JUSTICE (R) ABDUL HAFEEZ CHEEMA, CHAIRMAN.- Identical question of law emanating from similar facts is involved in Appeals Nos. 721/94, 1392/94, 1528/94, 1554/94, 60/95, 1074/96, 717/97, 1493/94, 1494/94, and 1352/94, 1456/94, 633/98, as such this judgment shall govern all these appeals.
2. This appeal by M, Saleem-ur-Rehman and 115 other Inspectors (Legal) posted at various Departments of Punjab, calls "in s dated 20.3.1992 and 20.9.1992 by the Inspector General of Police whereby the respondents Nos. 4 to I6 who were junior to the appellants were confirmed as Inspectors (Legal) with effect from 12.12.1987 and 30.8.1991. It also assails all consequential notifications of confirmation of the respondents Nos. 4 to I6 by the respective Deputy Inspector Generals of Police including notifications dated 28.9.1992 and 31.1.1993. They have also prayed for a declaration that all these orders and notifications may be held to have been issued illegally and with mala fide intention with a direction to respondent No. 3 to cancel/withdraw the same and fix the seniority of the appellants with the respondents according to their dates and orders of admission to .Promotion list-F. Quashment of impugned senior list and of the criterion laid down in letter dated 25.5.1994 by respondent No. 3 was also prayed.
3. Facts of the case which led the parties to this litigation briefly are set down hereunder: - Being convinced of the usefulness and importance of the report of the Police Commission (1969- 70) popularly known as Mitha Commission, President of Pakistan was pleased to issue directive No. 78 of 1983 for separation of prosecution agency from police and transfer of its control to the Law Department. Reasons for the transfer as spelt out in the summary dated 17.5.1983, submitted to the Governor, Punjab briefly were:-
(a) Prosecution is not a police function. Once it is taken away, there will be a more objective appraisal of the policeman's prime work of investigation and detection of crime, and its prevention.
(b) Objective appraisal of investigation will force investigating officers to raise their standard of investigation.
(c) By taking away this duty police investigation will become better and fairer; a big source of corruption and highhandedness will be cut off and justice will be ensured.
(d) It will eliminate an area of political and other undue pressures on the police.
(e) The present police prosecution system is unsatisfactory.
(f) Because of law pay and limited prospects for promotion the best material does not come to the prosecution branch and those who are in it are disgruntled, and indulge in dubious practices.
4. In order to complete the transfer of the control, in pursuance of the aforesaid directive, Government of the Punjab in the relevant Department invited options from the Police prosecutors as to whether they would prefer to remain in the Police Department or would like to go to Law Department. The appellants alongwith a sizeable number of their colleagues opted to remain prosectuors and desired to be transferred to the Law Department. Consequently 375 posts of prosecutors Inspectors and Prosecuting Sub-Inspector were surrendered to the Law Department.
The appellant hid by then been promoted as Pis i.e. Inspector (Legal) or varying dates and after probation had become eligible for confirmation as Inspector (Legal).
5. Consequently on transfer to Law Department they were notified as Assistant District Attorneys (ADA's) and posted at different places. This scheme of prosecution under Law Department continued for about 6/7 years. Subsequently the Inspector General of Police pleaded before the then Chief Minister that the Police had become totally ineffective due to lack of prosecution control and as such was unable to effectively control the incidence of crime. As a sequal to their effective pleading before the Chief Minister, the Police Department successfully retrieved the prosecution back to its control.
6. It is however, important to mention here that after the separation of prosecution from police and its placement under the administrative control of Law Department the police could manage to retain, what the Governor of Punjab called, a skeleton staff with them. This was composed of officers who did not like to part with the Police Department for the reasons better known to them.
7. On the reversal of the arrangement, options were once again invited by the authorities as to who would like to revert to or opt for Police Department or who would like to be absorbed in the existing set up under the Law Department.
8. The appellant and number of other officers who were essentially police prosecutors opted to rejoin their parent Department.
