RAMA RIFAT SAEED (MEMBER): --Appeals Nos3(R) of 1990 and 338(R) of 1991 fled by Mr. Saleemullah v. Government of Pakistan and others, had been heard and reserved for judgment on 3-11-1993. Senior learned Member of the Bench Mr. S.M. Ishaq, had marked these appeals to the second Member, Rana Rifat Saeed for initiating judgment. Before the judgment could be initiated, the appellant had submitted an application, an 6-11-1993; wherein particularly in paras. 8 to 11, he had alleged that the Member, Rana Rifat Saeed was biased against him and as such he should not initiate the judgment. These paras. Are reproduced below:-- "(8)That the appellant who appeared in his case in persona propria, during the course of the arguments brought these material facts to the notice of the Bench and pleaded that the presence of the Honourable Member Mr. Rifat Saeed on the said Bench would vitiate the proceedings, but the Honourable Member did not pay any attention to the said pleading of the appellant and proceeded, nevertheless, with the appeals.
(9)That, during the course of arguments, Honourable Member Rana Rifat Saeed passed a number of caustic, and prejudiced remarks, in respect of this appellant. It is also common knowledge that the Honourable Member's conduct was highly partial, seriously biased and lacking justification.
(10) That owing to the aforesaid facts and circumstances, the entire proceedings in the titled appeals have been vitiated.
Wherefore, it is respectfully prayed that the proceedings taken on 3-11-1993 in the titled appeals may kindly be declared void ab initio, and without any legal effect, as having been vitiated due to the aforesaid reasons. It is further prayed that a larger and impartial Bench may kindly be constituted to rehear the titled appeals, strictly in accordance with the canons of justice and the established law."
2. In view of this application dated 6-11-1993 from the appellant, Rana Rifat Saeed had written a note: "In view of the letter/application dated 6-i1-1993 from the appellant, it will not be just and fair that I should initiate the judgment. Papers are accordingly returned, please."
3. The matter was then referred to the Honourable Chairman by the Senior Member of the Bench on 14-11-1993 with his note, which reads as under:-- "This case was heard on 3-11-1993 and hearing closed. It was, however, marked to Rana Rifat Saeed, Member, for initiating judgment. While the case was pending with him for writing judgment, the appellant moved an application stating that since Rana Rifat Saeed had acted as Secretary, Central Selection Board II, in his case, therefore, he should not have sat in the Bench for hearing this appeal. The appellant had not brought this position before us when the case was being heard.
However, on receipt of the application, the learned Member, Rana Rifat Saeed has expressed that it will not be just and fair from him to initiate the judgment. In this view of the matter, I think that. It will meet the ends of justice if this case is heard by another Bench of this Tribunal in which none of us is a member. The case may be placed before the Chairman for constituting any other Bench."
4. The Chairman after going through the case and other factors, had given a decision on 18-11-1993, which is reproduced as under:-- "This appeal came up for admission on 30-1-199'2 before the Bench of Mr. S.M. Ishaq and Mr. Rana Rifat Saeed, Members. The appeal was admitted and was ordered to be fixed for regular hearing alongwith Appeal No.3(R) of 1990, with notice to the respondents. On the next date of hearing i.e. 12- 11-1992, the appeal was adjourned on the request of the appellant being-ill.
(2)The appeal was refixed for 5-4-1993 and came up for hearing before the Bench of Chairman and Mr. Rana Rifat Saeed, Member. The appeal was dismissed for non-prosecution as it was noticed that the appellant was deliberately adopting delaying tactics and was not interested in the appeal. The restoration application was heard by Mr. S.M. Ishaq and Mr. Rana Rifat Saeed, Members, and the appeal was restored by that Bench. On 20-7-1993, the appeal again came up before the same Bench and was again dismissed for non-prosecution.
