MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order passed by the Service Tribunal of Azad Jammu and Kashmir on 29-8-1998, whereby the appeal filed by respondent No,1 was accepted and the orders impugned therein dated 30-9-1993 and 23-4-1996 were set aside.
2. The necessary facts, forming the background of the present appeal, are that the appellants herein were confirmed as Inspectors in the Regular Police Force on 1-4-1986, 1-1-1987 and 1-10-1987 respectively and were entered in the seniority list which was maintained by the Department and after the completion of the probationary period were entered accordingly in the list 'F' which is to be maintained under Chapter 13. 15 (1) attached with the petition as Annexures 'A' and 'B'
Respondent No,1, Sardar Muhammad Nisar Khan, on the other hand was inducted into the Prosecution Branch of Police Department as Prosecution Inspector vide order dated 3-6-1981, however, he was confirmed as Prosecuting Inspector on 9-8-1984. Keeping in view the responsibilities of the incumbents in their respective spheres, the Prosecuting Inspectors are not supposed to undergo the departmental course while the appellants being the officers of the Regular Branch. of Police Force had to successfully complete certain courses and then to qualify for the posts of inspectors in their respective Branch. Respondent No,1, according to the appellants, visualizing the limited scope of further promotion in the Prosecution Branch, maneuvered to get himself transferred in the Regular Branch of the Police on his own request which he made through his real brother Mr. Tahir Aziz, and got himself transferred ultimately in the Regular Branch in violation of the relevant rules on 21-2-1991. Respondent No, 1 was deputed for intermediate training on 2-5-1992, however, still he has not undergone the basic courses of lower and upper classes.
Though the respondent was confirmed as Inspector in the Regular Branch, yet his name was not entered in the list 'F', while the appellants are entered in the said seniority list at serial Nos.4 to 7 respectively. Vide order dated 16-9-1993, the appellants were promoted as D.S.Ps. on acting charge basis. Respondent No,1 challenged the aforesaid appointment by filing a writ petition in the High Court but ultimately the same was withdrawn by the respondent on 22-2-1995 making a request before the High Court that his grievance has been redressed. Despite the withdrawal of writ petition respondent No,1 preferred a departmental appeal before the Minister Incharge Home Department instead of Secretary Home Department. The said appeal was entrusted to respondent No,4, Mr Muhammad Yusuf, on the basis of Government Notification, dated 23-12-1992, but according to the appellants he was not competent to hear the same as the appeal was never preferred before the Government nor the Government was the appellate authority in the matter rather it was the Secretary Home Department who was the Appellate Authority. This appeal was, however, rejected by the Home Minister vide order dated 23-4-1996 heling aggrieved with the aforesaid order the respondent preferred an appeal before the Service Tribunal which was accepted vide the impugned judgment dated 29-8-1998. The aforesaid judgment of the Service Tribunal is the subject of present appeal.
3. In support of appeal it was vehemently contended by Mr. Ashfaque Hussain Kiani, the learned counsel for the appellants, that respondent No, 1 had no locus stand to challenge the seniority of the appellants who were confirmed Inspectors in the Regular Branch of Police, as such the whole exercise undertaken by the Service Tribunal was illegal. According to the learned counsel the Service Tribunal failed to take note of the fact that those Inspectors who were entered in the list 'F' at serial Nos.8 to 19 were the necessary parties who were not arrayed as party by the respondent, as such the impugned judgment was perverse and a no legal effect. The learned counsel pressed into service the submission that when the respondent was inducted into the Regular Branch of Police service, an embargo was placed on his order of induction that his induction would not affect the seniority of the civil servants already serving in the rank of Inspectors but this stipulation was not challenged at any forum even up tile to date, as such he was now estopped to claim his seniority against the appella it- 11,- learned counsel further contended that the appellants have been regularly prLiritcd as D.S.Ps. through the Selection Board vide order dated 16-8-1997 and an affidavit to this effect was filed by Raja Ansar Mahmood Khan, Advocate, appearing on behalf of appellants, who were arrived as respondents before the Service Tribunal, but the same was not controverted from the opposite side. This promotion order of the appellants was not challenged by the respondent. In this view of the matter the learned counsel for the appellants urged that the appeal before the Service Tribunal, filed by the respondent, had become infructuous but all the same the Service Tribunal failed to appreciate the case in its true perspective. The learned counsel for the appellants in support of his contentions relied on a reported case of this Court titled Khizar Mahmood Qureshi v. AJ&K Government and others 1992 SCR 223 and an unreported case titled Sardar Muhammad Ashraf v. Nazir Hussain Naqvi and others (decided on 25-9-1998). The learned counsel also maintained that since respondent did not challenge the seniority list Annexure 'A' before the competent Authority i,e, the Secretary Home, therefore, it would be deemed that he approached the Service Tribunal without first availing the departmental remedy. In support of his contentions the learned counsel relied on Muhammad Sagher Awan v. Secretary Education and 4 others (1997 PLC (C.S.) 1228), Mumtaz Qamar v. Secretary Education and 4 others (1997 SCR 91), Inspector General Police, Punjab, Lahore and others v. Mushtaq Ahmed Warraich and others (PLD 1985 SC 159) and Raja Muhammad Ashraf Khan Kayani v. Azad Government and 4 others (1997 SCR 389). The learned counsel also submitted that there is no provision in the Police Rules that an officer of Prosecution Branch can be transferred to Regular Branch of Police Service and that too on his own request.
