1. ORDER S. A. Mahmood (Chairman).--In this appeal under section 8(1) of the Punjab Civil Services (Appellate Tirbunals) Ordinance, 1970, Mr. Muhammad Alsam, appellant, who is posted as S. I.
2. Telecoms, at Lahore seeks the following reliefs: -- (a) that the orders of respondents No. 1 and 2 contained in Annexures C, D, D/l, E, F, G, H, I, K, & L mainly relating to assigning of pro forma dates of promotion may be set aside as beiog without jurisdiction, collusive, barsh, malafide and arbitrary;
(b) that the seniority list (Annexure *K') dated 15th August 1972, prepared as a result of the above illegal orders may, be quashed, and tho appellant declared senior to Mr. Ahmad Din, Mr, Nazir Ahmad and Mr. Bashir Ahmad Bajwa, respondents 5--7 now posted as S. Is, Telecoms. He further prays that he may be declared senior to these respondents in the tanks of H. C., A. S. I and S. I. (c) that respondent No. 1 may be directed to take departmental action against respondents 3 and 4, who are Estt. Assistants in the Office of the I. G. Police for disobeying this Tribunal's decision in the case Instituted by Mr. Bashir Ahmad Bajwa respondent against Mr. Ahmad Din respondent, and for obtaining illegal orders from the competent authority, thereby leading to the rejection of the representation cf the appellant, without taking his case into consideration, and with the intention of giving illegal benefit to M/s. Ahmad Din and Nazir Ahmad and w.thout examination of their service records and without taking into consideration their comparative service data. We do not propose to go into this question as this is not a matter relevant to determination of seniority, and as we consider that respondents 3 and 4 are not shown ln any way to have disobeyed this Tribunals* Orders. In our view they have wrongly been impleaded as respondents. {d) that Mr. Ahmad Din, respondent No. 3 who has been drawing excessive emoluments under void and mala fide orders may be ordered to account for the illegal benefits obtained by him. We are not going into this question either, as this is not a matter within our jurl>diction and as will apppear from the order, S. I.
3. Ahmad Din respondent is not shown to have been mis-assigned retrospective dates of promotion and confirmation. Mr. Mohd. Aslam, appellant was appointed as Contable in the Punjab, Police, on lst November 1946. He was promoted as othciating H. C. on lst October, 1947 and was confirmed from 16th January 1958. In deciding the appeal filed by Mr. Nazir Ahmad () on 29th November 1971, we held that the appellant was junior to Mr. Nazir Ahmad, respondent No. 6 in the rank of H. C., and directed that he be shown Sr. to him and that Nazir Ahmad be granted ail consequential benefits.
4. Seniority as lower subordinates is controlled by the date of appointment under Police Rule 12(2)
5. (sub-rule 3). The appellant was promoted as officiating Asstt. S. I. from 17th October, 194^. His name was entered in promotion list B from lst April, 1958, and he was confirmed from date as A. S. I. He was promoted as officiating S. I. of police on 7th April, 1959 and confirmed from 1st Marc*, 1969. As upper subordinate, his seniority had to be determined under Police Rule 12(2)(3) initially by the date of first appointment, to be finaUy settled by the date of confirmation. Thus, for the purposes of seniority in the rank of A. S. I. and S. I. the relevant dates are 1-4*58 as A. S. I. and 1-3-69 as S. I. He has not been assigned any pro forma date of promotion, and this appears to be his main grievance in so far as S. I. Ahmad Din and S. I. Nazir Ahmad respondents 5 and 6 have become senior to him by reason of being assigned earlier dates of promotion and confirmation. Mr. Ahmad Din, respondent No. 2 was appointed as police constable in the Punjab Additional Police on lst October, 1940, and was promoted to the Selection Grade on lst August, 1942, and confirmed ln this rank from lst November, 1950. He was promoted as temporary H. C. on lst March, 1945 but was reverted on 31st March, 1945 for taking the Wireless Training Course at Jabalpur. a fter he had cleared this course he was again promoted as H. C. on lst November 1945, and was confirmed in that rank from 22nd January 1955. By reason of his reversion on 13th March, 1945 in order to pass the Wireless Training Course, there was no break in his continuous appointment as H. C. as held by us in decided on 22nd March, 1972. The High Court has also held him to be entitled to seniority in the rank of H. C. w. e. f. lst March, 1945. On the basis of the fixation of his seniority as H. C., the appellant claimed that he should be given the consequential benefits, and in view of the order of the High Court, his name was brought on promotion list D w. e. f. lst June, 1960 by order dated 25th April, 1966. On 27th April, i960 he was oiderel to be promoted as officiating A.S.I, with e.f. 25th April, 1966.
