1. MUNAWAR ALI KHAN (CHAIRMAN).---As disclosed in the "prayer" of memo. Of the appeal, the appellant, Choudhry Muhammad Afzal, has prayed for annulment of IGP, Sindh's three orders: namely, Order No. 6190-95/E-11, dated 11-5-1987, whereby he was admitted to `F list; Order No. 16853-E-11, dated 1-12-1990 rejecting his departmental representation and finally Order No. 9712/E-II, dated 10-5-1992 disposing appellant's so-called departmental appeal.
2. Briefly stated the facts leading to this appeal are these. The appellant joined Sindh Police as Assistant Sub-Inspector with effect from 1-1-1959. He was subsequently promoted to the post of Sub-Inspector on 15-10-1964. Following his confirmation as A.S.I. On 1-1-1966, appellant was brought on list `E' from the same date. He was confirmed in the post of sub-Inspector with effect from 1-7- 1970. In 1977, the appellant fell ill, whereupon the Medical Officer, without referring his case to the Medical Board, recommended for his invalidation from police service. Accordingly he was compulsorily retired from service vide order dated 1-8-1977 of the S.P., Traffic Police, Karachi. After his complete recovery resulting from private medical treatment, the appellant moved the police authorities for his re-instatement. He was however, reappointed in service by order dated 27-12- 1983. Following the objection raised by the Accountant-General, the appellant's order of reappointment was rectified vide order dated 13-4-1986 whereby his reappointment was converted into re-instatement and the intervening gap in his service was treated as leave due to him. However, he was admitted to List `F with effect from 11-5-1987 instead of 9-12-1976 when his juniors were allegedly inducted in the said list. The appellant made several representations for adjustment of the date of his induction in `F' List. Ultimately, the Committee which .Was constituted to consider the appeals/representations of various police officers for seniority, promotion, confirmation and admission to List `F inter alia considered the appellant's grievance with regard to the induction in `F List. In the light of recommendations of the said Committee, the I.-G. P. Passed a consolidated order dated 1st December. 1990, whereby the appellant's representation was rejected.
3. Dissatisfied with the said order, the appellant again approached the Chief Secretary by making application dated 30-12-1990 but that too was turned down vide I.-G.P.'s intimation dated 10-5-1992 routed through D.I.-G.P. And S.S.R, District West and received by the appellant on 28-5-1992.
4. Thereafter the present appeal was filed by him on 14-6-1992.
5. We heard elaborate arguments made at the bar, by Mr. Abdul Sattar on behalf of the appellant and Mr. Abdul Latif Ansari, A.A.-G. For the official respondents. We also carefully examined all the documents relevant for disposal of the appeal.
6. In course of the arguments the learned A.A.-G., raised a legal objection that the appeal was hopelessly time-barred. It would be convenient to first deal with this objection before touching upon merits of the case. As pointed above the appellant's prayer was that three orders listed in para. 1 of this judgment be set aside. The earliest of the said three orders was order dated 11-5-1987 by which the appellant was admitted to List `F, with immediate effect (i.e. With effect from the date of the order viz. 11-5-1987) prima facie the said order was not adverse to the appellant but as disclosed in para. 18 of the memo of appeal, the appellant wanted his enlistment to be made in List `F' with effect from 9-12-1976, when his juniors were brought on the said list. Thus the first ever order by which the appellant felt aggrieved was I.-G.P.'s above order dated 11-5-1987. He was required by law to challenge the said order before higher departmental authority within 30 days of the date of the order. But the appellant's learned counsel was unable to show us any representation/appeal made by the appellant within time against the said order. Instead he submitted that the appellant made one representation after the other ventilating his grievance against the wrong date of his enlistment in List 'F, until I.-G.P.'s order dated 1-12-1990 was passed whereby appellant's representation was rejected. On perusal of that order it would appear that it was passed in the light of the recommendations of the Committee which was constituted to look into the grievances of various police officers including the appellant with regard to their seniority, promotion, confirmation and admission to List 'F'. Perhaps it may be advantageous to reproduce that portion of the aforesaid order, which pertains to the appellant. The relevant portion of the order reads as under: -- "11. Inspector Muhammad Afzal He has represented for assignment of seniority on List `F with effect from 9-12-1976 instead of 11-5- 1987. Briefly the case is that he was invalidated while confirmed S.I. On 7-1-1977 and was reinstated in service on 27-12-1983. His original seniority was restored by D.I.-G. Of Police, Karachi, vide his order dated 13-4-1986 when his batch-mates had already been admitted to List `F. He was admitted to List `F on 11-5-1987 in routine course. The then I.-G.P. While admitting him to List `F observed: A strange and unprecedented case. He is admitted to List `F with immediate effect. That is the best, which can be done. No other action is warranted'. representation rejected."
