' SALEEM CHAUDHRY (CHAIRMAN).-In this case the appellant who was in the position of Superintendent of Police at the relevant time impugns the notification dated 29-12-1969, whereby he was reverted from the post of S. P. To the rank of D. S. P. The appellant further avers that various appeals addressed to the Governor have remained unanswered.
2. The appellant was initially in the Police Force of Hyderabad (Deccan). He migrated to Pakistan after Indian occupation of the State and was appointed as D. S. P. In the Punjab on 20-6-1953, in which position he was later confirmed. By a notification dated 22-6-1959, the appellant was promoted to the rank of a S. P. With effect from 21-1-1959, in which capacity he served at various stations. While he was serving as S. P., Chitral, one Mr. Mansoor Khan brought the impugned order dated 29-12-1969 whereby be (Mr. Mansoor Khan) was promoted and posted as S. P., Chitral while the appellant was ordered to be reverted "to his substantive rank of D. S. P.". The appellant submitted a representation to the Governor dated 6-1-1970 against his reversion but later handed over charge of the post to his successor on 17-1-19:0. Thereafter, the appellant avers, that he made several representations to the authorities both personally as well as in writing which remained replied. The appellant was, however, informed vide letter dated 15-6.1972 of the I. G., Police that his representation was rejected by the Provincial Government, as his reversion from the post of S. P. Did not tantamount to reduction in rank. He preferred to proceed on leave rather than serve as D. S. P., till ultimately he attained the age of superannuation. The appellant also filed a civil suit on 22-7.72 impugning his reversion. This suit was dismissed on 4.42-1973 under Order IX, rule 8, C. P. C. On the ground of nonprosccu rion. The appellant avers that realizing that under Service Tribunal Act, 1973 a representation to the Governor was a pre-condition for filing an appeal before the Tribunal, he made such an appeal to the Governor on 7-7-1975, to which no reply has been received.
3. The learded counsel for the appellant has pleaded that the promotion order of the appellant dated 22-6-59 was not qualified by any condition of `officiation' and that in the light of instructions of the services and General Administration Department in their circular Letter N. (SOXEI-S&GAD)-2- 133/63, dated 12-8-1963 (which in fact elaborate the provision about `probation' being made in the various Service Rules) the appellant completed his maximum probation and no formal orders of his completing probation having been passed he stood automatically confirmed in the higher pest.
In support of this assertion he relies upon Explanation H in the rule of probation cited in the Service and General Administration Department letter under reference. In this context, it is urged that tee reversion of the appellant was tantamount to reduction in rank and such reduction without due formalities of law as prescribed in the Efficiency and Discipline Rules was illegal and of no effect.
3-A. The appellant also cites the Police Service of Pakistan (Composition and Cadre) Rules, 1969 enforced vide Notification dated 26-11-1969 of the Establishment Division of Government of Pakistan (Cabinet Secretariat). In these Rules the appellant specifically relies upon Rule 4(3) whereby every person appointed or stated to have been appointed to the Police Service of Pakistan before the commencement of these Rules is deemed to have been appointed to the service under the said Rules on the date on which he was so appointed or stated to have been so appointed as if there Rules were enforced on such date. It is thus argued that the appellant continued to be appointed to the service even after the promulgation of the aforesaid Composition and Cadre Rules, 1969.
4. The appellant also urges that by virtue of rules 2(d) and 4(1)(b) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, he belonged to a service which was common to both the Federal as well as to the Provincial Governments and as such he was entitled to file an appeal before the Provincial Service Tribunal. In this context it is also contended that the competent authority for reducing the appellant in rank was the President of Pakistan and, therefore, his reversion by the Provincial Government was illegal. In respect of the dismissal of the appellant's civil suit the appellant relies upon the provision of the Federal Tribunal Act under which the appellant insists that his suit stood abated by operation of law w. e. f. 29-9-1973 and any orders of dismissal passed subsequently by a Court were a nullity in law. The appellant, however, also concedes that civil suit filed by him was against the Provincial Government and not the Federal Government.
