' This judgment will dispose of also Appeal No, 397/92 as the same questions of law and fact seem to arise in both of these.
' The appellant Mr. Jaffar Abbas, Sergeant/Inspector was one among the candidates applying for the post of Traffic Sergeant/Inspector. Initially 21 such posts were sanctioned on 29-3-1983 but subsequently 11 more were added on 11-2-1984. Applications were invited through the advertisement annexed at page 26. Selection was made by a Selection Committee constituted for the purpose under rule 12.44 of the Police Rules, 1934 specially framed for this cadre. Allegedly the appellant as also all the respondents numbering 28 were selected and their order of merit was determined. By letter dated 23-7-1984 Annex. A, the I.-G. Police informed the D.I.-G: that those candidates might be appointed formally in the same order of merit. The D.I.-G. Of course appointed them by his order dated 27-7-1984 in the same order of merit. Both the appellants in these two appeals, namely Jaffar Abbas and Zulfiqar Ahmad were shown at Sr. Nos. 6 and 15 respectively whereas all the respondents were placed below them. Subsequently, they all were put on probation by the order dated 10-8-1989 with effect from 1-7-1987 again in the same order of merit. Still later, they were all confirmed with effect from 1-7-1987 by the I.-G.P.'s Order dated 6-7-1991. According to the appellant the aforesaid confirmation was wrongly made by upsetting their seniority by putting misplaced reliance on rule 12.2(3) of the Police Rules, 1934 which reduced them to much lower places respectively at Nos. 20 and 25. They represented against it on 28-9-1991 maintaining that seniority in their case was determined once for all by the Selection Committee according to the special regime made applicable to them and that Rule 12.2(3) of the Police Rules, 1934 did not apply to them. Their representations were rejected by the order dated 22-6-1992 of the I.-G.P.
Giving detailed reasons. Aggrieved by it, they preferred the present appeals.
2. They reiterated that their seniority was determined by the Selection Committee and that it could not have been disturbed by application of Rule 12.2(3) of the Police Rules, 1934. They averred that keeping in view the special requirements of the Traffic Police, some rules were added to Chapters Nos. 12, 13 and 14 of the Police Rules, 1934 indicating an intent that the rules in their original form, without these amendments did apply to them. They heavily relied upon (i) rule 13.20 (a) providing that these Sergeants would be governed by ordinary rules of the Police Department only for the purposes of further promotion; (ii) on rule 12.44 to the effect that they would be appointed on the recommendation of a Selection Committee duly approved by the Government; (iii) 12.46 again laying down the provision that they would be recruited by selection made by a Selection Committee after holding a competitive examination; and (iv) rule 14.61 making it compulsory for them to undergo training in 0 & M as also in the Traffic Engineering in the Engineering University.
3. Moreover, they asserted that respondents Nos. 5 to 10 were average that since no relaxation in age was allowed to them by relaxing the relevant Police Rules, they were ineligible; that if they were given the benefit under the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, then the seniority determined thereunder according to the merit assigned by the Selection Authority, should not have been disturbed; and that by showing undue indulgence to them, their disqualification was in fact turned into a qualification. They averred that rule 12.2(3) was applicable where no test or interview was taken and that instead rule 13.21 was added to cover selection of the Traffic Sergeants; that seniority of new entrants even under the provisions of the Establishment Manual, Vol. I was to be determined on the basis of merits; that rule 12.2(3) being inconsistent with the provisions of the Police Act, 1861 as also the Punjab Civil Servants Act, 1974, was untenable in law and lastly that seniority could not have been upset muchless without affording them an opportunity of showing cause against it. They submitted that earlier respondent No, 4 in his capacity as D.I.-G., Rawalpindi decided this point in their favour (and perhaps for this reason could not change his opinion subsequently) and further that like all other upper subordinates their seniority as well should be decided under the Punjab Civil Servants Act, 1974. The appeal was contested, among others, on the ground that it did not lie because of the appellant's failure to make a representation to the next higher authority viz, the Secretary, Home Department. According to them the seniority list issued vide letter dated 29-6-1992 (Annex. A) by the L-G.P. Was subjected to the incidence of a representation before the Secretary Home and that failure on the part of the appellant to avail it, was fatal to the appeal. Likewise it was contended that the I.-G.P.'s order dated 6-7-1991 issuing the provisional seniority was not assailed in time inasmuch as the appellant's representation brought against it as late as 28-9-1991 was dismissed by the A.I.-G. On 24-6-1992 and the same was not challenged before the Home Secretary. It was further submitted that the aforesaid circular dated 6-7-1991 contained confirmation of Sergeants/Inspectors with reference to the judgment of the High Court dated 31-3-1991 passed in Writ Petition No, 6923/89 and also Memorandum dated 22-12-1989 by which 57 posts of Sergeants/Inspectors were made permanent with effect from 1-7-1987 but the appellant was not included among them nor did he make a claim in the writ petition if ever he was shown senior to the respondents in any earlier list. Still further it was urged that in a similar list issued on 11-3-1992 the appellant was placed at No,19 but he made no objection to it meaning thereby that he accepted his placement there.
