1. BASHARAT AHMAD SHAIKH, J.---The Service Tribunal has accepted an appeal filed by respondent Muhammad Afsar Khan and has set aside an order passed by Inspector-General of Police on 18th of July, 1991 whereby appellant Amanullah Khan was declared senior to respondent Muhammad Afsar Khan and consequently respondent Muhammad Afsar Khan, who was acting as D.S.P., was posted back as Inspector Reserve Police and appellant Amanullah Khan was posted as D.S.P. In his own pay and scale. Amanullah Khan has filed this appeal with leave of the Court.
2. Respondent Muhammad Afsar Khan was promoted as Sub-Inspector Reserve Police on 1st of February, 1974 while appellant Amanullah Khan was promoted as Sub-Inspector on 13th of January, 1977. It is admitted between the parties that at that stage of service Amanullah Khan was junior to Muhammad Afsar Khan. On 14th of December, 1981 the Inspector-General of Police passed an order in which it was stated that in July 1981 Amanullah Khan had arrested a notorious murderer by risking his own life and that since no vacant post was immediately available in the Reserve Police Amanullah Khan had been promoted against a leave arrangement. The order further stated that a post in the Reserve Police had now fallen vacant due to death of one of the Inspectors, therefore, Amanullah Khan was promoted/adjusted as Inspector from 29th of October, 1981. In the second part of the order it was clarified that the promotion/adjustment of Amanullah Khan was to be treated as a special measure and it shall adversely affect the seniority of eleven senior Sub--- Inspectors of Reserve Police and that Amanullah Khan would get the future benefits of seniority in accordance with his seniority as already determined amongst the Sub-Inspectors. Muhammad Afsar Khan, who was amongst the eleven senior Sub-Inspectors mentioned above, was subsequently promoted as Inspector on 23rd of November, 1982.
3. Many years later, on 21st of December, 1987, the Inspector-General of Police published final seniority list of Inspectors working in the Reserve Police. This was done after inviting objections from the concerned officials. In that list Muhammad Afsar Khan was placed at serial No.3 while Amanullah Khan was mentioned at serial No.7. It was noted against the latter's name that he had been given special promotion on 19th of October 1981 and it had been mentioned in the promotion order that the seniority of the senior eleven Sub---Inspectors shall not be affected by that promotion. On 25th of April, 1991 Muhammad Afsar Khan was temporarily promoted as Deputy Superintendent of Police.
4. It was mentioned in the order that Muhammad Afsar Khan was No.2 in the seniority list and also that till the order of his regular promotion he will continue to remain in his own scale.
5. It appears that Amanullah Khan filed an application to represent against the order of 25th of April mentioned above. On 18th of July 1991 Inspector-General of Police issued an order in which he declared that Amanullah Khan was senior to Muhammad Afsar Khan. The Inspector---General of Police consequently ordered the posting of Muhammad Afsar Khan as Inspector and in his place Amanullah Khan was posted as D.S.P. In his own pay and scale. This is the order which is the bone of contention between the two contesting police officers and has been vacated by the Service Tribunal.
6. While accepting the appeal the Service Tribunal reached the conclusion that there is no provision for "out of turn" promotion in Police Department in light of the Police Rules, therefore, the "out of turn" promotion of Amanullah Khan from the post of Sub-Inspector to the post of Inspector could not be termed as regular promotion. The Tribunal formed the view that the promotion under reference was the reward granted to him in recognition of his best performance, but this reward could not adversely affect the legitimate rights of Muhammad Afsar Khan who held senior position in the seniority list and there was no blemish on his conduct. The learned members of the Tribunal also noted that while eivine "out of turn" promotion to Amanullah Khan a condition had been imposed in the order of promotion that he shall not rank senior to other Sub-Inspectors on their promotions as Inspectors. The Tribunal observed that Afsar Khan had been declared senior to Amanullah Khan in spite of the fact that he was promoted as Inspector long after the promotion of Amanullah Khan and also that it was on the basis of this established seniority that Muhammad Afsar Khan was promoted as D.S.P. In his own pay and scale. The Service Tribunal also relied on rule 8 of the AJ&K Civil Servants (Appointment and Conditions of Service) Rules, 1977 which lays down that a junior appointed to a higher grade shall be deemed to have superseded his senior only if the junior and the senior were considered for higher grade and junior was promoted as preference to the senior.
7. Applying this rule to the present case the members of the Tribunal held that while giving "out of turn" promotion to Amanullah Khan, Muhammad Afsar, who was admittedly senior, was not considered with the conclusion that the promotion of Amanullah Khan to the post of Inspector was never made in preference to Muhammad Afsar Khan. The Tribunal also noted that both the promotions to the rank of D.S.P. Were ordered by the Inspector-General of Police but he was not legally competent to do so because this power vested with the Government.
8. Before the Service Tribunal the maintainability of the appeal filed by Muhammad Afsar Khan was challenged on the ground that Muhammad Afsar Khan had not availed of the departmental remedy before filing appeal before the Service Tribunal. This objection was repelled on the ground that in the Police Rules, 1934 no departmental remedy is available to a Police official who is aggrieved by the order of promotion passed by the Inspector-General of Police. The Tribunal held that since no remedy was provided for challenging the order passed by the Inspector-General of Police it was a final order within the meaning of section 4 of the Service Tribunals Act and an appeal from it was competent to the Service Tribunal.
