Full Judgment Text & Judicial Ruling

1995 P L C (C

1995 P L C (C.S.) 772

[Federal Service Tribunal]

Present: Abdul Razzaq Thahim, Chairman, Muhammad Ilyas Lodhi and Muhammad Ismail, Members

AURANGZEB KHAN

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 5 others

Appeal No. 183(R) of 1994, decided on 27th February, 1995,

Service Tribunals Act (LXX of 1973)‑‑

‑‑‑‑S.4(1)‑‑‑Appeal‑‑‑Maintainability-‑‑Civil servant who was Railway Police officer, was aggrieved of order passed by Establishment Division whereby co civil servant was promoted to post of D.I.‑G in B‑20‑‑‑Civil servant considering him eligible for such promotion, submitted his Departmental appeal through proper channel to Secretary, Establishment Division, but instead the same was disposed of by a short order without expressing any opinion on merits by Authority in Ministry of Railways, which was not competent to do so‑‑ Departmental appeal filed by civil servant having been decided by incompetent Authority and that too without adverting to merits of case, order passed by Authority was not legal order‑‑‑Civil servant, in circumstances, could not seek remedy from Service Tribunal and his appeal before Service Tribunal was not maintainable‑‑‑Service‑Tribunal, even otherwise, in matters of promotion and seniority had limited jurisdiction to eligibility of persons as while considering promotion, so many other factors were to be considered‑‑‑Case was remanded by Service Tribunal for passing appropriate order in circumstances.

TIZ‑1985 SC L59 AIR 1921 Lah 280; AIR 1941 Lah. 364; AIR 1936 All. 22; AIR 1932 PC 252; AIR 1950 Mad. 711; AIR 1934 Sindh 89; AIR 1934 Born. 16; AIR 1936'Nag. 180 and Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 121 SCMR 2330 ref.

Fazal Elahi Siddiqi for Appellant.

Javid Aziz Sandhu, Standing Counsel for the Government.

Ch. Rahimuddin on behalf of Muhammad Yawar Ali Khan, Bar‑at -Law alongwith Saeed Ahmad and Zawar Hussain, P.I., D.R.

Date of hearing: 3rd August, 1994.

JUDGMENT

MUHAMMAD ILYAS LODHI (MEMBER).‑‑‑Appellant, Aurangzeb Khan, filed this appeal against the impugned order dated 25‑1‑1994 of the Establishment Division wherein respondent No. 5, Maj. (Retd.) Malik Hayat (B‑20) was posted as DIG. He filed departmental appeal to the Secretary, Establishment Division through proper channel which was forwarded by the DIG Pakistan Railways on 23‑2‑1994. His departmental appeal was rejected on 2‑4‑1994. Hence this appeal on 26‑4‑1994.

2. Briefly the facts of the case are that prior to promulgation of Pakistan Railways Police Act, 1977, the Railway Security System was consisted of two wings, namely (1) the Railways Police and (2) Railways Watch and Ward. The Railway Police was mainly concerned with the detection and investigation of crimes, while the Watch and Ward Staff was the Internal Chowkidari System. These systems were practically running on parallel lines. The Railway Police itself was a part of the Provincial Railway Police and fell under the command and control of the Provincial Police Chief. In 1977, merger of the Railway Police and the Railway Watch and Ward was brought under the Pakistan Railways Act, 1977 and for running a whole new force under the Pakistan Railways Act, 1977 under the immediate control and supervision of the Pakistan Railways Authorities, certain important provisions were added both in the Railway Police Act and Pakistan Railways Police Rules, 1980. Under Rule 19, Chairman, Railway Board was the competent Authority, for I.G., D.1: G., S.P. and Asstt. Inspector‑General of Police. The Chief Executive upto 1980 was Chairman, Railway Board and from 1982 onwards is the General Manager, Pakistan Railways. It was only in 1993‑94 that the appellant attained sufficient seniority to press his claim for promotion. His grievance is that he being an indigenous Railways Police Officer, has a better claim for consideration to the post of D.I.G. than any outside Police Officer under Rule 14 of Pakistan Railway Police Rules, 1980. But upon the promulgation of the PSP (Composition, Cadre and Seniority) Rules, 1985, the following posts which are essentially of the PRP Cadre and are statutory posts created by the PRP Act have been excluded from the PRP Cadre and included in the PSP Cadre:

Inspector‑General 1

Deputy Inspector‑General 1

Resultantly the senior posts of the I.G. and D.I.G. are filled in by P.S.P. Officers, leaving practically no scope for the appellant to be considered for the post of D.I.G.

