MALIK MUHAMMAD ASLAM KHAN (CHAIRMAN.)-Through this appeal, Syed Muhammad Yousaf Shah, Asstt. Sub-Inspector Reserve Police, has mainly challenged order dated 30-7-1974 (copy Annexure) passed by the then D.
1. G. placing the appellant in the seniority list of the Head constables Reserve at S. No. 13. The claim of the appellant is that as he had been selected and placed in 'D' list long before the impugned order he should have been placed at the top of the seniority list and promoted accordingly.
It is a common ground between the parties that the 'D' list was prepared by the then Inspector General Police (Syed Bashir Hussain Gilani) on 3-7-67 (copy Annex. A) vide Order Book No. 236. In this list the appellant, order of seniority and eligibility for further promotion, was placed at S. No. 10.
Then in the year 1970, another IGP Sahibzada Raoof Ali Khan) after hearing certain objections and interviewing the concerned Head Constables Reserve, prepared another 'D' list with slight modifications placing the appellant at S. No 11 instead at S. No. 10. This 'D' list had been acted upon and accordingly all the Senior Head Constables mentioned in the `D' list, except Guldad Khan, Aman Ullah and the appellant, had been promoted a. A. S. Is. But in complete disregard of both the 'D' lists, it is alleged the then D. I. G. Police (Ch. Fazal Hussain) prepared a seniority list copy Annex. E) placing the appellant in the order of seniority at S. No. 13. This list accord--ing to the appellant, is against Police Act, Rules and without authority, seriously affecting the seniority and the chances of the promotion of the appellant, who now, after the promotion of other Head Constables placed above him in list 'D' occupies third place in the 'D' list and is to be promoted on this very basis. But because of the preparation of seniority list (Annex. E) respondents 1 to 12 have been made senior to him and three of them, Abdul Haleem, Mohd. Ibrahim Khan and Amir Hussain, have been promoted as S. Is on the basis of seniority list (Annex. E). He, therefore, challenged the order of promotion of these three S. Is. as well.
The appellant, later on, gave up his appeal against Shahadit Khan respondent and Amir Hussain respondent who are no longer in service, Except respondents 1 to 3, and 6 ex parte proceedings were taken against the other respondents, who did not appear though duly served.
2. The main stand of the contesting respondent-employees is that both the 'D' lists had no legal justification or base as the Reserve Police does not require the preparation of 'A', 'B', 'C' or 'D' or any other list and that the promotion of the Reserve personnel is to be based, qua Head Constables, on the seniority list to be prepared on the basis of the date of their confirmation. It is, therefore, contended that seniority list prepared by the DIG (Annex E) was correctly and properly prepared and the two 'D' lists 'being against rules, could hot be made the basis of further promotions and that the appellant was rightly placed at S. No. 13 in the impugned list. Respondents Nos. I and 2 though have not directly challenged the legality of lists `D', have none--theless supported the contention of the other respondents that the basis of promotion and the preparation of impugned list was correct.
3. We have heard the learned counsel of the parties and gone through the relevant record as well.
We find to force in the plea of the learned counsel for the contesting respondents that list 'D' under rules was meant to be prepared only for the field and other police branches and not for the Reserve. The learned counsel could not show any rule which restricted the preparation of the 'D' list to the exclusion of the Reserve Police. Rule 9 Chapter 13 of the Police Rules Which have been adopted in Azad Kashmir does not make any such distinction. The rule reads as under: "13-9. List D. Promotion to Assistant Sub-Inspectors.-(I) A list shall be maintained in each district in card index Form 13.9 (1) of those Head Constables who have passed the lower school course and the intermediate school course at the Police Training School and are approved by the Deputy Inspector-General as eligible for officiating or substantive promotion to the rank of assistant Sub- inspector. No Head Constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a Constable and Head Constable and of established integrity.
(2) Officiating promotion to the rank of Assistant Sub-Inspector shall be made from the list prescribed in sub rule (1), as far as possible in rotation so as to give each than a trial in the duties of the higher rank. Substantive promotion shall be made by the -Deputy Inspector --General in accordance with the principles described in rule 13.1, and officiating promotion shall be made in accordance with sub-rule 13.4 (2).
(3) Half-yearly reports in Form 13.9 (3) on all Head Constables in this list shall be furnished on the 15th March and the 15th September to the Deputy Inspector-General."