9. It is claimed by the appellants that they had opted for the Law Department in the first instance, in view of the scheme of things proposed by the Federal Government and not on their on violation and likewise their option to revert to the Police Department was mainly in public interest. As such their transfer to Law Department and their subsequent reversion to Police Department cannot be construed to be a transfer or reversion 'on their on request'. It was as a result of the organisation of the Department initially in pursuance of presidential directive and then by the orders of the Chief Minister. It was further pointed out that their lien with the Police Department Was intact as such on reversion to their parent Department they have automatically regained their original seniority. It was further submitted that their transfer from one* Department to the other was in public interest as a result of reorganization of the Department. The respondents Nos. 6 to I6 who were admittedly junior to the appellants have illegally declared senior and wrongly confirmed/promoted on the basis of an illegally prepared seniority list.
10. The respondents Nos. 1 to 3, on the one hand, and remaining on the other, through separate - objections/comments defended the appeal. It was claimed inter alia, that posts of the appellants and their colleagues, on their transfer to the Law Department, were abolished. On reversion to Police Department their appointments shall be deemed to be fresh and new ones, hence they shall be placed at the bottom of the seniority lists.
11. It was alleged by respondent No. 1 that in Police Department they were serving in BS-7 and 11 whereas on joining the Law Department they were in BS-16 thus they preferred to join Law Department for better service conditions.
12. It was however, conceded that all the PSIs/PIs who preferred to remain with Police Department had been given BS-14 alongwith executive police Inspectors with effect from 1.7.1985 and the posts of PI was redesignated as Inspector (Legal) by making amendment in the relevant police rules.
13. In this case main question/proposition for determination before us precisely is:- "Whether, in the given circumstances, transfer of the appellants and their colleagues to the Law Department on the basis of their options and subsequent reversion to their parent Department i.e. Police again on their option would be construed as a transfer 'on their on request' and with what consequence."
While hearing the arguments we took down detailed notes jotted down the references made by the learned counsel to various decisions of the Hon'ble Supreme Court and other superiors Courts.
14. Let us understand and appreciate the circumstances which necessitated this re-organisation of the two Department/shifting of the prosecution from one Department to the other. The first step in this regard was a meeting held on 6.7.1983 (Annexr:A) of Solicitor file No. I-PA 1983- 84). This was chaired by the Home Secretary and attended to by the following:-
(1) Secretary Law.
(2) Inspector General of .Police, Punjab.
(3) Secretary Finance.
(4) Additional Secretary (Regulation).
(5) Commissioner Lahore.
(6) Deputy Commissioner, Lahore.
(7) SSP Lahore.
(8) Solicitor to Punjab Government,
(9) District Attorney Lahore.
15. The Home Secretary briefed the participants about the proposed transfer of the control of prosecution from Home Department to- Law Department in pursuance of Presidential Directive No. 78 of 1983 and orders of the Governor of Punjab thereon.
16. After the deliberations, the following decisions were taken:-
(i) The scheme tor separation of prosecution from Police should be experimented in Lahore District without any delay. In any case this should be put into operation by 15.8.1983. '
(ii) The entire prosecution staff and the ancillary staff alongwith the PDSPs office Lahore will be placed under the control of the Law Department through Solicitor to the Punjab Government in their present pay w.e.f. 15.8.1983. AH this staff will be treated on deputation with the Law Department till further orders. For this purpose the IGP will furnish a complete list of the prosecution staff and the ancillary staff working at Lahore to the Home Department by 20.7.1983 so that a notification regarding transfer of the staff to the Law Department on deputation basis can be issued. The Law Department would advise about the mode of issuing such notification and the authority competent to do so.
(iii) The Prosecutors and the ancillary staff placed under the control of the Law Department will continue to perform their duties in the usual manner in uniform. Their related duties i.e. Service of processes, malkhana maintenance of record about disposal of cases etc. Will also remain unaffected. They will be subject to Supervision by the District Attorney under the overall control of the District Magistrate.
(iv) The IGP Punjab will take steps to create a Legal Advisory Cell in the office of DIG Lahore Range consisting of the DSP (Legal and two Inspectors (Legal) from out of the existing strength of PDSPs and Pis through internal adjustment.
