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Petitioner: SIKANDAR HAYAT SHAHEEN VS Respondent: GOVERNMENT OF PAKISTAN
1990 P L C (C
1990 P L C (C.S.) 516
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman and Misbahullah Khan, Member
SIKANDAR HAYAT SHAHEEN and others
Versus
GOVERNMENT OF PAKISTAN through Secretary Establishment Division and others
Appeals Nos. 307, 308, 309, 310, 311, 312 and 313(R) of 1977, decided on 1st November, 1989.
(a) Civil Servants Act (LXXI of 1973)
---S. 8---Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1969, R. 4---Police Service of Pakistan Probationary Service Rules, 1950-- Establishment Division O&M Letter No. 31.5.75, para.8---Seniority---Appeal filed by appellants for determination of seniority in rank of Superintendent of Police (Grade-18) in All Pakistan Unified Grades, known as Police Service of Pakistan amongst three groups of officers viz. inductees from Armed Forces, direct recruits and promotees---Appellant was inductee from Armed Forces while respondents were direct recruits in Police Service of Pakistan and two respondents were promotees from Provincial Police Service---Seniority of appellants vis-a-vis respondents was reversed in seniority list published in 1980 on representation made by said respondents that they had entered Police Service of Pakistan in year 1970 and sent to Sardah Academy in East Pakistan where they were taken as prisoners of War and were released in 1974, they were given posting in 1975 and were promoted later as Superintendents of Police in Grade-18 in 1976 and thus they were pushed behind on account of said circumstance---Appellant was, however, appointed in Grade-18 earlier than promotion of respondents to the said grade---Respondents, held, could not, be legitimately planted over appellant in Seniority list in any manner whatsoever---Seniority of appellant was ordered to be determined accordingly.
P L D 1964 Lah. 519 and P L D 1974 S C 291 ref.
(b) Civil Service Tribunals Act (LXX of 1973)--
---S. 4---Appeal---Limitation---Appellant challenging Seniority List received by him on 31-5-1987 filed appeal with Tribunal on 30-6-1987---Appeal, held, was within prescribed period and was not barred by time.
(c) Civil Servants Act (LXXI of 1973)--
---S. 8---Promotion---Promotions in Provincial Police Services are different from promotions to Police Service of Pakistan notwithstanding change of nomenclature of service---Respondents had not entered Police Service of Pakistan as Police Group, by promotion, as provided under Rules, but they found a way of intrusion in service in garb of `Lateral Entry' which was meant for transfusion in service of fresh blood by making selection from amongst officers of Armed Forces or from other sources subject to suitability and fitness determined by Selection Board-- Held, respondents, could not be placed in cadre of Police Service in Police Group at relevant time and entry of their names in gradation list did not confirm their entry in Police Service of Pakistan.
Muhammad Aslam Virk for Appellants.
Hafiz SA. Rahman for Respondent No. 1.
Respondents Nos. 2 and 4 in person.
Dates of hearing: 16th and 17th January, 1989.
JUDGMENT
SYED ALLY MADAD SHAH (CHAIRMAN).--All the appeals are of identical nature. They have been heard together and are disposed of by this one judgment.
2. All the appellants namely M/s. Sikandar Hayat Shaheen, Syed Kamal Shah, Asif Ali Shah, Khalid Yar Tiwana, Mushtaq Ahmad, Mian Zaheer Ahmad and Malik Asif Hayat were Majors in the Army. They were inducted in the All Pakistan Unified Grades (Service) Police Group and were appointed as Superintendents of Police (Grade-18). The appellant Mian Zaheer Ahmad was appointed as such in 1974, while the other appellants were appointed by one order dated 1-7-1975. M/s. Saadatullah Khan, Saad Sharif, Abdur Razzaq and Muhammad Saeed Alrai, who are the respondents Nos. 2 to 5 in Appeal No. 311 (R) 87 and are also respondents in other appeals, were selected for appointment in the Police Service of Pakistan through competitive examination held in 1970. They were sent for training in Sardah Academy in East Pakistan where they joined in December, 1970 January, 1971. To their ill luck, they were taken prisoners of war on the out-break of war in East Pakistan. They were repatriated to Pakistan on their release in the year 1974. They joined the Academy for Administrative Training, Lahore. On completion of their training, they were given postings on 27-2-1975 in the respective provinces they were allocated to before going for training in Police Academy Sardah, East Pakistan. They were promoted as Superintendents of Police (Grade-18) with effect from 14-4-1976. They were placed below the appellants in the seniority lists issued in the years 1976 and 1978. They made representations for getting seniority over and above the appellants on the basis of their earlier appointments. Their representations were upheld and they were assigned seniority over and above the appellants in the revised seniority list issued in 1980. The appellants objected to the revised seniority list. The matter remained under consideration. Ultimately, a gradation list was issued in 1987, wherein the respondents Nos. 2 to 5 were placed above the appellants. The appellants riled these appeals on 30-6-1987 for assignment of their seniority over and above the respondents Nos. 2 to 5. They have also impleaded Ch. Muhammad Amin as respondent No. 6. He belonged to the Provincial Police Service of Punjab. He was promoted as Superintendent of Police (Grade-18) in January, 1976, His name too was placed in the seniority list above the names of the appellants and his seniority also has been challenged. Likewise is the case of Ch. Iftikhar Ahmad, who has been made respondent No.6 in Appeal No. 312 (R)/87.
