' The petitioners are 12 confirmed police constables who are posted in Khanewal under the control of Superintendent of Police, Khanewal. They were enlisted in the promotion list which is drawn by a Superintendent of Police under Chapter XIII which relates to promotions. They were so enlisted after an examination but when their names were forwarded for purposes of approval which is required under rule 13.7 of the Police Rules, 1934, the Deputy Inspector of Police annulled the entire examination result while holding that it was not properly held. Laxity was alleged to have been shown to some persons and, thus, the examination result was not a reflection of the merits of candidates.
2. Police Rule 13.1 makes mention of how promotion is to be made from one rank to another or from one Grade to another in the same rank. It envisages the preparation of six types of promotion lists which are called as list A, B, C, D, E and F. The purpose of regulating promotion amongst the enrolled police officials is given in Rule 13.1(2) in the following words: "(2) Under the present constitution of the police force no lower subordinate 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 in 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 training in the ranks of constable and head constable."
3. Lists A, B, C and I) are maintained in every District in accordance with rules 13.6(2) and 13.9 and the purpose of which is to regulate promotion to the selection grade constables and to the rank of head constables and Assistant Sub-Inspectors. Whereas, list 'E' is maintained in the office of the Deputy Inspector of Police and regulates the promotion to the rank of a Sub-Inspector. While List 'F' is to be maintained in the office of the Inspector-General of Police and regulates the promotion to the rank of an Inspector. According to Rule 13.1 an entry in or removal from the lists A, B, C, D or E is required to be recorded in a book as well as in the character roll of a police officer concerned. It says: "The lists are nominal rolls of those officers whose admission to them has been authorized. No actual selection shall be made without careful examination of character rolls". Thus, this Rule speaks of promotion not merely on the basis of seniority but by selection on a comparative study of service record.
4. Rule 13.7 relates to List B which is to be maintained in Form 13.7 provided under the rules. This list is to be divided into two parts:
(1) Selection Grade constables considered suitable as candidates for the Lower School Course at the Police Training School.
(2) Constables (selection or time-scale) considered suitable for drill and other special courses at the Police Training School.
' Selections are to be made from this list as vacancies accrue for purposes of admission to the course concerned at the Police Training School. However, list B has to have the approval of the D.I.- G. Of the Range. This rule makes the following provisions: "Ordinarily seniority in age shall be given prior consideration in making such selections, irrespective of the date of admission to the list, and care must be taken that a constable borne on the list is not before being selected. The restrictions on admission to the lower school course and Instructor's courses at the Police Training School limit the conditions for admission to List B. No constable shall be admitted to that list whose age is such that he cannot in the normal course be sent to the Training School before he attains the age of 33 years. No constable, who has failed to qualify at the Training School shall be re-admitted to the list unless the Superintendent and the Principal of the School are in agreement that he is deserving of another chance of qualifying in the courses, in the event of disagreement as to such a case the Deputy Inspector-General shall decide."
4. Subsequently after training the candidates who are considered eligible for promotion to the rank of Head Constables are enlisted in what is called as List 'C'. Rule 13.8-A does take an abbression from the policy of merits and the allowed promotion even otherwise. The relevant provisions of Rule 13.8(2) read as follows: "(2) Promotions to head constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List 'C' shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to head constable up to a minimum of ten per cent. Of vacancies."
5. The Deputy Inspector-General of Police, therefore, enjoys ample discretion in the matters of promotions to the rank of the head constable.
6. Examinations are held for providing a fair chance to the candidates and enable the authorities to induct them in the List B.
7. The first question for determination is whether the denotification of the names of the petitioners from List B through the cancellation of examination is covered under the proviso to section 4(1)(B) of the Punjab Service Tribunals Act, 1974 and thus includes the jurisdiction of the Punjab Service Tribunal and if that is so whether the petitioners can invoke the provisions of Article 199 of the Constitution without the fear that Article 212 comes in the way,
8. In the case of Ashfaq Ahmad Qureshi (1992 PLC (C.S.) 898) this Court was of the opinion that the jurisdiction of the Service Tribunal did not extend to the decision of departmental authority about the fitness of a person for promotion to a post.