4. Controverting the arguments raised by the learned counsel for the appellants, Mr Abdul Rashid Abbasi, the learned counsel for respondent No,1, submitted with vehemence that the entry in the list 'F' only relates to Sub-Inspectors and not to Prosecuting Inspectors. So, the absence of name of respondent in the list 'F' would make no substantial difference. The learned counsel pressed into service the submission that the application wherein it has been stated on behalf of brother of respondent No, 1 that services of respondent No, 1 be transferred from Prosecution Branch to Regular Police Force was not produced before the Service Tribunal nor the same was tendered in evidence before the Tribunal, as such the same could not have been taken into consideration. On the other hand, the learned counsel pointed out that the services of respondent were transferred to Regular Branch of Police service by the Government on its own and if this be the position, there is no bar for the promotion of respondent and the terms and conditions of service of the respondent could not be interpreted to his disadvantage. The learned counsel also contended that even if the transfer be at the instance of respondent even then the same does not adversely affect the seniority of the respondent. So, any stipulation in the transfer order of respondent as Prosecuting Inspector in the eye of law would be invalid. The learned counsel in support of his submissions relied on Paresh Chandra v. Controller of Stores, N.F. Railway, Pandu and others (AIR 1971 SC 359), V.S. Murty and others v. The Deputy Chief Accounts Officer and others (AIR 1983 SC 403), Abdul Hakim v. Secretary to Government of Punjab, Industries Commerce and Mineral Resources Department, Lahore and 3 others (1971 PLC (C.S.T) 63 ), Muhammad Arshad v. The Superintending Engineer (Hqs.) Irrigation, Lahore Region, Lahore and 6 others (1971 PLC (C.S.T.) 6.7), Rahmat Ullah Khan v. Deputy Director of Industries, Lahore Region, Lahore and 9 others (1973 PLC (C.S.T.) 26). The learned counsel for respondent No, 1 further maintained that in the Police Rules there is no specific forum for filing of departmental appeal;, as such in the aforesaid circumstances in absence of Police Rules, Civil Servants Appeal Rules of 1991 would apply with their full force and, thus, in accordance with those rules the Minister In charge being the appointing authority of Grade-16 would be competent authority for hearing the departmental appeal who entrusted the same to Mr. Muhammad Yusuf, the Advisor of the Government, respondent No,4 herein. Therefore, the departmental appeal filed by the respondent before the Minister Incharge could not be construed to be an appeal which was incompetent.
5. Ch. Abdul Aziz, the learned counsel for pro forma respondent No,3, fully kupported the arguments advanced by the learned counsel for the appellants and submitted that there is no provision in the Police Rules for the transfer of Prosecuting Inspectors into Regular Branch of Police Force. Thus, he also prayed that the judgment recorded by the Service Tribunal suffers from serious infirmity and illegality.
