Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HAZAR KHAN JATOI VS Respondent: GOVERNMENT OF PAKISTAN
1990 P L C (C
1990 P L C (C.S.) 265
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman and Misbahullah Khan, Member
HAZAR KHAN JATOI
versus
GOVERNMENT OF PAKISTAN
Appeal No. 101(K) of 1986, decided on 23rd October, 1989.
(a) Civil Servants Act (LXXI of 1973)--
---S. 8(4)---Police Service of Pakistan (Composition and Cadre) Rules, 1969, R.4(1)(b)---All Pakistan Unified Grades and All Pakistan Services (Change in Nomenclature) Rules, 1973 and Cabinet Secretariat, Establishment Division Notification No. 10/8/83-2B (Police), dated 20-1-1986---Seniority---Appellant joined Sindh Provincial Police Service as an Assistant Sub-Inspector and promoted from rank to rank as Superintendent of Police in officiating capacity-- Appellant was recommended for entry in Police Service of Pakistan by Government of Sindh---Name of appellant was placed at Serial No. 5 amongst Police Officers from Province of Sindh inducted in the Police Service of Pakistan and then by Notification dated 4-4-1986, his name was placed at Sr. No. 9 amongst Police officers of all four Provinces inducted in Police,. Service of Pakistan showing his date of appointment in Pakistan Police Service as 1-1-1981---Appellant contended that his entry into service aught to have been reckoned from 2-3-1974 when he was promoted as Superintendent of Police and that his name be placed at serial No. 1 amongst Police Officers from Province of Sindh inducted in service alongwith him---Appellant contended that he should have been assigned encadrement in Police Service of Pakistan against first vacancy in quota for Province of Sindh as he held post of Superintendent of Police since 2-3-1974 on regular basis---Police Service of Pakistan, at relevant time, which was regulated under Police Service of Pakistan (Composition and Cadre) Rules, 1969 stood changed to All Pakistan Unified Grades under All Pakistan Service (Change in Nomenclature) Rules, 1973---Service continued being regulated under said 1969 Rules, appointment to the Police Service in the All Pakistan Unified Grade was to be made in accordance with provisions of Rule 4 thereof---Appointment to service of members of Police of a Province was to be made by the President by selection on recommendation of Governor and in consultation with Public Service Commission as provided under 1969 Rules-- Appellant's promotion as a Superintendent of Police by Provincial Government did not place him in the Police Service in All Pakistan Unified Grade by virtue of that order---Name of appellant was not mentioned in gradation list of All Pakistan Unified Grade Officers of Police Group (Grade-18)---On asking -of Establishment Division to fill in 14 posts of Police Officers of rank of Superintendent of Police in Grade-18, Government of Sindh made recommendations in respect of 5 officers---Establishment Division again requested Government of Sindh to send more names whereupon Government of Sindh recommended names of nine other officers which included name of appellant---Recommendations stated about second group of officers that five officers recommended earlier might be given precedence over second batch in case of encadrement---Encadrement into service of appellant therefore was made as per recommendation of Provincial Government and officers recommended in first batch were given precedence over officers recommended in second batch including appellant---Held, appellant did not have legitimate grievance and his encadrement in service could not be ante-dated in circumstances.
P 1. D 1970 S C 203; 1987 P L C (C.S.) 168 and 1987 P L C (C.S.) 302 ref.
(b) Service Tribunals Act (LXX of 1973)--
---.S. 4(1), proviso---Jurisdiction---Appellant made representation to Department and when no response was received for ninety days be filed an appeal before Tribunal against impugned notification- --Appeal of appellant thus was not hit by proviso to subsection (1) of section 4 of Service Tribunals Act, 1973.
(c) Service Tribunals Act (LXX of 1973)--
---S, 4---Jurisdsction---Appellant was borne on the Police Service of Province and had not been confirmed in Police Service of Pakistan-- -Appellant, thus was not a civil servant in Federal Government as to invoke jurisdiction of Federal Service Tribunal.
Ikramul Haq's case 1986 S C M R 1995 rel.
Rasool Bux Unar assisted by Kanwar Mukhtar Ahmad for Appellant.
Niaz Ahmad Khan alongwith Ghayyur Abbas for Respondent No. 1.
Salman Ansari alongwith Nasir Ahmad Shaikh and Yaqoob Ansari for Respondent No. 2.
Manzoor Ali Khan for Respondent No. 5.
Dates of hearing: 3r, 5th and 9th September, 1989.
JUDGMENT
SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Hazar Khan Jatoi, a Superintendent of Police, has preferred this appeal for determination of his seniority in the Police Service of Pakistan.