9. The question of maintainability of the appeal before the Service Tribunal was vehemently urged before us by Raja Muhammad Shiraz Kiyani the learned counsel for appellant Amanullah Khan. He submitted that the learned members of the Service Tribunal fell in error in limiting the matter to the Police Rules and contended that subsection (2) of section 21 of the AJ&K Civil Servants Act, 1976 provides for a departmental remedy and it was necessary for respondent Muhammad Afsar Khan to file representation to the authority next above to the Inspector-General of Police. He contended that Police Officials are civil servants within the meaning of Civil Servants Act and section 21 mentioned above was equally applicable to them. Raja Muhammad Hanif Khan, the learned counsel for respondent Muhammad Afsar Khan, contended that no departmental remedy was available to his client because he was governed by the Police Act and the Rules made thereunder, under which the order of Inspector-General of Police is final.
10. Since the question relating to the maintainability of the appeal filed by Muhammad Afsar Khan before the Service Tribunal goes to the root of the case it may be adverted to first. The question whether the Police Officers are civil servants or not is not new and stands concluded by a judgment of this Court in AJ&K Government v. Sardar Muhammad Rafique Khan (1993 PLC (C.S.) 286). After examining the relevant provisions of law this Court held that so far as the matters of discipline are concerned Police Officers are governed by the Police Act and the Police Rules and that in matters of discipline Civil Servants (Efficiency and Discipline) Rules do not apply, but since definition of civil servant as contained in the AJ&K Civil Servants Act is wide, all Police Officers are governed by that Act and the rules made thereunder in respect of matters to which the Police Act does not apply. In reaching that conclusion we also drew support from a judgment of the Supreme Court of Pakistan Inspector-General of Police v. Mushtaq Ahmad Warraich (PLD 1985 SC 159). Admittedly the appellant did not have a remedy under the Police Act or the Police Rules but, as rightly contended by Raja Shiraz Kiyani, section 21 of the Civil Servants Act is applicable to such situations. It runs as follows:- "21 Right of Appeal or Representation, --- Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall except as may otherwise be prescribed, be made within sixty days of the communication to him of such order.
(2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
11. Subsection (2) reproduced above provides for a departmental remedy, which is available to all civil servants if no provision for appeal or review exists in the relevant rules. If the relevant rules provide for appeal or review the remedy of filing of the representation provided in subsection (2) would not be available but, as in the present case, if the relevant rules do not provide for any appeal or review then the aggrieved civil servant may file a representation to the next higher authority. Clearly this provision of law conferred a right on Muhammad Afsar Khan to file a representation against an order passed by the Inspector-General of Police on 18th of July, 1991.
12. Once that conclusion is reached the matter becomes clear. Since respondent Muhammad Afsar Khan did not file a representation before the next higher authority against the order of the Inspector-General of Police his appeal before the Service Tribunal was not maintainable in view of a proviso (a) of section 4 of the Service. Tribunals Act. It reads as follows:-- "4. Appeals to Tribunal(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer appeal to the Tribunal: Provided that-- (a)where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal; application or representation was so preferred; (b)
13. (c)
14. (2)
15. (a)
16. (b)
17. The Service Tribunal has expressed the view that the promotion to the post of D.S.P. Could not be ordered by the Inspector-General of Police as this power vested in the Government and thus held that the order of 18th July, 1991 impugned before the Service Tribunal was illegal. The learned members of the Tribunal also held that the Inspector-General of Police had no legal authority to change the seniority list after it had attained finality. Since we have found that the appeal before the Service Tribunal entailed dismissal these points become academic and although we find that the views of the Service Tribunal reflect settled law, we regret that we have to withdraw the relief given by the Service Tribunal to the respondent. However, we note that the order of 18th July, 1991 was a temporary order and these aspects of the case have to be kept in view by the Government while ordering permanent promotion.
18. Arguments in this case were initially heard on 14th of April 1993. A question cropped up whether an appeal lies to the Service Tribunal from an order of promotion. In Khizar Mahmood v. Azad Government and others reported as 1992 SCR 223, this Court set aside an order of promotion when it was found to be in violation of relevant rules. However, we decided to rehear the case on this point and, apart from the learned counsel for the parties, we requested Mr. Ghulam Mustafa Mughal, Ch. Ibrahim Zia and Syed Nazir Hussain Shah, Advocates of this Court, to assist the Court on this question as amicus curiae. Consequently they addressed the Court on the question of the maintainability of an appeal against a promotion order. A large number of cases were cited before us by the three learned amicus curiae and the learned counsel for the parties and they were of the unanimous opinion that, except in cases where suitability has been determined, an appeal would lie against a promotion order which can be set aside if it violates by law. However, since we have reached the conclusion that the appeal before the Service Tribunal was not maintainable we are not called upon to decide this question in the present case.
19. The upshot of the foregoing analysis is that the appeal is accepted and the order passed by there Service Tribunal is set aside. Consequently the appeal filed before the Service Tribunal by Muhammad Afsar Khan stands dismissed.