' On facts, it was asserted that the parties were initially taken on ad hoc basis and hence there was-- "no question for any alleged regular selection or maintenance of the alleged merit or seniority list."
' Their version was that merit/seniority of the parties was determined only after those posts were made permanent with effect from 1-7-1987 under the orders of the High Court dated 31-3-1991. As regards relaxation of age of respondents 5 to 9, it was claimed to have been settled by the High Court in their order dated 10-5-1993 holding that such relaxation could have been granted to them under the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 for the reason that the Police Rules were not exhaustive on the point. Their case was that fixation of seniority among them taken as a group the same day, rested upon age as consistently held in various cases and that even meritwise, they were far senior to the appellant who by having concealed certain facts, had become an "example of demerits" as compared to them. They impugned correctness of the views of respondent No, 4 D.I.-G. (Traffic) on the ground that he had no say in the matter vis-a-vis the I.-G.P.
5. Respondents Nos. 5, 6, 26 and 27 took up exactly the abovementioned defence pleas raised by respondent No,2/I.-G.P.
6. Taking up first the point of limitation, I think there was much ado about nothing. The first ever order statedly injurious to the appellant's seniority was passed by the I.-G.P. On 6-7-1991. It was assailed by them in their representation dated 28-9-1991 which was ultimately rejected by the I.- G.'s order dated 22-6-1992 (Annex. G with written objections). They brought the present appeal on 9-7-1992 that is just within 17 days thereafter. How were those incompetent really passes one's comprehension.
7. The respondent's contention that the L-G.'s order dated 6-7-1991 was not challenged in time appeared to be mistaken as the appellant preferred his representation against it on 28-9-1991, that is only a few days beyond the prescribed period of 60 days. Presumably the delay was relatable to late communication of the order to them. Besides, it was not rejected on the ground of lapse of limitation. Conversely, the I.G.-P. Entertained it in spite of that much delay and rejected it vide his order dated 22-6-1992 (Annex. 'G' ibid) purely on merits. There is ample authority.... For the view that if a departmental authority chooses to entertain a time-barred appeal/representation, no objection could be raised against it before the Tribunal PLD 1991 SC 1118 (Ageela Asghar Ali v.
Khalida Khatoom Malik) may be seen.
8. The objection does not seem to have any merit otherwise as well. The Police Rules do not provide for any representation against the I.-G.'s orders to any other Authority. It was held in PLD 1985 SC 159 (I.-G.P. v. Mushtaq Ahmed Warraich). That the Police Department has its own region so that the orders passed by the I.-G.P. Are invariably final and not amenable to the jurisdiction of any outside Authority. Keeping in view this dicta, the I.-G.'s order dated 6-7-1991 was not open to any representation before any outside Authority nor even before himself as no such right was created by the Police Rules. It was a case to which the Punjab Civil Servants Act, 1974 did not apply as per ratio of the judgment referred to above.
' However, section 4 of the Punjab Service Tribunals Act, 1974 was applicable. It does not permit this Tribunal to entertain any appeal until the appellant has availed a departmental appeal or representation on review. Since there was no, concept of appeal or representation against the order of the I.-G.P. As per Police Rules, the remedy of review contemplated by section 4 ibid appeared to be available to the appellant. His application dated 28-9-1991 made to the I.-G.P.
Against his own earlier order dated 6-7-1991 would be construed to be an application for review and hence it satisfies all the requirements of section 4 (supra). The review application was dismissed by the I.-G.P. On 22-6-1992 whereas the present appeal filed on 9-7-1992 was quite in time.