2. The appellant's case, briefly stated, is that he joined Sindh Provincial Police Service as a Sub-Inspector of Police (ASI) on 10-8-1950. He earned promotion from rank to rank and was ultimately promoted as a Superintendent of Police on 2-3-1974 and continued serving as such till he preferred this appeal on 4-8-1986. He was recommended for his entry in the Police Service of Pakistan vide Government of Sindh letter No. 7495, dated 16-6-1983. By Notification No.10/8/83-E.B. (Police), dated 20-1-1986, issued by the Cabinet Secretariat, Establishment Division, his name was placed at S. No. 5 amongst the Police Officers from the Province of Sindh inducted in the Police Service of Pakistan. By another notification of even number dated 21-4-1986 issued from the same source, his name was placed at S. No. 9, amongst the Police Officers of all the four Provinces inducted in the Police Service of Pakistan, showing the date of his appointment in the Pakistan Police Service as 1-1-1981. He made representation to the Secretary, Establishment Division on 4-5-1987 that his entry into the service may be reckoned from 2-3-1974, when he was promoted as a Superintendent of Police and his name may be placed at S.No. 1 amongst the Police Officers from the Province of Sindh inducted in the service along with him. He did not receive any orders on his representation for ninety days. He, therefore, preferred this appeal on 4-8-1986, imp leading M/s. Sirajuddin, Wahajul Hayee Khan, Altaf Ali Khan and Khadim Hussain, as respondents Nos.3, 4, 5 and 6 respectively, besides the Government of Pakistan and the Government of Sindh as the respondents Nos. 1 and 2 respectively. Mr. Ghous Bux Memon also was impleaded as a respondent at S.No. 7. It was disclosed later that Mr. Ghous Bux Memon had expired before the filing of the appeal. His name was deleted from the list of respondents vide order dated 30-3-1989.
3. The respondents have resisted the appeal. In the written objections filed on behalf of the Federal Government, it has been stated that the appellant belonged to the Provincial Service of Sindh and his encadrement in the Police Service of Pakistan was made in accordance with the relevant rules. It has further been stated that in March, 1984, the Government of Sindh was informed that 14 posts in the Police Service of Pakistan were to be filled in and they were called upon to recommend names of suitable Provincial Police Officers for encadrement in the rank of Superintendent of Police in terms of para. 4(1)(b) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969, whereas the Government of Sindh recommended names of only five officers, namely M/s. Munawar Ali Khan, Sirajuddin, Wahajul Hayee Khan, Altaf Ali Khan and Khadim Hussain, for their encadrement in the Police Group on merit. It has been added that the Establishment Division requested the Sindh Government, on 25-4-1984, to recommend more names as to fill in all the fourteen vacancies in the quota of the Province of Sindh and the Government of Sindh recommended names of nine more officers, which included the name of the appellant, on 3-6-1984, with the added recommendation that the five officers recommended earlier may be considered against the first five vacancies and the encadrement was made as recommended by the Government of Sindh. Maintainability of the appeal also has been challenged.
4. The Government of Sindh, the respondent No. 2, also has stated the same facts in the written objections that the names of Police Officers for encadrement in the Police Service of Pakistan were recommended on the consideration of their performance and reputation/integrity etc. and the name of the appellant was not recommended in the first batch of five officers but his name was recommended in the second batch of nine officers and his entry in the service was determined by the Establishment Division in the Federal Government.
5. The respondent No. 3 (Mr. Sirajuddin) has filed written objections, wherein he has stated that he was senior to the appellant in the ranks of Assistant Sub-Inspector, Sub-Inspector, Police Inspector as well as Deputy Superintendent of Police and he and the appellant and others were cleared by the Provincial Selection Board for promotion to the rank of Superintendent of Police in Grade-18 at one and the same time, but mysteriously the appellant's order of promotion was issued earlier and he assumed charge of the post of Superintendent of Police earlier but he had not earned seniority over him on that account.
6. Respondent No. 5 (Mr. Altaf Ali Khan) also has filed written objections. His preliminary objection is to the maintainability of the appeal on the ground that the appellant has filed it without exhausting departmental appeal remedy. He has asserted that he was assigned seniority above the appellant in accordance with the relevant rules and he stands senior to him for all intents and purposes.
7. The respondents Nos. 4 and 6 have preferred to remain ex parte as they have neither filed written objections nor did they appear at the hearing of the appeal.