(3)The appeal was again restored on 12-10-1993 and came up for regular hearing before the Bench of Mr. S.M. Ishaq and Mr. Rana Rifat Saeed, Members. The appeal was heard on 3-11-1993 and judgment was reserved. .
(4)If there was any objection to the Bench, it was for the learned Members not to have heard the appeal. The case has been heard; there is no reason not to write judgment. 1, therefore, do not agree with my learned brothers and order that Mr. Rana Rifat Seed, Member, who has to initiate the judgment to write. The application filed by the appellant for rehearing is a separate matter which will be dealt with according to law. There is no provision in Act or Rules to reopen the appeal when once the case is heard and judgment reserved. If the appellant had any grievance, he could have pointed out on any earlier date or at the time of regular hearing. The appeal may be disposed of as early as possible. In case he cannot get relief according to law he has remedy in Supreme Court.
Reference is not accepted.
Above wherein it has been stressed that Member, Rana Rifat Saeed has to initiate the judgment to write. Accordingly keeping in view the fact and merits of the cases and arguments for and against the case has been initiated/written by Member, Rana Rifat Saeed and it is placed below for the signature of senior Member of the Bench."
5.Since Appeals Nos3(R) of 1990 and 338(R) of 1991 are identical in facts and merits, these have been heard and disposed of together by this consolidated judgment.
RANA RIFAT SAEED, MEMBER.--- The appellant, Saleemullah, had pleaded that in seniority list of B- 19 officers of police group issued fin April, 1987 he was shown senior to the private respondents with the details as under:-- 1.Saleemullah Appellant at Sr. No.59 Writ Appeal No. 3(R) of 1990.
2.M. Arif Ch Respondent 2at Sr. No.62 3.Sultan A. MahmoodRespondent 3at Sr. No.63 4.M. Habib Khan Respondent 4at Sr. No.65 1.Saleemullah Appellant at Sr. No.59 Writ Appeal No.338(R) of 1991.
2.Habibullah Niazi Respondent 2Sr. No not shown 3.M. Akram Ch. Respondent 3at Sr. No.69 4.Mukhtarul Mulk Respondent 4at Sr. No.68 1.Saleemullah Appellant at Sr. No.54 Writ Appeal No. 3(R) of 1990.
2.M. Arif Ch Respondent 2at Sr. No.49 3.Sultan A. MahmoodRespondent 3at Sr. No.40 4.M. Habib Khan Respondent 4at Sr. No.50 1.Saleemullah Appellant at Sr. No.54 Writ Appeal No.338(R) of 1991.
2.Habibullah Niazi Respondent 2Sr. No not shown 3.M. Akram Ch. Respondent 3at Sr. No.61 4.Mukhtarul Mulk Respondent 4at Sr. No.60 2.The appellant had referred to another seniority list of 1-1-1989, wherein the position of the appellant and private respondents were indicated as under:-- 1.Saleemullah Appellant at Sr. No.56Writ Appeal No. 3(R) of 1990.
2.M. Arif Ch Respondent 2at Sr. No.42 3.Sultan A. MahmoodRespondent 3Had expired 4.M. Habib Khan Respondent 4at Sr. No.43 1.Saleemullah Appellant at Sr. No.56Writ Appeal No.338(R) of 1991.
2.Habibullah Niazi Respondent 2at Sr. No.47 3.M. Akram Ch. Respondent 3at Sr. No.51 4.Mukhtarul Mulk Respondent 4at Sr. No.52 Above showed that all the five private respondents were shown senior to the appellant in this list.
4. The appellant had mentioned that during October, 1990, he was upgraded/promoted as DIG (B- 20) w.e.f. 1-8-1989, whereas the private respondents had not been upgraded/promoted, but superseded. The private respondents (except Sultan A. Mehmood who had expired) had been upgraded/promoted to B-20 as D.I.-Gs. From a later date. He had also referred to Memo.
