RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This appeal is directed against the Notification No. Home/B/2(48)/92, dated 5-10-1992 and Notification No. Home/B/2(48)/92 and 9890-9901/92, dated 28-12-1992 whereby promotion of respondent Ch. Nawab Khan in the rank of Deputy Superintendent of Police Reserves was ordered and the promotion was given effect from 1-5-1991.
2. The facts as stated in the appeal are that appellant joined Police Service as Constable on 3-7- 1962 and earned his promotion up to the rank of Sub-Inspector on 1-2-1974 and Inspector of Police on 1-6-1981 as Prosecuting Inspector. Respondent No. 2 was promoted as Inspector on 3-I1-1982.
The respondent is junior to appellant. Appellant has completed all departmental qualifications for promotion and respondent No.2 has not passed any departmental course necessary for promotion. The respondent No. 1 illegally and unlawfully kept appellant in Prosecution Branch so as to deprive the appellant of promotion in his parent branch.
3. The appellant filed the review petition against the impugned order and after waiting for the statutory period of ninety days he has invoked the jurisdiction of this Tribunal.
4. The respondents have filed written objections wherein they have denied the contents of appeal and have stated that appellant has no cause to invoke the jurisdiction of this Tribunal.
5. We have heard the learned counsel for respondents. For reasons best known to appellant he remained absent on 8-2-1994, the date fixed for arguments. Appellant had already on 26-12-1993 submitted his written arguments we; therefore, propose to decide this appeal on merits.
6. Appellant has in support of his claim in the appeal challenged the impugned orders on the following grounds: -- GROUNDS.
(i)It is admitted fact that the respondent No.2 was junior in the rank of Inspector to the appellant because the appellant was promoted as Inspector of Police on 1-6-1981 whereas respondent was promoted on 3-11-1982.
(ii)For that respondent No. 2 was not qualified to be promoted as Deputy Superintendent of Police because he did not pass any Departmental Course and was lacking the required qualifications.
(iii)That the order of the promotion of the respondent No.2 is also illegal for the reasons that apart from the Departmental qualification he is totally uneducated and illiterate which in the present age no law in the world allows such a person to be promoted against a Gazetted post.
(iv)That the order of promotion of respondent No.2 is illegal for the reasons that he has no Departmental experience of a Gazetted post for having no efficiency of performing the duties of a Police Officer as required by the Police Act and Police Rules for being an illiterate and unqualified.
7. It may be observed that in his written arguments the appellant has confined himself only to the extent of rebuttal of what was stated in the written objections by respondents. In fact he has tried to counter the case of respondents rather than advancing his own case set up in his appeal. It is a basic principle of law that a party must succeed or fail on the strength or weakness of his own case. While disposing of this appeal, we have, therefore, to restrict ourselves to the grounds, which were alleged by the appellant in his appeal.
8. The first ground taken by the appellant is that respondent No.2 was junior to appellant in the rank of Inspector as appellant was promoted as Inspector of Police on 1-6-1981 whereas respondent was promoted on 3-11-1982. While going through the record, we find that appellant was not promoted as Inspector of Police. He was, in fact appointed as Prosecuting Inspector. The relevant order of the Order Book No. 240 dated 3-6-1981 reads as follows: --
9. The order is very clear that appellant was not promoted in Branch of Reserves Police but he was Sub-Inspector in that Branch and was initially recruited as Prosecuting Inspector. In view of this clear order the position taken by appellant that he was promoted first as Inspector and was senior to respondent No.2 as such cannot be accepted. The appellant has tried to assert that his appointment in Prosecution Branch was not an initially appointment but may be taken as deputation from Reserves Branch of Police to Prosecution Branch. From the order of appointment as Prosecuting Inspector it is also evident that appellant was Sub-Inspector in Reserves Police. It will serve no purpose to discuss the relevant law relating to lien against a post but if it be presumed that appellant had alien against a post in the Reserves Police that could be the post of a Sub- Inspector. If at all he was to be reverted back to the Reserves Police he could be sent back to a post of Sub-Inspector of Police or by transfer as Inspector of Police. There is no order on the record to show that the lien of appellant was kept in the Reserves Police. After a lapse of about more than ten years he cannot be allowed to urge that he was sent on deputation to Prosecution Branch keeping his lien against the post of Inspector in the Reserves Police.
10. The appellant has throughout his written arguments tried to lay emphasis on the position of respondent No.2 relating to his education, appointment and seniority etc. As Inspector. We are siezed of a matter relating to the post of Deputy Superintendent of Police and not the post of Inspector. Respondent No.2 was promoted as Inspector of Police on 3-11-1982 and confirmed as such on the same date It is argued by the appellant that he could be confirmed as Inspector after completion of probationary period of two years and his seniority could only count from the date of his confirmation. Respondent No.2 was confirmed as Inspector from the same date when his order of promotion as Inspector was made. There may be some defect in the action of the Government but the same remains unchallenged so far. Appellant if aggrieved of this order should have challenged it and thus got rid of this situation. The defect if any was made to prevail and it has attained finality and since the matter was not challenged at the proper stage we cannot disturb the prevailing situation at 1his belated stage. The order of confirmation appears to have been passed by competent authority and it could not be annulled without providing opportunity of show cause to respondent No.2. We may refer 1985 PLC (C.S.) 133 (Syed Afzal Hussain Naqvi v. The Government of the Punjab) in support of our view 1983 PLC (C.S.) 995 and 1981 PLC (C.S.) 592 and 1981 PLC (C.S.) 835 are some of the authorities which are relevant on this point. In view of this position we have to confine ourselves to the rules relating to the post of the Deputy Superintendent of Police in Azad Jammu and Kashmir.
