' ABDUL HAMEED KHAN KHATTAK (MEMBER).---We would like to dispose of both the above given appeals by this consolidated judgment, as the facts and law points involved therein are intermixed and almost are of identical nature.
2. Briefly the facts to be culled from the pleadings of the parties are that appellant Mirza Khan (Appeal No, 1163/R of 1998) basically joined N.-W.F.P. Police Service in 1969, who was transferred on 31-3-1983 on deputation on one step promotion as A.S.-I. To Islamabad Police (Annexure-C, page 12). Having opted to be absorbed in Islamabad Police on regular basis and after obtaining N.O.C.
From I.-G. Police, N.-W.F.P., this appellant was absorbed in Islamabad Police on regular basis as A.S.-I. w,e,f, 31-12-1986 vide order, copy of which is available at page 14 of memo. Of appeal. His name was shown at Serial No,22 in the seniority list prepared in 6-3-1989 (Annexure-D), was as confirmed S.-I. w,e,f, 6-3-1989. (Out of this seniority list, respondents Nos.2, 4 to 7, 11 to 27, were confirmed in the rank of S.-I. w,e,f, 6-3-1989 with seniority after the appellant, and the rest of respondents Nos.9, 10, 28. 30 to 32, 34 to 36 and 38 on the basis of their seniority were confirmed as S.-L w,e,f, 26-10-1993). Vide letter dated 26-11-1990 appellant was admitted to promotion list 'F' w,e,f, 11-11-1990 on the basis of his good service record (Annexure-E) whereas respondent No,5 was admitted to 'F' list since 11-4-1991, respondent No,24 on 15-7-1992 and the remaining respondents 2, 6 to 9, 11 to 20, 22, 23, 25 to 28, 30 to 32, 34 to 36 and 38 on 1-12-1993 (Annexure-F). The appellant was promoted as Inspector (officiating) w,e,f, 29-8-1991 (Annexure-G) whereas other respondents were promoted. As Inspectors during the period from 2-12-1993 to 1998 and two of them were still stated as having not been promoted. As per seniority list dated 9-2-1995 the appellant was shown at Serial No,5 while the probationers respondents Nos.5, 24, 2, 4, 6, 7, 8, 10 and other 5 police officials were shown junior to appellant Mirza Khan (Annexure-H). This seniority was, however, disturbed vide the order dated 20-11-1996 passed by the Inspector-General of Police, Islamabad with the result that Mirza Khan, appellant preferred an Appeal bearing No,612(R) of 1996 before the Federal Service Tribunal on 5-12-1996 but during the pendency of said appeal, the I.-G. Police issued order of confirmation of the appellant as Inspector on 14-1-1996 in response to a previous order of Federal Service Tribunal and placed the appellant at Serial No,24, in the seniority list. After the decision made by the Federal Service Tribunal on 29-1-1997 in Appeal No, 612(R) of 1996 referred to above, the appellant was confirmed on 4-3-1997 as Inspector w,e,f, 1-1-1995 (Admixture-J) whereas the probationer respondents Nos.5, 24, 2, 4, 6 to 10 and 5 other police officials were confirmed as Inspector w.e.f. 1-1-1996. The appellant was served with a show-cause notice on 27-10-1997 to explain as to why the order of his promotion to the rank of Inspector and his confirmation as such may not be withdrawn (Annexure-K) to which is made reply but the respondent competent Authority did not feel satisfied with it and vide the order (Annexure-A) dated 22-8-1998 reverted the appellant Mirza Khan to the rank of Sub-Inspector by withdrawing his earlier order of confirmation as Inspector against which he made departmental appeal (Annexure-B) on 12-9 1998 which being unresponded, he preferred the instant appeal after lapse of 90 days on various grounds as detailed in the memo of appeal.