No.4/5/1989-CP-II, dated 30-8-1990 which reads as under:-- 'Subject: REQUEST OF MAJOR (RETD.) HABIB ULLAH KHAN NIAZI, D.I.-G. FOR SENIORITY AND FIXATION OF PAY With reference to his application dated 22-5-1989, on the above subject. Mr. Habibullah Khan Niazi is informed that his request has been accepted by the competent authority and it has been decided to place him at Sr. No.51-A below Mr. Shafique Ahmad Khan at Sr.No.51 and above Mr. Faqir Zia Masoom at Sr. No.52 in the gradation list of PSP BPS-19 corrected up to 1-4-1987. Consequent upon up gradation of the post of Deputy Inspector-General of Police from BPS-19 to BPS-20 his name will be placed in the same order of seniority. Mr. Habib Ullah Khan Niazi is also entitled under FR26(C) to the benefit of fixation of pay and accrual of increments in BPS-19 w.e.f.16-8-1984, the date on which one of his juniors was promoted to BPS-19, to 21-9-1988, the date on which he was actually promoted to BPS-19 without arrears prior to his actual promotion subject to the concurrence of the Finance Division."
5. He had contended that seniority given to Habibullah Khan Niazi -through above letter from back date placing him between Messrs Faqir Zia Masoom and Shafique Ahmed Khan was not in order, as the summary and papers were never sent to the Prime Minister who was competent authority.
But Niazi's case was unilaterally decided by the Secretary Establishment who was not competent, as the post of D.I: G. Was then in B-20 and not in B-19. He had clarified that similar treatment or favour was shown to other private respondents placing them above the appellant. He had also quoted judgment reported as 1983 PLC (C.S.) 1245 in support of his contention. He had, therefore, prayed as under:--
(i) Appeal No.3 (R) of 1990: "In the light of the foregoing, it is most respectfully prayed that the Honourable Tribunal may kindly be pleased to declare the appellant senior to respondents 2 to 4 according to the seniority list of 12-4-1987 (Annexure "A"). The Honourable Tribunal may also be pleased to kindly declare the alteration in the said seniority list by respondent No. l, as unlawful and without any legal effect. Any other relief which the Honourable Tribunal may deem appropriate may also be granted.
(ii) Appeal No.338(R) of 1991: In the fight of the foregoing, it is most respectfully prayed that the Honourable Tribunal may kindly be pleased to declare the appellant senior to respondents 2 to 4 according to the seniority list of 12-4-1987 (Annexure "A"). The Honourable Tribunal may also be pleased to kindly declare the alteration in the said seniority list by respondent No.1, as unlawful, and without any legal effect. Any other relief which the Honourable Tribunal may deem appropriate may also be granted."
5-A. The learned counsel for the private respondents had brought out at bar that the appellant, Saleemullah had not been recruited through competition on regular basis and since he was by then FA. Only and had political influence and other pressure, he was recruited as ASP (B-17) during December, 1971 without competitive examination of the FPSC and later on during December, 1976, his promotion to B-18 had been made. They had mentioned that private respondents being Majors (Retd.) had directly been recruited/inducted in the police group as SP,(B-18) by October, 1976, except M. Arif Chaudhry who had been inducted as SP (B-18), in July, 1975. Evidently all the private respondents had been inducted/appointed as SP (B-18) much earlier than the appellant who had been promoted as SP (B-18) during December, 1976. Therefore, the question of seniority as SP(B-18) of the private respondents vis-a-vis the appellant significantly stood resolved and they were senior to him. Had the appellant any objection against their inductions or seniorities as SP (B-18), he should have represented/challenged the matter in time. But there was no representation from him and he had accepted their positions as senior to him.
