1. ' ABDUL RASHEED MEMON (MEMBER-II).---The appellant has in this appeal agitated action of Government by removing him from service from the post of Assistant Sub-Inspector of Police.
2. ' The appellant has stated that in pursuance to advertisement in newspapers dated 1-10-1994 he being qualified and eligible for the said post applied through application dated 10-10-1994. Written test was held in which the appellant participated and was declared successful. Subsequently viva was held on 10-10-1995 and the Selection Committee consisting of the Deputy Inspector-General of Police Sukkur Division, S.S.P. Naushahro Feroze and S.S.P. Nawabshah interviewed him.
3. ' The appellant was selected by the Departmental Selection Committee and in pursuance of such selection he was issued offer letter, dated 19-12-1995 which was followed by the appointment letter, dated 9-1-1996.
4. ' The appellant after appointment as Assistant Sub-Inspector of Police was sent ion training to Shandadpur Training School, and successfully completed the training course of one year and was issued such certificate. Thereafter, appellant was required to undergo Courses 'A', B' and 'C' which he also completed successfully and was called upon to undergo practical training as 'D' course.
5. While he was still undergoing practical training in 'D' Course he was issued show-cause notice dated 28-3-1998 by the respondent No,1 calling upon the appellant to show-cause as to why his services should not be terminated as his appointment was made in complete violation of method of appointment prescribed by the Civil Servants Act, 1973 and Rules made thereunder and without observing the formalities as laid down by the Supreme Court of Pakistan in Human Rights Case No,104 of 1992. Appellant submitted a reply to the show-cause notice, but without looking into it and exercising judicious mind as a departmental authority the services of the appellant were terminated vide order, dated 15-6-1998. The appellant filed departmental appeal before the respondent No,2 but the respondent No,2 has dismissed the departmental appeal arbitrarily and capriciously vide order, dated 12-8-1998.
6. ' The appellant has thus preferred the present appeal under section 4 before this Tribunal. The appellant has prayed as under:-
(i) To set aside and quash both the orders dated 15-6-1998 and 12-8-1998 and to reinstate in service;
(ii) Any other relief be granted as may be deemed fit and proper in the circumstances of the case.
(iii) Cost of the appeal.
7. ' Appellant has stated that both impugned orders, dated 15-6-1998 and 12-8-1998 passed by the respondents Nos.1 and 2 are against the facts, law, equity, evidence and justice.
8. ' The appellant has been victimized on account of policy made by the Federal Government to remove the employees from service, who were appointed by the regime of Pakistan Peoples Party.
9. ' The respondents by way of issuance of show-cause notice constructing superstructure thereon in the shape of impugned orders has carried out formality as an eye wash and has not applied their judicial mind over the facts of the case.
10. ' That based on the ground that appointment was in violation of the provisions of Sindh and Civil Servants Act and the Rules made thereunder and in violation of the Hon'ble Supreme Court judgment, however, police force is a special discipline force and their appointment and termination will be governed by the provisions of Police Act and Rules framed thereunder.
11. ' Since very show-cause notice has no legal foundation therefore, the superstructue contstructed thereon in the shape of termination order falls to the grounds.
12. ' The Human Rights case mentioned in the show-cause notice makes it compulsory to adopt the prescribed procedure before making the appointment. Vacancies should be advertised and appointments should be made in accordance with prescribed procedure through the Departmental Selection Committees on regular basis.
13. ' The termination from service of the appellant was not in consonance with the allegations in the show-cause notice.
14. ' The respondents cannot cancel the order of appointment in this manner as the same is not covered by the Police Act and Rules framed thereunder.
15. ' Under the principle of locus poenitenciae the appointment made in favour of the appellant in the year 1995 cannot be taken back or withdrawn in the year 1998 when the same had been acted upon and had conferred vested and legal rights in favour of the appellant.
16. ' That the services of the appellant cannot be terminated in any manner except by resorting to the Sindh Police (Efficiency and Discipline) Rules, 1988. The allegations against the appellant for which he has not been given any opportunity of personal hearing and that there was no misconduct on his part.
17. ' The advocate of the appellant while arguing his case relied upon the following rulings of various Courts.
(1) 1996 PLC (C.S.) 801 Yousaf Ali v. Government of Punjab and others.
18. ' Constitution of Pakistan, 1973.
19. ' Art.199---Service matter---Petitioner was appointed as PTC teacher against existing vacancy, later on order of appointment cancelled by authority as not covered by merit policy laid down by Government-challenged to--Held: It is not the case of the respondent that the appointment was secured by playing some fraud upon Selection Committee---The Recruitment Committee while making selection was obliged to keep in view the selection criteria and if it failed to do so and issued appointment order in pursuance of which petitioner had joined duty was performing same without any misconduct on his part, he could not be removed from service except in accordance with Efficiency and Discipline Rules, 1975---Held: Impugned order was not sustainable in law without lawful authority and jurisdiction which is rescinded as such.