9. This principle was applied in another decision of this Court against Writ. Petition No,2242 of 1990.
However, when the matter was challenged before the Hon'ble Supreme Court in Civil Appeals Nos,542 and 543 of 1992 the appeals were admitted to a regular hearing for examination and it was observed: "Leave to appeal was granted to examine whether the jurisdiction of the High Court was not'barred as the cancellation of examination on the ground that it was improperly held does not concern so much the individual's suitability/fitness of civil servant."
' Ultimately the following ratio decidendi was laid by the Hon'ble Supreme Court: "Prima facie, the above contention seems to be correct as the factum that the above respondents' names were included in List B-1, did not mean that they were found fit for promotion or to hold a particular post. The effect of inclusion of their names in List B-1 is that they become eligible for getting training in terms of the above two categories referred to hereinabove in para.
2. It is upon the successful completion of the training that they become entitled to be included in List 'C' for consideration for promotion as Head Constables when vacancies occur in terms of Rule 13.8 of the Rules. The question of fitness for promotion is to be decided at the. Stage when the name of a particular Constable, whose name is mentioned in List 'C' is considered for promotion. We are, therefore, of the view that the learned Judge in Chambers was not correct in holding that the inclusion of the above respondents' names in List B-1 or deletion of their names was a matter covered by clause (b) of subsection (1) of section 4 of the Act. However, we are of the view that the conclusion arrived at by the learned Judge in Chambers seems to be correct, as under subsection
(1) of section 4 of the Act, an aggrieved civil servant can file an appeal before the Service Tribunal against any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service. The act of denotifying the names of the above respondents from List B-l cannot be construed as a final order affecting the terms and conditions of the respondents' service, therefore, the appeal was not competent before the Service Tribunal."
' However, the Hon'ble Supreme Court was further of the view: "As regards the merits of the case, it has been admitted by the appellants that before denotifying the above respondents' names from List B-1, they were not issued any prior show-cause notice, nor they were heard, and thus, there was violation of the principle of audi alteram partem warranting setting aside the above order. Additionally, it was not the case of the appellants that for the lenient marking by the Examiner the above respondents were, in any way, responsible. No allegation was made against them for any alleged irregularity. We are, therefore, of the view that the judgment under appeal does not call for interference. The appeals are dismissed, but there will be no order as to costs."
' Therefore, the above is the latest law on the subject and has to be followed in connection with the deletion of names from the List B.
10. The learned counsel for the petitioners has argued that this writ petition should succeed because there has been violation of the rules of natural justice as well as the principle of locus poenitentiae.
11. The Deputy Inspector-General of Police has submitted his parawise comments/report and has stated that the examination for admission to List B-1 was held by the Superintendent of Police, Khanewal from 16-3-1998 to 18-3-1998. But as there were serious complaints of malpractice allegedly committed during the examination, he summoned the record and constituted a team comprising of upright officers for the re-checking of the papers. What he found may be reproduced below in his own words: "To my utter disappointment, during re-checking glaring irregularities were detected. For instance, one candidate was awarded excess marks than he deserved. As per list prepared by SP, Khanewal he obtained 198 marks out of 300, but during re-checking he secured 148 marks. Similarly difference of 49, 47, 42, 32, 26-1/2, 25-1/2 and 22-1/2 marks was detected in case of some other candidates (papers will be produced at the time of hearing), ' It is pertinent to mention here that one candidate's answer sheet contained almost copy of the answer as narrated in the prescribed books which revealed that he was freely allowed to copy from the relevant books.
' In view of above situation, answering respondent, in the interest of justice and fairness felt it expedient to cancel the examination held by Superintendent of Police, Khanewal and ordered for holding of re-examination so that deserving candidate may not be deprived of their right."
