Full Judgment Text & Judicial Ruling

2014 P L C (C.S.) 1363

[Sindh High Court]

Before Muhammad Ali Mazhar and Shahnawaz Tariq, JJ

Syed MUHAMMAD ABBAS RIZVI and others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and others

Constitutional Petitions Nos.D-1085, D-513, D-1760, D-2731, D-3883, D-4242 of 2013 and D-4454 of 2012, decided on 30th October, 2014.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Civil service---High Court---Bar of jurisdiction---Scope---No final order of departmental authority---Where there was no final order of any departmental authority in field which could be assailed in the Service Tribunal, then the bar of jurisdiction under Art. 212 of the Constitution would not apply.

S.H.M. Rizvi v. Maqsood Ahmed PLD 1981 SC 612; Mian Muhammad Aslam v. The Auditor General of Pakistan 1995 PLC (C.S.) 1178 and Riffat Hassan and others v. Federation of Pakistan 2011 PLC (C.S) 562 ref.

Khalilur Rehman v. Government of Pakistan PLD 1981 Kar. 750; Punjab Small Industries Corporation v. Ahmad Akhtar Cheema 2002 PLC (C.S.) 182; Government of Sindh v. Nizakat Ali and others 2011 SCMR 592 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 distinguished.

(b) Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---

----R. 11(2)(c)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Bar of jurisdiction under Art.212 of the Constitution---Scope---Implementation of a notification issued by the Federal Government---Police Service of Pakistan---Constitutional petition filed before the High Court by police officers seeking implementation of a notification issued by the Establishment Division, Government of Pakistan with reference to R.11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---No order of any departmental authority was in the field which could be assailed in the Service Tribunal---Effect---Constitutional petition would be maintainable in circumstances and bar of jurisdiction under Art.212 of the Constitution would not apply.

(c) Words and phrases---

----"Seniority"---Meaning.

(d) Words and phrases---

----"Ante-dated" --- Meaning.

(e) Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985---

----Rr. 7 & 11(2)(c)---Constitution of Pakistan, Art.199---Constitutional petition---Police service---Claim of ante-dated seniority---Vacancies in Police Service of Pakistan ("PSP")---Provincial quota---Whether date of regular appointment to such vacancies was from the day when the respective vacancy arose or from the date when delayed notification for appointment was issued---Inordinate delay or inaction on the part of Provincial Government in making recommendations for appointment against its allotted quota of vacancies---Effect---Under R.11(2)(c) of the Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, each officer shall reckon his date of regular appointment to the Police Service of Pakistan from the date when vacancy arose in the senior cadre reserved for that particular province, however this had to be read with R.7 of the said Rules, which provided that members of the police cadre of a Province were appointed to the service on the basis of selection made on the recommendation of the Governor---Said rules implied that as soon as vacancy arose in relation to quota of the province in Police Service of Pakistan, the province should immediately send their recommendations for encadrement in the Police Service of Pakistan---In the present case, recommendation was made by the Provincial Government much after the date of arising of the vacancies in their allotted quota and the petitioner-police officers were claiming seniority with effect from the year 1999 when the vacancies arose in the Police Service of Pakistan for the Provincial Government---Nothing was available on record to demonstrate that the Establishment Division of the Government of Pakistan or Provincial Government made any correspondence amongst themselves for immediate recommendation for encadrement when the vacancies arose---If petitioner-police officers were given ante-dated seniority from the year 1999, i.e. when the vacancies arose in the Police Service of Pakistan, the seniority of many other police officers would be upset and without performing the requisite length of service to a particular post, petitioner-police officers would also claim future promotions on the basis of their antedated seniority---By reason of inaction and procrastination on the part of the Provincial Government, on one hand petitioner-police officers were frustrated and on the other hand, if their grievance was redressed under the force of circumstances, the entire seniority list of police service would be upset and the police officers at large would be seriously affected---If the Province was under deep slumber and failed to forward recommendations of petitioner-police officers to fill up its allotted quota in the Police Service of Pakistan when the vacancies arose in the year 1999, in all conscience, other police officers should not suffer or face the adverse consequence on their career---High Court directed that petitioner- police officers were not entitled to claim antedated seniority, and their seniority would be reckoned from the date of their notification of encadrement in Police Service of Pakistan and not from the date of arising of vacancy; that in future, the Provincial Government shall send its recommendations immediately for appointment of members of police cadre of Province in accordance with R.7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, upon arising of vacancies against its share in Police Service of Pakistan; that the benefit of R.11(2)(c) of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, shall be given in future to all those members of police cadre who were recommended for appointment in Police Service of Pakistan by the province immediately and promptly upon occurrence of vacancy in the Police Service of Pakistan; that in order to avoid complications and combative repercussions in future, the Secretary Establishment Division, Government of Pakistan, should issue notification of encadrement immediately upon receiving the recommendations from the Province for appointment under R.7 of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985, so that retroactive or ex post facto seniority issue/dispute should not crop up or come into sight amongst the members of Police Service of Pakistan---Constitutional petition was disposed of accordingly.

