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Petitioner: AHMED MUST AFA VS Respondent: INSPECTOR-GENERAL OF POLICE, N.-W.F.P. and 2 others
Court Name: Peshawar High Court Judge(s): Abdul Karim Khan Kundi, Inayat Elahi Khan Title: AHMED MUST AFA vs INSPECTOR-GENERAL OF POLICE, N.-W.F.P. and 2 others Case No.: Writ Petition No.163 of 1982 Date of Judgment:1984-07-28 Reported As: 1985 CLC 83 Result: Petition dismissed
JUDGMENT
JUDGMENT ' ABDUL KARIM KUNDI, J.--Writ Petition No.163/82 has the background of facts that one Ahmed Mustafa, M.Sc., the petitioner, was first appointed Assistant Sub-Inspector, Police (ASI) against a sanctioned post in the Forensic Science Laboratory, Crime Branch, Peshawar by the Inspector- General of Police N.-W.F.P, Peshawar (IGP) on 10-9-1977. Soon after he had the successive rapid promotions to the ranks of Sub-Inspector, Police, Inspector of Police and Deputy Superintendent of Police, respectively on 1-11-77, 1-2-78, and 8-8-78 against existing vacancies in the very Forensic Science Laboratory, Crime Branch, Peshawar. However, at least on 25-2-81 he was served with a show-cause notice by the I.-G.P. on charges of grave misconduct liable to major punishment under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter called E.& D.Rules) and the same day the petitioner was also placed under suspension for indefinite period, still continuing, without obtaining the prior approval of the Authority (Governor). Petitioner had submitted his explanation to the aforesaid show-cause notice which was, however, found unsatis factory followed by departmental inquiry by Qazi Shamshud Din, S.P. Special Branch which was later on superseded by a fresh inquiry by Muhammad Sherif Virk, S.P. who recorded adverse findings against the petitioner, on the basis the I.-G.P. served him with a show-cause notice that being satisfied of the departmental inquiry conducted under the E. & D. Rules and the charges of misconduct being proved thereby, the petitioner was, therefore, called upon to show cause as why major punishment of removal from service should not be imposed upon him. Petitioner had submitted his detailed reply to the said show-cause notice on 1-2-82. However, without taking any further action on the disciplinary side, the I.-G.P. reverted the petitioner from the rank of officiating D.S.P.(N.P.S.17) to the rank of S.I. vide his orders dated 14-3-82.
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2. Petitioner challenged the inquiry proceedings and the reversion orders for want of authority on the part of the I.-G.P., also imputing him mala fides and further alleging that I.-G.P. was only the authorised officer under the E.& D.Rules and could not impose a major penalty of reversion i.e. reduction in rank on him nor he could place him under suspension or extend the period of suspension after every three months without the prior approval of the authority i.e. the Governor, the appointing authority of the Government servants in Grade-17 and above. 3. Pending writ petition, the petitioner was served with a show-cause notice by A.-I.G., Crimes on 11- 4-82, this time addressing him as S.I.Police and the disciplinary proceedings were further initiated under the N.-W.F.P. Police Rules, 1975 (hereinafter called Police Rules). As such the petitioner was also to impugn the said show-cause notice on the grounds of mala fides and want of authority. 4. The respondents represented in the case that the petitioner was working only as officiating D.S.P. in the Forensic Science Laboratory, Crime Branch, Peshawar and that the first inquiry conducted by Shamshud Din S.P. was quashed for having not been conducted in a proper manner for no formal charge-sheet was served on the petitioner and a de novo inquiry was accordingly ordered through S.P. Muhammad Sharif Virk. It was further represented that there has not been in fact taken any action against the petitioner on the basis of the disciplinary proceedings but that since he was working as officiating D.S.P., he was, therefore, reverted by 1.-G.P., the competent authority, to his substantive post of S.I and that the action as such did not amount to a punishment. Further since the petitioner has been reverted to the rank of S.I. he was accordingly served with a show-cause notice by the A.I.G. Crime under the Police Rules., The orders of reversion and the show-cause notice under Police Rules were duly defended by the respondents while the earlier show-cause notices and inquiry proceedings were considered dropped and superseded. 5. Under Article 178 of the Constitution of the Islamic Republic of Pakistan, 1962, there vested a power in the Governor to make appointments to a civil service of a Province, or to a civil post in connection with the affairs of a Province and further to prescribe the terms and conditions of service of such persons, by rules to be made by him or by the person authorised by him in that behalf. In exercise of the aforesaid powers, the Governor of West Pakistan had made the West Pakistan Deputy Superintendents of Police Rules, 1964 (hereinafter called D.S.P. Rules) regulating the recruitment to and prescribing conditions of service for the persons appointed to the said service. Rule 4 was to designate I.G.P. as appointing authority of the persons to the service while rule 5 was to prescribe the method of recruitment by promotion from amongst the Inspectors available on the select lists to remain on probation. for a period of one year extendable for a further period of one year. 6. Under Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973, appointments to and the conditions of service of persons in the service of a Province and posts in connection with the affairs of a Province shall be determined by or under an Act of the Provincial Assembly while Article 241 accords continuity to the existing rules and orders in force immediately before the commencing day of the Constitution till the appropriate legislature make the law under the preceding Article. N.