12. It is unfortunate to note that Khanewal is one place where repeatedly the list has been annulled on grounds of lexity in marking or otherwise. If a reference is needed this is Writ Petition No,3197 of 1997. Where this Court way back on 20-11-1997 in a similar case had quashed the orders of cancellation of the list. Although the facts of the writ petition were somewhat different because in that case the S.P. Had cancelled the list after having sent it to the D.I.-G. And having become functus officio himself. The reference is also being made to highlight the point that Khanawal is one place where these lists get cancelled off and on. Which means that the authorities have to take measures that this does not happen again and that the whole examination system for such inductions is not made a farce or a joke. Incidentally it may be mentioned that the Deputy Inspector of Police had not suggested as to what action he has taken against those who had brought the examination results to such disrepute.
13. Any way, the reply submitted by the D.I.-G. Of Police does not point out any malpractice attached to the result of these 12 petitioners. He had all the authority of disapproving the results of these about whom he had suspicion on the basis of the record as pointed out by him. But after hearing them. However, annulment of entire list without hearing the petitioners and when they were not even at fault was exceptional.
14. Rules of natural justice are, not foreign to our jurisprudence. When the Prophet (s.a.w.) himself appointed Hazrat Ali (r.t.u.) as the Qazi of Yaman, the advice which was given by the great Prophet (p.b.u.h.) to him was that he will not decide anything against anybody without hearing him.
Reference may also to be made in the famous case of R. v. Chancellor University of Cambridge Str.
537 where Dr. Bentley Fortescure, J. Had observed: "67. Besides, the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where are thou? Hast thou not eaten of the tree, whereof I commanded thee, that thou should not eat: And the same question was put to Eva also."
15. Therefore, on the ground simpliciter that the names of the petitioners were deleted from List B would bring their case under section 4(1-B) of the Punjab Civil Servants Act, 1974 and will not be enough for invocation of the Constitutional jurisdiction under Article 199. But if coupled with the deletion there had been a violation of the principle of audi alteram partem this Court shall have the jurisdiction.
16. Reference may be made to the case of Iftikhar Ahmad and others (1989 CLC 66), where it was held that once a right has been vested in a citizen the same cannot be withdrawn without hearing him.
17. In the case of Ghulam Mustafa v. Islamic Republic of Pakistan and another (1982 CLC 1665) it was held that where an order of declaring a person successful in an examination and directing him to report for training was recalled, it was held that the appointing authority was left with no power to recall the order for his training. It was further held on the question of the requirement of observance of rules in the interest of justice that these were to be observed by all functionaries when dealing with rights of persons whether proceedings be judicial, quasi-judicial or administrative.
18. In the case of Dr. Umar Ali v. N.-W.F.P. Province and two others (1984 PLC (C.S.) 1569) it was held that the Public Service Commission who had revised the merit list already prepared by it and had disturbed the previous position without notice to the selectees amounts to violation of principle of natural justice.
19. The constables have to wait for a long period for getting enlisted in the List B which becomes a stepping stone for them not only for purposes of training but also for promotion. And those of them who cannot benefit from the discretion of the D.I.-G. Of Police as envisaged in Rule 13.8 are only left with the choice of getting into the List B after sitting in an examination. The inclusion of their names in the list give rise to an expectation for promotion to higher grade and thus it creates vested rights in their favour.
20. The arguments of the learned counsel for the petitioners that the principle of locus poenitentiae shall apply to this case does not convince this Court because obviously the list was sent by the S.P.
To the D.I.-G. Who had to aprove it and who instead annulled it before approval. The ratio laid in the Writ Petition 31(A) of 1997 would not apply here as in that case the S.P. After sending the list had annulled it. The D.I.-G., therefore, as a controlling authority could review the list. However, he had no authority to pass any adverse orders through deletion of the list of the successful candidates even on grounds of corrupt results without affording them the opportunity of hearing and of explaining their conduct. It may be repeated for purpose of emphasis that the present petitioners were anyhow not blamed specifically in the parawise comments submitted to this Court by the D.I.-G.
And so their case was much better than their counterpart whose papers were found to be of a low standard.
21. The upshot of the discussion is that as in this case the principle of natural justice has been violated, this Court has the jurisdiction and as the examination result has been annulled without hearing the petitioners, it is declared to be of no consequence and is unsustainable in law as far as the petitioners are concerned. The writ petition, therefore, succeeds with no order as to costs.