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Petitioner: DEEDAR HUSSAIN JAKHRANI VS Respondent: FEDERATION OF PAKISTAN through Secretary EstablishmentHonorable Justice Shahid Anwar BajwaM.M. Aqil Awan,Mian Khan Malik
2011 PLC (C
2011 PLC (C.S.) 203
[Sindh High Court]
Before Saijad Ali Shah and Shahid Anwar Bajwa, JJ
DEEDAR HUSSAIN JAKHRANI and others
Versus
FEDERATION OF PAKISTAN through Secretary Establishment and others
Constitutional Petition No.465 of 2008, decided on 17th September, 2010.
(a) Civil service---
----Initial illegal induction in service challenged after thirteen years---Validity---Mere passage of time could never and should never be allowed to convert an illegality into pristine purity of legal existence.
(b) Administration of justice---
----Mere passage of time could never and should never be allowed to convert an illegality into pristine purity of legal existence---Principles.
(c) Civil Servants Act (LXXI of 1973)---
----Ss. 2(b) & 8---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Seniority---Constitutional petition---Maintainability---Seniority being one of terms and conditions of employment would fall within exclusive jurisdiction of Service Tribunal.
(d) Service Tribunals Act (LXX of 1973)---
----S. 4---Civil Servants Act (LXXI of 1973), S.8---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Seniority---Deletion of word 'final" used in S.4 of Service Tribunals Act, 1973---Effect---Constitutional petition challenging proposed seniority list---Maintainability---Such deletion would not have effect of making each and every step taken by competent authority as challengeable under S.4 of the Act, rather what would be challengeable thereunder must be an "order" i.e. an official and authentic decision though not final but must having shade of finality or some semblance thereof---Seniority list issued by competent authority being subject to objections and decision thereon would be a tentative opinion or proposal and could not be considered to be final list and clothed with mantle of "order" within contemplation of S.4 of the Act---In absence of issuance of final seniority list, civil servant could not approach Service Tribunal, thus, constitutional petition would not be barred by Art.212 of the Constitution---Principles.
Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another, 1999 PLC (C.S.) 409 rel.
(e) Words and phrases---
---"Order"-Meaning.
Black's Law Dictionary and Judicial Dictionary by K.J. Alyar 13th Edition ref.
(f) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----Rr. 3, 7 & 9---Civil Servants Act (LXXI of 1973), S.8---Civil Servants (Seniority) Rules, 1993, R.4---Constitution of Pakistan, Art.199---Constitutional petition---National Highway and Motorway Police Senior Patrol Officer (BS-16), posts of---Policy of department to take employees on deputation for posting on such posts---Posting on such posts on deputation Police Officers serving in Police Department and Islamabad Capital Territory and their promotion at same time and subsequent absorption in the department through its Induction Committee-Validity-According to Rr.3 & 7 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, every promotion and appointment must be through Departmental Promotion Committee---Under R. 9 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, appointment by transfer could be made only from amongst persons holding appointment on regular basis in the post in same basic pay scale or identical grade of post to be filled in---Such Induction Committee could not be treated as Departmental Promotion Committee for having mandate different from that Departmental Promotion Committee; that nothing in record was available to show that competent authority had conferred powers of Departmental Promotion Committee on Induction Committee; and that Departmental Promotion Committee would always be in respect of employees of same department and not in respect of employees of other departments or deputationists, who would continue to be employees of their parent departments till their confirmation in borrowing department---Deputationists should have been firstly absorbed' and then considered for promotion by Departmental Promotion Committee in deserving cases---Promotion could not be awarded to deputationists prior to an effective date of their absorption in the department---Deputationists would come in the department in accordance with rules and in same pay-scale and grade in which they were serving in lending department till their absorption in employment of the borrowing department---High Court set aside promotion of deputationists granted at eve of their being taken on deputation and directed the borrowing department to constitute Departmental Promotion Committee in accordance with rules to consider cases for promotion of deputationists in accordance with law.