3. The appeals have been resisted. Written objections have been filed by the Federal Government (the respondent No.l) and also by the respondent No.2 (Mr. Saadatullah Khan) and No.6 (Ch. Muhammad Amin). The respondents Nos.3, 4 and 5 have not filed written objections. Ch. Iftikhar Ahmad (R-6 in appeal No 312 (R)/87) also has not filed written objections.
4. The case put forth by the Government is that the respondents Nos. 2 to 5 were selected for appointment in the Police Service of Pakistan in the year 1970 and they were allocated to different provinces and were deputed for training at Sardah Academy (East Pakistan) but before they could complete the training and return to take over duty, they were taken as prisoners of war and they could return on repatriation only in 1974. It is stated that their case was considered by the President under the provisions of section 23 of the Civil Servants Act, 1973 and they were allowed seniority just below the officers of 1969 batch and they were accordingly promoted as DIGs (Grade-19) in the year 1983/1984. Legal pleas also have been raised that these appeals are time barred and they are also hit by the bar contained in proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, as no departmental appeal was filed.
5. The respondent No. 2 has stated that he was accorded seniority by the President in exercise of powers under section 23 of the Civil Servants Act, 1973.
6. The respondent No. 6 has stated that he was appointed as Inspector of Police on 9-3-1961 and he was, in due course, confirmed in the rank of S.P. (Grade-18) in January, 1976 and was promoted as DIG on 1-11-1976 in accordance with the relevant rules and his seniority was not liable to be assailed. He has disclosed that he has challenged the seniority of respondents Nos. 2, 3, 4 and 5 separately and filed appeal against them before this Tribunal.
7. These appeals involve determination of seniority in the rank of Superintendent of Police (Grade-18) in the All-Pakistan Unified Grades (formerly and presently known as the Police Service of Pakistan), amongst the three groups of officers viz. inductees from the Armed Forces, direct recruits and the promotees. The appellants belong to the first category i.e. the inductees; while the respondents Nos. 2, 3, 4 and 5 are direct recruits in the Police Service of Pakistan; and the respondents M/s. Ch. Muhammad Amin and Ch: Iftikhar Ahmad are the promotees from the Provincial Police Service. As indicated above, the appellant Mian Zaheer Ahmad was inducted in the All-Pakistan Unified Grades (Police) as Superintendent of Police (Grade-18) in the year 1974 and the other appellants were inducted in the same grade in the same service on 1 7-1975; whereas the respondents Nos. 2, 3, 4 and 5 were promoted as Superintendent of Police (Grade 18) on 14-4-1976: and the respondent Ch. Iftikhar Ahmad was promoted as Superintendent of Police (Grade-18) from the Provincial Police Service on or about 18-5-1975, and the respondent Ch. Muhammad Amin was promoted as Superintendent of Police (Grade-18) from the Provincial Police Service in January 1976. The dates of entry to Grade-18 of"~ the appellants as well as the respondents, as aforesaid, are not disputed. The inter se seniority of the appellants and the respondents Nos. 2 to 5 was maintained accordingly in the seniority lists issued in the years 1976 and 1978. But the position was reversed in the revised seniority list issued in the year 1980 consequent to the acceptance of the representation for seniority made by the respondents Nos. 2 to 5. This gave cause of action to the appellants for making representation. However, the same position was maintained in the gradation list published in the year 1987, i.e. the respondents Nos. 2 to 5 were placed above the appellants. The appellants, therefore, preferred these appeals. The respondents Ch. Muhammad Amin and Ch. Iftikhar Ahmad also have been impleaded as their names have been placed above those of the appellants in the gradation list of the, Police Officers in Grade-19.