(v) The working of the prosecution staff in Lahore District will be closely supervised by the Law Department directly and through the Solicitor and the District Attorney. The Law Department will put up a study report about the impact, response and results of this experiment after 6 months of its working.
(vi) All the departments/agencies concerned must complete necessary formalities in this connection by 1.8.1983 positively.
17. It was further decided that the question of obtaining options from the PSIs, Pis and PDSPs regarding their transfer under the Law Department in the event of full implementation of the scheme in the whole Province, should be pended till the results of the experiment undertaken in th^ Lahore District are duly examined and analysed.
18. Consequently while finally transferring the control of the Prosecution Agency through Notification No. CAB-III 2-41/87, dated 30.8.1983, it was, inter alia, clarified that the Governor of the Punjab is pleased to direct that with effect from 1.9.1983 services of the officers and member of the staff stood placed under the administrative control of Law Department to be exercised through the Solicitor to Government of the Punjab. The Governor was further pleased to direct that, for the time being:-
(i) The terms and conditions of the officers and staff shown in schedule shall remain the same as were applicable to them immediately before this notification.
(ii) the inter-se seniority of the officers and staff shown in schedule vis-a-vis the officers and staff working in the Prosecution Agency in the rest of the Province shall remain uneffected;
(iii) subject to the orders of the Law Secretary or the officer appointed by him as incharge of the Prosecution Agency, the officers and staff mentioned in Schedule shall continue to perform the same duties and in the same manner as was being done immediately before this notification;
(iv) the District Magistrate shall continue to have the same role subject to the control of Law Department in respect of the prosecution agency as was being performed by him under the law immediately before this notification;
19. After the decision in principle about the reversion of the prosecution, the Inspector General of Police submitted a summary to the Chief Minister for his approval, inter alia, with the following proposals regarding inter se seniority of the officers who would stage a comeback to the parent Department "Out of the existing posts in the Law Department eight posts of D.A. (Prosecuting SPs and 22 posts of DDA (PDSP) and 375 posts of ADA's (Pis and PSIs) transferred to La& Department on 20.3.1985 may be transferred back to the Police Department and the officers so transferred shall resume their inter se seniority as they were having on 1.3.1985 when Prosecuting Agency of the Police was placed under the control of Law Department.
Copy of the summary at Annex:B It further added the amendment in Chapter 27 of the Police Rules 1934 may be withdrawn and the chapter of the Prosecution restored to its original position As if no separation has taken place.
No financial implication are involved in the restoration of the agency. Budgetary grants tor the above posts transferred from Law Department will be diverted to the Police Department."
20. Likewise summary submitted by Home Secretary through Law Secretary and the Chief Secretary to which the Chief Minister was pleased to accord approval (Annex-C), inter alia envisaged:- "Since as per order of Chief Minister the orders regarding reversion of Prosecution Agency to the Police are to be implemented from the next financial year (1992-93) the same can be implemented if the posts of Inspectors (Legal) are filled by transfer of ADA's from the Law Department with the protection of their seniority. However, this can be done if such a provision is made in the existing Police Rules by way of amendment because in the absence of such a provision, the induction of ADAs on transfer as Inspector (Legal) cannot take place.
The proposed amendment was accordingly approved by the Chief Minister vide his orders minuted on 31.5.1992.
Annexure C
21. These two suggestions which were consequently approved by the Chief Minister would show and show clearly that this was not a case of an initial appointment. It was transfer from one Department to the administrative control of the other Department. And as put up by the Inspector General of Police in his summary (Annexure-B) to the Chief Minister, no financial implications were involved in this exercise because the Budgetory, grants of Law Department qua these officers were diverted to the Police Department. Even if the choices/options were invited from the concerned officers yet viewed in its real perspective these bulk transfers would indicate the wholesale transfers on the basis of a policy decision. The officers who could stay back with the Police Department after the transfer to Prosecution Agency were only minimal in number: It is noteworthy that when at the outset Police Department put up a proposal for creating a legal cell the Governor was pleased to remark:- "I feel that if you are going to provide a cell for each S.P. Then the whole purpose of the exercise will be defeated. However, I do not mind creation of skeleton cells at the level of District Headquarter and one for the I.G.P.