6. This was consequential result of declaration of his seniority as H. C. from lst March, 1945. In 1966, he made a representation to the S. P. claiming seniority over the respondents, including Mr. Bashir Ahmad Bajwa ln the higher rank of upper subordinates. On 30th December, 1966, he was assigned proforma promotion as A. S. I. w. e.f. 25th June, 1954 instead of the date 25th April, 1966, as ordered on 27th June, 1966. This date was assigned to him on the ground that his next below junior H. C. was promoted as A. S. I. from that date. On 30th December, 1966 the A. I. G. Telecoms, made another order confirming Mr. Ahmad Din, respondent as A. S. I. w. e. f. 1-1-1967, assigned presumptive seniority to him as confirmed A. S. I. w. e. f. lst April, 1961, and placed him above officiating S. I. Mohd.
7. Hantf Lodhi and below S. I. Mohd. Nawaz. On the same date another order was made promoting him as officiating S. I. w. e. f. 1st January, 1967 vice Mr. Abdul Aziz and was also given pro forma promotion as officiating S. I. from lst May, 1962 instead of lst January, 1967, lst May, 1962 was the date on which his junior A. S. I. was promoted as S. I. This respondent made another representation on 31st January 1967, claiming that if the order of the High Court in the writ petition had been properly implemented, he would have been made senior to S. I. Mr. Bashir Ahmad Bajwa. He, therefore, prayed that his confirmation as S. I. with due seniority over the said S. I. Mr. Bashir Ahmad Bajwa be ordered. On 8th August, 1969, the A. I. G. Telecom, cancelled the order of 30th December, 1966 confirming M. Ahmad Din as A. S. I. w. e. f. lst April, 1961 and Instead ordered his confirmation w. e. f. lst April, 1958 presumptively that being the date on which his junior S. I. Mr. Bashir Ahmad Bajwa was confirmed. He made a second order on the same day cancelling the order of 30th December, 1966 promotiag Mr. Ahmad Din respondent as officiating S. I. from lst January, 1967 and 1st May, 19 >2, and gave him revised pro forma date of promotion as officiating S. 1. w. e. f. 7th April, 1959, this being the date on which his junior Mr. Bashir Ahmad Bajwa was promoted. On 8th August, 1969 he made a fourth order deconfirming S. I. Qutabuddin to make available a vacancy for promotion of Mr. Ahmad Din as S. I. and to confirm him w. e. f. 6th August 1969. In addition, Ahmad Din respondent was ordered to be confirmed as S. I. from lst November 1963 this being the date when bis junior Mr. Bashir Ahmad Bajwa was confirmed, and Mr. Ahmad Din was assigned seniority above him as S. I. It appears that on a reference by the A. I. G. of Police Telecoms, date 30th October 1967, the I. G. of Police advised that though under the High Court judgment Mr. Ahmad Din, officiating S. I. respondent was entitled to consequential benefits, which could not be denied to him, if merits permitted but since the officer had declined to appear in the provisional test for list B, he lost his claim for substantive promotion to this rank. He finally advised that in view of the recommendation his case may be decided in the discretion of the A. I. G. of Police. In relation |o tfiis advice by the I. G. of Police, Mr. Ahmad Din respondent served a notice under section 80, C. P. C. on the Home Secretary. The I, G. Police, advised on receipt of this notice that the case of Mr. Ahmad Din may also be considered for promotion, provided his record was good. In compliance with the order and advice of the I. G. of Police, the consequential order dated 8th August, 1969 was made.. The effect of these orders was to confirm Mr. Ahmad Din, respondent as S. I. from lst November 1963 and as A. S. I. from 2td September 19:0, in pursuance of the direction issued by this Tribunal in the apneal filed by Mr. Bashir Ahmad Bajwa, respondent () decided on 22nd March, 1972 in which we found that in the rank of H. C. Mr. Ahmad Din, respondent was senior to the appellant, but under the Police Rules, Mr. Bashir Ahmad Bajwa became senior to respondent No. 4, who was again made senior to the appellant in the rank of S. I. by the competent authority; but the assigning of seniority to Mr. Bashir Ahmad Bajwa was not based on any rule. We therefore, directed that in order to assign seniority to one of them in accordance with the Rules, either the date of appointment or the date of confirmation may be refixed in both the ranks, and this should be done with reference to their service records because promotion under the Police Rules was by selection and not on seniority. In pursuance of this order, the A.I.G. of Police, Telecoms, made an order in the light of the decision of this Tribunal and of the High 'Court that the date of confirmation as S. I. of Mr. Ahmad Din respondent is changed from lst November, 1963 to 31st October 1963. This had the effect of giving seniority. On 24th June 1972 another order is claimed to have been made by A.I.G. Telecomcs. by which order of 21st June 1972 was cancelled, and the date of confirmation of Mr. Ahmad Din, S. I. respondent as S. I. was changed to 2nd November 1963 making Mr. Bashir Ahmad Bajwa senior to Mr. Ahmad Din respondent as S. I. We have, been shown this order, which has endorsed on it the word 'cancelled* and instead A.