8. As pointed out above, the seniority of the appellants vis-a-vis the respondents Nos. 2 to 5 as maintained in the years 1976 and 1978 was reversed in the seniority list published in the year 1980. This was done on the representation made by the respondents Nos. 2 to 5 that they had entered the Police Service of Pakistan in the year 1970 and they were sent for training in Sardah Academy in East Pakistan where they were taken as prisoners of war and were released in the B year 1974 and thereafter they joined the Academy for Administrative Training, Lahore and after completion of their training, they were given postings on 27-2-1975 and were promoted later as Superintendents of Police in Grade-18 with effect from 14-4-1976 and they were .pushed behind on account of the said unfortunate circumstances which were beyond their control. Their cases is candidly stated in the Summary submitted to the President on 10-6-1979, reproduced below:-
SUMMARY FOR THE PRESIDENT
Subject:- PROTECTION OF SENIORITY.
Officers of the former PSP of 1970 batch have represented that they may be placed immediately below the 1969 batch of their service in the Gradation List of Grade-18 officers of the Police Group.
2. The background of the case is that on the result of CSS Examination 1969, five candidates were allocated to the former PSP and went for training to the Police Academy, Sardah (East Pakistan). While they were under training at Sardah they were abducted to India on 10-4-1971. On their repatriation to Pakistan on 6-7-1974, they were directed to report for training to Academy for Administrative Training, Lahore on 7-8-1974. ,On successful completion of training they were confirmed as ASPs from the date of their induction. into the PSP cadre under Rule 11 of the Police Service of Pakistan (Probationary Service) Rules, 1950. They were promoted to the rank of Superintendent of Police from, 14-4-1976. The position of these officers stood at serials 111 to 115 of the then Gradation List.
3. The representationists could not complete their training at Sardah and be considered for promotion in 1973 against 66-1/2 per cent quota reserved for them due to reasons beyond their control as explained in para. 2 above. Had they not become POWs. they would have been considered and promoted against 66-1/2% quota reserved for direct recruits. The request of the officers that they should have been considered for promotion to the rank of Superintendent of Police in 1973 against their promotion quota of 66-1/2%, irrespective of the fact that they were POW, therefore, deserves consideration. The promotion of 66-1/2% for the officers of former PSP, now APUG, against 33-1/2% for the ranks is covered under the- proviso to rule 4 (b) of the Police Service of Pakistan now APUG (Composition and Cadre) Rules, 1969. The officers of 1970 batch of the old PSP, on promotion as Superintendents of Police, are therefore, entitled, without any financial benefits, to be placed below 1969 batch of direct recruits and Provincial Police Officers (rankers) against not more than one-third quota reserved for them by rule 4 of PSP, now APUG (Composition and Cadre) Rules, 1969. If protection of seniority is approved accordingly. Messrs Sajjad Ahmad Javed Bhatti, Saadatullah Khan, Saad Sharif, Abdur Razzaque and Mohammad Saeed, appearing at S. Nos. 102, 106 of Gradation List of Grade-18 of Police Group would be placed at S. Nos. 25 to 29 of this list after Mr. Shamsuz Zaman Khan (S. No. 24), the last Provincial Police Officer holding the post of PSP within 33-1/2% promotion quota prior to introduction of Administrative Reforms and the affected numbers of seniority will be re-numbered accordingly.
4. Approval of the President is solicited to the proposal made in para.3 above.
Sd/-N.H. JAFAREY stablishment Secretary
COS to the President: Estt. Divn. U.O No. 10/5/79-Police (A), dt. 10-6-1979.
5. Please get the views of the Law Division on the above proposal.
Sd/ Maj Gen. COS to CMLA, (K.M. ARIF) 13 June 79.
Establishment Secretary:
6. Law Division may kindly see paras 1-5 of the Summary for the President and let us have their views if the proposal made in para 3 is in order from the legal point of view.
Sd/ Syed Ijlal Haider.Zaidi ESTABLISHMENT SECRETARY
Law Secretary (Mr. Justice K.M.A. Samdani), Islamabad:
Estt. Divn U.O. No. 10/5/79-Police (A), dt. 20-6-1979.