6. After hearing the respective contentions of the learned counsel for the parties and perusing relevant record, it may be stated that without entering into the question as to whether cadre of respondent No,1 could be transferred from Prosecution Branch to Regular Branch of Police and whether the respondent could be legally given previous seniority in the new cadre, the fact remains that at the time of changing the cadre of respondent vide Annexure 'G' dated 21-2-1991, it was categorically mentioned in the order of change of cadre of respondent that by this change the seniority of none else shall be affected. In accordance with the seniority list Annexure 'A' appended with the paper book the name of appellant Raja Muhammad Sarwar Khan appears at serial No,4, Ch. Muhammad Sabir, appellant No,2, is enter at serial No,5, Raja Muhammad Naseem Khan at No,6 and Raja Muhammad Munawar Khan at serial No, 7, whereas the name of respondent Raja Muhammad Nisar Khan appears at serial No,20. The names of appellants and respondent No,1 had been entered in the seniority list in accordance with the stipulation made in the order of transfer of cadre of respondent. If the respondent had any grouse with regard to the stipulation provided in the order of transfer of his cadre he could have challenged this part of the order but he acquiesced in the matter and accepted the said stipulation as it is. As stated above, the seniority list is in accordance with the said stipulation. Therefore, the respondent could not legally challenge it.
7. Another important aspect of the case is that Annexure 'E' attached with the paper book is an application purportedly moved by one Tahir Aziz, the brother of Raja Muhammad Nisar Khan respondent No,1, wherein it was averred that his father Sardar Abdul Aziz Khan, Superintendent of Police, died in an incident during the course of his duties as such he rendered meritorious services to the Police department, therefore, the cadre of his brother Raja Muhammad Nisar Khan may be changed from Prosecution Branch to Regular Police Force. On this application the learned counsel for respondent, Mr. Abdul Rashid Abbasi, has raised serious objection by submitting that this application is undated as well as unsigned by Tahir Aziz. The learned counsel also contended that the same was not before the Service Tribunal, it was for the first time, according to the learned counsel, annexed with the paper book of the Supreme Court, so the same should not be taken into consideration. In reply it was contended by the learned counsel for the appellants that on 16-9- 1997, on the request of respondent himself the entire record was summoned by Service Tribunal and the application moved by the brother of respondent No,1 appears at page 1 of the file of Home Department upon which the order was made by the then Prime Minister on 17-9-1990. From the perusal of the orders of the Service Tribunal from 16-8-1997 to 16-9-1997 when the statement of respondent No,1 was recorded by the Service Tribunal it does not become clear as to whether the record was received by the Service Tribunal or not. However, in the statement made by respondent himself which was recorded by the Service Tribunal on 16-9-1997 on the reverse of page 71 of the Service Tribunal's file in the last but the first line the respondent during the cross-examination made by Raja Muhammad Ansar Khan Tahir, the learned counsel for the appellants, admitted in unequivocal terms that on his own application he was transferred to General Branch of Police, and the same was in the benefit of Department. Therefore, irrespective of the fact that the application moved by Tahir Aziz, the brother of respondent, although the same is not signed by Tahir Aziz but the fact remains that when respondent has himself admitted that on his own request he was transferred to the Regular Branch of Police Force then in our considered view the stipulation recorded in his transfer of cadre order to the fact that by his transfer to the Regular Branch of Police the seniority of none else would be affected has attained finality and the respondent now cannot turn round and say that the seniority shown in the seniority list Annexure 'A' was illegal and he ranks senior to the appellants.
8. The authorities Paresh Chandra Nandi v. Controller of Stores, N.F. Railway Pandu and others (AIR 1971 SC 359), V.S. Murty and others v. The Deputy Chief Accounts Officer and others (AIR 1983 SC 403), Apoora Shantilal Shah v. Commissioner of Income Tax, Gujrat, Ahmadabad (AIR 1983 SC 409), Abdul Hakim v. Secretary to Government of Punjab, Industrial Commerce and Mineral Resources Department, Lahore and 3 others (1971 PLC (ST) 63) and Muhammad Arshad v. Superintending Engineer (Hqs), Irrigation Lahore Region, Lahore and 6 others (1971 PLC (CST) 67) cited by the learned counsel for the respondent being distinct in facts and circumstances are not applicable to the case in hand. Therefore, the same are ruled out of consideration.
9. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment of the Service Tribunal by which respondent No,1 was declared senior to appellants 1 to 4 without passing any order as to costs. The order, thus, passed by the Service Tribunal stands vacated. The seniority list shall remain intact wherein the appellants are shown much more senior to respondent No,1.