3. Appellant Hamdullah (Appeal No, 2-R/99) was originally also an employee of N. -W.F.P. Police Service having been inducted there in 1968, who was transferred on permanent basis to Islamabad Police on 26-12-1982 as Head Constable where he joined on 6-2-1983 (Annexure-C), his name was shown at Serial No, 23 in the seniority list prepared on 28-12-1983 (Annexure-D). He was promoted as A.S.-I. w,e,f, 22-5-1983 and S.-I. w,e,f, 1-7-1985 and was confirmed as A.S.-I. w,e,f, 19-7-1986 (Annexure-E). After about 5 years when Mirza Khan (appellant of Appeal No, 1163-R of 1998) was wrongly brought at 'F list in 1990, the appellant made an Appeal to Federal 'Service Tribunal bearing No,274(R) of 1991 against the same and vide its judgment dated 22-11-1992, the Federal Service Tribunal, ordered the respondents to place the appellant above Mirza Khan and the appeal made by respondents was dismissed by the Supreme Court of Pakistan in 1994, thus the I.-G. Confirmed the appellant in 1994 as S.-I. w,e,f, 6-3-1989 and brought him in list 'F' w,e,f, 11-11-1990 and promoted him as officiating Inspector w,e,f, 29-8-1991 (Annexure-F). During the year 1983, as many as 37 probationers joined Islamabad Police service out of whom 12 probationers made individual representations in 1994 to the I.-G. Praying to amend the previous seniority list by showing them to be senior to Hamdullah appellant but the 1.-G. Rejected their representations on 13-10-1994 on the plea that the seniority of Hatndullah had been fixed by the Federal Service Tribunal and if they had any grievance they should approach Federal Service Tribunal for redressal (Annexure-G). The said 12 probationers thereafter, preferred appeals to the Federal Service Tribunal in 1994 and the Federal Service Tribunal vide its judgment dated 22-1-1995 directed the 1.-G. To prepare a seniority list within two months, whereafter, objections to it be called and the same be attended to in due course (Annexure-H). In compliance of the said judgment, the I.-G. Issued such a seniority list on 9- 2-1995 of confirmed Inspectors, officiating Inspectors and S.-1s. On list 'F' wherein name of Hamdullah, appellant was appearing at Serial No,3 and all the probationers were shown junior to him (Annexure-I). The said I.-G. Was transferred on 12-2-1996 and his successor issued an order, dated 20-11-1996 that the seniority of the rankers over probationers should be changed and the rankers should be shown as Junior to the probationers in the seniority list (Annex-3). Appellant Hamdullah, made an Appeal to Federal Service Tribunal, against the same bearing No,623-R of 1996, during the pendency of said appeal, the I.-O. Was transferred on 26-11-1996 and was succeeded by another who vide his order, dated 14-1-1997 confirmed the appellant as Inspector w,e,f, 1-1-1995 treating him as senior to all the probationers (Annexure-K). But the then I.-G., was also transferred on 24-5-1997 and his successor issued a show-cause notice on Z7-10-1997 (Annexure-L) to the appellant thereby asking him to explain and show cause as to why the order regarding his confirmation in the rank of Inspector, promotion in the rank of Inspector should not be withdrawn and also his orders regarding admission to promotion list 'F' and confirmation as Sub-Inspector be not withdrawn to which he made reply (Annexure-M) but feeling not satisfied thereto, the L-G. Made order of reversion of the appellant to the rank of Sub-Inspector (Annexure-A) against which he made appeal on 12-9-1998 (Annexure-B) which being not responded within 90 days, he preferred this Appeal bearing No,2-R of 1999, on 1-1-1999 on various grounds detailed in the memo. Of appeal.
4. The appeal of Mirza Khan was contested only by respondents Nos.1, 22 and 30, by filing parawise comments, wherein assertions made in the appeal were controverted. The stance taken by respondents was that Mirza Khan was junior to respondents Nos.2 to 38, as they were recruited as direct A.S.Is. On 28-3-1983 in Islamabad Police whereas Mirza Khan was simply a Head Constable in N.-W.F.P., Police on that date and was transferred on deputation to Islamabad on one step temporary promotion on 19-4-1983. It was further pointed out that Mirza Khan with other appellant was promoted as Inspector due to mistake made by the office and such mistake was rectified subsequently after serving a show-cause notice on them, as legally they were to be considered junior to the directly recruited A.S.Is. Almost same is the stand taken by respondents Nos.22 and 30 by further elaborating that Mirza Khan remained on deputation till December, 1,986 and opted to be absorbed in Islamabad Police thereafter, hence he could not claim seniority over the probationers which were recruited in 1983 especially when the service of appellant was regularized in 1986 and also that as this appellant failed to agitate further before the Supreme Court various decisions made in favour of the respondents by the Federal Service Tribunal, hence he is estopped to re- agitate the matter.