11. The argument of the appellant is that under Police Rules no distinction has been made in matter of promotion between the Prosecution Branch and other Branches. It could not be lawful to say that a person of Prosecution Branch could not be promoted in Reserves Branch. The appellant has relied on a decision of the Quetta High Court reported as PLD 1971 Quetta 57 (Ghulam Haider v. The Province of West Pakistan and 15 others). We have gone through the authority and find that this argument was based on Baluchistan Police Promotion and Appointment Rules, 1952. In these rules no distinction has been made, in matter of promotion between the Prosecution Branch and Executive Branch. The argument may be of some substance if there was no change of rules relating to the service of Deputy Superintendents of Police in Baluchistan. It has come to our notice that under section 2-S of the Baluchistan Civil Servants Act, 1974 the Governor of Baluchistan was pleased to make rules known as Baluchistan Deputy Superintendents of Police Service Rules, 1978 issued on 8-6-1978 under NO.SO.II(27)(R)S&GAD-73. Rule 3 of the said rule and Rule 2 of Azad Jammu and Kashmir Deputy Superintendents of Police Service Rules, 1983, which are, reproduced below are similar in words and contents.
The Azad Jammu and Kashmir Deputy Superintendents of Police Service Rules, 1983. Rules, 1978.
TheBalochistan Deputy Superintendents of Police Service
(1) The service shall consist of Four Branches i.e. General Branch, Prosecution Branch, Telecommunication Motor Transport Branch and Reserves/Rangers Police Branch.
(2) Each Branch of the service shall comprise of the posts in the Department as may be specified by Government from time to time.
(3) Members of one branch shall not be eligible for promotion to a post borne on any other Branch of the service, and shall ordinarily serve in their Respective Branch. However, inter Branch transfers will be Permissible in exceptional Circumstances.
3: - (1) The service shall consist of the various branches of the Police Department.
(2) Each branch of the service shall comprise of the posts of Deputy Superintendents of Police and such other equivalent posts in the Department as may be specified by Government from time to time.
(3) Members of. Telecommunication Branch and M.T. Branch shall not be eligible for appointment, to a post borne on any other branch of the service.
12. The service Rules relating to a post of Deputy Superintendent of Police in Baluchistan were substituted by the above-referred rules and previous to these rules the rules known as West Pakistan Deputy Superintendents of Police Service Rules, 1962, were in force in West Pakistan including Baluchistan. These rules were again substituted by the West Pakistan Deputy Superintendents of Police Service Rules, 1964 on 17-10-1964 under Notification No. SO-18-1-82/57. It appears that on the line of Province of West Pakistan and Province of Baluchistan similar rules were enforced in Azad Jammu and Kashmir for the post of Deputy Superintendent of Police. In view of the changes effected in Baluchistan and previous to it in the Province of West Pakistan the authority relied upon by the appellant is of no consequence and the argument raised on the strength of Quetta-decision is rejected.
13. We are, as stated earlier dealing with the rules relating to the post of Deputy Superintendent of Police. This post is borne on gazetted cadre of Police Organisation. The written arguments of appellant mostly are relevant to the post of Inspector, which is a subordinate rank in the Police Department. The appellant has also argued that the Rules under which the promotion of respondent No. 2 was made were framed under Civil Servants Act whereas the promotion of Police Officers is to be made in accordance with the rules made under the Police Act, 1861. The argument is that the Police Act and the Rules made thereunder are special law in respect of the conditions of service of the personnel of Police Department whereas Civil Servants Act deals with the all classes of civil servants. There is no dispute about the fact that Civil Servants Act has been made applicable to all classes of civil servants whereas the Police Act is applicable only to the persons falling under the Police Department.
14. It is an undeniable fact that both the Civil Servants Act and Police Act and the Rules made thereunder are applicable to the service conditions of a person in the Police Department. The Government has authority to frame these rules under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, for carrying out the purposes of the said Act. The Government under this authority framed Rules relating to the service of Deputy Superintendents of Police. Since these rules have been framed in respect of the service of Deputy Superintendent of Police they shall be considered as special rules for the service as against the Police Rules, which are applicable to the service of subordinate ranks of the Police Department. We find support in our view from an authority of the Lahore High Court reported as 1991 PLC (C.S) 539 in case of Ch. Ahmed Khan Chadhar, Deputy Superintendent of Police v. The Inspector-General of Police and 16 others. It was held in this decision: "It cannot be doubted that in the context of present controversy the West Pakistan Deputy Superintendents of Police Rules, 1964 are to be considered as special law and the Police Rules as inasmuch though the Police Rules apply. To all categories of employees in the subordinate Police ranks, the West Pakistan Deputy Superintendents of Police are applicable only to Deputy Superintendent of Police must prevail over the general rules."
Applying this principle in context of the present case we propose to reject the argument of the appellant on this point.
15. The appellant is a member of Police Service in subordinate rank as Inspector in Prosecution Branch. The vacancy for promotion of an Inspector was available in Reserves Police Branch and the respondent was the only eligible Police Inspector to be promoted against the vacancy.
16. In view of the above we find no force in this appeal, which is hereby dismissed. We, however, make no order as to costs.
H.B.T./249/Sr.A