LAW DIVISION
7. I do not think it is possible for us to support the proposal made in para 3 of the summary for the President. Rule 11 of the Police Service of Pakistan (Probationary Service) Rules, 1950 says that a probationer who has satisfied the Central and the Provincial Government concerned as to his conduct during probation and has passed or been exempted by the Central Government from passing prescribed examination- shall be confirmed by the Provincial Government as an Assistant Superintendent of Police and shall thereafter be governed by the rules and regulations applicable to the Police Service of Pakistan in force on the date of his appointment as a probationer. Thus the officers concerned were to be confirmed and they were confirmed as Assistant Superintendents of Police after completion of their training at the academy for administrative training in Lahore, sometime after the 7th August, 1974: The proviso to Rule 4 (1) of the Police Service of Pakistan (Composition and Cadre) Rules, 1969 is to the effect that the number of appointments under clause (b) of the members of the Police Service of Pakistan shall not exceed one-third of the number of senior cadre posts in the province. No doubt, according to these rules, two-third of the number of senior cadre posts is reserved for the members of the Police Service of Pakistan. But I do not think that the rule also implies that if a member of the Police Service of Pakistan is not available when a vacancy occurs or is not promoted, but a member of 4k Provincial Service is promoted and if afterwards the member of the Police Service of Pakistan is also promoted, the latter shall rank senior to the officer of the Police service of a Province who is promoted earlier. It is not possible to spell out such an intention from the proviso to Rule 4 (1) ibid. In my opinion, the abovementioned rules mentioned in the summary do not advance the case of the officers mentioned therein.
8. No doubt, the training of the officers concerned was interrupted due to the circumstances beyond their control. 1t is also true that if they had successfully completed their training without interruption and according to schedule they might have been promoted earlier than the officers of the Provincial Police Service and they might have ranked senior to them. But as the facts are, it is not possible to treat them senior to the officers of the Provincial Service mentioned in the summary. Section 8 (4) of the Civil Servants Ad, 1973 is a complete answer to the proposal made in the summary. It says that seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to a post in that grade. This provision is subject to only one proviso to the effect that civil servants who are selected for promotion to a higher grade in one batch shall on their appointment to the higher grade retain their inter se seniority as in the lower grade. Section 8(4) ibid does not take notice of any circumstances which may have stood in the way of promotion of an officer to the higher grade. We may, therefore, advise against the proposal.
Sd/ Muhammad Ismail Loona Joint Secretary 30th June, 1979 Tele: 22763
SECRETARY:
9. I agree with the opinion recorded in the preceding minutes but would like to draw the attention of the Establishment Division to section 23 of the Civil Servants Act, 1973, which reads as follows:-
23. Saving. Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable:
Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
In view of this provision it is open to the President to grant seniority to the representationists as prayed for, if he considers this to be just and equitable. On this question, however, the Establishment Division will have to advise the President.
Sd/ K.M.A. SAMDANI SECRETARY 15-7-1979
(Syed Ijla1 Haider Zaidi)
Establishment Secy.
ESTABLISHMENT D IVISION
10. The case was referred to the Law Division as desired in para. 5 ante,
11. Joint Secretary, Law Division has maintained that under section 8 (4) of the Civil Servants Act, 1973, seniority in the grade to which a civil servant is promoted takes effect from the date of regular appointment to a post in that grade. Seniority cannot, therefore, be granted with retrospective effect in this case. The Law Secretary has agreed with this opinion but has drawn the attention of the Establishment Division to section 23 of the Act which gives the President the power "to deal with the case to be just and equitable". According to the Law secretary
"In view of this provision it is open to the President to grant seniority to the representationists as prayed for if he considers this to be just and equitable. On this question, however, the Establishment Division will have to advise the President".
12. The Establishment Division is of the view that these officers became prisoners of War in the line of duty. Any loss which they have suffered on this account has to be compensated by the State in public interest. If those who suffered for the country are not protected against rules which do not cater for such eventualities the civil servants will not expose themselves to such hazards in future. It is, therefore, proposed that all those civil servants who have suffered in seniority of service because of the exigencies of service, due to no fault of their own, may be allowed the benefits which would have accrued to them under normal circumstances in their service on the merits of each case.