6. The learned counsel had elaborated that since some enquiries were going on against some of the private respondents and some ACRs were awaited for some of them, the appellant had been cleared by the Board earlier/promoted earlier than them. But in these meetings of the Board, the private respondents had not been cleared, as some enquiries were being conducted. Against some and ACRs of some were awaited, but later on after their promotions, their earlier non- clearance of the Board/ super sessions had rightly been converted into deferments by competent authority as per instructions of the Establishment Division contained at pages 245 and 246 of ESTACODE 1989. Later on the private respondents had been cleared by the Board and approved for promotion as D.I.-Gs and their super session in the earlier meetings of the Board were converted into deferment by the Secretary Establishment and they had been given original seniority, as was being maintained as S.P. Since all the private respondents were senior to the appellant as SP s (B- 18) and there was no lawful reason/justification to relegate their seniority and to make. Them junior, their seniority had been restored as D.I.G s. On !He basis of their seniority as S.P s. And a letter No.8/4/1988 CP-11 had been issued by the Secretary Establishment in this regard on 17-11-1987 in respect of one of private respondents (M. Arif Ch.) and is reproduced below:-- "Subject: REPRESENTATION OF HAJI MUHAMMAD ARIF CHAUDHRY, D.I.-G. OF POLICE FOR REFIXATION OF HIS SENIORITY.
Sir, I am, directed to refer to the Government of the Punjab (SGA&IDepartment) Letter No. SO (SX)83(G)/86, dated 19-4-..1987 and 10-6-1987 on the subject and to say that the case regarding relaxation of seniority of Haji Muhammad Arif Chaudhry, a B-19 Officer of Police Service of Pakistan has been examined in this Division and with the approval of the competent authority his name has been placed above the name of Mr. Shahid Hasan in the gradation list of B-19 officers of Police Service of Pakistan, on the basis of his (Haji Muhammad Arif Chaudhry) appointment as D.I.-G. Of Police on 5-2--1985.
(2)Haji Muhammad Arif Chaudhry is entitled for the benefit of increments and fixation of pay w.e.f.
5-2-1985 (the date on which his junior Mr. Azhar Ali Farooqi was promoted) to 27-2-1986 (the date of promotion of Haji Muhammad Arif Chaudhry in BPS-19), subject to the condition that no arrears as a result of reification of pay would be allowed to him prior to 27-2-1986. This has the concurrence of the Ministry of Finance.
(3)The officer may kindly be informed accordingly."
7. Similar letters had been issued in the cases of other private respondents. The respondent, Mr. Arif Ch. Had been placed above the appellant as D.I: G. And this was reflected in the seniority list issued by the P; Establishment Division at a later date during April, 1990. The learned counsel had stated that the posts of D.I.G s. Had been upgraded during October, 1990 and with effect from 1-8-1989 and the above letter in respect of private respondent M. Arif Ch. Had been issued in November, 1987. Obviously in 1987, the posts of D.I.G s. Were in B-19 and for which the Secretary Establishment was competent authority to decide such matters of super session/deferment, promotion, seniority and pay fixation etc. As such the objection of the appellant that Prime Minister was competent authority was ruled out, as Secretary Establishment was competent authority in that regard. Both the learned counsel had referred to earlier judgment in Appeals Nos.395(R) of 1991 (Hameed Aslam Malik) and 443(R) of 1992 (Mr. Arshad Saeed) which contained similar facts and merits and these were dismissed by the learned Tribunal by the consolidated judgment, dated 13-4-1993. (However now in this regard, Civil Petition for Leave to Appeal No386 bf 1993 filed by Hamid Aslam Malik has been refused by the Honourable Supreme Court on 15-12-1993 i.e. The judgment of the FST in Appeal No. 395(R) of 1991 has been upheld). Since the instant appeals filed by the appellant, Saleemullah, bore similar situation, these should be dismissed 8.The learned counsel had pointed out as under:-- (a)That the appellant, if he was senior he should have made representation against the induction of the private respondents as SP s (B-18) which had been made up to October, 1976 and he had been promoted as S.P. In December, 1976. He had not made any representation.