5. The appeal of Hamdullah was also contested by respondents Nos.1, 24 and 32 and exactly same is the stand taken by them as stands reproduced above while reproducing the comments of respondents in the appeal of Mirza Khan. In this appeal, respondent No,1 specifically took the stance that the probationers were directly appointed as A.S.Is. On 28-3-1983 whereas Hamdullah was promoted as A.S.I., on 24-5-1983, hence he was junior to him and was wrongly placed at Serial No,3 in the seniority list and mistake was rectified subsequently vide the impugned order, after issuance of a show-cause notice to him.
6. Arguments heard and recorded perused..
7. From the above resume of the details, following facts which are to have direct bearing on determination of the issues involved in these appeals are reproduced as under:--
8. Firstly by taking up the case of Mirza Khan, appellant, he passed the Intermediate Course on 20- 3-1981 being an employee at the relevant time of N.-W.F.P. Police. His name was shown in list "D" on 1-4-1981, he was transferred on deputation to Islamabad Police on 31-3-1983 on one step promotion as A.S.I., he was absorbed in Islamabad Police on permanent basis vide the order, dated 11-1-1987 w.e.f 31-12-1986, was confirmed as A.S.I., vide the order, dated 26-3-1987 w.e.f 19-7-1986, his name appeared in list 'E' w,e,f, 6-2-1988, was confirmed as S.I. Vide order, dated 26-3-1989, w,e,f, 6-3-1989, his name appeared in list 'F' with effect from 11-11-1990, was promoted as Inspector w,e,f, 29-11-1990 and was confirmed as Inspector vide order, dated 4-3-1997 w,e,f, 1-1-1995 and reverted to the rank of S.I. By the impugned order, dated 22-8-1998 and simultaneously his name was removed from list 'F' by the impugned order.
9. Hamdullah, appellant was recruited as Constable in N.W.F.P., Police the year 1968, his name appeared in list 'D' on 1-4-1982, having passed Intermediate Course in March, 82, was permanently transferred to Islamabad Police when he was Head Constable on 6-2-1983, was promoted to the rank of A.S.I. On 22-5-1983, was confirmed as such on 19--7-1986 and his name was shown in list 'E' on 6-2-1988, as a result of the judgment rendered by Federal Service Tribunal on 22-11-1992 in the appeal, preferred by Hamdullah against Mirza Khan, he (Hamdullah) was declared senior to Mirza Khan and was confirmed as S.I. By the order, dated 26-6-1994 w,e,f, 6-3-1989, having been promoted as S.I. On 1-7-1985, he was promoted as officiating Inspector on 29-8-1991 and was confirmed as Inspector vide order, dated 14-1-1997 w,e,f, 1-1-1995. He was demoted to the rank of S.I.
And his name was removed from list 'F' vide the impugned order, dated 22-8-1989.
10. Probationers shown as respondents Nos.2 to 38 in the Appeal of Mirza Khan, bearing No,1163(R) of 1998 and respondents Nos.4 to 40 in the Appeal of Hamdullah, bearing No,(R) of 1999, were directly recruited as A.S.Is. On 28-3-1983 in Islamabad Police as probationers they passed Intermediate Course on 20-3-1984, they were shown in list 'D' on 16-3-1986 and were confirmed as A.S.Is. On 19-7-1986, they were confirmed as S.I. On 26-10-1993, were shown in list 'F' on 1-12-1993, eight out of them were promoted as Inspectors on 2-12-1993, 1996 and 1998 and the remaining in 1999, eight out of them were confirmed as Inspectors on 1-1-1996 and the remaining are still officiating Inspectors.