3. Another grievance of the appellant emanates from the fact that one temporary post of D.I.G. Special Branch Railways, although not even included in the schedule of P.S.P. Cadre post, is being denied to the appellant and is at present occupied by an ex‑Army Officer.

4. The learned counsel for the appellant argued that there is continuing wrong that a new posting is ordered with an officer from outside and the appellant is ignored. Each one of the such postings gives a new cause of action to the appellant to bring an appeal to the Service Tribunal and challenge the application of the PSP Rules, which are at the basis of such postings. Section 7 of the PRP Act, 1977 is as follows:‑‑

"For the purpose of this Act, the Federal Government may by notification in the official Gazette, appoint any person to be‑

(a) the I.G. Pakistan Railways;

(b) a D.I.G. Pakistan Railway Police;

(c) an S.P. of Pakistan Railway Police;

(d) an officer with any other designation."

These officers as is clear have been created by the statute of Pakistan Railway Police Act.

Rule 6 of the PRP Rules, 1980 reads as under:‑‑

"Appointment to the post under the PRP shall be made by any of the following methods, namely,

(a) by direct appointment;

(b) by promotion; or

(c) by transfer from other departments of the Federal Government or a Provincial Government."

Rule 7 reads as under:

"The qualifications and other conditions for appointment to the posts specified in section 7 shall be such as may be determined by the Federal Government from time to time."

He submitted that aforesaid two rules show that the post of I.G. as well as D.I.G. can, among other methods, be also filled in by promotion and that qualifications and other conditions for appointment to the posts specified in section 7 quoted above shall be determined by the Federal Government. Federal Government means, Federal Government represented by Ministry of Railways. He invited our attention to SRO‑898(1)/77 and SRO‑741(1)/77 published in the Booklet Pakistan Railways Police Laws, wherein these different orders have been passed by Ministry of Railways in the name of the Federal Government. In this case Federal Government does not at all mean the Establishment Division. In the PRP Rules, 1980, Rule 19 defines as to who will be the competent authority in respect of officers. members and Ministerial staff of the Pakistan Railways Police as under;

"that the competent Authority for the I.G., D.I: G., S.P. and A.I.G. will be Chief Executive of the Railways."

This rule has never been changed. The competent Authority is in fact the Chief Executive is further proved by the fact that Mr. M.I. Alam was promoted from Grade‑18 to Grade‑19 on 19‑5‑1983 by the Ministry of Railways itself and there was not even an indirect reference or intimation to the Establishment Division. He submitted that it is totally illegal that certain basic statutory posts of the Railways Police be taken over by the Establishment Division and included in the cadre posts of the PSP Officers. There has been no change in the legal position so far, although the Establishment Division without bringing any amendment in the law itself has made forced inroads into what are otherwise clearly the PRP posts and the appellant being an inborn Railway Police Officer has a far better entitlement to be considered for the same than a PSP Officer. The learned counsel also drawn our attention to Appendix `V' of Booklet Railway Police Laws which says that the post of SP/AID will be filled in 100% by promotion 60% from the Executive Wing and 40% from the Prosecution Wing. He submitted that if the PRP Rules are correct and there is no amendment in Appendix `V' of the PRP Rules, how can the diametrically opposite positions be reconciled. It will be equally wrong to say that this 100% promotion will apply to posts in excess of 7 earmarked for PSP. There is no such provision in the PRP Rules, the PRP Act. The PSP Rules indicate that law conceived of any such distribution between posts given to the PSP Cadre and those which remained in the balance to be manned by indigenous police officers. A whole set of posts has been taken away and yet it is indeed strange that neither the Railways Act and the Rules refer to PSP rules in this regard nor the PSP Rules make any reference to Railways Act and the Rules. The learned counsel for the appellant further argued that as a general rule the proposition is well-established that a special law and not the general law will hold the field. As regards, supremacy of the Civil Servants Act and by the same token of the PSP Rules which have been made under the Civil Servants Act. the learned counsel drawn our attention to the case reported in PLD 1985 SCII 159 where the matter (for application of the, Civil Servants Act which is a general law and of the Police Act which is a Special Law) was placed for (decision whether E&D Rules made under the Civil Servants Act, will be applicable to police officers of the Police Rules which were framed under the Police Act of 1861. The Hon'ble Supreme Court decided in favour of the Police Rules being specially applicable to the subject of Police. Therefore, it is the Railways Police Act and the Rules which in preference to any other Act and the Rules which will be applicable.