Working papers placed before Law Department Meeting in 1983 (4.12.1983) (Annexure-D).
When further pressed by the Police Department the Governor was pleased to remark:- "I have not quite understood why a legal cell is required in each S.P's office. However, I see rib harm in providing such a skeleton cell at the District level which can render advice in complicated cases only." . '
(7.6.1983 Governor's remarks on the summary submitted by Home Secretary)
Annexure E
22. This would indicate that the transfer of Prosecution from police to the Law Department was virtually in toto and only a few officers were retained in the police to provide/render advice in the complicated cases as desired by the Governor. So the option in this context cannot be stretched to mean an option to abandon one's department which can consequently deprive one of the benefit of ones post service which in some case may be more than a decade.
23. There indeed is sufficient weight in the submissions of the learned counsel for the appellants that had there been no indication from the Police Department that their seniority shall not be disturbed, they might not have exhibited/expressed their willingness to rejoin the Police. When it was' clearly committed by the; Inspector General of Police as well, as the Home Department in their summaries to the Chief' Minister that inter se seniority? Of the officers reverting to the parent Department would not be affected it now does not behove the respondent Department not to honour their unequivocal undertakings.
24. .A perusal of the record (File No. I-PA/1983-84) maintained in the Solicitor's Department/Law Department regarding the transfer and reversion of the prosecution agency would leave no doubt in one's mind that the officers could not satisfactorily settle down under the Law Department as there remained almost a perpetual conflict between the Police, the Law Department and the representative of the executive in the District i.e. Deputy Commissioner about the control of the prosecution at the district level, as such the prosecutors never felt at home with the Law .
Department. Till late Naib Courts, Malkhana and the process serving agency remained with the police. Their Reporting Officer was the Solicitor, transferring authority was the Law Secretary and within the District the Deputy Commissioner. They had to ensure/earn the pleasure of the Solicitor, Deputy Commissioner and that of the Law Secretary. This trichotomy of control led to the corruption as well as puzzled the prosecutors and so also resulted in inefficiency. Unhappy the police Department indeed was with the departure of the prosecution control, they however never extended fullest cooperation to their erstwhile employees. Obviously under these conditions they remained shaky and suffered with irresolution.
25. Positioned as they were they preferred to revert to the control of one master-the Police Department. They were neither confirmed in the Law Department expressly nor by implication. As such they held lien with their parent Department i.e. Police. It would be helpful here to refer to the decision of the Supreme Court in Mazhar Ali's case (1992 SCMR page 435). It is instructive to quote the relevant portion of the judgment regarding the termination of lien:- "the law applicable to such an admitted position of facts find mention in rules 3.13 to 3.17 of the Civil Service Rules Punjab Vol. I and fundamental rules 13.14 and 14-A. According to these the lien of a permanent civil servant cannot be terminated even with his consent. It can be terminated only when the civil servant is confirmed against some other permanent post."
26. It is noteworthy that the posts held by the transferees to the Law Department were still not permanent as such their lien continued with the Police Department. The entire exercise of transfer and reversion was not taken/initiated at their instance or tor their benefit. 1h fact administrative.
Exigencies called for the transfer of prosecution from police to the Law Department. It was in pursuance of the policy decision of the Government of Pakistan and that too at the level of President of Pakistan that their services had to be transferred to the Law Department in the first instance and then to the Police Department in view of the decisions of the Chief Minister of Government of the Punjab. It is therefore, obvious that all this was not substantially done at their initiation.
