' ZARIN DAD KHATTAK (MEMBER).---This appeal has been filed by Mr. Latif Khan, PSI, Peshawar Range under section 4 of the N.-W.F.P. Service Tribunals Act, 1974, against the seniority list of officiating P.Is./PSIs., as it stood on 31-12-1991 issued on 15-1-1992 by respondent No, 1, whereby the appellant has been placed junior to 'respondents Nos. 4 to 20 to be modified and corrected.
2. Brief history of the case as averred from the memo. Of appeal is that the appellant joined the Police Department as Prosecuting Sub-Inspector on 1-7-1977. He was confirmed against the post of PSI, with effect from 20-8-1987, vide Notification of 8-1-1989 (Annexure B). He passed the PSI Examination with credit in 1989 (Annexure C). Other PSIs shown at S.Nos. 52 to 68 of the impugned seniority list, as it stood on 31-12-1991, circulated vide Endst. No,923-83/E-II, dated 15-1-1992 (Annexure `G') also passed the said examination from Police Training School. The respondent No, 1 notified list showing the seniority of PSIs of N.-W.F.P. Police, brought on a promotion list, with effect from 9-7-1991 vide his Notification of 14-7-1991 (Annexure D). The 'F' list having been issued in violation of the Police Rules, the appellant agitated the case by preferring a departmental appeal before respondent No, 1 (Annexure E). The respondents Nos. 1 to 3 did not apply their independent mind to the contents of appeal, consult the rules and the relief sought for by the appellant, but by order contained in memo. Of 21-9-1991 (Annexure F), informed the appellant that his appeal had been accepted and his name had been placed between the names of PSIs, Javed Hussain and Pervez Khan at S.Nos. 17 and 18 of the List 'F' and that a separate seniority list was being issued.
During the pendency of the original Appeal No, 194/91 "Latif Khan v. I.-G.P., N.-W.F.P. Etc.," respondent No, 1 issued the seniority list of P.Is. And PSIs as it stood on 31-12-1991 (Annexure G). In this list the appellant has been shown junior to respondents Nos.4 to 20, i.e, the appellant has been placed at S. No, 69, whereas respondents Nos. 4 to 20 have been assigned S.Nos. 52 to 68. The seniority list was not served upon the appellant but he later came to know about it during arguments on his earlier Appeal No,194/91 and he sought permission of this Tribunal to amend the said appeal. The appellant has alleged that on the basis of his confirmation, seniority in service and in age, the appellant is senior to respondents Nos. 4 to 20 but he has been assigned a junior position in contrast to the aforesaid respondents with the result that his seniority position has been adversely affected.
3. The appellant has prayed that on acceptance of this appeal, the respondents Nos.1 to 3 be directed to correct and modify the impugned seniority list and assign the appellant his correct seniority position by placing him senior to respondents Nos. 4 to 20 on the following grounds:--
(a) That the impugned seniority list has been prepared in violation of the Police Rules according to which seniority is determined on the basis of confirmation of PSIs in the Police Department, whereas, respondents Nos. 4 to 20 have not been confirmed but they have been assigned a senior position in the list.
(b) That the officials at S. Nos. 1 to 4, 21, 22, 24 to 28, 30 to 40, 42, 43, 45 to 51, in the impugned seniority list are also junior to him on the strength of confirmation, seniority in service and in age.
However, as they have already been promoted, therefore, the appellant has not impleaded them as respondents.
(c) That although the respondents, in reply to his departmental appeal have conveyed their acceptance but the grievance of the appellant is still unredressed.
4. The respondents Nos.1 to 3 have contested the allegations by stating that the impugned seniority list has been prepared in accordance with Police Rules according to which the names of the PSIs are to be brought on List 'F' in accordance with seniority and confirmation against their respective post and this requirement has never been overlooked by them. The appellant has been assigned his due seniority in the impugned seniority list.
5. The respondents Nos.4 to 20 have in their parawise comments also contested the appeal and submitted that seniority of the PSIs is required to be determined from the date of passipg the PSI Examination with credit. The date of confirmation is not relevant. The appellant having passed the requisite examination from a date later than that passed by respondents Nos.4 to 20 as such he has no cause to come in appeal to this Tribunal.