(2) 1996 SCMR (1352) para.6. Director Social Welfare N.-W.F.P. Peshawar v. Sadullah Khan ' It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated iris services due to irregularity and violation of rule 10(2) (ibid). The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the service of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent.
(3) 1985 PLC (C.S.) 136 para.7. Syed Afzal Hussain Naqvi v. The Government of Punjab through Director Manpower and Training Punjab and others.
20. ' ............... Now the only question which requires consideration is whether the right which had accrued to the appellant by virtue of the selection and the appointment in the year 1979, can be taken back in the year, 1982. Now it is almost settled if an appointment has been made and it remained operative, then the rights which accrued to a particular Civil Servant cannot be taken back from him merely because the Departmental Authorities concerned had omitted to perform their duties which were cast upon them under the particular rules. Therefore, the appointment which has been made by the competent authority cannot be allowed to vitiate due to omission on the part of the Departmental Authorities concerned. Obviously, the appellant was not at fault in this matter as he made a clean breast to declare his correct qualification at the time of his selection.
(4) PLD 1985 Supreme Court 159 I.-G. Police Ps. v. Mushtaq Ahmad Warrich.
21. ' The Civil Servants Act is an Act of general application and as earlier said it has no Constitutional status. Accordingly, 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. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the Rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose."
22. "In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeat of the earlier Special Act by the later general Act without particular intention of implied repeal merely by the use of general words. As held earlier there is not an express repeal of the Police Act and the Rules by the Provincial Assembly while enacting Civil Servants Act, 1974 nor there is any Constitutional exclusion of the Police Act and the Rules from their application to the officers of the subordinate ranks of the Police force. The substance of the provisions of the Civil Servants Act which are of general application also do not give any indication to the contrary by the force of the general words used."
23. "From the above discussion it is clear that the Special law will prevail over the later law of general application. Therefore, rule.
24. 12.2 of the Punjab Police Rules, 1934, will provide the criterion for determining the seniority of the subordinate ranks of the Police force as from the dates of their confirmation and not from the dates of continuous. Appointment in the grade as laid down in rule 8(1)(b) of the Punjab Civil.
25. Servant (Appointment and Conditions of Service), Rules, 1974 read with section 7(2) of the Punjab Civil Servants Act, 1974. As the date of confirmation of respondents Mushtaq Ahmad Warraich and Arshad Hussain as Inspectors was earlier to the dates of the continuous appointment of respondents, Iqbal Akbar, Muhammad Tahir All in the grade of Inspectors, they were, accordingly, senior to them and could not be overlooked for promotion merely because of their 'low' placement in the seniority according to the wrong principle applied in determining it. I further hold that the Rules deemed to be the Rules under section 23(2) of the Punjab Civil Servants Act, 1974, do not include the police rules framed under sections and 46(2) of the Police Act, 1861. In this view of the matter, the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, was not competent to determine the seniority of the Police officers of the subordinate ranks muchless to hold that they were not entitled for promotion as they were placed 'low' in the seniority list. The reason being that these rules would not be applicable to the Police force and as such their cases could not be competently referred for determining their eligibility for promotion to the rank of Deputy Superintendent of Police. In this connection I may point out that the Punjab Service Tribunal was correct in holding that the advice first given by the Law Department to the Government of the Punjab was correct, that is, that the special law continued to govern the Police force and that it was not repealed by the Punjab Civil Servants Act, 1974, by implication."
26. 1999 PLC (C.S.) 1160 Chairman, Minimum Wages Board, Peshawar v. Fayyaz Khan Khattak.
27. "The learned Judges have also rightly observed that the petitioners could not approbate and reprobate in the same breath about the same matter and that having already and clearly taken up the plea that the respondent's services stood regularized, they could not put forward before the learned Division Bench the plea that he was ad hoc temporary employee whose services could be terminated with a stroke of pen. The same contention has been reiterated before us but we fully agree with the views of the High Court and both the Courts."
28. ' In nutshell the plea was that an appointment having been made under the rules and following formalities laid down by the rules the same could not be treated to have been made in violation of laws, by use of political pressure or without completion of formalities as laid down by the Hon'ble Supreme Court in the Human Rights' case. It was also pleaded that the appointment was made under the Punjab Police Act and the Rules made thereunder and that subsequent action was initiated under the. Sindh Civil Servants Act and not under Police Force (E&D) Rules; as there was no charge against the appellant. Admittedly the plea was that the show-cause notice was not properly worded and that it differs in contents with the termination order in material facts. Thus, officers who had made the selection were also guilty of misconduct by not acting according to law and the order of termination was an afterthought and not commensurate with the allegations given in the show-cause notice.
29. ' It was also alleged that the termination order was passed during probation and without resorting the Sindh Police Rules. As such the action was mala fide and without any lawful basis.