1. G. Telecoms, made a reference to the l. G. of Police to decide the case of their inter se seniority as S. I. in the light of the decision of the High Court and this Tribunal.
8. The order dated 24th June, 1972 is stated not to have issued or acted upon, and instead the matter was referred to the I. G. of Police for taking a suitable decision. The 1. G. of Police wrote to the S. P. on 8th August, 1972 in reply that in order to implement the decision of the High Court and this Tribunal the presumptive date of appointment of Mr. Ahmad Din respondent should be changed from 2nd September, 1950 to 17th October, 1949, so that he will rank senior to S. I. Bashir Ahmad Bajwa. In compliance with the order of the I. G. of Police, the A. I. G., Telecoms, issued an order changing the presumptive date of appointment of Ahmad Din to 17th October 1949 in place of 2nd September 1950, so that he becomes senior to S. I. Bashir Ahmad Bajwa. Therefore, the dates of confirmation for the purposes of seniority in the rank of S. I. in the case of Mr. Ahmad Din is 17th October, 1949. Mr. Nazir Ahmad, respondent No. 6 was appointed as Constable of Punjab Police on 30th June, 1942, and was promoted as officiating H. C. from 15th August, 1947. These are the dates of his appointment- as lower subordinate for the purposes of seniority in terms of para. 12(2) (3) of the Police Rules. As H. C. he has been held to be senior to Mr. Muhammad Aslam, appellant and Mr. Bashir Ahmad Bajwa, respondent 7 in decided by us on 29th November, 1971. He was transferred to the Telecoms, from 16th February 1948, and was promoted as officiating A. S. I. from 25th August, 1950, but was reverted as H. C. on 15th March, 1954 in connection with being sent to the Police Training School at Sargodha for taking the Lower School Course. This did not amount to a break ln his service as A. S. I. since his reversion was ordered ln connection with his taking the Lower School Course. Having cleared that course, he was repromoted as officiating A. S. 1. from 1st July, 1962 and was confirmed as A. S. I. from lst March, 1969. He was promoted as officiating S. I. on 15th November 1969, but was reverted on 9th May, 1970 for lack of vacancy. He was repromoted as officiating S. I. on 10th May, 1972. This reversion is claimed to have been made due to wrong fixation of his seniority. He, therefore, filed decided by us on 29th November 1971. We held him senior as H. C. to the appellant and other respondent therein. In respect of promotion to higher ranks we Indicated that promotion in each rank had to be made under the Police Rules by selection ln which seniority also p'ayed a part. We indicated that we were not aware of the basis on which promotion to higher rank had been made. We directed that in cass promotion of Mr. Nazir Ahmad had been adversely affected by the wrong fixation of his seniority in the rank of H C., on the basis of dates of confirmation Instead of dates of appointment in the rank of H. C. the mistake, if any, in respect ot the promotions due to him, may be corrected. We ordered that the question of further promotion of the appellant from the rank of H. C. should be re-examined, and in case he had been prejudiced by the wrong fixation of seniority, the wrong done to him should be suitably redressed, ln conrection with our order the A.