13. Approval of the President is solicited to the proposal made in para.3 above.
Sd/ SYED IJLAL HAIDER ZAIDI Establishment Secretary 27-8-1979
COS to the President:
14. Did a problem of this nature arise in respect of defence service officers If so, how was it solved.
Sd/ Maj Gen COS to CMLA (K.M. ARIF) 15 Sep 79.
S.G. Defence:
MINISTRY OF DEFENCE
15. Reference paras 1-14-/N ante.
16. The position in regard to the protection of seniority of officers of the Armed Forces officers taken P.O.W. during the last Indo Pakistan War, as indicated by them; is as under:
(a) Army:
Cases of promotion were considered on their repatriation to Pakistan and, those promoted, were given seniority, from the date of commission. . in accordance with the normal rules.
(b) Navy:
Cases of promotion of officers while they were P.O.W. were considered and those considered fit were promoted in absentia.
(c) Air Force:
Question of protection of seniority of officers taken P.O.W. did not arise because there had been no case of substantive seniority, of a PAF officer promoted after his repatriation to Pakistan, having been disturbed.
17. In cases of time-scale promotion in all the three Services relaxations in time limit in the promotion examinations were granted.
18. As such the problem of the nature mentioned in the Establishment Divisions Summary at paragraph 1-13 N ante, did not arise on the Defence side.
Sd/- GHULAM JILANI KHAN Secretary General 29-9-1979
COS to the President CMLA:
ESTABLISHMENT DIVISION
19. It appears from para.16 that the officers of Army and Navy were given normal seniority in higher ranks to which they would have been entitled but for their being taken as POW). There was no such case in Air Force. It was exactly in this spirit that the case of restoration of the seniority was initiated.
20Approval of the President may now be accorded to the proposal made in para.3.
Sd/- Syed Ijlal Haider Zaidi Establishment Secretary
COS to the President-
21. The seniority rules in the Armed Forces are quite different to those in the civil service, The comparison drawn in para.19 is, therefore, valid to a limited extent only.
22. Para. 3 above be approved as recommended. Intd. 27/2
PRESIDENT:
Para. 3 above is approved without any monetary benefits. Sd/- 5-6-1980"
9. The learned counsel for the appellants urged that the appellants appointment/induction in the Police Service was made in accordance with the provisions of the Civil Servants Act, 1973 and the rules made there under viz. Civil Servants (Appointment, Promotion- and Transfer) Rules, 1973 (hereinafter referred to as the Promotion Rules). He made. pertinent reference to rules 3 and 7 thereof. He also made reference to section 5 of the Federal Public Service Commission Act, 1973 and Rules 3, 4 and 5 of the Federal Public Service Commission (Functions) Rules, 1978. He placed much reliance on the provisions of the Establishment Division O.M., dated 31-5-1975 with specific reference to para. S thereof. He next urged that the respondents Nos. 2 to 5 were regularly appointed as Assistant Superintendents of Police in Grade-17 after completing their training and they were promoted to Grade-18 in December, 1975. He advanced the argument that seniority was to be determined from the date of continuous officiation in a post as laid down in section 8 of the Civil Servants Act, 1973, read with the Establishment Division O.M., dated 31-5-1975 and, therefore, the appellants were rightly placed above the respondents Nos. 2 to 5 in the seniority list issued in the years 1976 and 1978, which were not objected to by the respondents. He placed reliance on the decision of Lahore High Court in the case of Justice Paizullah Khan, reported in P L D 1964 Lab. 519, upheld by the Supreme Court as reported in P L D 1974 S C 291. He contended that the respondents Nos. 2 to 5 were not entitled for their promotion from any earlier date on any hypothesis as none of their juniors was promoted at an earlier date He also contended that the respondents Nos. 2 to 5 had not put in requisite service of five years in Grade-17 for earning promotion to Grade-18. He made grievance that the appellant's case was not considered altogether in the Summary submitted to the President for ante-dating seniority of the respondents Nos. 2 to 5 in Grade-18. He emphatically urged that the case of the respondents Nos. 2 to 5 did not fall within the purview of section 23 of the Civil Servants Act, 1973 which was invoked in their favour.
10. The learned counsel for the Government urged that the case of the respondents Nos. 2 to 5 was definitely a case of hardship as the stream of their service career was blocked by the unfortunate circumstances of their capture as prisoners of war during the course of their training at Sardah Academy in East Pakistan and they completed their training after their release and repatriation to Pakistan in 1974 and they…
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