(b)Appellant had made first representation (in respect of his Appeal 3(R) of 1990 on 4-9-1989 referring to some seniority papers which had been compiled by the Establishment Division as working papers during March, 1989 and not circulated. In fact his both appeals were without reference to any circulated seniority list or impugned orders. As such this was his futile exercise in vain to submit appeals without impugned orders or without any practical grievance. There was whatsoever no cause of grievance which could press the appellant to submit the representation on 4-9-1989 and then his Appeal No.3(R) of 1990. This was an incompetent action by him and accordingly the appeal was also incompetent.
(c)The appellant had not challenged the upgraded/promoted positions of the private respondents as D.I.-Gs. (B-20) w.e.f. 1-8-1989. If he had a grievance, he should have challenged and made a representation against their upgraded positions.
(d)With reference to Appeal No.338(R) of 1991, the appellant had submitted a representation to the President of Pakistan on 18-6-1991 referring to a Gradation List published in March, 1989, wherein supposedly he had been shown junior by the respondents giving him a cause of grievance. But according to the respondents, no seniority list had been circulated by the Establishment Division during March, 1989, but there were only some printed working papers which the appellant had collected and filed alongwith the Appeal No.338(R) of 1991. In actual fact there was no cause of grievance to him to submit the representation even on 18-6-1991 and this appeal. This was also an incompetent effort.
(e)A seniority list had been circulated by the Establishment Division during April, 1990 and then in February, 1993 against which appellant had made no representation till today and as such both the appeals Nos.3(R) of 1990 and 338(R) of 1991 submitted by the appellant were incompetent and without any cause of grievance. Only for sake of arguments, even if his this representation of 18-6- 1991 should be considered against a seniority list of March, 1989 (though not circulated by the Establishment Division), still the representation was hit by limitation which should make the appeals time-barred.
With reference to seniority list of February, 1993, the appellant had not impleaded his colleagues, Messrs Ahsan Mukhtar, Saeed A. Khan, Shafiq A. Khan, Faqir Zia, Masoom, Z.H. Khan and Asad Jahangir Khan as respondent party. They had been shown senior to the appellant and some placed below M. Arif Ch. And M. Habib Khan private respondents.
(f)There was no final order or a point of grievance with the appellant to make a departmental representation and followed by the instant appeals. The respondent Department had rightly given the seniority to the private respondents over the appellant on the basis of their senior positions as SP(B-18) and seniority as D.I.-Gs. (B-19/20).
9. The learned counsel had, therefore, summarised that both the appeals rios.3(R) of 1990 and 338(R) of 1991 were hit by limitation and were without any cause of action and grievance and such were incompetent, without any merit and substance. Secretary Establishment was competent to convert super session into deferment under justified and valid reasons of the private respondents who had been either facing, enquiries or their A.C.Rs. Were awaited, when their junior appellant, Saleemullah had been cleared for promotion and promoted as D.I.-G. These points had already been upheld by the learned Tribunal, while dismissing almost identical Appeals Nos.395(R) of 1991 and 443(R) of 1992 of Hameed Aslam Malik and Muhammad Arshad Saeed respectively. They had, therefore, requested that these appeals being hit by limitation, being incompetent, without any merits and substance, should be dismissed.
10. After going through the facts and merits of the case and after hearing the parties, we find that both the appeals are hit, by limitation factor and incompetent, as these had been submitted without any valid point of grievance. Secretary Establishment was competent to convert the super session of the private respondents into deferment and assign them seniority over the appellant, as the private respondents had either been facing enquiries or some of the A.C.Rs. And other record were awaited by the respondent department and Board at the time of earlier clearance/promotion of the appellant. The cases of the private respondents had rightly been settled and given seniority aver the appellant alongwith pay fixation and increments etc. There had been no point of agitation or practical grievance with the appellant to submit both the Appeals Nos.3(R) of 1990 and 338(R) of 1991 which are accordingly dismissed.
11. No order for costs. Parties be informed.