Farman Ali v. Muhammad Ismail 1990 SCMR 1216; D.G. Intelligence Bureau v. Amir Mujahid Khan and others 2010 PLC (C.S) 946 and Naveed Ahmed v. Federation of Pakistan 2012 SCMR 1133 ref.

Khalid Javed Khan for Petitioners (in C.P. No.D-1085 of 2013).

Kazi Abdul Hameed Siddiqui for Petitioner (in C.P. No.D-513 of 2013).

Ghulam Akbar Khan Jatoi for Petitioners (in C.Ps. Nos.D-1760 of 2013, D-2731 of 2013, D-3883 of 2013 and D-4242 of 2013).

Ms. Shazia Hanjrah for Petitioner (in C.P. No.D-4454 of 2012).

Shahab Usto for Respondents Nos.4 and 5 (in C.P. No.D-1085 of 2013).

Respondents Nos.4 and 5 present in person.

Asif Hussain Mangi, Standing Counsel.

Shamsuddin, Section Officer, Establishment Division, Government of Pakistan, Islamabad.

Abdul Jaleel A. Zubedi, A.A.-G.

Asad Malhi, A.S.P. Clifton and Akhtar Farooq, A.S.P. Ferozabad are also present.

Date of hearing: 30th May, 2014.

JUDGMENT

MUHAMMAD ALI MAZHAR, J.--- This common judgment will dispose of the aforementioned constitutional petitions.

2. If we look into the brief facts of the petitions, the relief claimed therein is identical. In fact, all the petitioners have in one voice claimed their encadrement to the PSP in terms of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 and the seniority as per Rule 11(2)(c) of the Rules, 1985 which is a burning question in these petitions. They have also prayed that the respondents be directed to fill all posts of P.S.P. in accordance with prescribed quota of 40% meant for P.S.P. in the Provincial Police. They have further prayed that the respondents be restrained from convening Departmental Selection Board for promotion P.S.P. in BPS-18 to BS-20 posts before awarding seniority to the petitioners in BS-18 as per Rule 11(2)(c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. Some of them have prayed that they should be given seniority against the seat of Province of Sindh from the date of occurrence of vacancy between 1999 and 2002. One of the petitioners has sought directions to notify his encadrement in pursuance of recommendation and approval of the summary by the Chief Minister of Sindh.

3. The bone of contention in this case is whether under Rule 11(2)(c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 the seniority of the members of the police cadre of Province shall be reckoned from the date when vacancy occurred in the senior cadre reserved for that particular province as specified in the schedule. It is also the case of the petitioner that after lapse of many years the respondents have started process of encadrement of eligible police officers from Province of Sindh to P.S.P. At present 82 vacant posts of S.P. are available against which the Provincial Police Officer of the Sindh are entitled to the encadrement, out of which the respondents only encadred 27 officers vide notification dated 17-12-2012 in which it is provided that seniority of the officers shall be reckoned as per Rule 11(2)(c) of the Rules, 1985. Despite mentioning the reference of Rule 11(2)(c), the seniority has net been given to the officers of the Province of Sindh. One more important question is also involved whether police officers of a Province may be encadred with effect from date of occurrence of vacancy in the P.S.P. with antedated seniority despite the fact that when the vacancy occurred in the share of Province, they were not the part of Sindh Police or they joined the Sindh Police after the date of occurrence of vacancy in P.S.P. All the learned counsel agreed that the above petitions may be disposed of at katcha peshi stage and they argued the petitions extensively.

