JUDGMENTSHAFIUR RAHMAN, J.--The petitioners seek leave to appeal under Article 212(3) of the Constitution against the judgment of the Federal Service Tribunal dated 14-4-1991 whereby the assignment of seniority to them from a date prior to their encadrement in Police Service of Pakistan was held to be without justification in law and the notification giving effect to it, dated 21-2-1990, was set aside without prejudice to reprocessing of the encadrement of the respondents Nos.2 to 7 before the Service Tribunal (now petitioners) in the Police Service of Pakistan and consequential determination.Of their seniority.
2. The petitioners belong to a Group which has come to be known in the Punjab as Sergeants Group, which was dealt with by the Supreme Court of Pakistan in Khalilur Rehman Khan, D.S.P, and others v. Province of Punjab through Home Secretary, Punjab and others (PLD 1985 $C 195). The Cabinet Secretariat, Establishment Division, Government of Pakistan, issued a notification dated 7th of October, 1987, the relevant portion extracted. Therefrom is reproduced hereunder:- "No.lO/4/87-E.3(Police). The competent authority has been pleased to approve, the appointment of the following Provincial Police Officers in the rank of Superintendent of Police to 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 each.
Name Province Date of appointmentS.No.Xxxxxxxxxx xxxxx xxxxxxxx(6) Mr.Munir Ahmed Dar Punjab 23-10-1985(7) Mr.Zaka-ud-Din Punjab 23-10-1985;(8) Mr Abdul Wassey Punjab 23-10-1985(9)
"Mr.Khalil ur Rehman Punjab 23-10-1985(10) MrAllah Bux Punjab 23-10-1985(11) Mr.Raza Ahmed Khan , Punjab 23-10-1985(l2) Sardar Ghulam Mehdi Punjab 23-10-1985(13) Mr.Muhammad Saleem Qureshi Punjab 23-10-1985xxxxxxxxxx xxxxx xxxxxxxx ..Then it was followed by another notification dated 21st February, 1990 which was to the following effect;- "No.lO-4/87-E.3.(Police)-Following Officers belonging to the Punjab Police have been assigned seniority, after encadrement, in the Police Service of Pakistan with effect from 28th August 1980:-1)
Mr.Munir Ahmad Dar
(2) Mr.Zaka-ud-Din(3) Mr Abdul Wassey(4) Mr.Khalil ur Rehman(5) MrAllah Bux(6) Mr.Raza Ahmed Khan.
3. The affected direct recruits preferred a departmental appeal and not succeeding came to the Tribunal challenging the same. The Tribunal examined at .Great length the basis for the subsequent notification and came to the conclusion that it all started on an assumption that the quota for the Provincial Officers of the Police Department in the Police Service of Pakistan had to be worked out on the budgeted posts and proceeded accordingly. The budgeted posts include, as everyone knows, the cadre post, the temporary post continuing indefinitely and the casual post made available for short duration or for fixed period of the. The Tribunal came to the conclusion that this was not possible. The Service Tribunal did not quote the chapter and verse of law in the judgment for coming to the conclusions whereby it set aside the subsequent notification impugned before it without prejudice to the exercise being undertaken afresh for determination of the seniority. This has aggrieved the beneficiaries of the notification, who now seek leave to appeal.
4. The chapter and verse of law which have not been quoted in the judgment of the Service Tribunal are section 9 of the Civil Servants Act and the Policy Guidelines of 1970 for promotion to be found at pages 225 to 227 of ESTA CODE 1989 edition (Annexure I to O.M. No.1/16/69-D.II, dated the 31st December, 1970), where the expression "regular promotion" has been defined in the following words: -The word regular implies:
(a) that the promotions to higher grades were made in vacancies reserved for departmental promotion in accordance with the prescribed roster:
(b) that promotions to higher grades were made in accordance with the prescribed Recruitment Rules i.e. On the recommendation, of the Departmental Promotion Committee or the Selection Board (and in consultation with the FPSC where such consultation was necessary under the Consultation Regulations) and with the approval of the authority competent to make these appointments; and(c) the promotions to higher grades were kept within the maximum quota prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the person or persons promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed.
5. The notification impugned before the Tribunal suffers from two defects. In the first place, the encadrement has not been ante-dated. What it says is as a result of encadrement their seniority is ante-dated. Secondly the date of encadrement could not be subsequent to the seniority, as it happens to be, if we read two notifications together, nor could encadrement take place on the strength of budgeted posts. It had to take place against the strength of the cadre post. Neither budgeted posts were worked out nor the availability of the cadre posts in August, 1980, when these officers were shown to have been inducted in the seniority list.
6. We have recently given a jugement in Ghulam Ahmad v. Federation of Pakistan and 2 others 1992 SGMR 957 and that explains the position of promotees and their claim to seniority and it has to be observed because this is the law of the land enshrined in section 9 of the Civil Servants Act and has a precedent leading upto the judgment of this Court Khushi Muhammad and 3 others v The General Manager (Now Vice-Chairman) Pakistan Western Railway, Headquarters Officer, Lahore and 27 others PLD 1970 SC 203 followed by Policy Guidelines and then section 9 of the Civil Servants Act.
7. We find that there is no merit in this petition. Hence, leave to appeal is refused.