-W.F.P. Civil Servants Act, 1973 (Act No.XVIII of 1973), an Act of the Provincial Assembly was assented to by the Governor on 11-9-73 and the same regulates the appointment of persons to, and the terms and conditions of the service of the persons in the service of the Province. Under section 5 of the Act appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf. Under section 12 a civil servant appointed to a higher post or grade ad hoc or temporary or officiating basis is liable to reversion to his lower post or grade without notice. Under section 16, a civil servant is liable to prescibed disciplinary action and penalties in accordance with the prescribe procedure. Under section 26(1), the Governor or any person authorised by him in this behalf, has the power to make such rules as
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appear to him to be necessary or expedient for carrying out the purposes of this Act. Under section 26(2), existing rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by competent authority shall be deemed to have been made under the Act to the extent being consistent with the provisions of the Act. 7. N.-W.F.P. Government Servants (Efficiency and Discipline) Rules. 1973 were made by the Governor of the Province in exercise of the powers conferred by section 26 of the N.-W.F.P. Civil Servants Act, 1973. Under clauses (b) and (c) of rule 2 of the E & D. Rules "authority" has been defined to mean the Governor or an officer or authority designated by him to exercise the powers of the authority under the rules while "authorised officer" shall be the officer authorised by the authority to perform the functions of an authorised officer under the E. & D. Rules, In exercise of the powers conferred by the aforesaid clauses (b) and (c) of sub section of the E & D Rules, the Governor of N.-W.F.P notified in case of Deputy Superintendents of Police in Grade 17, the Chief Minister as "authority" and I.-G.P. as an "authorised officer", however, the present position is that the Governor himself is the "authority" in case of D.S.Ps. in Grade 17. 8. N.-W.F.P. Civil Servants (Appointments, Promotions and Transfer) Rules, 1975, were made by the Governor in exercise of the powers conferred by section 26 of the Civil Servants Act. Under rule 2(a) read with rule 4 the appointing authority in relation to all posts of Grade 17 and above including the post of D.S.P. has been prescribed in the person of the Governor himself. 9. The learned Advocate-General represented that the D.S.P. Rules shall be deemed to be the rules made under subsection (2) of section 26 of the Civil Servants Act and that the said rules shall regulate the terms and conditions of service of D.S.Ps. and that the only limitation on the said rules laid by the Statute is that the same should not be inconsistent with the provisions of the Civil Servants Act. He stretched the argument further that the I.-G.P. shall be deemed authorised by the Governor to make appointments to a civil post of D.S.P. as the socalled existing D.S.P. Rules have already designated the I.-G.P. as appointing authority in case of D.S.Ps. He contended that even the N.-W.F.P Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, and the N.-W.F.P Government Servants (Efficiency and Discipline) Rules, 1973 and any notification of the appointment of "authority" and "authorised officer" in case of D. S. Ps. under the E. & D. Rules shall not be operative as to override .the provisions of S.S.Ps Rules vide I.-G.P has been designated as the appointing authority of the persons to the service and further that ithe police rules which have been made applicable to the service of D.S.P. in disciplinary matters, being a special law, is to operate in preference to the general E.& D. rules. On this edifice, he argued that the petitioner being an officiating D.S.P was liable to reversion to his lower post or grade withOut hotice under the orders of his appointing authority i.e. I.-G.P. under section 12 of the Civil Servants Act and that even otherwise the petitioner was liable to disciplinary proceedings under the Police Rules and not E. & D. Rules. 10. The D.S.Ps. rules of 1964 were made at the time when the D.S.P.'s service was not a class I gazzeted service and since the day the service was placed in N.P.S.17 and Governor has been declared as appointing authority for posts in grade-17 and above under rule 2(a) read with rule 4 of the N.-W.F.P. Civil Servants (Appointment, Promotions and Transfer) Rules, 1975 the existing D.S.P. Rules shall be deemed superseded and repealed to the extent. The argument that existing rules unless inconsistent with the provisions of the Civil Servants Act cannot be impliedly repealed or altered is not tenable for the existing rules shall only be deemed to be the rules made under the Act and if there have been subsequently. made any rules to carry out the purposes of the Act under subsection (1) of section 26 of the Civil Servants Act, the latter shall be operative in preference to the existing rules which shall be ipso facto deemed repealed and modified to the extent of inconsistency.