5. The learned counsel further prayed that the appellant's induction as PSP have also a cause of grievance. He argued and pointed out that the respondents by a well thought out design tried to dislodge the appellant and inducted the appellant in the PSP Cadre. He being included in the PSP Cadre even from 1985 onward, does not have the chance of his promotion as DIG in the near future. In fact it makes the chance further remote. If he is promoted under the PRP Act and the Rules are allowed their full play, the appellant could be promoted straightway and even retrospectively from 1987 when he became eligible, being the senior most SSP in the Railways Police. He prayed that the appeal be accepted.

6. None appeared on behalf of Establishment Division despite notice. They have also not filed their comments. The Standing Counsel, Mr. Javid Aziz Sandhu, in a written statement showed his inability to argue the case as he has not been engaged/nominated by the Establishment Division. The Establishment Division is proceeded ex parte.

7. Ch. Rahimuddin, Advocate on behalf of Mr. Muhammad Yawar Ali Khan, Bar-at-Law and for Ministry of Railways and Pakistan Railways Board argued that the appeal as framed and filed by the appellant is not maintainable in law and facts as it has no locus standi as promotion is not a vested right of a civil servant. The appellant has been encadered in Police Services of Pakistan vide Notification dated 17-4-1994, having no lien in Pakistan Railways Police and would be considered for promotion as PSP Officer on his turn.

8. On facts the learned counsel for the respondent department submitted that Pakistan Railways Police came into existence in October, 1976 by merging Railways Watch and Ward Staff into one unified Force to be known as Pakistan Railways Police. In order to identify and control the functions of new Force, Pakistan Railways Act, 1977 was promulgated and to implement the provisions of Pakistan Railways Police Rules, 1980. Rule 15 of the PRP Rules, 1980 contains that the channel of promotion shall be regulated in the manner given in Appendix `V'. A perusal of Appendix `V' will indicate that it regulates promotion only to the rank of SRP/Asstt. Inspector-General Police (Grade-18). The promotion to the rank of D.I.G. and above is controlled by the Establishment Division. This position was further changed when Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 were promulgated under SRO dated 23-10-1985 wherein 7 posts of AIG/SSP Railways had been Service of Pakistan. Accordingly the post of D.I.G. officers borne on gradation list of PSP Officers. Police in the cadre adversely been affected and needed reconsideration. There was also great discontentment in the lower ranks of Pakistan Railways Police who were feeling that their advancement in the Departmental Promotion had totally been blocked. In order to protect rights of promotion it was recommended that departmental promotees should also be included in the Pakistan Service of Police Cadre. The officers of the Pakistan Railways Police were included in the Cadre Posts of PSP as a result of above recommendations and in order to protect rights of promotion of the appellant he has been inducted in the PSP Cadre and now he may get promotion on his due turn, to which the Establishment Division is competent.

9. The learned counsel further argued that the appointment of IG/PRP, DIG/PRP and SSP whether direct or by promotion or transfer are governed by the PRP Act, 1977 is not the true position. On encadrement of the above posts, authority competent to make appointments of the posts is Federal Government i.e. Establishment Division and not the Ministry of Railways. The promotion of these posts arc made on the basis of seniority/quality of the record of the officers and availability of posts: The officers who meet the above criteria are considered for promotion Although there might be a number of officers eligible for promotion to a particulars posts yet only the officers who are senior and have good service record are considered and approved for promotion. He submitted that as the posts of IG/PRP and DIG/PRP have been encadered in PSP Cadre, therefore, the authority competent to make appointment to these posts is the Federal Government and not the Chief Executive of Pakistan Railways. As such the appellant has no case and prayed that the appeal be dismissed.