1. G. of Police, Telecoms, referred the case to the 1. G. of Police for advice and decision. The I. G. of Police advised in his letter dated 8th August, 1972 that Mr. Nazir Ahmad, respondent will have to be given all consequential benefits as already Intimated by the I. G. of Police. The I. G. of Police, thereon made the order (Annexure *L') dated 10th August, 1972 to the effect that the presumptive dates of bis officiating promotion and confirmation as A. S. I. will be 17th October, 1949 and lst April, 1958 respectively, but the date of entry of his name in promotion list shall be 1st April, 1958, the date of his promotion as officting S. T. shall be 7th April, 1959, and the date of his confirmation as A. S. I. will be 1st November, 1953. Therefore, the date of confirms tL n assigned to him presumptively is 1st April, 1958 and the date of his confirmation as A. S. I. is lst November, 1953. These dates govern the fixation of his seniority as upper subordinate. The validity of the dates presumptively assigned to these respondents is assailed by the appellant. Mr. Bashir Ahmad Bajwa, respondent No. 7 was directly appointed as a Selection Grade Police Constable in the Punjab Police. He appointment ln the Selection Grade entitled him to accelerated promotion ln view of Police Rule 12-10-A. He was promoted as officiating H. C. w. e. f. its December, 1947 and was confirmed from 9th Januaiy, 1955. His sediorlty as lower subordinate is governed by his dates of appointment to the two ranks. He was promoted as officiating A, S. I. from 17th October, 1949, and was conflrued as A. S. I. from lst April, 1958, and he was promotee as officiating A. S. I. from 7th April, 1959, and he has been conffmed from lst November, 1963. He has not been assigned any pro forma dgte of promotion. The appellant claims seniority over respondents 5 to 7 in the ranks of H. C A. S. I. and S. I. As H. C. I.e. as lower subordinate he has been held junior to Mr. Nazir Ahmad respondent No. 6 since the date of his appointment as officiating H. C. is later than his date of promotion. The date of appointment of Mr. Ahmad Din, respondent No. 5 as H. C. is also earlier. Therefore, he is also senior to the appellant as H. C. The appellant was senior to Mr. Bashir Ahmad Bajwa, respondent No. 7 in this rank since his date of appointment as officiating H. C. is later than the date of the appellant. Thus, we declare that the appellant was senior as H. C. to Mr. Bashir Ahmad Bajwa, respondent No. 7, who was junior to Mr. Ahmad Din and Mr. Nazir Ahmad, respondents 5 and 6. ln the grade of A. S. I., the dates of confirmation control their final inter se seniority. The date of confirmation of the appellant as S. I. is lst April, 1958, while the date of confirmation of M/s. Ahmad Din, Nazir Ahmad and Bashir Ahmad Bajwa, respondents Nos. 5 to 7 is the same namely, lst April, 1958. Therefore, under Police Rule 12.2(3) it is the date of first appointment in the rank of A. S. I. which will determine their inter se seniority, Since the date assigned presumptively to Mr. Ahmad Din respondent as A. S. I is 17th October, 1949 and this date is the same as that of the appellant, their inter se seniority in this rank cannot be determined under the relevant Police Rule. It is, therefore, necessary that either the date of first appointment or of confirmation be changed on the basis of their comparative service record and seniority in the lower rank. I give this direction as we gave similar direction in the case by Mr. Bashir Ahmad Bajwa () in consequence of which the dates of pro forma promotion have been assigned to Mr. Nazir Ahmad and Mr. Ahmad Din. In the rank of S. I. of Police, the date of confirmation of the appellant is lst March, 1969 while the date of confirmation of Mr. Ahmad Din is 31st October, 1963, as finally revised, while date of confimation of Mr. Nazir Ahmad and Bashir Ahmad Bajwa respondents is lst November, 1963. Thus, the appellant is junior to them as S. I. on the basis of comparative dates of confirmation as S. I. As against respondent No. 7, it has been argued on behalf of the appellant that he was wrongly promoted earlier as A. S.I. because he was wrongly shown senior to the appellant in the seniority list of H. C. S. issued in 1955.