9. The second limb of the objection was that a seniority list was issued on 29-6-1992 (Annex. A) and that the same should have been called in question before the next higher authority, that is the Home Secretary. It asserted that failure to avail this remedy also hit the instant appeal. I am afraid the list dated 29-6-1992 was merely consequential of the order dated 22-6-1992 of the I.-G.P. It was not something independent. In fact the said order afforded the cause of action to come to this Tribunal. All consequential orders flowing from it would ipso facto stand determined accordingly.
10. The counsel submitted of course in the alternative that the appellant's representation dated 28- 9-1991 should have been forwarded by the I.-G.P. To the Secretary, Home. Reliance in this behalf was placed upon 1992 SCM R 2162. The argument seemed well placed. In case the representation lay before the Secretary, Home, it was the duty of the I.-G.P. To have forwarded it to him. The appellant was absolved by having filed it even though to a wrong officer. The argument that there was no provision either in the Police Rules or the Punjab Civil Servants Act making it obligatory for such a wrong officer to forward the representation to the competent officer, will have no substance. The Supreme Court has clearly spelt out a rule of general application that the representation made to a wrong quarter may be forwarded to the concerned quarter for disposal.
It absolved the appellant of his duty of making it before coming to the Tribunal.
11. The next question was as to what precise rule was applicable to determine the parties' seniority.
The impugned order discloses that the parties were appointed vide letter dated 23-7-1984 clearly indicating that they were being appointed as Traffic Sergeants in order of their merit". The seniority was disturbed lately on 6-7-1991 because it was found to be contrary to rule 12.2(3) of the Punjab Police Rules, 1934. It is quite plain to read that their seniority "in order of their merit" remained in the field for 7 long years. The respondent's plea in the written objections that there was no such seniority, did not appear to be correct. The appointment letter of 27-7-1984 was really of great significance and it unmistakably fixed their seniority on merit.
12. The appellant's assertion that a special cadre was created for them by bringing in sweeping amendments (additions) in Chapters Nos. 12, 13 and 14 of the Punjab Police Rules, 1934, was indefeasible. Those amendments exhibited an intent that otherwise the Police Rules in their original form were not to be applied to them. Further, a new procedure was introduced to recruit them on initial appointment through the medium of a Selection Committee, by taking their tests and examinations, by insisting upon special educational qualifications, by providing them special training in the NIPA and the Engineering University etc. For their confirmation and also seniority. Rule 13.21(2) of the Punjab Police Rules, 1934 governed their seniority but it provides that "the procedure already being followed in case of promotion from PIs to that of the rank of PDSP" shall of course be observed in case of their promotion as DSP. The dispute under consideration however has no relationship with their future promotion as DSP, but involves their seniority inter se in praesenti as sergeants. No doubt it further made clear that their inter se seniority shall be determined with reference to the date of their continuous appointment therein provided where such date is the same in case of two or more officers, the older officer not junior to the younger officer in the next below grade, shall rank senior. It was canvassed on behalf of the appellants that the rule of next below grade applied only to promotees and that it had no application to direct selection who were recommended by the Selection Committee constituted under rule 12.46 (1) after they had taken their elaborate tests in various subjects mentioned therein. Counsel emphasised that the incidence of open examination in a number of subjects of the Degree standard indicated nothing but a measure to determine the candidates merit and that as usual the same was to govern their inter se seniority. He relied upon 1991 SCM R 1632 (1636) for the view that seniority of the direct appointees was always determined by their merits assigned to them by the Selecting Authority and that such merit was in fact fixed in this case by the Committee in Annexure B-C at pages 11 to 13 of the file. He further relied upon the Police Gazette, Part II dated 28-3-1982 and the DIG's Rawalpindi No,4004/E, dated 14-3-1978 (pages 39-40) and the Home Secretary's letter No,DD(S) P-I-92-PPSC/9-DD(S), dated 17-3-1993 (copies placed) in support of the contention that in all these cases of the Police Department itself, direct recruits whether as ASIs or Inspectors were taken on merits and that their seniority was fixed merit-wise. Still further he referred to rule 12.6(2) of the Punjab Police Rules, 1934 showing that the post of Inspector was to be filled by direct appointment through the Punjab Public Service Commission and asserted that the Service Commission was bound to determine merit and assign seniority to the selectees merit-wise. He stressed that this was a function under Regulation 25 of the Punjab Service Commission Regulations, 1987 and that those functions of their's could not be taken away by any law inasmuch as its sanctity was protected by Article 242, clause (2) of the Constitution. He drew a simile between the Selection Committee and the Punjab Service Commission maintaining that with the exception of the difference as to their nomenclature, all other things were equal for both of them so that the merit determined by the Selection Committee in this case would be unalterable as held in 1991 SCM R 1632 (Zia-ul-Haque v. Minister of Education).