30. The respondents in their written statement have stated that the appellant was not qualified and was overage as stated in the termination order and that normally he would not have been selected in the force but it was due to political pressure that these things had to be ignored due to political pressure. It has been stated that as per advertisement for the post of A.S.-I. Of Police minimum qualification was Intermediate 'C' Grade whereas the appellant was in 'D' Grade. The age required under the Rules for the post of A.S.-I. Was 18 to 28 on the date of advertisement; but the appellant did not fulfil the above mandatory condition also as his date of birth being 16-4-1964 and an the date of advertisement his age was 30 years, 5 months and 7 days. Hence he was overage and not entitled for the post of A.S.-I. Being recommended of the then Prime Minister of Pakistan as well as of MNA and Federal Minister Syed Khursheed Ahmed Shah, as is evident at Annexure 'A', he got himself appointed as A.S.-I. Without passing the examination and declaration of the result. As per sub-rule (2) of Police Rule 12 all direct appointments to NGO ranks were made on the consideration of the recommendations of a Selection Board to be constituted in accordance with the orders of the Inspector-General of Police Sindh. In the case of the appellant it is alleged that the appellant failed in written test as well as in viva voce tests held. By the Selection Board constituted as per Police Rules 12.5. Due to the Political pressure at the highest level, the appellant was ordered to be appointed as A.S.-I. Police without announcement of the final result of the test. Appellant was contacted after about ten months of the date of advertisement which was fixed as 23-10-1994 i,e, on 27-8-1995. They have as such taken the position that the appointment of the appellant as A.S.-I.
31. Of Police was on political influence, in violation of Sindh Civil Servants Act, 1973 and the Rules framed thereunder and also in complete disregard of Police Act, Rules and without observing formalities as laid down by the Supreme Court in its judgment of Full. Bench in Civil Appeal No, 228 of 1989 reported in 1993 SCMR 1287 and in judgment of Human Rights Case No, 104 of 1992 dated 6- 3-1993.
32. ' While contesting the allegations of the appellant that his termination was mala fide or influenced it has been alleged that services of the appellant were rightly terminated as he failed to fulfil the basic requirements under rules i,e, he was under qualified and overage. In support this contention A.A.-G. For official respondents has relied on the following citation:--
(i) 1998 PLC (C.S.) page 450-452 Jameel Ahmad v. Deputy Commissioner Bahawalpur and 2 others in Writ Petition No,1044-S of 1997.
(ii) 1998 CLC Lahore p. 921 Darayus Pestonji v. Nam Singh and 2 others in Writ Petition No, 4320 of 1997 decided on 15-1-1998.
(iii) 1999 PLC (C.S.)
190. Ehsan Ullah v. The Zila Council, Gujranwala through Administrative/Deputy Commissioner, Gujranwala and others in Writ Petition No, 935 of 1998 decided on 18-9-1998.
(iv) PLD 1997 Supreme Court p.
351. Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari, in Civil Appeal No, 1331 of 1995, decided on 27th January, 1997.
(v) 1998 SCMR 1404. M/s. M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan through Secretary Finance Islamabad and others in Civil Appeals Nos. 595, 601 to 604, 606 to 608, 610, 612 to 614, 619, 621 to 623, 625 to 632, 666, 667, 739 of 1994, 740 of 1995 and Civil Petition No, 413 of 1995, decided on 11-5-1998.
(vi) 1981 SCMR 231. Syed Nazim Ali v. Syed Mustafe Ali and Syed Mustafa Ali v. Syed Nazim Ali in C.P.S.L.A, No, 417 and 1080 of 195 decided on 9-12-1980.
(vii) 1970 SCMR 398. The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD.
33. Serajul Haque in Civil Appeals Nos. 80-D of 1968 an 89-D of 1968. MD. Sekandar Mia.
34. (viii)S.A. No, 91/91 dated 8-7-1991 by Punjab Subordinate Judicial Tribunal, Lahore.
(ix) Vol. II The Police Rules, 1934.
(x) 1982 SCMR p.
35. 770.
(xi) Articles 18 and 25 of Constitution of Islamic Republic of Pakistan, 1973.
(xii) Section 20 of General Clauses Act. (xiii)Rule 12(8), Police Rules, 1934.
(xiv) Rule 11 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
(xv) Rule 2(4) misconduct of Sindh Civil Servants (E&D) Rules, 1973.
36. After hearing of the arguments of the Advocate for the appellant as well as A.A.-G. The following facts have been established beyond any shadow of doubt: that the appellant at the time of advertisement did not have the required qualifications of the post of A.S.-I. As he was intermediate in 'D' Grade and was overage by more than two years. Thus, even if the pleadings of political influence or otherwise are kept aside; the fact that he was under qualified and average have not been contested by the appellant. Therefore, he becomes ineligible for the post of A.S.-I. This position has also not been controverted by the Advocate for the appellant. But fully explained by the A.A.-G. By citing the rulings of the higher Courts.
37. ' Thus, in view of the facts as brought On the record of this Tribunal, we have come to the conclusion that the action of the termination of the services on 15-6-198 passed against the appellant was a valid and speaking order and was validly made under the relevant rules.
38. 'Accordingly we are constrained to dismiss this appeal with no order as to costs.