5. We have perused the representations of the appellant to the Governor dated 6-1-70, 30-4-70 and 7-7-75 which he has put on record. It seems from these representations that the reversion of the appellant was the result of an advice of the Central Government to the Provincial Government based upon persistent bad record of the appellant. Appellant in his aforesaid representations has referred to the adverse remarks in his reports as 'omissions', 'errors' or 'discrepancies'. Appellant has, however, vehemently challenged the adverse reports and has ascribed them to victimization and malice on the part of some of his corrupt superiors, and has pleaded that no precipitate action in the form of his reversion should be taken without a decision on his various representations against the said adverse remarks.
6. We have heard the arguments of the appellant at length. In the Police Service of Pakistan (Composition and Cadre) Rules, 1969, the Cadre has been defined as "A post specified in the 'Schedule' appended to the said Rules". The said Schedule, Mier alia, includes for West Pakistan 98 posts of various descriptions in the rank of Superintendent of Pace. It is further said in rule 4(1) that all appointments to the service shall be made by the President and one of the methods of appointments by the President as laid down in rule 4(1)(b) may be quoted below :- "On the basis of selection made on the recommendation of the Governor and in consultation with the Commission from amongst the Members of the Police Service of a Province; provided that the number of appointments under clause (b) of the members of the Police Service of a Province shall not exceed 1/3rd of the number of senior cadre posts in the Province."
' Explanation.-In this sub-rule, senior cadre posts means a cadre post shown as a senior post in the Schedule.
' Vide sub-rule (3) it is further provided that- "Every person who before the commencement of these Rules was appointed or is stated to have been appointed to the Police Service of Pakistan, shall be deemed to have been appointed to the Service under these Rules on the date on which he was so appointed or is stated to have been appointed as if these Rules were enforced on such date."
7. The Rules also inter alia show that whereas for a direct appointee to the service through competitive examinations held for the purpose by the Commission, the appointment was to be as a probationer in terms of the Police Service of Pakistan (Probationary Service) Rules, 1950. However, there is no stipulation for any probation for an appointment to the service made from amongst the members of the Police Service of a Province. The general scheme of things as emerging from the above Rules appears to be that officiating promotion in the rank of S. P. Was left to the Provincial Government and the Rules governed only the substantive appointment to the said rank. This position continued till the issuance of instructions to the control through office Memorandum of Establishment Division of Cabinet Secretariat, Government of Pakistan, dated 31-5-75 issued in the context of 'Administrative Reforms Police Group. This letter inter aria provides that: "4. Grade 18 and above Officiating appoindments to Grade 18 were hitherto made by the Provincial Governments.-As already decided, in the case of the District Management Group, all appointments to Grade 18 will henceforth be made by the Federal Government."
8. The appellant's case is that there being no stipulation as to the nature of his promotion as S. P.
Being officiating or substantive in his promotion order dated 22-6-59, he is to be deemed to have been substantively appointed to the Police Service of Pakistan even without formal orders to that effect after completing the maximum period of probation prescribed under the rules mentioned in para.
2. As most of the arguments of the appellant turn round this assertion, it would be appropriate to determine this issue at the outset.
9. The order dated 22-6.59 promoting the appellant to the post of S. P. Runs as under t- "The Governor of West Pakistan is pleased to order the promotion of Mr. Badar-ul-Hassan Zaidi, Deputy Superintendent of Police as Superintendent of Police w. e. f. 21-1.59, and his appointment on deputation as Assistant Commandant, Satluj Rangers from the same date."