The distinction that this rule does not apply to reserve personnel, is sought to be made en the ground that prior to 7-8-72 the Reserve Police was a temporary organisation and as such it was not covered by the Police Rules It is conceded that there were h$ separate rules for the Reserve Police and that the Reserve Police is part and parcel of the Police Department. In view, of this fact the distinction sought to be made is untenable and we hold that the Reserve branch of the Police is as much governed by the Police Rules as other branches of the police department. Because no separate Rules have A been made for the Reserve branch and it being part and parcel of the police department and functioning under the same head, the Police Act and the Rules made thereunder are applicable to it. The 'D' lists are therefore, held to be properly made.
4. Another argument advanced is that even under rule 13.9 of Police Rules, the appellant and others could not be included in the 'D' list as they had not passed the lower school and the Intermediate school courses which is a prerequisite condition for inclusion in `D' list. This objection has been properly met by the learned counsel for the appellant who has shown that the Azad Government had relaxed this condition in the year 1969 vide notifi--cation dated 15-4-1969 (copy Annex. B(1) by which the Director of Police B (I: G. P, as he was called then) was authorised to relax this condition for the Constables for admission to list 'D' in suitable cases. As the second 'D' list was prepared on 17-9-1970, the I.-G. P. had the due authority at that time of relaxing the condition of passing the required school courses for the Constables for admission in list 'D'. This objection is, therefore, overruled.
5. Another plea taken by most of the respondents is that the two 'D' lists were prepared to help some favourites: This is without any substance and we reject it. The first `D' list was prepared on 3- 7-67. Annexure `A' contains cogent reasons for its preparation the main reason being that there was no list which could be made the basis for promotion in the Reserve Police causing difficulties when the post of an A. S. I. had to be filled in the then I G. P. constituted a board comprising the S. S. P. and S. P. Reserve. A. I. G. Hqs. and three Inspectors. It may be stated as well that Ch. Fazal Hussain D. I: G. was a member of that board in the capacity of S. S. P. at that time, the board interviewed 22 Head Constables of the Reserve Police and forwarded its recommendations to the I. G. P. The I G. P. on the basis of these recommendations of the board placed the appellant at S. No. 10 in `D' list. The second `D' list was prepared by another I.-G. P. on 17-7-1970. The order shows that the 1. G. P. had interviewed, all the incumbents involved, in his orderly room and heard the objections of the concerned. It was after due interview and hearing of the objections that the final seniority `D' list of Head Constables of the Reserve was framed. In this list the appellant was placed at S. No. 11. Thus we find no substance in the objection of some of the respondents that the `D' list was not properly framed or were framed for helping some of the favourite constables, 1t rather appears to us that the `D' lists were framed after proper interview and regard for other service record etc. for meeting an actual difficulty being faced by the department in the matter of promotions. In view of this we find ample force in the argument of the learned counsel for the appellant that there was no proper justification for upsetting these lists meticulously prepared by the two L-Gs. P. by preparation of the impugned seniority list by a D. I.-G. who was member of the board when the first `D' list was prepared. The question Oat stared in the face of the respondents and which they could not answer reason--ably, is as to how could a D. I. G. upset the `D' list duly prepared by tile two I. G. Ps. at different times.
The learned counsel has also challenged the authority of the D. L-G. for making such lists and passing promotion orders. He has referred to Section 4 of the Police Act according to which the administration of the Police through--out a general Police District vests in the I. G. P. According to him, the D. I. G. gets these powers only when the Government invests the D. I.-G. with such powers of administration which has not been done in Azad Kashmir. To meet this objection the learned counsel for the contesting respondents has sought the help of Rules of Business under which the D.
I.-G. has been placed in the list of officers of Category-11. He has als6 referred to one of our decisions "Ghulam Ahmad v. D. I. G. and others" Appeal No. 15 of 1975. This decision is distinguishable as it relates to the powers of the D. L-G. in matter of promotion of police ministerial staff. Since no separate Rules for such promotions had been made or adopted in Azad Kashmir, we hold that Rules of Business could cover the order of promotion passed by the D. L-G. concerning ministerial staff. But in the instant appeal the case is covered by the Police Act, and the Police Rules as adopted by the Govern--ment. It is elementary that in the presence of a Special Act (like the Police Act) and the Special Rules (like the Police Rules) rules of general nature for running the business of the Govt. (like the Rules of Business) are not applicable. Therefore we repel the contention that the Rules of Business cover the case before us. However, as the case is being decided on the `D' list which remains un-effected by the seniority list prepared by the D. I: G. we leave this point for I.-G. P. to consider and take necessary action. Seven assuming that the D. I.-G. had the powers to pass orders of impugned promotions, he could not ignore the `D' list. The promotions of the A. S. 1 could be made only out of the `D' list in order of seniority mentioned therein.