4. Mr.Khalid Javed Khan, learned counsel for the petitioners in C.P.No.D-1085 of 2013 argued that the petitioners initially joined the Sindh Police Service. The P.S.P. constituted under the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 for the senior post in Grade 17 and above i.e. ASP, SP, DIG, AIG and I.G. in the P.S.P. with the ratio of 60/40 for Federal and Provincial Officers of P.S.P. The senior most officer is required to be encadred when the first vacancy occurred, thereafter, a provisional joint seniority list of both Federal and encadred Provincial Officers is made which is followed by final seniority list and the promotions are made on the basis of that seniority list. The case of the petitioners is not at all the case of promotion, but this is a case of encadrement as specified in Rule 7 of PSP Rules, 1985. It was further contended that in this case section 8 subsection (3) of Civil Servant Act, 1973 applies and section 8(4) of the Civil Servant Act has no germane or relevancy. He pointed out that the petitioners Nos.1, 4, 8, 9, 10 and 12 have been encadred vide notification dated 17-12-2012 but the notification of date of encadrement of each one of them has not been issued by the Federal Government in terms of Rule 11(2)(c) of Rules, 1985 and so far as the case of petitioners Nos.2, 3, 5, 6, 7 and 13 is concerned their cases have been sent by the Provincial Government for encadrement. It was also averred that right now neither the FST is functional nor any order of the departmental authority in force, hence the petitioners could not invoke the jurisdiction of FST. The learned counsel appearing for the other petitioners also argued their petitions on the same lines and they also adopted the arguments of Khalid Javed Khan, Advocate. The learned counsel for the petitioners relied upon the following case-law:---

(1) PLD 1981 SC 612 (S.H.M. Rizvi v. Maqsood Ahmed). Section 22 Service Tribunals Act (LXX of 1973). Section 4 Civil Servant (Appeal) Rules, 1977. Seniority list. Gradation list provisional is to be finalized after inviting and considering objections. Right of appeal conferred only against a "final order whether original or appellate". No final order having ever been passed on respondent's objection nor seniority list having been finalized, respondent's appeal held not competent under section 4 of Service Tribunals Act, 1973.

(2) 2011 PLC (C.S.) 1456 (Muhammad Malik v. Province of Sindh). Appointment of provincial police cadre to members of police service of Pakistan (PSP) Scope. No posting of a provincial cadre police officer on a post specified in schedule of Police Service of Pakistan (Composition, Cadre and Seniority), Rules, 1985 could be made without first being appointed in PSP cadre in accordance with Rule 7 thereof.

(3) 1995 PLC (C.S.) 1178 (Mian Muhammad Aslam v. The Auditor General of Pakistan). Article 212 of Constitution. Jurisdiction of High Court to entertain constitutional petition at the behest of civil servant was not ousted in respect of all matters. Appeal would lie before Service Tribunal against order passed by Departmental Authority. No order in the matter of civil servant was made by Departmental Authority.

(4) 2011 PLC (C.S.) 562 (Riffat Hassan and others v. Federation of Pakistan). The learned Division Bench of this Court dilated upon various dictums and concluded as under:---

"(1) Article 212 of the Constitution bars jurisdiction of this court in respect of matter relating to terms and conditions of service including disciplinary matters of all persons who are or have been in the service of Pakistan.

(2) However, for the purpose of barring this jurisdiction there must be an order, whether original or appellate, and if any such order has not been passed the aggrieved civil servant can resort to invoke jurisdiction of the court for the purpose of alleviating his grievance.

(3) Word 'final' has been deleted from section 4 of the Civil Servants Act but such deletion does not mean that every order passed by the Departmental Authority would be challengeable before the Service Tribunal. It is only an order which determines a substantive point in issue relating to terms and conditions of service or disciplinary action which can be challenged before Service Tribunal. Any procedural determination by the Departmental Authority would not be so challengeable therefore, deletion of word 'final' does not enlarge the scope of appeal envisaged in section 4 of the Act.

