1. BASHARAT AHMAD SHAIKH, J.---On 6th of May, 1996 the Inspector-General of Police, Azad Government of the State of Jarnmu and Kashmir, issued the final seniority list of Prosecuting Inspectors of Police. Prior to that tentative seniority list was issued on 11th November, 1992 and objections were called from all the 'interested Prosecuting Inspectors. The final seniority list was issued after considering objections filed by different Police Officers. Appellant, Raja Shaukat Mahmood, was placed at serial No,11 of the list. He filed appeal before the Azad Jammu and Kashmir Service Tribunal in which he claimed that he was senior to Haroon Rashid, Ch. Muhammad Ayub, Syed Maqbool Gilani, Syed Muhammad Yousaf Shah, Qazi Amin Muhammad, Muhammad Ayub Qadri and Raja Muhammad Shafique. He prayed that his name may be placed at Serial No, 3 of the seniority list. Before filing appeal before the Service Tribunal the appellant filed appeal before the competent Authority on 10th July, 1996 and when it was not decided within the statutory waiting period he filed appeal before the Service Tribunal. The Service Tribunal dismissed the appeal by holding that the impugned seniority list had been correctly dawn up in light of the relevant rules.
2. The Tribunal also held that the departmental appeal was barred by time as it had been filed five days after expiry of 60 days period fixed by law for filing departmental appeal. Raja Shaukat Mahmood was granted lave to appeal from the judgment of the Service Tribunal.
3. We may begin with stating the admitted facts. Respondents Nos. 3 and 4, Haroon Rashid and Ch. Muhammad Ayub, were appointed as Prosecuting Inspectors on 14th September, 1980 by the Inspector-General of Police. At the relevant time two posts of Prosecuting Inspectors (one permanent, one temporary) were vacant. The posts were duly advertised and the Departmental Selection Board, basing its finding on written test and interview, recommended the names of respondent No,3 Haroon Rashid and respondent No,4 Ch. Muhammad Ayub is they had obtained first and second positions. Respondent No,5 Syed Maq,bool Hussairi Gilani, serving Head Constable of Police Department secured the third position. The first two were appointed while about the third it was decided that he would be adjusted when a vacancy occurred. On 3rd of June, 1990 eleven more Prosecuting Inspectors were appointed. They included the appellant as well; as respondents Nos. 5 to 9, Syed Maqbool Gilani, Syed Muhammad Yousaf Shah, Qazi Amin Muhammad, Muhammad Ayub Qadri and Raja Muhammad Shafique. The appointments were made on the basis of interview and their seniority was also fixed in the appointment order. The order of merit of the respondents is the same in which order the names of the respondents have been mentioned above while Raja Shaukat Mahmood was placed below them. Syed Maqbool Gilani, Syed Muhammad Yousaf Shah, Qazi Amin Muhammad and Raja Shaukat Mahmood were granted confirmation on 6th August, 1983 but it was to take effect from 16th July, 1984. Ch. Muhammad Ayub was confirmed on 17th September, 1984 with effect from the same date, namely, 16th July, 1984.
4. Haroon Rashid, Muhammad Ayub and Muhammad Shafique were confirmed from the same date through order issued on 23rd January, 1989. Thus, all the eight contesting Inspectors were confirmed on different dates but with effect from 16th July, 1984.
5. In order to challenge seniority fixed by the Inspector-General of Police the following points were raised before the Service Tribunal:--
(1) That seniority list was prepared without hearing although seniority is a vested right.
(2) While fixing seniority provisions of Chapter 12.2 of the Police Rules were totally ignored.
6. According to law seniority has to be fixed in accordance with efficiency, merit, and confirmation date and not on the basis of age as was done by the department.
(3) Confirmation has to be reckoned from the date on which the confirmation order was issued and not from retrospective date because confirmation cannot be given retrospective effect.
7. All these points have been repelled by the Service Tribunal. These points have been forcefully contended before us, with some variations by Mr. Abdul Rashid Abbasi, the learned counsel for the appellant.
8. During the arguments in the case a question arose whether the seniority of Police Officers shall be determined in light of the Civil Servants Act and the rules made thereunder or would be governed by the Police Act and the Police Rules. Arguments were advanced at some length by Ch. - Muhammad Ibrahim Zia, the learned counsel for respondents Haroon Rashid and Ch. Muhammad Ayub, that Azad Jammu and Kashmir Civil Servants Act and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, are applicable to Police Officers in all matters. He submitted that after the promulgation of the Azad Jammu and Kashmir Interim Constitution Act, 1974, by virtue of section 49 it was contemplated that there will be one law for all the services of the Azad Jammu and Kashmir and their terms and conditions shall be regulated by that single law and it was also provided that till a new law was framed all previous rules and orders in force before the commencement of the Constitution Act shall continue. He contended that when the Civil Servants Act came into force rules were framed from time to time to deal with the terms and conditions of service of civil servants the previous rules stood repealed to the extent of the subject-matter of the newly framed rules. He, therefore, contended that when Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 were framed to deal, inter alia, with question of seniority the provisions in the Police Rules laying down the principles of fixation of seniority stood repealed. Section 49 is as follows:-- "The Services.--- (I) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law.