6. On behalf of the Police Department it was also stated in the objections that the `D' lists had been cancelled later on. Though this point was not argued, we asked the learned counsel for the respondents and Registrar Central Police Office to produce such a record if they had any. But they could not produce such a record though sufficient time was given to them even after the hearing of the arguments. Therefore, we find that this objection also stands unsubstantiated.
7. Another point taken up, though Luke warmly, by the learned counsel for the respondents, was that the Govt. Notification authorising the I.-G. P. to relax the condition of passing the Intermediate School Course for inclusion in `D' list was only meant for regular force and not for Reserve. On this basis the argument developed is that as the appellant had not passed the requisite course, the I.- G. P. could not enter his name in list `D'. After going through the Govt, Notification we find that it was a general order without airy distinction and as such the 1.-G. P. was well within his powers to relax the condition of passing the Intermediate School Course even in case of the Personnel of Reserve.
In fact this very 'D' list has been acted upon so far as other personnel are concerned.
8. Another objection taken by most of the, respondent is that they were rightly placed above the, appellant in the seniority list as they had entered the Reserve Police service earlier than the appellant. There is no doubt that if we take into consideration the date of confirmation as Head Constable, the appellant falls in order of seniority at S. No. 13. It is on this basis that the impugned list (Annex. E) has been prepared. But this ignores the fact that the list `D' is to be made in accordance with principles laid down in rule 13-1. According to this rule the promotions from one rank to another and from one grade to another in the same rank are to be made by selection tempered by seniority, efficiency and honesty and specific qualific--ations. These are the main factors and not the seniority alone in preparation of `D' list. Thus in the preparation of `D' list date of confirmation as a Head Constable is not and could not be the main consideration. Sub-rule (2) of rule 13-1, explains the reasons for considering efficiency etc. as under: "(2) Under the present constitution of the Police force no lower subordi--nate will ordinarily be entrusted with the independent conduct of investigations or the independent charge of a Police Station or similar unit. It is necessary therefore, that well educated Constables, having the attributes necessary for bearing the responsibilities of upper subordinate rank, should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for, and been tested and given practical in the ranks of Constable and Head Constable."
Therefore, the stand of the respondent-employees that since they had entered the service and promoted Head Constables earlier than the appellant, their promotion in preference to the appellant is justified, is against the very basic philosophy of the promotion of Police personnel and the preparation of different lists. This is a very sound principle, because the police personnel who enjoy vast powers in matters of law and order should be selected, primarily, for the responsibility of the upper-subordinate ranks, on the basis of efficiency, honesty and other specific qualifications, seniority simpliciter being not the main factor. The appellant is an M. A. while most of the respondent-employees are either middle pass or matriculates. From this angle too the appellant has an edge on other respondent-employees once the `D' list was duly prepared, the promotion to the posts of A. S. Is. should have been made on the basis of 'D' list and not on the basis of the impugned seniority list so as to ignore the rightful place of the appellant. It seems that because of the preparation of the impugned seniority list the rights of the appellant and two others included in the 'D' list have been seriously jeopardised. It is more so when we find that those persons who were not in the 'D' list have been made senior in the rank of A. S. Is. and then on this basis three of them promoted as S. Is. as well. It is true that later on the appellant was also promoted as A. S. I. but it has affected his seniority and further chances of prior promotion vis-a-vis respondent-employees.
We, therefore, accept the appeal and order that the appellant's promotion as A. S. 1. be effected on the basis of 'D' list prepared in the year 1970. After this, for purposes of further promotion to the post of S. I. list 'E' be prepared under rules and promotions affected in accordance therewith. We also hold that the order contained in O.
13. No. 1:8o-90 dated 8-2-75 Annexure H/ 1) is ineffective so far as the rights of the appellant's promotion or seniority are concerned. In view of the complex legal points involved in this appeal we leave the parties to bear their own costs.