MUHAMMAD ISMAIL (MEMBER): --All the four Appeals Nos. 319, 320, 321 and 322(L) of 1993 involve common questions of facts and law. They have been heard together and are being disposed of by this one consolidated judgment.
2. All the four appeals are directed against the induction of respondents 3 to 5 as Inspectors in the Investigation Group. The facts of these appeals are that the appellants were promoted as Inspectors in the year 1992. The respondent No. 1, i.e. The Inspector-General of Railway Police appointed respondents 3 to 5 as Inspectors from the Prosecution to Investigation Wing in the year 1989 (respondents 3 and 4) and 1990 (respondent No. 5). According to the appellants, they made appeals to the I.-G. Railway Police on 5-9-1989 against the appointment of the respondents 3 to 5 which was in violation of the rules as their appointments and change of cadre was not processed through the Departmental Promotion Committee as provided under the rules. The appeals filed by the appellants were not heeded to. In the meantime, a seniority list dated 13-5-1993 was prepared and circulated whereon objections were also called for from the aggrieved persons. According to this list, the private respondents Nos. 3, 4 and 5 were placed at S.Nos. 3, 4 and 5 respectively, while the appellants were placed below their names. The appellants filed departmental appeals against the seniority list in June, 1993 addressed to the Inspector-General, Pakistan Railway Police, which was followed by another appeal dated 9-6-1993 which was addressed to the Chairman, Railway- Board. There was no response to the departmental appeals, therefore, all the appellants after expiry of 90 days waiting period, filed these appeals before the Tribunal on 16-9-1993.
3. Alongwith the memo. Of appeals, the appellants also moved applications for grant of stay restraining respondents 1 and 2 from. Passing order of promotion of respondent No. 3, Mr. Shaft Muhammad Mughal during the pendency of these appeals. The appeals were admitted to regular hearing by order dated 19-9-1993 and stay application was also considered and status quo was ordered.
4. All the four identical appeals came up for regular hearing on 29-11-1993. Mr. Hartz Tariq Naseem, the learned counsel appearing for the appellants argued the appeals at length. His contention was that induction/appointment of respondents 3 to 5 was not made under the rules and as such they were not entitled to reckon seniority over and above the appellants on the ground that their appointments were ad hoc and not regular, and they being members of the Prosecution Wing, could get seniority in that Wing. He relied on 1993 PLC (C.S.) 14.
5. Respondents 1 and 2 have tiled objections wherein it has been stated that change of cadre from Prosecution Wing to Investigation Wing was made in respect of respondent No. 3 (Shaft Muhammad Mughal) under the orders of the Minister for Railways, while in respect of respondents 4 and 5 by. The Secretary, Railway Board and the General Manager, Railways, and were valid. Under the rules, on induction of the respondents, they were placed junior to the already working Inspectors in the Investigation Wing and there is no violation of rules.
6. Respondents 4 and 5 have also filed objections through their Advocate Mr. Masud Ahmed Riaz. It has been stated that the appeals .Are not maintainable and are barred by time on two counts- firstly that the induction of the respondents 3 to 5 was made in 1989 which the appellants did not challenge. They have questioned the genuineness of the so-called representations dated 5-9-1989 as those were all fake and never submitted through proper channel, nor received in the office, therefore, the appeals are time-barred. On merits, it has been stated that induction/absorption of the respondents 3 to 5 in the Investigating Wing was made under the valid orders of the competent Authority as provided by rules and there was no illegality in the orders. As such, their appointments were regular and under the rules, on transfer to Investigation Wing they were placed junior to the already working Inspectors in that Wing.
7. We have considered the submissions of the parties and perused the record. According to the prayer clause of the appeals, the appellants have sought the following reliefs:
(i) the seniority list dated 13-5-1993 may kindly be ordered to be corrected excluding the name of respondents 3, 4 and 5; and
(ii) to consider the appellants for promotion to the rank of DSP after reconstituting the DPC and declaring the respondents Nos. 3, 4 and 5 appointment as Inspectors in the Investigation Wing irregular.