8. The appellant claims seniority in the Police Service of Pakistan on the basis of his promotion as a Superintendent of Police (Grade-18) with effect from 2-3-1974 vide Government of Sindh, Services and General Administration Department Notification dated 27-2-1974. The learned counsel appearing for him has urged that the appellant's promotion as Superintendent of Police under the aforesaid notification amounted to his entry/induction in the Police Service of Pakistan with effect from 2-3-1974 when he took over charge of that post. He next advanced the argument that the respondents Nos. 3, 4, 5 and 6, who were promoted as Superintendents of Police on 23-3-1974, 8-7-1977, 1-7-1977 and 1-5-1982 were, therefore, junior to him for all intents and purposes. He made reference to the Police Service of Pakistan (Composition and Cadre) Rules, 1969 and the notification of the Constitution of the Police Group in 1975. He also pressed in aid section 8(4) of the Civil Servants Act, 1973. He urged that the appellant should have been assigned encadrement in the Police Service of Pakistan against the first vacancy in the quota for the Province of Sindh. He placed reliance on a case reported in P L D 1970 S C 203. He cited two cases reported in 1987 P L C (C.S.) one at page 168; and another at page 302 on the connotation of regular appointment, and urged that the appellant held the post of the Superintendent of Police since 2-3-1974 on regular basis and his seniority was reckonable from that date.
9. The learned counsel for the respondents Nos. 1 and 2 contended that the appellant could claim seniority in the Police Service of Pakistan from the date he could be encadred in the service in accordance with the relevant rules. Similar view was propounded by the learned counsel for the respondent No. 5, besides the legal pleas against the maintainability of the appeal. He also urged additional ground of lack of jurisdiction on the ground that the appellant continues to be in the service of the Province of Sindh.
10. The appellant's case is based on the Government of Sindh Services and General Administration Department notification dated 27-2-1974, where under he was promoted as a Superintendent of Police in Grade-18. He was admittedly a Deputy Superintendent of Police in the Provincial Service of Sindh when he was promoted. It is indicated in the order that on promotion he was posted to officiate as a Superintendent of Police. At the relevant time, the Police Service of Pakistan which was regulated under the Police Service of Pakistan (Composition and Cadre) Rules, 1969 stood changed to All-Pakistan Unified Grades under the All-Pakistan Services (Change in Nomenclature) Rules, 1973. However, the service continued being regulated under the same 1969 Rules. Appointment to the Police Service in the All Pakistan Unified Grades was to be made in accordance with the provisions of Rule 4 thereof. Appointment to the service of the members of the Police of a Province -was to be made by the President by selection on the recommendation of the Governor and in consultation with the Commission as provided in clause (b) to sub-rule (1) of Rule 4 of the said Rules. The appellant's promotion as a Superintendent of Police by the Provincial Government did not place him in the Police service in the All-Pakistan Unified Grades. Moreover, his promotion was made in an officiating capacity for holding a post in the Provincial service. As such, he could not claim encadrement in the Police Service in the All-Pakistan Unified Grades by virtue of that order. Of course, his name did appear in 1975 gradation list of Police Group constituted in the All-Pakistan Unified Grades in the year 1975, but it was mentioned in the Forward to the gradation list that Provincial Police Officers of Grade-18 and above also were included in the list and inclusion of his name in the list did not, ipso facto, make him a member of the Police Group. Significantly, his name was not mentioned in the gradation list of APUG Officers of Police Group (Grade-18), circulated on 28-8-1980. It was mentioned in the Forward to this gradation list, which was although provisional one, that it was drawn up 'in accordance with the Civil Servants Act, 1973 and the Establishment Division O.M. No. 10/74/78-Police, dated 23-5-1979, wherein Provincial Police Officers of the four Provinces were allocated posts according to their quota and the seniority of the directly recruited officers vis-a-vis Provincial Police Officers was fixed from the date of their regular officiation in the APUG (Police Group) in Grade-18 in accordance with the existing rules and instructions. As regards encadrement to the Police Group in the All-Pakistan Unified Grades, subsequently transformed into the Police Service of Pakistan under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, the facts are clearly stated in the written objections filed by the Federal Government (the respondent No. 1). It has been stated that-the Establishment Division informed the Government of Sindh in March, 1984 that 14 posts of Police Officers in the rank of Superintendent of Police in Grade-18 in the quota for the Province of Sindh were lying vacant and names of the Provincial Police Service Officers eligible for encadrement may be recommended and the Government of Sindh recommended only five names namely Munawar Ali Khan, Sirajuddin Wahajul Hayee Khan, Altaf Ali Khan and Khadim Hussain for encadrement on merit. It is further stated that the Establishment Division again requested the Government of Sindh on 25-4-1984 that some more names may also be recommended to fill in all the 14 vacancies and the Government of Sindh recommended, on 3-6-1984, names of nine other officers, which included the name of the appellant. It is also stated that it was B indicated in the recommendations of the second group of the officers that the five