' The above order has been manifestly passed by the Governor of Punjab. The order does not specify the nature of appointment in terms of 'officiating' or `substantive'. Nor has the appellant shown us as to how he stood appointed to the Police Service of Pakistan by the said order. Rule 4(3) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, relied upon by the appellant, provides for continuity of appointment to the Police Service of Pakistan of such persons as were appointed or stated to have been appointed to the Police Service of Pakistan immediately before the promulgation of the forementioned Rules. Since the appellant has not shown to us how he stood appointed to the Police Service of Pakistan before 26.11-69, the date on which the Rules under discussion were promulgated, he cannot avail of the provisions of rule 4(3) to support his case. The promotion order on the face of it is passed by the Governor of the A Punjab and not by the President. Since the Governor was not competent to make a substantive appointment to the Police Service of Pakistan we reject the claim of the appellant that by the said order he got appointed to the Police Service of Pakistan. In this view of the matter the plea of the appellant that he was appointed on probation under rule 4(2) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, becomes untenable We also see no merit in the contention of the appellant that his promotion order dated 22-6-59 appointed him as S. P. In a substantive capacity on the sole ground that it failed to particularise the nature of promotion as an officiating one. Apart from the fact that the order under controversy was passed by the Governor where as for appointment to the Police Service of Pakistan the order was to be passed by the President after processing through the Federal Public Service Commission this contention of the appellant cannot be accepted as a general proposition. In support of our conclusions, we may quote the following observations of their Lordships from case cited as PLD 1966 SC 725 :- . . . 'Substantive' appointment is a status which may be conferred on an employee by a positive order of the competent authority or by rules of service, e. g., in case of certain services it is provided that if the period of probation is not extended beyond a certain date the appointee shall be deemed to have been confirmed in the post . . . ."
10. It may be observed that in making the above observations Their Lordships were overruling the following observations of his Lordship the Chief Justice of Dacca High Court from whose order the appeal was before the Supreme Court:- "When an appointment is made without any qualification that it is temporary appointment it must necessarily mean that it is substantive appointment."
11. In respectfully following the rule laid down by their Lordships of the Supreme Court we reject the plea of the appellant that he was a substantive appointee of the post of S. P. By virtue of order of promotion dated 22-6-59. With this finding the argument of automatic successful completion of probation also falls to the ground.
12. We may now advert to the question of reversion of the appellant. The order dated 29-12-1969 purporting to revert the appellant to his substantive rank of D. S. P. May be reproduced below with advantage :- "Notification No. S.
0. 11. 2/2/691(4269) dated 29-12-1959. Para.
6. Mr. Mansoor Khan, PPM, D. S. P., ACE, Peshawar is promoted and appointed to officiate as Superintendent of Police, Chitral, Vice Mr. S. Wajihul Hasan Zaidi, who is reverted to his substantive rank of DSP."
' It is to be observed that the above order is a reversion order simpliciter, without assigning or mentioning any reason therefor. We have found that the status of the appellant in the post of a Superintendent of Police was that of an officiating incumbent. There is a mass of case-law on the proposition that reversion simpliciter from an officiating rank (as distinct from promotion till "further orders") does not operate as 'reduction' and the competent authority is within its legitimate rights to cause a reversion from such a post without a show-cause notice. We may here cite the rule laid down by their Lordships of Supreme Court in the case cited a Mohammad Ibrahim v. Government of Pakistan in which they confirmed! Their views already expressed in the following reported decisions t-
(1) Province of West Pakistan v. Bashir Ahmad Qureshi PLD 1959 SC (Pak.) 93.
(2) Pakistan v. Qazi Syed Hikmat Hussain PLD 1959 SC (Pak.) 107.
(3) Pakistan v. Mehra]ud-Din, PLD 1959 SC (Pak.) 147.
(4) Province of East Pakistan v. Muhammad Sajjad Ali PLD 1962 SC 71.
(5) Dr. Mohammad Amin Durrani v. Government of West Pakistan and another PLD 1966 SC 99.
(6) Collector of Central Excise and Land Customs v. A. K. M. Wallallah Chowdhury PLD 1966 SC 788.
(7) Atta Mohammad v. Government of West Pakistan, 1970 SCMR 91.
' The ruling of the learned Supreme Court of Pakistan in the said case was that :- "Government has the legal authority to terminate an officiating appointment at any time and it may be so for any reason relatable to exigencies of service. No show-cause notice is necessary in such a case."1 ' In respectfully following the rules laid down in the above-cited case of the Supreme Court we do not find any illegality in the reversion of the orders of the appellant.