Hameed Akhtar Niazi's case 1995 SCMR 1185; Secretary to Government of The Punjab, Education Department, Lahore v. Mrs. Kishwar Aslam and others PLD 1997 SC 578; Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185; Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297; S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612; Wall Muhammad Khan Warsi and others v. Government of Sindh and others Constitution Petition No.1077 of 1990; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr. Azim -ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer Muhammad v. Government of Balochistan, through Chief Secretary and others 2007 SCMR 54; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S.) 120; Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297; Fasihuddin Siddiqui and 7 others v. Government of Pakistan and others 1998 SCMR 637; Khalid v. Dr. Farzana and others 2001 PLC (C.S.) 1239 and Dr. Rehman Ibad Khan v. Employees Old Age Benefits Institution and 3 others 2002 PLC (C.S.) 2032 ref.
(g) Civil service---
----Deputationist, legal status of---Deputationist would continue to hold new post in officiating/temporary capacity till his confirmation thereon or reversion to his substantive post---Deputationist could be returned by borrowing department or called back by lending department at any time---Borrowing department seeking absorption of deputationist would be required to initiate proposal, obtain his consent and request for approval of lending department.
M.M. Aqil Awan for Petitioners.
Munsif Jan for Respondent No.11.
Muhammad Nawaz Shaikh for Respondents Nos. 10, 22, 25, 33, 151, 156 and 166.
Mian Khan Malik, D.A.-G. along with S.P.O. Khalid Iqbal Departmental Representative.
Date of hearing: 11th August, 2010.
JUDGMENT
SHAHID ANWAR BAJWA, J.--- Factual contest of this petition is that when the first Motorway, M-2, between Islamabad and Lahore, was about to be inaugurated, a summary was put up before the Prime Minister on or about April 15, 1997 for establishment of Motorway Police and regarding manpower, training and budget, it was inter alia, stated in that summary that "considering the time constraint it is proposed to initially take police officers on deputation from the Provinces and Islamabad Capital Territory for a period of 2 to 3 years. Criteria for selection included physical fitness, age limits and unblemished service record. In deserving cases one stage promotion would be considered." (underlining added). Subsequently in 2001 jurisdiction of the Motorway Police was extended to National Highways and force was, re-designated as National Highway and Motorway Police. Respondent Nos.6 to 268 were working in police departments under various Provincial Governments and in certain cases in Islamabad Capital territory and by giving one step promotion were taken on deputation basis in the Motorway, Police as Senior Patrol Officers in BPS-16. The petitioners were directly taken in employment as Senior Petrol Officers in BPS-16 after due advertisement and after going through the selection process in 2001. Although private respondents were taken in the Motorway Police as deputationists from their parent departments, after selection by an Induction Committee, they were promoted at the time of being taken as deputationists and thereafter, after lapse of a few years, they were absorbed in the employment of National Highway and Motorway Police. Question that has arisen is regarding inter se seniority between the petitioners who were directly taken in employments as S.P.Os. and the private respondents who came on deputation, were promoted and subsequently absorbed in National Highway and Motorway Police. In order to settle the question of seniority a number of writ petitions were filed in the Lahore High Court and the following order was passed on 21.3.2007:---
"This order shall dispose of Writ Petitions Nos.1183, 1184, 1185, 1186, 1187 and 1524 of 2005 because identical question of law and facts are involved in all the cases.
(2) Learned Standing counsel has placed on record summary circulated to all concerned vide letter No.NH&MP43(11)/06/EA dated 17th July, 2006 by Inspector-General of Police National Highways and Motorway Police, Islamabad. On instructions of DSP (Legal) learned Standing counsel states that seniority of the petitioners shall be considered in accordance with the Esta Code Chapter-II. Serial No. 204 page No.197 Edition 2003 which provides; fundamental rules regarding the seniority of officers inducted into civil cadres which shall be based on the following considerations:---
(i) the date of induction of the officer:
(ii) the grade in which he is initially inducted:
(iii) his seniority in that particular grade in which he is inducted, is fixed with reference to his date of induction, and
(iv) his seniority in his original service to which he belonged becomes irrelevant after he has been inducted into a civil cadre with effect from a particular date.
