents No. 1 and 2, has been made in utter disregard of the rules and in violation of the established principles of equity and justice, calling for interference of this Tribunal.
4. In their comments on the appeal respondents No. 1 and 2 have submitted that the appellant did not fulfil the conditions for substantive promotion/confirmation in the rank of Sub Inspector as laid down in Police Rules 13.10(2). He was not posted as SHO by the District Superintendent of Police concerned for being inefficient and unfit to hold this post. He was once posted and tested as SHO Police Station Phulra District Mansehra but subsequently transferred by the S.P. As he was found incapable to run the post independently. According to them it is incorrect to say that officiating Sub Inspectors on list "E" without first testing them to hold an independent charge as Sub Inspectors of Police Stations were promoted as Substantive Sub Inspectors as alleged by the appellant. The appellant was promoted subsequently on two years' probation w.e.f. 1.1.90, when he successfully completed the period of posting as SHO independently while posted in Kohistan District and fulfilled the condition as laid down in the police Rules 13.10.(2). The decision taken on the appellant's representation was correct and legal. His promotion w.e.f. 1.1.1990 was bonafide and covered by rules. The application of Police Rules 13.10.(2) is mandatory and not advisory as held by the appellant, so the orders passed by respondent No. 2 were lawful and bonafide.
5. Counsel for the parties heard and record perused. The main point of the counsel for the appellant was that the appellant was not given an independent charge of a Police Station. Once he was appointed as SHO Police Station Phulra on 24.10.1987 but that appointment was immediately cancelled on 27.10.1987 i.e, after about 3 days. The cancellation of posting as SHO was more for other reasons than for reasons of inefficiency and incapability. At one the he independently forked as SHO Oghi when Sub Inspector Mohammad Akram was transferred and there was no complaint against him. He could not work as SHO until he was posted as such by the Superintendent of Police concerned and thus he was not at fault if he was not given an independent charge of the post of SHO. To declare him as incapable of running the post of SHO independently would be unjustified, unless he was tested by giving him posting first and allowing him to stay there for a reasonable the so as to assess his capability and efficiency. He could fulfil the requirements of Police Rules only if he was given an opportunity of working independently as SHO and until he was posted as such, the assessm ent would be quite unfair, malafide and one sided without evaluating the facts.
6. Mr. Lutfullah PDSP Abbottabad, in rebutting the plea of the appellant submitted that Superintendent of Police is a responsible officer who can judge well the performance of any officer working under him and his assessme nt based on his observations cannot be challenged by an officer whose work is not upto the mark. He was found incapable so he was rightly rated as incapable of holding an independent charge as SHO of a Police Station.
7. After examining the argument for and against the appeal, we are of the considered view that the appellant was not posted, as Sub Inspector/SHO of any Police Station so as to given him a chance to prove his worth before his substantive promotion as Inspector. He was not at fault if he was not afforded any opportunity by the Superintendent of Police concerned. The assessment of the Superintendent of Police that the appellant is incapable of holding an independent charge of a Police Station is not based on experience and facts. We have also gone through the confidential record of the appellant produced before us and we have not come across any thing which would show his inefficiency and incapability. All the reports are either "A" or "B" grade before 1986. On 18.11.1986 he was promoted as Sub Inspector and was posted as Additional SHO P.S. Oghi. His overall grade was "B". For 1987 he was again given grade "B". Similar was the rating for the year 1988. From 4.4.1989 to 31.12.1989 he was posted as SHO Police Station Bathera with "A" grading and the general remarks on his conduct were, "A" good Officer. He takes interest in his job. A young Police Officer.
Doing well as SHO. From 1.1.1990 to 31.3.1990, he remained as S.H.O. Police Station Bathera, from 1.4.1990 to 21.11.1990 as SHO Police Station Palas "and he was again given Grade-B. The General remarks were. "An average type of Officer. He is a young man and should work hard." The requirements of Police Rules is there, but it is then for the Superintendent of Police of the District concerned to give an officer a chance for a reasonable the to show his capability and efficiency or otherwise and when he is given a chance, than his performance can be assessed pragmatically but without giving any chance of holding an independent post of SHO, any assessment/evaluation, we are afraid, would not be fair, just and impartial.
8. The net result of the above discussion is that since no chance was given to the appellant to hold the independent charge of SHO of any Police Station, so he was not at fault if he could not meet the requirements of rules. Assessing him as incapable of holding an independent charge of SHO of a Police Station is unfair and fallacious. There is nothing on the record to show that he was inefficient and incapable, therefore depriving him of his due rights without any convincing grounds was not justified.
9. In the circumstances we accept the appeal and direct that the appellant be considered for substantive promotion from the date his junior officers were allowed substantive promotion as Sub Inspectors i.e. 1.12.1988. There is no order as to costs and the file be consigned to the record.