Full Judgment Text & Judicial Ruling

1994 P L C (C

1994 P L C (C.S.) 1627

[Service Tribunal Punjab]

Present: Akhtar Hassan, Chairman and Abdul Hamid Khan, Member

Hafiz SHAFIQUE AHMED KHAN

Versus

DEPUTY INSPECTOR‑GENERAL OF POLICE, LAHORE RANGE, LAHORE and another

Appeal No. 420 of 1990, decided on 16th February, 1993

Civil service‑‑‑

‑‑‑‑ Out of turn promotion‑‑‑Civil servant who was exemptee Assistant Sub Inspector Police was promoted as officiating Sub‑Inspector on out of turn basis by Deputy Inspector‑General of Police, but order of such promotion was reversed by his successor (Deputy Inspector‑General of Police) and civil servant was reverted to his substantive rank of Assistant Sub‑Inspector on ground of propriety and fairness‑‑‑Civil servant was not promoted on flimsy grounds but A.S.P. with whom civil servant was attached had recommended him for out‑of turn promotion describing him as "most regular and punctual in his duty and fully conversant with his job"‑‑‑Civil servant was also found by A.S.P. to be most efficient, hard working and trustworthy‑‑‑Order promoting civil servant on out of turn basis which had been acted upon, could not be reviewed by succeeding Deputy Inspector‑General of Police and same could not be rescinded or recalled on ground of fairness and propriety‑‑‑Order of out of turn promotion having been reversed and rescinded not on ground of a nullity, incompetence or absence of power of authority passing that order, but having been reviewed and rescinded on ground of propriety and fairness alone could not be maintained.

1987 PLC (C.S.) 676; 1990 SCMR 1414; 1989 PLC (C.S.) 487 and Ishfaq Hussain v. Government of the Punjab through Secretary and others 1993 SCMR 1326 ref.

M.A. Riaz for Appellant.

Javed Ahmad Cheema, District Attorney for Respondents.

Date of hearing: 1st December, 1992

JUDGMENT

ABDUL HAMID KHAN (MEMBER).‑‑‑The appellant, Hafiz Shafique Ahmed Khan, an exemptee ASI, was promoted as officiating Sub‑Inspector on out of turn basis by the Deputy Inspector‑General of Police, Lahore Range with effect from 25‑7‑1985 vide order of the same date. This order was, however, reversed by the successor DIG/respondent No.2 at the instance of the Inspector General of Police Punjab/respondent No. 1 vide the impugned order dated 7‑6‑1986 and the appellant was reverted to his substantive rank of A.S.I. (exemptee) with effect from 31‑5‑1986. The appeal filed by him before the Inspector‑General of Police Punjab was also rejected vide order dated 3‑6‑1990. He has now come in appeal to this Tribunal.

2. The learned counsel for the appellant has contended that the appellant was promoted on the basis of his good performance and recommendations of his superior officer, that there is an old established policy in the Department for granting out of turn promotions on the basis of acts of gallantry, extraordinary devotion to duty etc. and the appellant's promotion was in consonance with this well established policy, that the appellant's promotion was not unfair or unprecedented and did not amount to favoritism and that respondent No.2 who approved the out of turn promotion was competent to do so. Further contended that similar reversions ordered by respondent No.1 were challenged before this Tribunal and the order of reversion were set aside in the judgment reported as 1987 PLC (C.S.) 676 which was upheld in appeal by the Hon'ble Supreme Court vide judgment reported as 1990 SCMR 1414. The ratio established in this judgment was that the order of promotion once issued, implemented and acted upon could not be reviewed or rescinded on the ground of fairness and propriety. Such orders could only be reviewed if these were a nullity in the eyes of law i.e. that they were not passed by the authority competent to pass the same. A similar view was taken in another case reported as 1989 PLC (C.S.) 487.

3. The learned District Attorney controverted the above contentions by explaining that no act of gallantry or extraordinary devotion to duty had been performed by the appellant and as such his promotion had been made irregularly on the routine recommendations of the A.S.P., District Lines, Lahore without any cogent reasons and by ignoring his low seniority position causing heart burning among his colleagues. Further argued that the appellant had neither passed the Intermediate examination nor the upper courses and, therefore, did not merit excellrated promotion over the heads of his seniors.

4. The objection that the appellant was promoted on flimsy grounds is unassailable. The A.S.P., District Lines, Lahore with whom he was then attached while recommending him for out of turn promotion had described him as 'most regular and punctual in his duty' and 'fully conversant with his job'. He also found him most efficient, hardworking and trustworthy'. These qualities do not depict the appellant to be extraordinarily devoted to duty. In fact these are the basic qualities, which all Government servants are expected to have. The' case is admittedly not one involving an act of gallantry. The fact that this promotion must have caused heart burning among the appellant's seniors is also understandable but none of them made any formal representation against it. The respondent‑department has, however, not succeeded in rebutting the contention that respondent No.2 could not review his predecessor's orders nor could he rescind or recall an order on the ground of fairness and propriety. In the case reported as 1990 SCMR 1414, relied upon by the appellant, their Lordships of the Supreme Court of Pakistan while upholding the decision of the Punjab Service Tribunal in the case cited as 1987 PLC (C.S.) 676 have observed as under:

"The Inspector‑General who has rescinded the orders did not proceed on the ground of nullity, incompetence or absence of power of the authority passing the orders. He based his orders only on the ground of propriety and fairness. Where rights had come to vest, such or these grounds could not be sufficient to unilaterally justify the rescission of the orders, apparently passed competently. The Service Tribunal has, in insisting on the standard of minimum fairness is passing such orders, only reinforced the observance of rule of law by and in a disciplined force."

5. In a recent judgment dated 24‑10‑1992 in Civil Appeal No.594 of 1990: Ishfaq Hussain v. Government of the Punjab through Secretary and others (1993 SCMR 1326) (unreported) the Hon'ble Supreme Court while making the' following observations was consistent in following the above rule:

"It is not disputed by the learned Advocate‑General who appeared on behalf of the respondent that the Chief Minister was competent to make an order of the nature which he did in the case of the appellant. In fact, under the relevant Constitutional provision as these existed before amendment by the Eighth Amendment the executive authority of the Province was to be exercised by the Chief Minister. However, it was a different matter whether he should or should not have passed the impugned order for that question fell in the field of propriety. "

6. In the case before us it is not in dispute that the order dated 25‑7‑1985 had taken effect. As these orders have been reviewed and rescinded not on the ground of 'nullity, incompetence or absence of power of authority is passing the order' but on the ground of 'propriety and fairness' the same cannot be maintained. Resultantly, the appeal is accepted and the impugned orders are set aside. There are no orders as to costs.

H.B.T. / 461 / Sr.P Appeal accepted.

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