6. All the respondents have prayed that the appeal be dismissed.
7. Appellant alongwith his counsel, representative of respondent department alongwith Special Government Pleader, present. Arguments heard and record was perused with their assistance.
8. In order to peruse the matter in a better perspective recourse has to be made to Chapter XII of Volume II of the Police Rules, 1934. Sub-rules (3) of Rule 12.2 of these rules is reproduced below:-- "All appointments of enrolled Police Officers are on probation according to the rules in this Chapter applicable to each rank.
' Seniority, in the case of upper subordinates, will be reckoned in the first instance from the date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall however be finally settled by dates of confirmation. The seniority inter se of several officials confirmed on the same date being that allotted to them on first appointment. Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted, or confirmed, regain the seniority which he originally held vis-a-vis any officers promoted or confirmed before him during his deputation. The seniority of lower subordinate shall be reckoned from the dates of appointment, subject to the conditions of Rule 12.24 and provided that a promoted officer shall rank senior to an officer appointed direct to the same rank on the same date."
9. As regards Prosecuting Sub-Inspectors Examination is concerned, attention is invited to sub-rule
(4) of Rule 19.28 of Chapter XIX of Volume II of the Police Rules (Training and Examination) which reads as under:-- "Candidates who obtain 50 per cent. Marks in each subject and 60 per cent. In the total aggregate shall be held qualified for employment as Prosecuting Sub-Inspectors. Those who obtain 60 per cent. In each subject and 70 per cent in the total aggregate, shall be considered to have passed with credit. A Prosecuting Sub-Inspector may not be promoted to the rank of Prosecuting Inspector unless and until he is certified to have passed the Prosecuting. Sub-Inspector's Examination with credit. If he fails to achieve this standard in the first instance, he may thereafter be given two further opportunities of doing so."
10. We are unable to hold the contention of the respondents that seniority of the appellant vis-a-vis respondents Nos. 4 to 20 had to be determined under Police Rule 19.28 (4) i.e, from the date of passing of examination of PSIs with credit. The perusal of the extracts given in para. 8 above made it abundantly clear that the seniority of the PSIs had to be determined finally by the date of confirmation and it is the dates of confirmation which finally settle their inter se seniority. It is pointed out that the seniority is required to be determined under rule 12.2(3) of the Police Rules, 1934 (Volume II). A list which is a promotion list is not a seniority list. It is different and independent from the seniority in various promotion lists of Police Officers of different ranks including seniority in promotion List 'F' which is prepared under Police Rules 13.15(1) Vol. II. List is described in its clause (2) as promotion list and it is not to be published. Therefore, List is a list of selected Prosecuting Sub- Inspectors who are approved for promotion to the rank of Prosecuting Inspectors and it may be altered from time to time. Seniority list is a ranking list of all PSIs which has to be published. If the I.- G.P. (respondent No,1) intended to lay down that the seniority lists could be prepared in violation of Rule 12.2, then he exceeded his powers and the list prepared in accordance with his directions, is in violation and ultra vires of the rule 12.2. In support of our this view we rely on cases reported as Muhammad Sultan Ghani v. Government of Punjab through Secretary, Home Department, Lahore and 16 others (1971 PLC (C.S.T.) 163, K.M. Aslam Malik v. I.-G.P., Punjab and another (1971 PLC (C.S.T.)
204 and Allah Bakhsh and 13 others v. A.I.-G. Of Police Telecommunication, Lahore and 8 others (1971 PLC (C.S.T.) 75.
11. We find that the I.-G.P. (respondent No,1) vide his letter dated 14-7-1991 (Annexure D) has, published List of the PSIs which is contrary to Police Rule 13.5(2).
12. We do not agree to the prayer of the appellant in sub-para. (b) of para. 3 above for having failed to agitate the issue at the appropriate time.
13. The upshot of the above discussion is that we accept the appeal to the extent that we set aside the seniority list as it stood on 31-12-1991, so far it relates to PSIs. We hold that the aforesaid seniority list as well as the List issued vide respondent No,1 Notification No, 12960/E-II, List dated 14-7-1991 (Annexure C) have been prepared and notified in deviation of Police Rules. We direct the respondent No,1 to issue a fresh seniority list in accordance with the provision of Rule 12.2(3) of Police Rules in which the appellant be given his due place on the basis of his date of confirmation as PSI.
14. Parties are left to bear their own costs. File be consigned to the record. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.