10. We have heard both the parties and perused the relevant record. The issue before us is first to settle whether the Ministry of Railways under the Pakistan Railways Police Act is the competent Authority to settle the terms and conditions and other matters of Railway Police or it is the Establishment Division to take decisions relating to Railway Police under Civil Servants Act, 1973. We have examined the Railways Police Act, 1977 for Grade‑17' and Grade‑18, it is quite clear, it empowers the Ministry of Railways as competent Authority to promote the officers from Grades‑17 to 18 and also determine other terms and conditions of service. However, it is silent with regard to the posts above Grade‑18 i.e. D.I.G. and I.G. But on the other hand under Rule 19 of the Pakistan Railways Police Act, the competent Authority for officers of the rank of I.G./D.1.G., SP and A.I.G. is the Chief Executive in terms of President's directive No.92 of 1982 issued under CMLA's No57/1/CMLA, dated 15‑3‑1982. The General Manager, Pakistan Railways, Lahore having been designated as "Chief Executive" for management of Pakistan Railways, will function as Chief Executive for management of Railways Police in terms of section 2(a) read with section 4(3) of the Pakistan Railways Police Act, 1977. In the past, Ministry of Railways being the competent Authority promoted an officer, Mr. H.I. Alam to Grade‑19 under notification dated 19‑5‑1983 which is reproduced as under:‑‑

"On having been cleared by the Selection Committee, Mr. H.I. Alam, a Grade‑18 officer of the Pakistan Railways Police is promoted by the competent authority to officiate in Grade‑19 and is appointed temporarily for a period of six months, with immediate effect as Officer on Special Duty (Security Schemes) in the Railways Headquarters Office at Lahore against the newly created temporary Grade‑19 post."

This issue has also been further cleared in the Written Comments given by Mr. Fazalur Rehman, Section officer, Establishment Division before the Lahore High Court in Writ Petition No.813 which is reproduced as under:

"Rule 7 of the Pakistan Railways Police Rules, 1980 the authority to determine the condition for appointment the above posts has been vested in the Federal Government. As for the alleged failure of the Federal Government to determine the qualifications and other conditions for the posts of Inspector‑General, Pakistan Railways, it is submitted that both these posts are in promotion quota. Promotion to these posts is made on the basis of seniority, quality of record of the officer and availability of posts."

From the above statement, it is crystal clear that the authority to determine terms and conditions is the Federal Government (Ministry of Railways) and the posts of I.G. and D.I.G. are in promotion quota as indicated under rule 15‑A, Appendix `V'.

11. The contention of the Ministry of Railways in their comments that under section 6 of the Civil Servants Act appointments are made by the competent Authority i.e. Establishment Division is wrong as section 6 ibid deals with the probation and not appointment of a civil servant. They have taken shelter under section 5 of the Civil Servants Act, 1973, wherein it is mentioned that appointments to an All Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with Defence shall he made in the prescribed manner by the President or by a person authorised by the President in that behalf. No doubt that Civil Servants Act, 1973 is general law and governs all the civil servants but for Railway Police under PRP Act, this authority, on behalf of the President, vests with the Ministry of Railways (the General Manager) and not the Establishment Division. It has been made clear in the judgment of the Supreme Court (PLD 1985 SC 159). herein the matter before the .Supreme Court was regarding the application of Punjab Civil Servants Act, 1974 which is a general law and of the Punjab Police Rules, 1034 which is the special law and wherein their Lordships, after elaborately discussing the applicability of the special and general laws. having observed that the Punjab Civil Servants Act, 1974 ‑ Special Law v. Police Act, 1h(>1 and the Rules framed thereunder having not been repealed expressly or by implication, held further, would prevail over later law of general application i.e. Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 In Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue), Multan and others, the rule was again reiterated in the following words:

"The principle that the general law would not prevail over a specific enactment is now well‑settled and one may refer in this behalf to AIR 1921 Lah 280; AIR 1941 Lah. 364; AIR 1936 All. 22; AIR 1932 PC 252; AIR 1950 Mad. 711; AIR 1934 Sindh 89; AIR 1934 Bom. 16 and AIR 1936 Nag. 180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision in the general law."

In Montreal Corporation v. Montreal Industrial Land Company, the principle of interpretation as propounded in the above treatises by Maxwell Craies and Crawford was judicially recognised in the following words;

"When the legislature has given its consent to a separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provisions unless it manifests that intention very clearly. But each enactment must be construed in that respect according to its own subject‑matter and its own terms.'