7. Thus,having exhausted his departmental remedy with passing of the above order, the appellant should have approached this Tribunal by filing his appeal within 30 days of the said order. But contrary to the prescribed procedure he once again took the matter to the higher departmental authority viz. Chief Secretary. According to Police Rule 16.32 if appeal were to be filed against the order of the I.-G.P., a review petition would be filed to the same authority namely I.-G.P. In case of conflict between the police rules and the rules framed under Sindh Civil Servants Act, 1973 in this regard, the former would prevail in case of police personnel up to and including Police Inspectors.
8. In this connection reference may be made to the case reported` as Abdul Haque v. Province of Sindh 1989 PLC (C.S.) 300) wherein the views of the Supreme Court as regards the applicability of Police Rules have been elaborately discussed. Accordingly the appellant being Police Inspector was governed by Police Rules. Therefore, as soon as he was aggrieved by I.-G.P.'s original order dated 11-5-1987, he had to file review petition to the same authority. It is an admitted position that appellant made representations against the I.-G.P.'s above original order to the same authority.
9. That is why the I: G.P. After getting his case examined by the Committee constituted for the purpose, like the cases of other Police Officers, passed order dated 1-12-1990 rejecting the appellant's representation. After rejection of his case, as if in a review petition, by the I.-G.P., the only option legally available to appellant was to file appeal before the Service Tribunal. If he had taken that legal course, his appeal before this Tribunal should have been filed latest by 1-1-1991, but it was actually filed on 14-6-1992, i.e. After the delay of more than one aid half years, for which the appellant had obviously no plausible explanation.
10. Examining the case from different angle, even if the appellant was held to have rightly resorted to filing of departmental appeal to the Chief Secretary against the I: G.P.'s order dated 1-12-1990, yet his present appeal was not within time. The so-called departmental appeal was admittedly filed before the Chief Secretary on 30-12-1990. It appeared that the Chief Secretary, passed no order, one way or the other, on the appellant's appeal as the appellant's learned counsel was unable to show us any such order. Alternatively the appellant had option to wait for the Chief Secretary's decision for 90 days and if his order was not forthcoming within that period, he could file appeal before this Tribunal within 30 days after expiry of the 90 days period. In that case the appeal should have been filed before this Tribunal latest by 29th April, 1991. But that option too was obviously not availed, by the appellant.
11. Relying upon the I: G.P.'s communication dated 10-5-1992 the appellant's learned counsel wanted us to compute the period of limitation from that date. The learned counsel's such thinking is far from convincing. First of all the said communication was not an order, muchless of the Chief Secretary to whom the appellant had filed the departmental appeal. The relevant part of the said communication reads as under: -- "I am directed to state that since the petition of above Inspector, had once been rejected and his review petition had also been turned down, he may approach the Service Tribunal which option is open to him now."
12. It was thus clear that the appellant was only intimated by the aforesaid communication that not only his earlier petition was rejected but also his review petition met the same fate and therefore the only option to him was to approach the Service Tribunal. It was however not mentioned on what dates the appellant's original petition and review petition were rejected. Actually the rejection of such petitions, was the starting point of limitation because cause of action for filing first departmental appeal and then appeal before this Tribunal would emanate from the said rejection of the petitions. If the dates of rejection of the above petitions were not within the knowledge of the appellant, though this looks incredible, he should have obtained the copies of the rejection orders for taking further action. But he seemed to have made no such attempt. In any case the limitation could not be reckoned from the date of aforesaid I.-G.P.---s communication because it was neither the Chief Secretary's order made on the appellant's so-called departmental appeal nor the I: G.P: s order made on his review petition. For above reasons we are of the firm view that the appeal is hopelessly time-barred.
13. Apart from above, in similar cases disposed earlier, this Tribunal expressed the view that it could not intervene to disturb the assignment of seniority in `F--- List. In this connection reference may be made to the case of Abdullah Memon (Appeal No. 49/1988), decided by this Tribunal vide its judgment dated 23rd May, 1990. The portion of the said judgment pertinent to this case is reproduced as under: -- "The material point that falls for our determination is whether the inclusion of the appellant's name in the List `F and his consequent promotion to the post of Inspector could be ordered retrospectively from the same date on which his juniors were included in the said List and promoted to the Inspector's rank. It is not disputed that the pre--requisite condition for Sub- Inspector's promotion to the post of Inspector is that his name is borne on the List `F. When the appellant's aforesaid juniors were promoted as Inspectors, their names had already been brought on the List `F. Until then the appellant's name had not appeared in that List. His name was brought an the said List for the first time on 30-5-1978. Therefore the precise point for determination is if this date could be advanced to make it coincide with the date of the inclusion of the respondents' names in the List `F.