9. 2 [(2) Until an Act of the Council in respect of persons in the service of of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an act of the Assembly in respect of such persons employed in connection with the affairs of the Government, make, provision for the matters referred to in subsection (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be, amended from time to time by the Council or, as the case may be, the Government 1"
10. The advantages which Ch. Muhammad Ibrahim Zia wanted to obtain for his clients from the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 was that since his clients were appointed in one batch ahead of the remaining contestants, by virtue of Rule 8 they would be senior to the other contestants who were selected in a later batch. The contentions raised by Ch. Muhammad Ibrahim Zia were owned by Mr. Farooq Hussain Kashmiri, who represented respondent No,7 Qazi Amin Muhammad, but Ch. Muhammad Abdul Aziz, the learned counsel for Secretary Home and Inspector-General of Police, and Mr. Nazir Hussain Kazmi, the learned counsel for respondent No, 5 Syed Maqbool Gilani, did not agree with him. The learned counsel for the appellant Mr. Abdul Rashid Abbasi also disagreed with Ch. Muhammad Ibrahim Zia on this point. Ch. Muhammad Ibrahim Zia dealt with this question at length but, as pointed out at the Bar, this question already stands resolved authoritatively by the Supreme Court of Pakistan as well as this Court. In case titled Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others (PLD 1985 SC 159), after an exhaustive survey of the case-law and in- depth study of relevant laws, it was concluded that Police AU, 1861 and the Police Rules must be regarded as a special law and their existence cannot be lost sight of while considering the applicability of the Civil Servants Act, 1974, enacted under Article 240 of the 1973 Constitution to the Police Officers of the subordinate ranks. It was further held that the rules framed under the Police Act, 1,861 could not be deemed to be those framed under subsection (2) of section 23 of the Civil Servants Act, 1974, by any stretch of imagination as they could not co-exist under two separate Acts but could only owe their origin to the Act under which they were framed. The learned Judges held that the Civil Servants Act is an Act of general application and it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the Police Force. It was further observed that the same was true about the Police Rules. Consequently it was laid down in clear terms that seniority of the Police Officers has to be determined by applying rule 12.2 of the Punjab Police Rules. The ratio laid down in Mushtaq Ahmad Warraich case was reiterated in Neimat Ali Goraya and 3 others v. Jaffar Abbas, Inspector/Sergeant Traffic through S.P. Traffic, Lahore and others (1996 PLC (C.S.) 878). In 1993 this Court also followed the principle laid down in Mushtaq Ahmad Warraichs' case in Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 2 others v. Sardar Muhammad Rafique Khan (1993 PLC (C.S.) 286) and held that to the matters dealt with in the Police Rules, Civil Servants Act and the rules made thereunder will not be applicable. Similarly it was also held by this Court in Muhammad Bashir Khan and another v. Inspector-General of Police and others (1993 SCR 241) that all Police Officers are "civil servants" within the meaning of Civil Servants Act and this Act is applicable to them in the matters which are not covered by the Police Act.
11. We follow the above ratio case and accordingly hold that seniority of the Police Officers of the subordinate ranks is to be determined by applying rule 12.2 of the Police Rules and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are not applicable to the matter of seniority. Earlier in 1992 this Court determined the seniority of upper subordinates of Police in light of Rule 12.2 (supra) in Khizar Mahmood Qureshi v. Azad Jammu and Kashmir Government and others (1992 SCR 223).
12. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, firstly contended that seniority was determined without hearing and should be struck down in view of the fact that seniority is -a vested right and the controversy should have been resolved after hearing all the parties. He pointed out that when tentative seniority list was issued and objections were called the appellant duly filed objections which made it all the more necessary that all interested persons should have been heard. In our view this argument does not have force. By issuing a tentative seniority list in conformity with the general practice all the concerned officers were made aware as to how the relevant authority was interpreting the rules in order to determine the inter se seniority. It is, thus, clear that nobody was taken by surprise. By inviting objections an opportunity was given to everyone who did not agree with the place assigned to him in the seniority list to come forward and present his view point. Thereafter, objections were duly considered and matter was finalised after taking into consideration all the points raised by the objectors. By fixing the seniority a punishment was not being inflicted so that it could be said that it violated the rule that nobody should be condemned unheard. The right of hearing was not granted to anyone, therefore, equal treatment was meted out to all the officers. It cannot even be said that a right was being taken away, because rights had yet to be determined. We may observe that fixation of seniority was an appealable order against which further appeal could be filed before the Service Tribunal. Yet another appeal, by leave of the Court, lies to this Court. Therefore, in our view, granting of personal hearing before finalizing the seniority list was not necessary.