Therefore, we will have to revert to the moot point whether the appointments of the private respondents herein from the Prosecution Wing to the Investigation Wing were regular or not. Rule 10 of the Pakistan Railway Police Rules, 1980 provides for appointment by way of transfer of a person holding regular appointment in the same grade; and under Rule 17(4) when a person is transferred at his own request from one Wing to another, he will be placed junior to all the persons existing in the same grade working in that wing. From the above provisions of law, one of the modes for appointment of a person holding regular appointment, to a particular wing is by way of transfer, and when a transfer is made at one's request, the person concerned will have to be placed junior to the existing members of the staff working in that Wing. We have gone through the appointment orders of the private respondents, particularly 4 and 5, and it would be worthwhile to reproduce them in extenso: Respondent No. 4 OFFICE OF THE INSPECTOR-GENERAL, PAKISTAN RAILWAY POLICE, LAHORE NOTICE The request made by Prosecuting Inspector Ahmad Mukhtar Khan of Rawalpindi Division for change of category from P.I. (BS-14) to that of IRP (BS-14) (Investigation Wing) has been considered by the competent Authority and accepted. He will be adjusted in the next available vacancy of Inspector of Investigation Wing and will rank junior to all Inspectors already working in that Wing.
(Sd.) A.I.-G./Admn.
For Inspector-General, Pakistan Railway Police.
No. A-3/5-PRP Dated21-8-1989.
Respondents No. 5 OFFICE OF THE INSPECTOR-GENERAL, PAKISTAN RAILWAY POLICE, HEADQUARTERS OFFICE, LAHORE NOTICE The request made by Prosecuting Inspector Ahmed Hussain Chohan of Multan Division for change of cadre from P.I. (B-14) to that of Inspector (B-14) (Executive Wing) has been considered by the competent Authority and accepted. Consequent upon change of cadre as Inspector, he is transferred from Multan and posted as Reserve Inspector in Railway Police Lines, Lahore temporarily till further orders against leave vacancy. He will rank junior to all Inspectors already working in Executive Wing.
(Sd.) A.I.-G./Admn.
For Inspector-General, Pakistan Railway Police.
No. A-3/5-PRPDated 25-7-1990.
Respondent No. 3 NOTICE In compliance with the directive of the Federal Minister for Railways, Government of Pakistan, Islamabad, as contained in his Letter No. M. Karachi, dated 21-8-1989, the category of Mr. Shafi Muhammad Moghal is hereby changed from Prosecuting Inspector (B-14) to that of Inspector (B- 14), Investigation Wing. He will be adjusted in the next available vacancy of Inspector of Investigation Wing and will rank junior to all Inspectors already working in that Wing.
(Sd.) A.I.-G./Admn.
For Inspector-General, Pakistan Railway Police.
No. A-2/5-PRP Dated 24-8-1989.
A bare reading of the above-quoted orders clearly shows that change of cadres of the respondents 3 to 5 from Prosecution to Investigating Wing was made with the approval of the competent Authority and in accordance with the provisions of section 11(2) of the Pakistan Railway Police Act, 1977, read with Rules 10 and 17(4) of the Pakistan Railway Rules, 1980 and there is no illegality. They were rightly placed junior to the persons already working in the same grade in that Wing and we find no illegality in those orders and the appellants cannot and should not have any grouse against their appointments, particularly in the circumstances when the appellants were Sub-Inspectors while the respondents 3 to 5 were enjoying the status of Inspectors at the time of their change of cadre and their induction into investigation Wing. It may also be pertinent to mention here that these orders were made in August, 1989 and July, 1990. Prior to this Mr. Maqbool Hussain Gilani was also inducted into Investigation Wing in the year 1987 but the appellants kept silent and did not agitate against his induction. In case the appellants really had any grievance against the respondents, they should have agitated the same at the appropriate time in accordance with law, instead of doing so in November, 1993. As such these belated appeals are hopelessly time-barred in view of the law laid down by the Supreme Court in the case of Zafar Mahmood, Ex-Line Superintendent, WAPDA v. WAPDA, reported in 1991 SCMR 641.
8. The appellants have also challenged the seniority list dated 13-5-1993 whereunder representations/objections against seniority have been called for and it is crystal clear that there is still more to be done for making it final after deciding the objections, if any. 1n these circumstances, these appeals are not maintainable in view of the decision of the Supreme Court reported in PLD 1981 SC 612 (S.M.H. Rizvi v. Maqsood Ahmed and others).
9. The last relief sought by the appellants relates to their prayer for promotion to the rank of DSP.
This claim also is not tenable as it is the discretion of the competent authority to determine the fitness for promotion of a civil servant and under proviso (b) to section 4(i) of the Service Tribunals Act, 1973, the jurisdiction of the Tribunal is barred in such matters.
10. For the foregoing reasons, all the four appeals cannot succeed on merits as well as on legal points and are accordingly dismissed with costs.
11. Since the appeals have been dismissed, the stay order dated 19-9-1993 as against respondent No. 3 Mr. Shari Muhammad Mughal, is hereby vacated.