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11. Applying the above formula, the D.S.P. Rules of 1964 prescribing I.-G.P., the appointing authority, of D.S.Ps, shall have to give way to the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975 since the date of the placement of D.S.Ps. post in N.P.S.17 and the Governor having been prescribed as the authority competent to make appointment to posts in grade-17 and above. As such I.-G.P. shall no longer continue to be the appointing authority of persons to the service of D.S.Ps. 12. Next we come to the N.-W.F.P. Police Rules, 1975 made by the Government of the Province in exercise of the powers conferred under section 7 of the Police Act of 1861. These rules have, no doubt, been made applicable to all Police officers of and below the rank of Deputy Superintendent of Police as laid down in rule 1 (ii) but section 7 of the Police Act, has the heading in "Appointment, Dismissal etc. of inferior officers" and it authorises police Officers of the ranks of District Superintendent of Police and upward to Inspector-General to award prescribed punishments to police officers of the subordinate ranks in accordance with the rules to be made by the Provincial Government. The words "District Superintendent of Police" have to also include an Assistant District Superintendent or Deputy Superinten dent of Police appointed by general or special order of the Provincial Government to perform all or any of the duties of the District Superin tendent of police under the Act according to the interpretation clause contained in section 1 of the Act. Again by Adaptation Order, 1937 there has been inserted words in the said section 1 of the interpretation clause as follows:- "References to the subordinate ranks of a police force shall be construed as references to members of that force below the ranks of Deputy Superintendent." "The above provision has also been reproduced with approval in a judgment by the Supreme Court published in 1984 SCMR 663. It thus comes to that under section 7 of the Police Act, the Provincial Government has the power to make rules to impose prescribed punish ments on police officers of the subordinate ranks and since D.S.P. is not a police officer of the subordinate rank hence the N.W.F.P. Police Rules, 1975 made also applicable to police officers of the rank of Deputy Superintendent of police shall be deemed ultra wires of the statute itself i.e. the Police Act. Perhaps the Government of N.-W.F.P. had also by late realized the mistake when by a Gazette Notification No.SOS-III (S & G A D)1-80/73-1, dated 13-10-76, the posts of D.S.P. and P.D.S.P. and the authorities declared competent to award punishment in respect of the holders of the said posts in Schedule I have been omitted from the schedule. Nonetheless an amendment required in clause (ii) of rule 1 vide the rules were made applicable to all police officers of and below the rank of Deputy Superintendent of Police has still not been made. In the context a reference is made to Punjab Police (Efficiency and Discipline) Rules, 1975 also made in exercise of the powers conferred under section 7 of the Police Act of 1861 wherein the said Police rules have been specifically made applicable to police officers below the rank of Deputy Superintendent of Police. 13. To sum up, it is a case when the petitioner, a Deputy Superinten dent of Police, in Grade 17 has been proceeded against for disciplinary action through the process of show-cause notice under the N.-W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973, which was, no doubt, a right step since the I.-G.P. has been authorised by the authority as an authorised officer under a Notification, dated 28-1-75 who could, and also appears to, have decided in the light of the facts of the case to process the disciplinary proceedings through show-cause notice as envisaged under sub-rule (3) of rule 5 of E.& D Rules. However, that being the position, that I.-G.P. (authorised officer) was simply to provide a reasonable opportunity to the petitioner of showing cause against the proposed action and not that there was to be held a formal inquiry through an Enquiry Officer as instantly Shamshud Din S.P. was first appointed Enquiry Officer to hold inquiry but whose report exonerating the petitioner has been set aside on the pretext that no formal charge-sheet was served on the petitioner. However, strange enough, still no formal charge-sheet with statement of