' The question of limitation also arises in this case. The Civil Suit of the appellant in the Court of Senior Civil Judge, Lahore were dismissed by an order dated 4-12-73 under Order IX, rule 8 of C. P. C.
On the grounds of non-prosecution. In reply to the preliminary objection of the respondent that by the forementioned order of Senior Civil Judge the matter stood judicially determined so that on the principle of Res judicata the appellant was estopped from agitating the same matter before this Tribunal, the appellant has taken the plea that by the promulgation of the Federal Service Tribunal Act, the Civil Suit stood abated by operation of law w. e. f. 29-9-73 with the result that the dismissal order of a subsequent date was without jurisdiction, illegal and a nullity. In view of our finding that the appellant was never appointed to the Police Service of Pakistan, the forementioned plea is not available to the appellant inasmuch as the Federal law cited by the appellant was not relevant in his case and by the Provincial law on the subject, which applied to the case of the appellant, the pending suits in civil Courts stood abated on 22-7-74 (the date on which the Punjab Administrative Tribunal was notified to have started functioning under a natification of the same date issued by the Punjab Government).
' As narrated above, the case of the appellant was not a pending matter before any civil Court on the crucial date of 22-7-74 so that this appeal falls under section 4 of Punjab Service Tribunals Act, 1974. According to the provision of the said section, the limitation for filing an appeal before this Tribunal extended to six months from the date of establishment of the "appropriate Tribunal". This period of limitation of six months commencing from 22.7-74 expired on 21-!-75 whereas the present appeal was file.' before us on 19-12-75. In para. 9 of the Memorandum of appeal the appellant pleads C that "on enforcement of Service Tribunals Act, 1973, the civil Court pointed out that the suit was abated. The appellant then discovered from section 4 of the said Act that a representation to the Governor was a precondition for filing an appeal before the Tribunal". It may be noted here that here the appellant refers to the Federal Service Tribunal Act which as we have found was not applicable to his case. The application for condonation of delay which is dated 12-12-75 is based on the short ground that "The petition to Governor is dated 7-7-75 but nothing has been heard about it so far. This appeal is therefore being filed after waiting for about 5 months. In case it should have been filed earlier, the delay may kindly be condoned in view of the fact that the applicant had been awaiting the result of his representation in a bona fide manner".
' We observe that the appellant's narration of facts in para. 9 of his memorandum of appeal as reproduced above is factually incorrect inasmuch as according to the order of the Senior Civil Judge produced before us by the appellant himself the Civil Suit was never ordered to have been abated but was rather dismissed for non-prosecution. Be that as it may the said order was passed on 4-12-73 and according to the appellant this was the stage when he made the discovery that an appeal to the Governor was a pre-requisite for filing an appeal before the Tribunal. The limitation for filing an appeal before this Tribunal expired on 21-1-75 and according to the appellant's own assertion he filed an appeal before the Governor on 7-7-75. No explanation for this delay from 22- 1-75 to 7-7-75 is forthcoming from the appellant, and the conduct of the appellant is grossly indolent and depicts utter lack of vigilance.
' Looking at the matter from another angle, the appellant according to his own narration of facts in para. 6 of his memorandum of appeal was conveyed the rejection of his representation by the "Provincial Government" on 15-6-72 through Inspector-General of Police. This being so the order of 15-6-72 was a final order in respect of the appellant for the purpose of determination of limitation in this case so that his subsequent and belated representation of 7-7-75 to the Governor was redundant from the point of limitation so that in this view of the matter also the limitation against him expired on 21-1-75. The net result is that the appeal is hit by limitation and Is not maintainable on this ground as well. We hold accordingly.
' The upshot of the above discussion is that this appeal fails and is dismissed accordingly.
' Since the fate of the case has been decided in the above two issues we do not feel ourselves called upon to adjudicate upon the rest of the contentions raised before us. PLD 1972 SC 332