There is no express repeal of the Pakistan Railways Police Act and the Rules in the Civil Servants Act, 1973 nor there is any constitutional exclusion of the Railways Police Act and the rules from their application to the officers of the Railways Police Force. The substance of the provisions of the Civil Servants Act which are of general application also do not give any general indication to the contrary by the force of the general words used. Though it cannot be denied that the Railways Police Force is one of the service of the Federation who satisfy with the definition of `civil servant' yet the distinction nonetheless remains that they being a disciplined force to which the particular Act and the rules were applied.

12. The contention of the respondents that on encadrement of the above post i.e. D.I: G. and I.G. of Pakistan Police Service, the Civil Servants Act, 1973 will apply and not PRP Act, 1977 and the competent Authority is the Establishment Division and not Ministry of Railways who can promote, transfer these officers has neither been supported by any specific rules/amendment in the Pakistan Railways Police Act nor by any case law. To say more clearly the posts in the Railway Police could not be placed in the PSP Cadre by subordinate legislation so as to over‑ride the specific provision of the Railways Police Act.

13. From the above discussion it is clear that the special law which prevail over the general application and therefore the Pakistan Railways Police Act, 1977 will govern the criteria for determining the fitness/promotion of the appellant from the date of his eligibility.

14. Further to the above the order under which the Police Group was formed vide Rule 3 of the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (ESTACODE 1989 Edition page 1083). Under these rules there is no mention of Pakistan Railways Police Grades‑19 and 20 posts having being encadered in the Police Service of Pakistan,, it only includes the group encadered in the all Pakistan Unified Police Group. However, in the schedule two posts i.e. D.I.G. and I.G. have been shown as post of the PSP Are. It reads as under:‑‑

"3. Change in nomenclature and composition.‑‑‑(1) Notwithstanding anything contained in the All Pakistan Service (Change in (Nomenclature Rules, 1973, the Police Group in the All Pakistan Unified Grades is renamed as the Police Service of Pakistan.

(2) The Police Service ;of Pakistan shall consist of :

(a) persons appointed or deemed to have been appointed to the Police Service of Pakistan in accordance with the Police Service of Pakistan ( Composition and Cadre) Rules, 1969;

(b) persons, other than those mentioned in clause (a), appointed to the Police Group whose names appeared in the gradation list issued on the 28th august, 1980 and persons appointed in the Police Group after that date but before the commandment of these of these rules; and

(c) persons appointed to the Service in accordance with these rules."

15. In the aforesaid it appears that there is lacuna in the Notification as it only cover the Police Service of Pakistan and not the P.R. Police as contended by the respondents.

16. As regards the appointment against promotion posts these can be filled by transfer by subject to certain conditions i.e. first the eligible departmental officers are considered and if not found fit then the post can be filled by transfer or by new appointment. In this case the post of D.I.G. and I.G. were filled by transfer from PSP cadre and the required formalities were not observed and thus the appellant being the senior most was deprived of his right of consideration. The method adopted in the service is not of appointment by transfer but by transfer of the post to PSP Cadre which being violative of Pakistan Railways Police Act is illegal.

17. The point raised by the respondents that the appellant being encadred in PSP will be considered on his turn has no logic as he having the expertise in the Railway Police cannot be found suitable for posting in the general Police Group as he has no speciality of the District /Division Police Group Management. He can only be fit in the Railway Police as he has already put in 12 years as S.S.P., Railways and has never served in any District/Division.

18. Since the relevant law and the rules have not been changed and in the absence of comments from the Establishment Division and also relying on the statement given in the above referred writ petition and the post of I.G. and D.I.G. being of promotional quota, therefore, the appointment of police officers from outside the Railway Police in the PRP is clear violation of the Pakistan Railways Act.

19. We also rely on the two judgments made by this Tribunal in Appeal No.403(R)/93 Abdul Rashid v. D.G. Registration (which has been upheld by the Hon'ble Supreme Court in Appeals Nos. 312 of 1994 dated 2‑11‑1994 and 314(R) of 1992 S. Munawar Ahmad v. Establishment Division. In both the appeals the subject issue was…

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