27. While discussing the duties of the authorities charged with maintaining and observing a disciplined force it was held by the lordships of Supreme Court in PLD 1985 SC page 195:- "The authorities charged with the duties of maintaining and overseeing a disciplined force have an abiding duty to hold out even-handed and fair treatment to all concerned. The passage of time and the turns of events may deprive a person of his right to seek redress but it cannot prevent the authority from granting relief unless the authority itself has taken an irreversible step, an action beyond recall. None can claim that when the government abolish a post the incumbent must necessarily be thrown out of service or continued in service on new terms and conditions"
28. It is equally instructive here to make a reference to a decision of this Tribunal in Mansoor-ul- Hassan's case (1972 PLC 180 CST) where almost an identical question was involved and the Tribunal held that the transfer was not on the basis of ones option/choice. Facts of the case briefly were that the appellant was appointed as an Overseer in the Public Health Engineering Circle of the Buildings and Roads Department of the Government of the Punjab. A new Department of Social Welfare Organization was created in 1957 and options were called for the posts in the organization from Overseers of the B and R Department. The appellant opted for the Social Welfare Organization.
He was however, not spared by the Department for transfer to the new organization. The Social Welfare Organization was merged enabloc with the Public Health Department on 1.8.1961. Options were called by the B&R department on 31.8.1962. Appellant again opted for Public Health Engineering but was not posted to that Department. Once again the options were called for after sometime for serving either of the two Departments i.e. Public Health Engineering Department or B & R Department. The appellant opted for Public Health Engineering Department but again was not allowed to join that Department. He represented to the Secretary Communications and Works Department but in-vain. However, on the advice of the S&GAD the appellant was accepted in Public Health Department on 16.10.70. Main contention of the appellant before the Tribunal was that he was entitled to count his past service and was entitled to seniority w.e.f, the date of joining service as Overseer in B&R Department. He therefore, sought a declaration that in this view of the situation he was senior to respondents Nos. 2 to 81 who joined service on later dates. Upholding the contention of the appellant the Tribunal held:- "We hold that the transfer of the appellant to the P.H. Engineering Department is the result of reorganization of the Social Welfare Organization and the P.H. Engineering Department. The principle of giving benefit of past service to persons transferred as a result of re-organization will apply in his case. He will be deemed to have joined the P.H. Engineering Department on 13.11.1952. As the date of appointment of all the respondents Nos. 2 to 181 is later than this, we declare him senior to them all. This order should be implemented. The appeal is accepted, and the parties are left to bear their on costs".
29. In almost an identical situation while resolving the issue of seniority the Federal Service Tribunal disposing of Appeal No. 14(R) of 1977 held:- "The seniority of civil servants is ordinarily determined by rules made by different Departments, in case, where selection is made on the recommendation of the Police Service Commission, the rule is that seniority assigned by the Commission is accepted irrespective of date of joining the job. In cases where the question is of fixation of seniority between direct recruits and the promoters, the rules differ from department to department on the basis of administration convenience. In some departments, direct recruits take seniority over promoters of the same year. In others, the case is vice versa. Still in some departments, the rules provide for the weightage for the promoters .And they take seniority over direct recruits of the year earlier to the year of promotion of the promoters.
2. The practice which is generally accepted and on which the appellant with confidence relies, is that in the absence of rules of seniority the date of joining the duty shall determine the seniority.
This practice has no statutory sanction behind it. It is based on equity and justice for any other practice is likely to offend the equitable placement in the cadre for seniority. But this practice not being based on any statutory document is not of universal application. If in a specific eventuality the practice offends the rules of equity and fair play, it cannot be adopted for then its very basis falls. The instant case is a peculiar example justifying departure from the rule inasmuch as if the said practice is followed, the seniority once enjoyed by the officers on the basis of position assigned by the Public Service Commission as Assistant Director will be upset. These officers have no vested right to the newly created posts of Assistant Chiefs. It is their selection as Assistant Directors made by the Public Service Commission which has given them right of appointment as Assistant Chiefs. The equity, justice and fair play demands that the previous seniority should be kept intact for otherwise grave injustice would be done to the officer who had stood higher in merit on the basis of original selection made by the Public Service Commission. Even the Civil Servants Act, 1973, which in the present case, is not applicable having been enacted after the cause of action accrued to the appellant, in ;section 8, does not specifically lay down that the seniority in the case of every appointment shall be determined from the date of appointment to the post in a grade. In sub-sections (2) and (3), the seniority is to be regulated by the rules that may be prescribed, but in sub-section (4) it is provided that on promotion, a civil servant shall take seniority from the date of regular appointment to a post in the grade. Since in this particular case no rules have been prescribed, the seniority has to be determined on the principle which I have just discussed above.