(2) It has been decided that the criteria to determine the seniority while inducting the' police officers shall be as under:---
(a) Date of joining in NH&MP in a particular rank.
(b) Ranks in Parent Department.
(c) Date of Promotion in Parent Department.
(d) Date of Birth.
(3) Officiating officials shall be treated as confirmed after .they complete three years service in a particular rank from the date of their promotion on officiating basis. The petitioners shall be promoted according to their policy contained in the above said summary.
(4) The petitioners state that their grievance has been redressed. This writ petition has borne fruit. Disposed of as such."
2. After this order was passed, on 27-3-2007 a seniority list of senior Patrol Officers BPS-16 was circulated by the Inspector-General of Police, National Highway and Motorway Police. The last para of covering letter of the list reads as under:---
"(2) It is requested that this Seniority List of SPOs may kindly be circulated amongst all concerned Senior Patrol Officers presently serving under your administrative control and the objections regarding entries, if any, may kindly be sent to this office within 15 days i.e. up to 12-4-2007. If no objection is received in this office within stipulated time, the entries mentioned in the seniority list will be considered as final/correct." (underlining supplied).
3. Various objections were filed. It is the case of the petitioners that they had filed objections and no decision was communicated to them. In this regard it is stated in Para-10 of the petition that the petitioners filed their objections against the Seniority List circulated vide letter dated 27-3-2007. It was also stated that one of the copies of the objections (by petitioner No.16) is enclosed. It is stated by the respondents that the objections were decided and they enclosed a letter dated 7-10-2007 which letter evidences that the objections raised by petitioner No.1 were rejected. It is stated by the learned counsel for petitioner that this letter was never communicated to the petitioner. On 24-6-2010 learned D.A.-G. was directed to file final Seniority List of SPOs. D.A.-G. filed copy of letter dated March 27, 2007 along with Seniority List circulated with that letter. Last para from that covering letter has been already reproduced above.
4. Some of the persons similarly placed as the petitioners approached the Federal Service Tribunal and their appeals were dismissed by the Federal Service Tribunal vide judgment dated 13-5-2010. A perusal of that judgment reveals that the grievance expressed in that appeal was against promotion of private respondents therein, who incidentally, and substantially, are the same as private respondents in this petition. However none of the present petitioners was appellant before the Federal Service Tribunal. Seniority List dated 27-3-2007 was referred to. Since this list was prepared keeping in view the order passed by the Single Judge of Lahore High Court on 21-7-2008 it was argued by the appellant before Federal Service Tribunal that judgment was per incuriam. This aspect was not accepted by the Service Tribunal and it was held by the Service Tribunal that all are bound by the order of the High Court and reliance in this regard was placed by the Service Tribunal on Hameed Akhtar Niazi's case 1995 SCMR 1185 and finally the Service Tribunal concluded as under:---
"(6) Similar question had arisen in Appeal No.338(R)CS of 2003 and 715(R)CS of 2008. Appeal No.338(R)CS of 2003 was decided on 18-2-2009 by a Bench comprising Mr. Zaheer Ahmed and Mr. Ismail Hassan Niazi whereas Appeal No.715(R)CS of 2008 was decided on 7-1-2010 by a Bench comprising Syed Bilal Ahmed and one of us Mr. Farrakh Qayyum. In both the judgments of the Federal Service Tribunal it was held that seniority fixed under the order of the Lahore High Court in the light of relevant provisions of Esta Code could not be disturbed. The respondents are thus armed with judgment of the Lahore High Court and the aforementioned judgments of the FST. In the presence of these judgments no relief can be given to the applicants. It may be mentioned here that the judgment of the Tribunal dated 18-2-2009 passed in Appeal No.338(R)CS of 2003 has been upheld by the honourable Supreme Court of Pakistan vide its Order dated 19-2-2010 passed in Civil Petition No.513 of 2009 and C.M.A. No.2168 of 2009. The relevant paras of the Order are reproduced:---
"(2) Learned counsel for the petitioner submits that while dismissing the appear, the learned Service Tribunal did not consider the effect of Rule 4(b) of the Civil Servants (Seniority) Rules, 1993, and that the impugned judgment on that score is not sustainable.