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allegations had been served on the petitioner and a second Enquiry Officer in the person of Muhammad Sharif Virk S.P. was appointed to hold the inquiry but whose report containing adverse findings has also not been supplied to the petitioner for his explanation in clear violation of the law laid down in PLD 1981 SC 176. Not only that the petitioner has been placed under suspension by the I.-G.P. (authorised officer) for indefinite period without prior approval of the authority (Governor). Further there has also not been obtained any approval of the continuation of the suspension after every three months in flagrant violation of the provisions of rule 5 (1) of the E. .& D. Rules. Again when the I.G.P. had reported dropped the disciplinary proceedings and proceeded to revert the petitioner from his officiating post of D.S.P. to his substantive post of S.I. without notice purportedly under section 12 of the Civil Servants Act, the same will still be an act without authority on his part as only the appointing authority i.e. the Governor in the case of the petitioner could revert him from his officiating post of D.S.P. to his substantive lower rank. It can also not be said that the orders of reversion have been made in good faith. The disciplinary proceedings against the petitioner have not been dropped once for all. He has been served with a fresh show-cause notice by A .I.-G. Crimes on the same allegations. 14. As a result of the aforegoing discussion, this writ petition is accepted with costs. The disciplinary proceedings conducted against the petitioner throughout, his suspension orders and the continuation thereof, the orders of his reversion and the latest show-cause notice served on him by A .I.-G. Crime all are hereby declared as acts without lawful authority and to be of no legal effect. Petition accepted. 1984 CLC 89 [Lahore]. Before Zia Mahmood Mirza, J IQBAL and 2 others--Petitioners versus MUSHTAQ AHMAD and 9 others--Respondents Writ Petition No. 1464 of 1968, decided on 26th March, 1984. (a) Constitution of Pakistan (1962)-- - --Art. 98--West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962), S.2-- Muhammadan Law--Custom--Inheritance-- Agricul tural property allotted to a female in lieu of her claim in respect of limited estate left by her deceased husband in India--Petitioners claiming to be heirs of female, held, only entitled to inherit share which female limited owner would have got from estate of her deceased husband and even if they were accepted only heirs of female owner they could not inherit entire property which would devolve on heirs of her deceased husband.--[Muhammadan Law--Custom (Punjab)]. [p. 92] A Sher Muhammad's case PLD 1968 Lah. 234; Mst. Zainab v. Raji and others PLD 1960 SC 299 ref. Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 rel. (b) Constitution of Pakistan (1962)-- - --Art. 98--West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962), S.2--Civil Procedure Code (V of 1908), S.9--Muhammad- an Law--Inheritance--Question as to who amongst parties entitled to inherit property in dispute and to which extent, held, basically a question of title which could only be decided by civil Courts.-- [Muhammadan Law--Jurisdiction]. [p. 92] B (c) West Pakistan Land Revenue Act (XVII of 1967)-- ---S.42-- Constitution of Pakistan (1962), Art. 98--Mutation--Decision in mutation proceedings-- Not a decision as to title of parties--Revenue authorities in proceedings for sanctioning mutation,
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held, do not act as arbitrators of right of parties--Revenue Authority sanctions mutation to keep their own record in order and upto date--Entry by virtue of mutation, therefore, not a basis for title. [p p. 92, 93] C & D Muhammad Iqbal v. S.A. M. Khan, Member, Board of Revenue PLD 1970 Lah. 614; Nirman Singh v. Rudra Partap Narain Singh AIR 1926 P C 100; Mst. Rasulan Bibi v. Nand Lal AIR 1930 All. 521 and Ram Sarup Rai v. Charitter Rai AIR 1927 All. 338 rel. (d) Constitution of Pakistan (1962)-- - --Art.98-- Civil Procedure Code (V of 1908), S.9--West Pakistan Land Revenue Act (XVII of 1967), S.42--Dispute as to title of property--Both Additional Commissioner and Member, Board of Revenue directing that parties should get their dispute qua title of agriculture property settled in civil Courts--Direction given as such, held, proceeded on correct legal premises and not open to exception on any plane. [p. 93] E (e) Civil Procedure Code (V of 1908)-- - --S.9-- Constitution of Pakistan (1962), Art. 98--West Pakistan Land Revenue Act (XVII of 1967), S.42--Jurisdiction--Civil Court--Succession - -Female