9. This seniority list appears to have been prepared on the basis of date of confirmation, while seniority should have been fixed on the basis of date of appointment If this was so there is force in the contention of the appellant, but it has been explained on behalf of this respondent that there was a classification test held in 1949 in which this respondent stood first, while the appellant ranked at No. 4 and it was in consequence of the distinction earned by him that they were both promoted as A. S. I. on 17th October, 1949. This is a matter to be examined by the competent authority and to give redress to the appellant if it was due to him. As against Mr. Ahmad Din and Mr. Nazir Ahmad respondents No. 5 and 6, it has been strongly contended on behalf of the appellant that the dates of promotion assigned to them are illegal, void and inoperative in so far as they were assigned to them mala fide. We do not, however, find any evidence of their being mala fide. In the case of Mr. Ahmad Din respondent presumptive dates were assigned to him by reason of the relief granted to him by the High Court in his writ petition and in the case of Mr. Nazir Ahmad in pursuance of the direction given by us in the case filed by him before us. Justification for assigning pro forma dates of promotion to Mr. Ahmad Din. exists in his being assigned pro forma dates on the basis of next below nile from the dates of promotion of his next junior Mr. Bashir Ahmad Bajwa. In case of Mr. Nazir Ahmad, we directed the reassigning the date so that the inter se senioity of Mr. Nazir Ahmad and Bashir Ahmad Bajwa could be determined under Police Rule 12.2(3). An objection which has merit is that respondents No. 5 and 6 could not be assigaed date of confirmation which had the effect of contravention of Police Rule 13.10(2) which provides that no A. S. I. shall be confirmed in a substantive vacancy in the rank of S. I. unless he has been tested for at least a year as an officiating S. 1. in independent charge of a police station in a district other than that in which his home is situated. Since they have been confirmed from dates which has resulted in their confirmation against a substantive vacancy without their being for at least a year in officiating capacity in independent charge of a police station in a district, there is violation of this police rule but the provision in this rule is directory and not mandatory, and as such we cannot hold the assigning of the proforma date of promotion to be illegal or void, though there is irregularity in the assigning of these dates of confirmation to respondents Nos. 5 and 6. For this reason we are unable to hold that the date of confirmation assigned to respondents Nos. 5 and 6 is illegal and void and has to be struck down. In the above connection we may draw attention to the decision of the Supreme Court in PLD 1962 SC 367 in which it has been laid down that there is an admitted power in the Government to date a permanent appointment with retrospective effect and that Govemment has also the power to vary its previous order which was undoubted. The appellant also drew our attention to para. 13.18 of the Police Rules providing that all police officers promoted in rank shall be on probation for 2 years and it is contended that as respondents 5 and 6 were not placed on probation, they could not be confirmed. In this context it may be noted that this very paragraph of the Police Rules provides that by special order in each case the appointing authority may permit periods of officiating service to count towards period of probation. Therefore, confirmation without their being a preceding period of specific probation cannot vitiate confirmation, although in this case the respondents Nos. 5jand 6 were not officiating from the dates assigned to them as S. I. The crucial question in such a case is whether there was power in the competent authority to assign retrospectively dates of confirmation to these respondents or not. I am inclined to hold despite there being no specific provision in the Police Rule that such powei exists in the competent authority. The appellant also contended before us that in a test for entry of names in List E, he stood first but this is denied on behalf of Mr. Bashir Ahmad Bajwa, respondent No. 7. We cannot, however, pronounce one way or the other on the claim of the appellant to have stood first in the test. This is not, however, a matter which controls or governs seniority in any rank. The test, if any, may have been held to guide the competent authority with respect to the placing of names in the promotion list. As in the case of the appellant Mr. Nazir Ahmad and Bashir Ahmad Bajwa, respondents, the date of promotion and confirmation as A. S. I. is the same, it is argued that their inter se seniority should be fixed on the basis of general rule of equity and justice or seniority in the lower rank or age, the older being senior to a younger officer as held by the Tribunal in the case of Ch. Nisar Ahmad () and of Dr. N. A. Sial (). In the absence of a rule it is an equitable principle of seniority that in case of promoted officers, the seniority in the lower rank should determine their seniority in the higher grade but in the present case rule of seniority is provided in the Police. Rules and it does not provide a principle on which seniority is to be determined in case the date of appointment and confirmation is the same.