(3) Having heard learned counsel for the petitioner at some length, we are of the view that-the Rule to which learned counsel has made reference has no relevance. with the instant case as the said Rule pertains to inter se seniority of those who joined the organization in one batch. Learned Service Tribunal while dismissing the appeal, considered the seniority position of the petitioner and he said criteria has not been found by us to be against the law or rules. That being so the impugned judgment is unexceptionable. Finding no merit in the petition, it is dismissed and leave refused."
The honourable Supreme Court has confirmed the findings of the Federal Service Tribunal that parameters for the promotion of the employees of National Highways and Motorways Police were correctly fixed by the High Court were in accordance with Esta Code. Thus there are many judgments of the FST and the honourable Supreme Court- which go against the applicants.
(7) For the above reasons, we find no merit in the appeals which are hereby dismissed."
5. Appeal against similar promotions was decided by the Federal Service Tribunal in another appeal and matter was taken to the Supreme Court and the Supreme Court dismissed the C.P.L.A.. Entire order of the Supreme Court has been reproduced in the order of the Federal Service Tribunal quoted above.
6. Learned counsel for the petitioner made the following submissions:
(1) The petitioners were taken on deputation. They were taken a step higher and were then subsequently absorbed. It is essential that D.P.C. be held for promotion and promotion could only be given to a person who is already in employment or has already been absorbed and not to a person who is on deputation.
(2) Seniority List circulated vide letter dated 27-3-2007 is a tentative Seniority List. Objections were raised in respect of the seniority list and no decision on the objections has been communicated. In any case, it is admitted by the official respondents that objections were received and no document has been placed on record evidencing that final seniority list was ever circulated.
(3) Since criteria for promotion in Grade 2 to 18 is seniority-cum fitness, no promotion could be made without determining the seniority in the first place and since the private respondents having been promoted without preparation of final seniority list, their promotion is without lawful authority and of no legal effect.
(4) Seniority under the law is to be reckoned from the date of regular appointment. The private respondents were on deputation and their appointment would become regular with effect from the date of absorption and it is only thereafter that D.P.C. could be held and they could be promoted.
(5) Learned counsel referred to Rule 3(3) of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 (hereinafter referred to as the Rule of 1973), and other provisions of Rule 3 to contend that unless a person is declared as surplus he could not be absorbed in another organization and therefore unless a person has become surplus there could not be any question of his being absorbed.
(6) Learned counsel also referred to Rule 9 of the Rules of 1973 to contend that appointment by transfer can only be made in the same grade in which a person had been before such transfer.
(7) Learned counsel referred to rule 7 of the Rules of 1973 and contended that without holding DPC no promotion can be awarded to a Civil Servant. Learned counsel relied, upon Secretary to Government of The Punjab, Education Department, Tahore v. Mrs. Kishwar Aslam and others PLD 1997 SC 578 and Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185.
(8) Seniority can only be assigned from the date of regular appointment and the private respondents can become regular employees only after they are absorbed and it is only thereafter that DPC can be held and they can be promoted. Learned counsel in this regard referred to Muhammad Yousuf and 4 others v. Abdul Rashid and Others 1996 SCMR 1297.
(9) Although in exercise of powers under Rule 3 of the Rules of 1973 qualifications were laid down in respect of various posts in the National Highway and Motorway Police vide notification dated 26-2-2007 but firstly the notification is prospective in operation and secondly under the notification as far as Senior Patrol Officers are concerned, only 60% are to be appointed by promotion while 40% are to be on deputation basis.
(10) Regarding maintainability of the petition in view of the position that question involves seniority, learned counsel submitted that firstly no final seniority list has been issued and he could approach the Service Tribunal only and only after final seniority list has been issued and not before that. In this regard learned counsel relied upon S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and unreported judgment of this Court in Wali Muhammad Khan Warsi and others v. Government of Sindh and others Constitution Petition No.1077 of 1990 decided on 7-5-1995. Learned counsel further submitted that in the writ the has also sought a relief in the nature of quo warranto and in the case of quo warranto only three things are to be seen: the competence of the competent authority which appointed the person; qualification of the person appointed qua qualification laid down by the law and the rules and third whether the procedure prescribed in law was followed or not. Learned counsel further submitted that a writ petition in the nature of quo warranto cannot be issued by the Service Tribunal and the Tribunal cannot grant relief to that effect.