14. At this stage it may be pertinent to refer to rule 13.15 of Police Rules, which lays down the comprehensive mechanism to be followed in bringing the names of Sub-Inspectors on the List `F It would be noticed that the process of preparation of the List `F is not automatic inasmuch as that while including names of Sub---Inspectors in the list, the order of inter se seniority reflected in their cadre is not to be mechanically followed. In other words the List `F is not just the same as seniority list of Sub-Inspectors. Had it been so, there would have been absolutely no justification for such duplication. Unlike seniority list, the `F List bears only the names of those Sub---Inspectors who are found suitable for promotion to the post of Inspector. As hays been elaborated in the aforesaid rule, the suitability for promotion and consequent inclusion in the List `F of any Sub---Inspector comes under consideration at three levels. To begin with, the S.P. Concerned who initiates the A.C.R. Has to recommend if the incumbent is suitable for promotion. Then comes D.I.-G.P., who after seeing the officer and considering his record and his own knowledge about him, has to make up his mind whether to endorse the S.P.'s recommendations and forward them to the I.-G.P. Finally it is the L-G.P.
15. Who takes a decision as to inclusion of the name of the recommendee in the `F List. While taking such decision he too, has to exercise his own judgment besides considering the recommendations of the lower authorities.
16. Judging the appellant's case in the light of the requirements of the above rule, his inclusion in List `F obviously depended upon his suitability for promotion to the Inspector's post, to be decided by aforementioned three authorities. The question would arise if this Tribunal could substitute its own judgment as regards the appellant's suitability for promotion to the post of Inspector.
17. The straight answer to this question would be in the negative. This Tribunal is barred from going into the question of suitability of any person for appointment or promotion to any post. Proviso (b) to section 4 of the Sindh Service Tribunals Act, 1973 may be invoked to support the above view point. Thus, having no jurisdiction to determine the suitability of any person for promotion to higher post, we are of the view that the Service Tribunal is not competent to direct the inclusion of appellant's name in `F List, much less from retrospective date. Even otherwise as required by the above rule, the List `F cannot be made public. As such it is immune from scrutiny and criticism except by the Authorities dealing with it. After settling the dispute of the appellant's seniority in the Sub-Inspector's cadre, it was for the authorities concerned to have sorted out the question of his suitability for promotion and his consequent induction in List `F'.--- The above view was reiterated in the similar case of Muhammad Saleh Qadri (Appeal No. 43/90), decided on 26th August, 1991. We see no reason or justification to take a different view in the present case.
18. Even on merits the appellant has absolutely no case. The appellant's service was admittedly interrupted on account of his invalidation for a period of more than six and half years. After remaining out of service for the said period, the appellant was reinstated in service. Of course the above break in his service was technically overcome by allowing the appellant leave due to him i.e. Leave on full pay from 7-1-1977 to 14-4-1977, leave on half pay from 15-4-1977 to 31-3-1982 and leave without pay from 1-9-1982 to 26-12-1983. But still the fact remained that during that period he was ill and was not in a position to perform his duties. In other words he was not fit to perform even the duties of Sub-Inspector, what to speak of the duties of higher post of Inspector. Unless he was declared fit for promotion to the post of Inspector, his name could not be brought on List `F. Since he was not fit for duties in any capacity until after his reinstatement in service, the appellant's claim for his enlistment in List `F from the date prior to his reinstatement was untenable. If his juniors were brought on the said list earlier w.e.f. 9-12-1976 on their own merits, that reason by itself would not entitle the appellant for inclusion in the list from the same date of their earlier enlistment. Moreover, the ultimate authority who was empowered to decide about the fitness of the appellant for bringing him on List `F was I:-G.P., who while rejecting the appellant's representation by his order dated 1-12-1990, made some observations about him reproduced above as a part of the said order. The said observations should have served as eye---opener for the appellant who should have thereafter stopped agitating the matter of his retrospective enlistment in List `F. In any case the views of the I: G.P. Who has the final say in the matter of induction in List `F must prevail and as such the appellant's case has no force.
19. For above reasons the appeal is dismissed with no order as to costs.