Full Judgment Text & Judicial Ruling

2011 P L C (C.S.) 865

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan and Muhammad Qaim Jan Khan, JJ

PROVINCIAL POLICE OFFICER, N.-W.F.P. and others

Versus

MUHAMMAD NAWAZ

Civil Petition No. 175-P of 2009, decided on 22nd April, 2009.

(On appeal from the order of the N.-W.F.P. Service Tribunal, Peshawar dated 1-1-2009 passed in Service Appeal No. 1372 of 2008).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Appeal---Head Constable in Police Department---Removal of appellant's name from Promotion to List "D" on basis of alleged oral complaints against him without issuing him notice or providing him an opportunity of hearing---Validity---Appellant after his appointment as Constable had passed recruit course---Appellant after passing Lower School Course was promoted as Head Constable and his name was brought on Promotion List "D" after passing Intermediate School Course---Inclusion of appellant's name in Promotion List created a vested right in his favour, which could not be withdrawn without adopting proper legal procedure---Oral complaints should not have weighed with competent authority for passing impugned order---Appellant's name had been removed from Promotion List "D" in violation of principle of audi alteram partem---Service Tribunal accepted appeal and set aside impugned order in circumstances.

Muhammad Iqbal and 11 others v. Superintendent of Police, Khanewal and another 2000 PLC (CS) 1127 and Rashid Ahmad and 3 others v. Superintendent of Police and 2 others 1992 PLC (CS) 58 ref.

Qaiser Rashid, A.A.-G. N.-W.F.P. for Petitioners.

M. Tariq Javed, Advocate Supreme Court for Respondent.

Date of hearing: 22nd April, 2009.

JUDGMENT

IJAZ-UL-HASSAN, J.---Through instant petition, Provincial Police Officer, N.-W.F.P., Peshawar and others, petitioners, seek leave to appeal from a judgment of the N.-W.F.P. Service Tribunal, Peshawar, dated 1-1-2009 accepting appeal preferred by Muhammad Nawaz, respondent, and setting aside order dated 4-7-2008, whereby respondent was transferred from District Police Nowshera to District Police Kohistan and his name was removed from promotion list "D".

2. Facts of the case in brief are, that while serving as Headconstable in the District Police, Nowshera, respondent was transferred to District Police, Kohistan and name of respondent was removed from promotion list "D", vide order dated 4-7-2008. The respondent feeling aggrieved, filed departmental representation and on its rejection vide order dated 26-8-2008, preferred appeal before learned Tribunal, which has been accepted through the judgment impugned herein.

3. Appearing on behalf of the petitioners, Mr. Qaiser Rashid, Additional Advocate-General, N.-W.F.P. submitted that name of the respondent has been validly removed from list "D" by the competent authority; that the impugned judgment suffers from legal infirmities as learned Tribunal had no jurisdiction to interfere in such a matter which is concerned with the management of the discipline force; that removal of respondent's name from the promotion list is not a punishment or penalty and that department stand has not been considered properly, resulting in manifest injustice.

4. Mr. M. Tariq Javed, Advocate for the respondent, on the contrary, refuted the arguments of learned Additional Advocate-General and supported the impugned judgment on all counts maintaining that name of the respondent could not be removed from list "D" without any show-cause notice and that respondent was not provided any opportunity of hearing. Reliance was placed on Muhammad Iqbal and 11 others v. Superintendent of Police, Khanewal and another (2000 PLC (C.S.) 1127) and Rashid Ahmad and 3 others v. Superintendent of Police and 2 others (1992 PLC (C.S.) 58).

5. Having considered the arguments of learned counsel for the parties in the light of the material on file, we find that learned Tribunal has rightly accepted the appeal of the respondent and set aside order dated 4-7-2008 for reasons not open to legitimate exception. Record reveals that respondent was appointed as constable on 13-1-1987. He was deputed to police Training College Hangu for' recruit course which he passed. After passing Lower School Course he was promoted as Headconstable on 21-12-2001. He passed Intermediate School Course on 20-3-2004 and his name was brought on promotion list "D". During service respondent got courses of Bomb Disposal, Scorpion, Credulity and Traffic and remained posted in various police stations as Mother Moharrar. Surprisingly, no notice was issued to the respondent nor he was provided any opportunity of hearing and his name was removed from list "D" in violation of principle of audi alteram partem. The hammer appears to have fallen on the respondent on account of oral complaints alleged to have been received against him. We agree with learned counsel for the respondent that oral complaints should not have weighed with the competent authority providing a ground for removal of his name from the promotion list. The inclusion of name of the respondent in the list creates a vested right in his favour for promotion to high rank and the same could not be withdrawn without adopting the proper legal procedure. Learned Tribunal has rightly accepted the appeal of the respondent. No infirmity, legal or factual has been pointed out in the impugned judgment.

6. Finding no merit in this petition, we dismiss the same and decline to grant leave.

S.A.K./P-5/SC Leave refused.

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