(4) As far as, Removal from Service (Special Powers) Ordinance, 2000 is concerned, since appeal was provided only when final order of penalty has been passed therefore, till such final order has not been passed writ jurisdiction of this court is not ousted and while scrutinizing whether the departmental action is in violation of law or not this court can exercise jurisdiction as long as the final order of punishment has not been passed.

In both these constitutional petitions what has been challenged is initiation of departmental proceedings. Therefore, there is no order per se in both the petitions which is challengeable before the Federal Service Tribunal and therefore, on the touchstone of Article 212 of the Constitution, these Constitutional petitions are not barred."

5. Mr. Asif Mangi, learned Standing Counsel assisted by Mr.Shamsuddin, Section Officer, Establishment Division, Islamabad contended that there are two categories involved one is the persons encadred but reverted back in view of the judgment of Hon'ble Supreme Court and another category is the cases not sent for the encadrement. The cases for encadrement recommended by the Sindh Government shall be considered against 40% quota. The Civil Servants (Appeal) Rules, 1977 entitles a civil servant to appeal to the Tribunal against an order which alters his conditions of service, pay, allowances or pension or interprets to his disadvantage to the provisions of any rules whereby his conditions of service, pay, allowances or pension are regulated. The petitioners want antedated seniority which is not possible. A judgment of Federal Service Tribunal, Islamabad was also referred to which was passed in Appeal No.33(L)CS/2008. In the FST, appellant had challenged the notification of Establishment Division under which twelve members of police of Khyber Pakhtunkhwa were encadred as S.P. in PSP in accordance with Rules 7 and 11(2)(c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 but their antedated seniority was set aside by the FST and the notification issued in the year 2007 with retrospective seniority awarded w.e.f. 1997 was declared arbitrary to the extent of its retrospective effect and the establishment was directed to ensure that in future encadrement of provincial police officers in PSP shall be done every year. The FST judgment has been challenged in the Hon'ble Supreme Court and leave to appeal has been granted in Civil Petitions Nos.907 and 957 of 2011. The learned standing counsel further argued that this court has no jurisdiction to entertain this petition keeping in view the bar contained under Article 212 of the Constitution. He referred to the following case-law:---

(1) PLD 1981 Karachi 750 (Khalilur Rehman v. Government of Pakistan). Jurisdiction of High Court is ousted in regard to all such matters which fall within ambit of authority of Tribunal to adjudicate even though the Tribunal is conferred with jurisdiction limited to some of matters relating to terms and conditions of service.

(2) 2002 PLC (C.S.) 182 (Punjab Small Industries Corporation v. Ahmad Akhtar Cheema). Constitutional jurisdiction of High Court would be declined, where petitioner had not exhausted all remedies available to him. Where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce sense of distrust in statutory Tribunals.

(3) 2011 SCMR 592 (Government of Sindh v. Nizakat Ali and others). Matter relating to terms and conditions of civil servant. High Court, before entertaining such constitutional petition, may determine as to whether jurisdiction to decide such a case is barred.

(4) 1998 SCMR 2280 (Khalid Mahmood Wattoo v. Government of Punjab and others). Article 199 of the Constitution. If there is any law or rule or instructions regarding allocations of posts to the Province and the same affected the rights of civil servant in his service. Article 212 of the Constitution was a bar in the way of the affected civil servant in maintaining a Constitutional petition under Article 199 of the Constitution.