^ I am inclined to the view that we cannot incorporate anything in the rules as we would thereby be legislating > and that it should be left to the competent authority to revise the date either of confirmation of or first appointment to the grade so that inter se seniority can be settled under the Police Rules. Since we have adopted this principle in Bashir Ahmad's case I am inclined to make a similar order in this case so that their inter se seniority can be determined. For the reasons stated above I direct that for the determination of inter se seniority of the appellant vis-a-vis respondents Nos. 6 and 7 in the rank of A. S. I: the dates of promotion or confirmation may be re-assigned so that their inter se seniority can be determined. This determination should take place on the basis of their comparative service lecords as well as seniority in the lower rank. For the reasons stated above, I hold that the appellant cannot be declared senior to Mr. Ahmad Din, Mr. Nazir Ahmad and Bashir Ahmad Bajwa respondents in the rank of S. I. In this connection, we may mention that it seemed odd to us that while respondents Nos. 5 to 7 have been confirmed as S. I. from 31-10-63 or 1-11-63, the appellant should have been confirmed from lst March, 1969 i.e. six years later. We tried to ascertain reasons for such a long delay in the confirmation of the appellant, and find that his confirmation was delayed for lack of vacancy against which he could be confirmed. In the circumstances, I order as above and leave the parties to bear their own costs. The security deposited by the appellant may be refunded to him. Since Police Rule 12.2(3) does not provide any criterion for the determination of inter se seniority of upper subordinates, whose dates of promotion and confirmation in a rank are the same, it is necessary to amend the Rule in order to provide a criterion for fixation of inter se seniority in such cases. In the circumstances, the most equitable and just criterion for determination of seniority would be seniority in the next below rank. An amendment of the rule should, therefore, be taken in hand so as to remove the lacuna which exists in the Rules. Ashfaq Ali Khan (Member).--I agree with the order pronounced by the learned Chairman. I have, however, the following observations to make. This case is distinguished by an unusual feature, namely, that the appellant who is an S. I. with a good record, has impleaded two members of the Establishment, staff of the I. G. of Police, who according to him, are really responsible for making of decisions which be thinks to be unjust. There is a notable vehemence of protest in this action, although the appellant has adopted a legal and legitimate channel to ventilate his feelings. I have noted the discrepancies in the order of the I. G. of Police, Telecommunications* No. 2932/Tele. E, dated 24th June, 1972 and the order No. 3653/Tele/E dated 10th August 1972 by the A. I. G. of Police, Finance, Punjab, Telecommunications Section. I think the discrepancy in these two orders needs to be brought to the notice of the learned I. G. of Police, for it seems that these decisions need to be understood by the concerned persons including the appellant and repondents, so that the edge of discontent js blunted. Bashir Ahmad Khan (Member).--In this particular case the dates of first appointment and dates of* confirmation of the appellant as A. S. I. and respondents Nos. 5, 6 and 7 aie the same. The relevant rule of seniority is laid down in Police Rule 12.2(3). In the case of upper subordinates, seniority is determinable in the first instance from the date of first appointment and finally it has to be settled by dates of confirmation. The seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment. My learned colleagues have held that there is a lacuna in the rules and there is no provision how the seniority is to be determined if the dates of appointment ahd confirmation are the same. A question arises whether the Tribunal should afford guidance in such cases or leave the matter to the executive department. I would seek to rely, in this situation, on the approach of the Supreme Court in the case of Khushi Muhammad, Railway Guard. There was no rule for determining seniority for the situation which arose in that ease. The Supreme Court then relied on the natural rule of justice and equity and laid down a sound principle of determining seniority in such cases on the basis of the induction to the grade. If the judicial authority were to leave the matter to the competent authority it cannot frame a rule with retrospective effect. Such a problem has to be tackled in the light of basic principles of equity and natural justice. In search for a solution of the situation which has arisen in this case, it would be necessary to provide some principle based on equity and natural justice so that the vacuum created by the lacuna is made good by the Tribunal. In this context, the last sentence of Rule 12.2(3) relating to upper subordinates is relevant: "Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmation, regain the seniority which he originally held vis-a-vis any officer promoted before him during his deputation.'* In this proviso the rule-making authority has accepted the principle of saving the seniority of an officer who is on deputation if promotions are made in his absence, and his promotion gets delayed. Thus, it lays emphasis on the saving of promotion in the next below rank.