13. It was then argued by the learned counsel for the appellant that while fixing the seniority rule 12.2 was violated. In order to properly appreciate the arguments and reasoning of Mr. Abdul Rashid Abbasi, it seems necessary first to reproduce the rules relating to fixation of seniority. The relevant provision is contained in rule 2 of Chapter 12 of the Police Rules which may be referred to as rule 12.2. The rule deals with the manner of seniority of Assistant Superintendent of Police, Deputy Superintendent of Police, upper subordinates and lower subordinates. The relevant portion of the rule relating to upper subordinates, which term includes Inspectors, is reproduced below:-- 12.2(3)........................Seniority, in the case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on 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 officers confirmed on the same date being that allotted to them on first appointment.
14. 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."
15. Mr. Abdul Rashid Abbasi, vehemently argued that rule 12.2 reproduced above does not contemplate that order of confirmation can be predated. He contended that rule 12.2 does not contemplate that confirmation can be given retrospective effect. He explained that the plain language of the above rule leads to the conclusion that when confirmation is ordered there will be only one date which will be the date of confirmation and it is not visualized that there will be two dates, one on which order is issued and the other from which it would take effect. The learned counsel supported his contention by adopting the reasoning that rule 12.2 makes provision of retrospective confirmation only in cases of those officers whose confirmation is delayed by reason of their being on deputation outside their range or district as is laid down in the proviso attached with the rule 12.2. Relying on the well-known principle that mention of one excludes the others, the learned counsel submitted that the case of Police Officer whose confirmation is delayed is the only category in which seniority can be given from a previous date.
16. Mr. Abdul Rashid Abbasi, also cited the case of Farman Ali and others v. Muhammad Ismail and another (1990 SCMR 1216) in support of his contention about predating of confirmation. It was held by the Supreme Court of Pakistan that no law existed whereby retrospective regularization of direct recruitments could be ordered by the executive authority. We have gone through the judgment.
17. The question involved in that case was of regularization and not of retrospective confirmation. The dispute arose because that two groups were recruited as Inspectors in the Baluchistan Police Department without observing the rules of recruitment. One group comprised the appellants before the Supreme Court while the Inspectors belonging to the other group were the respondents.
18. Services of group of respondents were regularised after they had passed the prescribed examination of the Public Service Commission while the appellants were never made to appear before the Public Service Commission but were absorbed in service. When the seniority list was issued the appellants were assigned higher places as compared to the respondents. The respondents filed appeal before the Service Tribunal which ordered that in the facts of the case the respondents were senior to the appellants. When the appellants filed appeal to the Supreme Court, the observations cited relied upon by the learned counsel for the appellants were made, namely, that no law existed whereby retrospective regularisation of direct recruits could be ordered by the executive authorities. In light of this observation the appellants' claim of seniority was repelled. This case, being of regularisation of illegally appointed Inspectors, has no application to the present dispute relating to seniority of validly appointed Inspectors.
19. Ch. Abdul Aziz, the learned counsel on behalf of the Secretary Home and Inspector-General of Police, vehemently opposed the contention of the learned counsel for the appellant that confirmation cannot be ordered from a previous date. He submitted that predating of confirmation and promotion is a settled practice in services. In this connection he cited judgment of this Court in Professor Doctor Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government and 4 others (1990 MLD 1283) which was a case of promotion under the Civil Servants Act. He also cited a judgment from the Punjab Service Tribunal reported as Muhammad Aslam.v. Inspector-General of Police Punjab, Lahore and 6 others (1975 PLC (C.S.T.) 48) in which it was held that despite there being no specific provision in the Police Rules the competent Authority can grant confirmation from a retrospective date. He also referred us to another judgment of the Punjab Service Tribunal reported as Khan Zia-ud-Din Khan v. I.-G.P. West Pakistan, Lahore and 3 others (1971 PLC (C.S.) 47) in which the Service Tribunal expressed the opinion that there was nothing in the language of rule 12.2 Punjab Police Rules to create an obstacle in the way of confirmation being ordered from the date of appointment, which is the usual practice, or even from an earlier date, in very exceptional cases.