12-A. On the other hand, the learned counsel for the contesting respondents and the learned DA.
Insisted upon the application of Rule 12.2(3) claiming that the seniority initially determined on merit was subject to the rule of age and then again subject to confirmation. They tried to support the impugned order dated 6-7-1991 on these premises without showing much about the various instances relied upon by the appellants whereby ASIs and even Inspectors were assigned seniority merit-wise.
13. Considering the pros and cons, it was noticeable that the post of Inspector fell within the purview of Rule 12.6(2) for which seniority had to be assigned by the Punjab Public Service Commission in the discharge of their own functions protected by the Constitution. No law including Rule 12.2(3) (supra) could take away this function from the Commission. Since the appellants were selected not by the -Commission but by the Selection Committee, their case would not be differentiated from those who might have been recommended by the Commission. This was so because all other conditions relating to taking tests, examination of the Degree level were just the same in both the cases. Besides, the hard instances of directly recruiting ASIs on merit and assigning them seniority accordingly were not wanting in the Police Department why then the appellants should be treated differently? In fact the procedure of putting the candidates to a gruelling process of determining their ability by giving them examination suggested that their seniority was dependent upon the merit achieved by them and not the age which of course may be applied if two or more selectees happened to secure equal number of marks. Relegating one's ability secondary to the rule of age was really a travesty of universally accepted principle of according seniority merit-wise in case of direct appointees.
14. Learned counsel for respondents Nos. 5, 6, 26 and 27 called in question validity of the amendments made in the aforesaid Rules of 1934 by the Notification dated 9-5-1984 whereby a separate cadre or sub-cadre for the Sergeants was said to have been created. The notification was apparently issued under section 12 of the Police Act, 1861. Counsel maintained that the aforesaid section did not authorise either the I.-G.P. Or the Provincial Government to make rules in relation to appointment or seniority of any category of police officials and that since those were illegal, the rule of seniority as contained in rule 12.2(3) of the Police Rules, 1934 was rightly invoked.
Opposing the argument, counsel for the appellants relied upon section 2 of the Act as source for validity of the notification urging vehemently that reference to a wrong section of an Act for issuance of a notification did not make it altogether void and that in view of the principle evolved in PLD 1989 SC 711 it would be deemed to have been issued under the appropriate section. Further, he cited PLD 1966 SC 725 (730) urging that all avenues were to be explored to save its existence and that section 2 helped to protect its validity. The objection was technical rather than substantial. The rule evolved in the abovementioned case fully applied. By quoting section 12 mistakenly in the Notification, it would not be rendered void. Contrarily, section 2 of the Act empowers the Provincial Government to frame rules regarding terms and conditions of service of Police officials. Seniority was obviously one of them and hence the amendments introduced by it were quite valid. Lastly, the Rules of 1934 were framed under sections 7 and 12 of the Act and yet those contained provisions relating to determination of seniority. A fortiori amendment of those rules issued under the same section 7 or section 12, would not be open to objection in the case of the present appellants. Any such stance, would be self-contradictory.
15. As discussed above, the pivotal question is not much of validity of the added rules. It was rather of interaction of the two existing rules namely Rule 12.2(3) and Rule 12.6(2) of the Police Rules, 1934.
The medium of the Public Service Commission (substituted by a Selection Committee here) for recruiting Inspectors takes us to Article 142(2) of the Constitution so that its function of assigning seniority on merit, could not be taken away. The element of age applied to the appellant's case was repugnant to the Constitutional guarantee.
16. For the forgoing reasons, the appeal is allowed the seniority of the appellants shall be determined in accordance with the merits obtaining by them in the initial recruitment. The impugned orders are set aside.
' No orders as to costs.