owner through whom petitioners claiming a confirmed allottee and not a deceased right-holder'--Civil Court, held, not barred from deciding question of succession to her estate-- Decision of Additional Commissioner directing parties to go to civil Court for settlement of their dispute, held further, could not be said to be barred by any law. [p. 93] F Mst. Zainab v. Raji and others PLD 1960 SC 229; Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791; Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue PLD 1970 Lah. 614; Nirman Singh v. Rudra Partap Narain Singh AIR 1926 P C 100; Mst. Rasulan Bibi v. Nand Lal AIR 1930 All. 521; Ram Sarup Rai v. Charitter Rai AIR 1927 All. 338 and Syed Abdur Rashid v. Pakistan PLD 1962 SC 42 rel. Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 rel. Ghulam Muhammad Bhatti for Petitioners. Ch.Muhammad Hassan for Respondents Nos. 1 to 7. Date of hearing: 26th March, 1984. JUDGMENT ' Facts giving rise to this petition under Article 98 of 1962 Constitu tion are that one Mst. Jhando widow of Miroo, a displaced person from East Punjab, on migration to Pakistan, settled in Chak No.72/GB, Tehsil and District Lyallpur. She filed a claim in respect of agricultural property left by her deceased husband in India. Her claim was verified for 34 kanals 11 marlas and the land in dispute was allotted and confirmed to her in satisfaction of her claim. 2. Mst. Jhando aforesaid died in 1960 and, on her death, Mutation No.193 of her inheritance was sanctioned on 26-6-1960 by Assistant Collector II Grade, 'Lyallpur, treating her as a limited owner. By means of this mutation, 1/4th of the property in dispute was given to Mst. Jhando or her heirs and the remaining 3/4th was given to Mushtaq Ahmad and others as collaterals of Miroo, husband of Mst. Jhando. Petitioners filed an appeal against the order, dated 26-6-60 which was accepted by the learned Collector, Lyallpur on 30-4-1961 and the case was remanded to A.C. II for fresh decision. On remand, A.C.II passed an order on 5-6-62 whereby 1/4th share of the property in dispute was given to the heirs of Mst. Jhando, 1/3rd of the remaining 3/4th share was given to the petitioners (it appears as collaterals of Miroo deceased) while the balance was given to Mushtaq Ahmad and others, respondents. Petitioners felt dissatisfied and again filed an appeal which was accepted by the learend Collector on 16-11-1962 and the case was once more remanded to A.C. II for fresh decision.. A.C. II decided the matter for the 3rd time on 5-6-1965 and this time he completely eliminated the petitioners, who again took the matter in appeal. Learned Collector who heard the appeal, took the view that it was incredible that Dooda and his sons would have died in
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quick succession and that only Mehdi Khan and Jiwan were alive at the time of death of Miroo. According to the learned Collector "the whole position deserved to be locked into in closer details". He, therefore, accepted the appeal vide order, dated 30-12-1965 (Annexure 'A') and remanded the case for 3rd time with the direction "that the Tehsildar should personally sanction the mutation afresh in the very chak to which this mutation relates. It would be a help if the pedigree table relating to the year 1909 to 1910 copy of which has been presented by the learned counsel for the appellant is also consulted while taking the decision". 3. Mushtaq Ahmad etc. respondents preferred an appeal against the aforementioned order of the Collector dated 30-12-65 and challenged the remand of the case for the 3rd time and it was contended that the mutation proceedings were of summary nature and it was not the function of the revenue Courts to go deep into the question of title and inheritance. The learned Additional Commissioner accepted the appeal of the respondents by order, dated 15-4-67 (Annexure 'B') holding that "the matter is not so simple as to fall within the jurisdiction of the Revenue Officer and I feel that what has happened during the last six years it would be futile to send the case back to the A.C. II for further enquiry. The best forum for sorting out the relationship of the parties with Miroo is a proper civil Court and the parties instead of wasting time before the Revenue Officers should go to the Civil Court to get it settled once for all". 4. Petitioners filed a revision petition which was rejected by the learned Member, Board of Revenue by his order dated 27-3-68 (Annexure 'C') holding that the case having…
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