officers recommended earlier may be given precedence over the second batch in the case of encadrement. The respondent No. 5 has filed photostat copies of those letters of recommendations made by the Government of Sindh dated 7-4 1984 and 3-6-1984. The departmental representatives produced before us at the hearing the minutes of the meeting of the Encadrement Committee. The first meeting was held on 23-12-1985. It appears from the minutes of the meeting that all the respondents except Khadim Hussain, the appellant and some of the officers from the second batch were cleared by the Committee for promotion, while the case of Khadim Hussain was deferred till receipt of his complete record. Subsequent to the selection made by the Selection Committee, a notification dated 21-1-1986 was issued where under names of the selected officers were notified Province-wise. The names of the respondents 3, 4, 5 and 7 since dropped on account of his death) were placed at S.No. 1 to 4 respectively and the appellant's name was mentioned at S.No. 5 amongst the officers selected from the Provincial Police Service of Sindh. The name of respondent No. 6 (Khadim Hussain) did not appear in this notification. It was indicated in the notification that their encadrement would take place from the dates of occurrence of vacancies in the post, falling in the quota of the Provinces. By another notification dated 21-4-1986, the dates of eneadrement to the Police Service of Pakistan of the selected Police Officers were notified. The appellant's date of encadrement was mentioned as 1-1-1980 and those of the entry of the respondents were earlier in time.. Name of respondent Khadim Hussain also was notified in this notification and the date of his encadrement was shown as 22-11-1980. Entry of his encadrement has not been explained. He has remained ex parte. The notification dated 21-4-1986 was issued in continuation of the earlier notification dated 20-1-1986, wherein his name did not find place. In the circumstances, the inclusion of his name in the notification dated 21-4-1986 may not be short of a mystery, unless explained. As mentioned above, encadrement of the Police Officers in the All-Pakistan Unified Grades, by whatever name called, at different stages, depended upon the recommendation by the Provincial Government and selection by the Commission or the Selection Board, as the case was at the relevant time, and ultimately approved by the competent authority. The encadrement into the service of the appellant and the respondents was made as per recommendations by the Provincial Government and the Officers recommended in the first batch were given precedence over the officers recommended in the second batch which included the name of the appellant. He was assigned the date of encadrement in that sequence from the dates when the seats in the Provincial quota had become available. Thus, the appellant does not have legitimate grievance against the notification dated 20-1-1986 and he should have no grievance even against the second notification dated 21-4-1986, except that name of respondent No. 6 Khadim Hussain, whose name did not appear in the earlier notification dated 20-1-1986, should not have been placed above him unless he had been cleared subsequently but before the issuance of the notification dated 21-4-1986. In any case, the name of Khadim Hussain, respondent No. 6, appeared in the notification dated 20-4-1986 surreptitiously or due to oversight. The appellant's encadrement in the Police Service of Pakistan shall need to be ante-dated to 13-12-1980 assigned to respondent Mr. Ghous Bux Memon (since dead), whose name would occupy the place of the respondent Khadim Hussain, whose date of encadrement has been shown as 22-11-1980.
11. There is an objection to the maintainability of the appeal on the ground that the appellant had filed it before exhausting the departmental remedy. The appellant has placed on record a copy of his representation dated 4-5-1986 to the Secretary to the Government of Pakistan, Establishment Division, against the notification dated 21-4-1986. It is stated in paragraph 3 of the memo. of appeal that he had filed an appeal dated 4-5-1986 and awaiting decision thereon for 90 days, without any response, he preferred the appeal. It is thus clear that the appellant did make representation against the impugned notification and the appeal is not hit by the proviso to subsection (1) of section 4 of the Service I Tribunals Act, 1973.
12. The learned counsel for respondent No. 5 agitated at the hearing of appeal a new ground that the appellant was borne on the Police Service of the Province of Sindh and he had not been confirmed in the Police Service of Pakistan, therefore, he was not a civil servant in the Federal Government as to invoke the jurisdiction of this Tribunal and he has relied upon the case of Ikramul Haq (reported in 1986 S C M R 1995). He submitted that although this ground was not raised in the memo. of appeal, yet it being a question of law, could be urged at any stage. His contention was not controverted by the appellant. There is another factor also which stands in the way of the appellant on the question of jurisdiction. He was placed behind by the Government of Sindh while recommending names of the Police Officers for encadrement in the Police Service of Pakistan and that recommendation was accepted by the Federal Government. Redress against that grievance could be sought by him from the Provincial Government and not from the Federal Government. Thus, the question of jurisdiction also stands in the way of the appellant on the aforesaid two grounds.
13. For the reasons recorded above, the appellant does not succeed in appeal on merits and also on the ground of lack of jurisdiction of the Tribunal. II The appeal is, therefore, dismissed with no order as to costs.
M.Y.H./529/Sr. F
Appeal dismissed.