6. Mr. Shahab Usto, learned counsel for the respondents Nos.4 and 5 in C.P.No.D-1085 of 2013, argued that under Rule 3 of Sindh Civil Servant (Appointment, Promotion and Transfer) Rules, 1973 the appointments are made by promotion. Part-II of the Rules deals with the promotion and transfer synonymously. However, Part-III is quite distinct. He further argued that the petitioners' case cannot be excluded from the purview of the section 8(4) of the Civil Servant Act and the only provision applicable to the petitioner is section 8(4) of the Civil Servants Act. He also referred to Sr.No.13 of Estacode which relates to the framework and procedure applicable to the Police Service of Pakistan which provides that appointment to the post of Grade 18 will be made by the promotion of officers in Grade 17 of the Police Group and also of Grade 17 Officers of the Provincial Police of the rank of DSP of requisite service and experience who are recommended by Provincial Government. The date for determination of seniority of the Provincial Officer under section 8 (4) will take effect from the date of regular appointment to the post. He further argued that the Hon'ble Supreme Court over and again held that the instructions, orders and notifications have the effect of rules in view of section 25 (2) of the Civil Servant Act, 1973 and the departmental promotion authorities must strictly adhere to the instructions contained in the Estacode and any departure from the same may cause injustice to a deserving person. Learned counsel further argued that the petitioner cannot claim benefit of the order passed in the case of Mr. Ali Sher Jakhrani, which was passed only for implementation of order. No point of law was laid down therefore the petitioner cannot claim the same treatment in view of the case of Hameed Akhter Niazi and Tara Chand. Rule 11(2)(c) has two limbs that the appointment of Provincial Officer to PSP will be on a yearly basis and they will retain the same seniority and in the same service as in the Provincial cadre. The second limb says that their inter-Provincial seniority will start when the vacancy arose in the said year in that province. There is no provision of back dated seniority as erroneously claimed by the petitioners. In support of his arguments, he relied upon the following case-law:---

(1) 1999 SCMR 819 (Muhammad Yar Buttar v. Board of Governors of Overseas Pakistanis Foundation). Appeal under section 4 of Service Tribunals Act, 1973 is maintainable only when the question relates to enforcement of terms and conditions of service of an employee as envisaged by the Act. It will depend upon the nature of each order as to whether appeal against such order is maintainable or not because the abovementioned situations deal with procedural matters.

(2) PLD 1991 SC 82 (Wajahat Hussain Assistant Director Social Welfare Lahore v. Province of Punjab). Regularization of seniority from a retrospective date was not permitted and Information Department was thus wrong in blessing such performance of the Departmental Selection Committee and advising the adoption of it for preparation of the seniority list.

(3) 1986 SCMR 1953 (Muhammad Arshad Saeed v. Pakistan and others). Police Service of Pakistan (Cadre and Composition) Rules, 1969. Petitioner pre-selected for Police service in 1969, graduated in 1971 and finally selected through Public Service Commission in 1972 claiming seniority/entry into service to be antedated. Seniority or induction into service in case of initial recruitment cannot be taken to a date earlier to actual selection or taking over of post.

(4) 1990 SCMR 1216 (Farman Ali v. Muhammad Ismail). On no principle executive authority could be held invested in the matter of direct appointment, to make the appointment retrospective from a date earlier to the selection in accordance with law. No law exists whereby retrospective regularization of direct recruits could be ordered by the executive authority. Appellants' claim of seniority over respondents was thus not sustainable.

(5) 2010 PLC (C.S.) 946 (D.G. Intelligence Bureau v. Amir Mujahid Khan and others). Regular seniority from retrospective date is not permitted. Civil servants who were senior in lower grade retain inter se seniority in higher grade in case they were promoted in a batch.

(6) 2012 SCMR 1133 (Naveed Ahmed v. Federation of Pakistan). Validity Laws/rules concerning seniority, which included sections 8(2) and 8(3) of the Civil Servants, Act, 1973, Rule 7(4) of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 and Rule 2 of Civil Servants (Seniority) Rules, 1993 did not cater for ante-dated seniority. Grant of ante-dated seniority to the appellant would have upset the entire service structure of the District Management Group for the year 1995, which in circumstances of the case was not justifiable at all.

(7) 2001 PTD 2383 (Additional Collector Sales Tax Lahore v. Rupafab Limited and others). Rules which are merely subordinate legislation cannot override or prevail upon the provisions of the parent statute and whenever there is an inconsistency between Rules and Statute, the latter must prevail.

7. Heard the arguments. First we would like to take up the issue of maintainability. Counsel for the respondents have argued that the petition is not maintainable and the jurisdiction of this matter lies to Federal Service Tribunal. It is an admitted fact that there is no order in field at the moment against which an appeal could have preferred in the F.S.T. In this regard the learned counsel for the petitioner referred to the case of S.H.M. Rizvi in which the Hon'ble Supreme Court has held that the right of appeal conferred only against a "final order whether original or appellate". No final order was passed in the above case nor seniority list was finalized hence appeal was not found maintainable. In the case…

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