30. Equity, justice and fair play demand that in the given situation the previous service of the appellants should be kept intact otherwise grave injustice would be done to them. Reference in this behalf may be made to 1983 PLC (CS) page 872. (Appeal No. 14(R) of 1977).
31. In Muhammad Saleem Sadiq's case (1974 PLC-II CST) it was held that on creation of new region when staff was drawn from various offices by transfer in public interest, benefit of past service cannot be denied and the seniority shall be determined with reference to continuous officiation in a particular grade. Although the point stands established in the light of decisions of our on Superior Courts nevertheless reference to a decision of Indian jurisdiction would not be out of place here:- "In Om Parkash Sharma v. Union of India (AIR 1985 SC page 1276), the facts were almost similar. A Department in the railways with common seniority list was trifurcated on 1.9.1956 and separate seniority lists were drawn for each Department. One of them got merged with a fourth department resulting in accelerated promotion to some of persons. However on 1.8.1979 (after 23 years) all the three departments originally trifurcated were reamalgamated and a common seniority list was redrawn in which the person who had got the accelerated promotion were shown senior. It was struck down by the Supreme Court holding that in such a situation status quo ante has to be restored in the seniority list.
32. Reference at this stage to Memo. No. SO(XII) (S&GAD)2-39- 62, dated 7.9.1962 appears to be quite apt. It reads:- "I am directed to say that government has decided that the seniority of officials who are transferred from .One group/cadre to another should be determined in the manner indicated below:-
(a) If the transfer from one cadre to another is in the exigencies of public service, the Government servant should be considered to be bn deputation from the original group cadre.
(b) In case of persons who want to change their domicile and to a different group cadre on their on request, the Government servant concerned should get the lowest position in the cadre to which he seeks the transfer".
33. Appellant's case is that this issue can be resolved by pressing into service condition at (a) above. Thrust of their argument was that policy of separation was given by the Federal Government, and was implemented by and under the orders of the Governor of Punjab during martial law days. They had no part in formulating this policy. Although they had opted for law because having been recruited as 'prosecutors' they had to prefer their on line of working. Being advisor to executive officers in the Police offer was not in keeping with line with their disposition as prosecutors. As such they cannot be penalized by depriving them of their past service. Since they never initiated this scheme, by mere exercising their option to remain on prosecution side they cannot be held to have abandoned their earlier service and changed their domicile as envisaged by (b) above. It was further argued that this exercise was substantially at the behest of the Rulers and was in the exigencies of public service.
34. It is not well-settled that the best rule of interpretation of a statute or a decision of any authority is to look into the purpose of a law for which it was enacted/made. This is what is called "purposive approach" as maintained by Lord Denning, Master of Rolls of England in his Book "Discipline of Law" at pages 13 and 15. It would be instructive to briefly quote the exact wordings of his lordship:- "We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filing in the gaps and making sense of the enactment than by opening it up to destructive analysis,"
"The Courts should, in our view, approach legislation determined, above all, to give effect to the intention of Parliament".
35. In the light of this principle if we look at the minutes of various meeting's referred to above, the summaries put up by the Law Department, Home-Department and Police Department to the Governor at the initial stage of the transfer of prosecution and then on its reversion to the police it would make it manifestly clear as to what wa& the intention of the Government.
36. In view of the above discussion we entertain absolutely no hesitation in accepting the appeal and setting aside the impugned orders. We further direct the respondent Department to reframe seniority list of all the officers reverted to the police as if no transfer to Law Department had taken place. We however, leave the parties to bear their on costs. 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.