20. On the concept of confirmation the view of Supreme Court of Pakistan is that confirmation is in the discretion of the employer, for, he alone can decide whether a person is fit in all respects for permanent retention. This view as expressed in Muhammad Naseem Ahmed and 18 others v. Miss Azra Feroz Bakht and 58 others (PLD 1968 SC 37). It was a case in which the seniority cases of more than three hundred Income-Tax Officers were involved. The case was decided by a five member Bench headed by A.R. Cornelius, C.J. Speaking for the Court, Hamoodur Rahman, J. summed up the conclusion on the question of predating of confirmation as follows: "This sufficiently indicates, as contended on behalf of the promotees that there is no rule or practice of general application with regard to confirmations and that Government has reserved to itself the right to determine how, when, in what manner and with effect from what date confirmations will be made. There is also no unreasonableness in this, for it is only the employer who can say when a probationer is to be considered to have become fit for permanent retention according to his requirements and until then the probationer can have no lien to or right of retention in the service. But all other conditions being fulfilled confirmation can and does in most cases relate back to the date of original indication into service."
21. The rule laid down above is of general application. Even for the upper subordinates of the Police Department there is no rule with regard to the date of confirmation. The right to determine how, when, in what manner and from what date confirmation will be made, is reserved for the competent c Authority. Of course the relevant competent Authority is bound to act fairly and judiciously while determining whether an upper subordinate is fit for permanent absorption and from what date his confirmation should take effect keeping in view all the relevant facts. The competent Authority cannot act arbitrarily so that valuable right of seniority suffers in the process of confirmation. However, the power to fix the date of confirmation has to be left, in absence of any rule to the contrary, in the discretion of the competent Authority. Respectfully following the ratio of the judgment in Muhammad Naseem Ahmed, case, the argument raised by Mr. Abdul Rashid Abbasi that confirmation has to take place from the date of order fails.
22. From the phraseol of rule 12.2, which has been reproduced above, it is clear that there are two occasions when seniority is reckoned. First stage relates to the time when an upper subordinate has been appointed but has not yet been confirmed. The rule of seniority for this stage is that it will be reckoned according to age in so far as those upper subordinates who have been appointed on the same date. The second stage comes after confirmation. The rule under reference lays down that seniority has to be fixed afresh after confirmation and seniority fixed in the first stage comes to an end. Seniority in the second stage begins from the date of confirmation. The rule is that if several upper subordinates are confirmed on the same date seniority will be reckoned according to the place allotted in the appointment order.
23. In the present case there are two appointment orders. One in respect of respondents Haroon Rashid and Ch. Muhammad Ayub. The order was issued on 14th September, 1980. It was clearly laid down in the order that Haroon Rashid had stood first in the written test and interview while Muhammad Ayub had obtained the second position. In the impugned seniority list these two officers have been given, amongst the contesting officerS, first and second positions respectively.
24. Respondent Ch. Muhammad Ayub as well as other respondents accept that respondent Haroon Rashid is senior to them. The other contesting officers were appointed on 3rd of June, 1981. The order of appointment clearly states that the names of the appointees were being assigned their respective places in order of seniority. In the final seniority list the names of the contesting officers are entered in the same order of seniority which was fixed in the appointment order. This clearly is in accordance with rule 12.2. Therefore, no valid exception can be taken to it. It has not been argued on behalf of the respondents but we cannot held observing that the appellant in spite of the fact that he was assigned seventh position in the seniority fixed in the appointment order, he does not seem to have protested against it.
25. The Service Tribunal, apart from deciding the case on merits, also held that the appellants' departmental appeal was barred by time by five days. The Tribunal observed that the appellant did not make any attempt to explain the delay. Before us, the learned counsel for the appellant explained by referring to some documents forming part of the paper book that the departmental appeal was within time from the date of knowledge. He explained that the final seniority list was issued on 6th May, 1996 and after going through different offices it reached the appellant on 13th May from which date the appeal was within time. The learned counsel for respondent Syed Maqbool Gilani, Mr. Syed Nazir Hussain Kazmi, pointed out that the documents referred to by the learned counsel for the appellant were notified in the Service Tribunal and they could not be filed now in accordance with the settled procedure. The learned counsel also contended that explanation which has now furnished about date of knowledge should have been incorporated in the memorandum of appeal filed in the Service Tribunal and not in this Court for the first time. He also pointed out that objection about limitation was raised in the written statement filed in the Service Tribunal but still no steps were taken to explain the delay. We find force in the contentions of Mr. Nazir Hussain Kazmi, but, since we have decided, as was done by the Service Tribunal, the case on merits, we leave the matter there.
26. As upshot of the foregoing conclusions, the appeal fails,