11. Vide the Letter No,7442/E, dated 13-11-1986 of I.-G. Police, Islamabad addressed to S.S.P., Islamabad (copy available at page 13 of Mirza Khan's appeal), it was made known to Mirza Khan, appellant (the A.S.I.) that his seniority was to be fixed with other officers of list 'D' who had passed Intermediate School Course in the same term, according to merit which they obtained in the examination, and further he was also assured to be entitled to all the benefits which had been conferred on his juniors in Islamabad Police like promotion etc., according to the promotions contained in Chapters 12 and 13 of Policem Rules, Volume II subject to his satisfactory performance/record. Lastly vide the same letter, the appellant Mirza Khan, was asked if he wished to be permanently absorbed in Islamabad Police, if so, his such option was to be conveyed by referring his case to the I.-G. Of Polices N.-W.F.P., Peshawar. It is thus manifestly clear from this letter that on such assurances held out to him by the highest authority of Islamabad Police, Mirza Khan appellant opted to be permanently absorbed in Islamabad Police as he was assured to obtain promotion with those A .S.Is., who had passed Intermediate School Course in the same term i,e, on 1-4-1981 on merit basis and this appellant admittedly passed the said Course during the term ending 20-3-1981 and his name appeared in list 'D' w,e,f, 1-4-1981 whereas the respondents probationers were recruited directly as A.S.I. On 26-3-1983 and they passed the Intermediate Course on 20-3-1983 i,e, exactly 3 years after Mirza Khan, appellant. Hence in the light of aforementioned letter of I.-G. Police, Islamabad, Mirza Khan, appellant was certainly to be shown senior to the Probationers. Even leaving aside the above assurance held out to Mirza Khan, appellant by the I.-G. Police, Islamabad, still his case is on better footing in view of the provisions of Chapter 12.12 and Chapter 13, Volume II of Police Rules, 1934 which were made applicable to Islamabad Police vide Notification No,4/4/81-AFT, dated 26-1-1981 issued by the Administrator, Capital Territory, Islamabad. It is laid down in Police Rules 12.12 (ibid) that seniority, in the case of upper subordinates, will be reckoned in the first instance from the date of first appointment, officers promoted from a lower rank being considered senior to persons appointed directly on the same date and the seniority of officers appointed directly 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.
12. It is further given in rule 12.8 Chapter XII of Police Rules, that Inspectors, Sergeants, Sub- Inspectors and Assistant Sub-Inspectors who are directly appointed will be considered to be on probation for 3 years. Under rule 6 of Civil Servants (Seniority) Rules, 1993, persons promoted to higher posts in a particular calendar year shall; as a class, be senior to those appointed by initial appointment to such posts in that year, and persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that years.
13. The cumulative effect of all the aforementioned relevant rules is that both the appellants Mirza Khan and Hamdullah shall rank senior as A.S.-I. To all other probationers respondents and in the beginning they were rightly so declared and it was on this score that for a long period of 15 years, they were shown as senior to other probationers respondents and were being promoted to various higher ranks accordingly.
14. The stand taken by the respondents Department that by mistake on the part of departmental authorities, the appellants were shown senior to the probationers respondents and a few other respondents and that this mistake was rectified vide the impugned order seems to be unwarranted and untenable in law. The appellants are not to suffer for the alleged mistake of the Departmental Authorities, whereas in view of above discussion the showing of appellants as senior to other respondents was not a mistake rather they were rightly so show The principle of locus poenitentiae will play its role effectively in these two appeals. It is Well-settled principle by now that apart from the provisions of section 21 of the General Clauses Act, locus penitential, i,e, the power of receding till decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to B. Retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken le al effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded t. The detriment of those rights. We are fortified in holding so by relying upon the rule laid down in ' PLD 1969 SC 407 (Full Bench), 1991 PLC (C.S.) 39 and 1983 PLC (C.S .) 1260.
15. In the present appeals, for a long period of 15 years, various orders of placing the names of these appellants in, the seniority lists as well as lists `D', 'E' and 'F' and also promotions to various ranks right from A.S.-I. To confirmed Inspectors were made and acted upon by the competent authorities especially when during this period the appellants and some of the respondents had remained locked in litigation before this forum and also before the Supreme Court of Pakistan but the Departmental Authorities never raised a finger or objection that these appellants were junior to the probationers respondents or they were mistakenly shown senior to the said probationers respondents, hence after a deep slumber, on one fine morning, the Competent Authority cannot be allowed or held justified to undo the seniority and promotions of the appellants with one stroke of pen for no fault on their part as they were never proceeded against for misconduct, inefficiency etc., thus how could they fall prey to sharp-edged sword of Damocles. The appellants earned such promotions through numerous ordeals, trials and tribulations, thus the respondents departmental authority is not legally and morally justified to put an end to the same simply on the basis of his' sweet-will and whims.
16. For all the aforesaid reasons, both the abovementioned appeals succeed, the impugned orders whereby appellants Mirza Khan and Hamdullah, were reverted and their names were removed from list 'F' are set aside and such orders shall be deemed as beings non-existent and the appellants shall be deemed as to have remained in service continuously from the date of making of impugned order till date as Inspectors and their names , shall be deemed as having never removed from list 'F' and they shall also be entitled to all consequential financial and all other benefits, by leaving the parties to bear their own costs.
17. Copies of this judgment to be sent to the parties through registered mail.