7. Mr. Muhammad Nawaz Shaikh, learned counsel for the respondents submitted that moot question involved in the petition is seniority and seniority is one of the terms and conditions of employment and jurisdiction of this Court is barred by Article 212 as exclusive jurisdiction vests in the Service Tribunal. Learned counsel relied upon Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another 2004 SCMR 1299; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Peer Muhammad v. Government of Balochistan, through Chief Secretary and others 2007 SCMR 54; Ghulam Muhammad Mallah v. Province of Sindh through Chief Secretary, Government of Sindh and 5 others 2009 PLC (C.S.) 120. Mr. Munsif Jan, who appeared for some of the private respondents, adopted arguments of Mr. Muhammad Nawaz Shaikh.
8. Mr. Mian Khan Malik, learned D.A.-G. submitted that Motorway Police was established under a summary approved by the Prime Minister of Pakistan. He admitted that all the persons from Provincial Police Department and Islamabad Capital Territory who were taken on deputation were taken a step higher than the post in which they were serving in their parent departments at the time of deputation. He submitted that a proper Induction Committee scrutinized all the cases and that Induction Committee can be, and should be treated at the same footing as Departmental Promotion Committee. Learned counsel further submitted that question regarding seniority cannot be gone into by High Court. Learned counsel relied upon Muhammad Yousuf and 4 others v. Abdul Rashid and others 1996 SCMR 1297, Fasihuddin Siddiqui and 7 others v. Government of Pakistan and others 1998 SCMR 637. He also submitted that as far as the petitioners are concerned they were considered for promotion after they had completed five years of service and were promoted to BPS-17 as Chief Patrol Officers.
9. Both Mr. Muhammad Nawaz Shaikh and Mr. Munsif Jan, strenuously emphasized that the private respondents came in employment in 1997 and so much water has passed under the bridges over the years, that it would create resentment if at this stage questions touching their initial induction are decided.
10. We have considered the submissions made by the learned counsel and have gone through the record as well as the case-law cited at the bar.
11. In the petition principally the following two prayers have been made:--
"(A) That the official respondents be directed to prepare and issue final seniority list of Senior Patrol Officers (BPS-16) in accordance with Rule 3(3), Rule 7 and Rule 9 of Civil Servants (Appointment, Promotion and Transfer) Rules 1973, read with section 8 of the Civil Servants Act, 1973 read with Rule 4 of Civil Servant (Seniority) Rules, 1993 read with departmental Rules pertaining to seniority.
(B) That the private respondents be called upon to show as to under what authority of law they are holding the posts of Senior Patrol Officer (BPS-16) and in case of their failure to show the legal authority, their appointments be declared as illegal, void ab initio with the direction that they be ceased to hold the office from the date of their failure to show the lawful authority."
12. We will first discuss question of maintainability of the petition. It was strenuously argued by the respondents and D.A.-G. that essentially the petition involves a question relating to seniority and therefore it was their contention that jurisdiction of this Court is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan. There is no manner of doubt that seniority is always one of the terms and conditions of employment. It is not disputed by any of the parties that both the petitioners and the answering respondents are in the service of Pakistan as well as are Civil Servant as defined in section 2(b) of the Civil Servants Act, 1973. The law is so well-settled on the point that seniority is one of the terms and conditions of service and therefore is within exclusive jurisdiction of Service Tribunal that it does not need any authority. One may refer to Khalid v. Dr. Farzana and others 2001 PLC (C.S.) 1239 and Dr. Rehman Ibad Khan v. Employees Old Age Benefits Institution and 3 others 2002 PLC (C.S.) 2032. Learned counsel for the answering respondents relied on Dr. Mir Alam Jan's case (supra). The question involved in the reported case was regarding an appointment in Lady Reading Hospital and question at issue was of seniority between petitioner in the High…
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