10. Secondly, the condition laid down in this very rule that the seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment, is also an attempt to safeguard the original seniority which a person attains on the basis of his seniority on the principle of first appointment. Thus, two factors in this very rule provide a guideline, impliedly, that the seniority of persons in the lower rank has to be saved if all other thipgs are equal. The West Pakistan Government prepared a uniform set of rules for its employees for the purposes of determining seniority in case of persons promoted to higher ranks. A proviso has been made in all rules, that in the case of promoted officers that if the dates of continuous appointment in the case of two or more members of the service is the same, the older official, if not junior to the younger official or officials in the next below grade shall rank senior to the younger official or officials. This principle also clearly indicates that in all cases where the promotion takes effect on the same date the seniority in the lower rank will then determine the seniority in the higher rank. In fact, the West Pakistan Government has applied this principle more assiduously in providing in all rules relating to promoted persons the following explanations :-- "Explanation /.--If a junior official in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade. Explanation II.--If a junior official in a lower grade is promoted to a higher grade by superseding a senior official and subsequently that official is also promoted, the official promoted first shall rank senior to the official promoted subsequently.
11. Explanation III.--A junior official appointed to a higher grade shall be deemed to have superseded a senior official only if both the junior and the senior officials were considered for the higher grade and the junior official was appointed in preference to the senior official.** These Explanations even safeguard the seniority of persons who are senior in rank if they are not promoted in their turn and the junior person is promoted earlier than his senior. These are intended to save seniority of a senior person unless he is specifically superseded. In the case of Mr. Bashir Ahmad Bajwa, , a direction was given by the Tribunal that one of the contesting parties be given an earlier date of appointment or confirmation in order to settle the seniority in that case, to one of the two persons (respondents No. 5 and 7) of the present case or it should be done by reference to comparative service records because promotion under Police Rules is by selection and not on pure- seoiority.
12. The A. I. G. of Police Telecommunications wrote a letter to the I. G. of Police that he should decide this issue but expressed the view that the record of Mr. Bashir Ahmad Bajwa was better than that of Mr. Ahmad Din. But the I. G. of Police decided in the order reproduced by the Asstt I. G. of Police, Finance, Telecommuncations Section in his letter dated 10th August, 1972 by which he gave a presumptive date of appointment to Mr. Ahmad Din, which is the same as that of Mr. Bashir Ahmad Bajwa as A. S. I. In fact, in this case, the seniority of Mr. Bashir Ahmad Bajwa and Mr. Ahmad Din, A. S. I. in this rank has again been confused, although an attempt was made to settle the issue by giving Mr. Ahmad Din an earlier date as S. I. This action also seeks to save the seniority in the lower ranks, and not on merit. It is true that the selection is uppermost for the purposes of promotion in the Police Department, but this process is completed first by the preparation of the select list for the purposes of promotion of a person who is tried in the higher rank and he can be removed from the select list if he does not prove successful. Subsequently, a person is appointed against a substantive post and remains on probation. He can be reverted during this period if his work is found to be unsatisfactory. When the dates of confirmation are determined the full process of determination of merit gets completed. There is no further scope for determining merit to decide seniority, when the date of appointment and confirmation is the same. It seems impracticable for the competent authority to minutely assess the comparative merits in such an eventuality. It cannot form a just principle for the determination of seniority in such peculiar cases, but can introduce the element of arbitrariness. For the foregoing reasons, I am of the view that the natural and equitabe rule of seniority in the rank of A. S. I. or other upper subordinates, wherei the date of first appointmeut and confirmation is the same, it should be the F seniority in the lower rank of H. C. which should determine the relative! seniority of the parties concerned. In view of this principle, Mr. Ahmad Din being senior to Mr. Muhammad Aslam appellant as H. C. he would rank senior to him as A. S. I. For the same reason, Mr. Nazir Ahmad who was held to be senior to the appellant in than the appellant as Head Constable he would rank senior to the appellant as Assistant Sub- Inspector.
13. Both of them being senior to the appellant as Assistant Sub-Inspector and their dates of confirmation being earlier than the appellant, they will also rank senior to him as Sub-Inspector. As regards Mr. Bashir Ahmad Bajwa, he would rank junior to the appellant as Assistant Sub-Inspector being junior as Head Constable to the appellant. In view of this, it would be necessary to re- consider the dates of confirmation of respondent No. 7 and the seniority of the appellant qua this respondent as Sub-Inspector will have to be re-determined on the basis that the latter is senior to him in the rank of Assistant Sub-Inspector.