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Petitioner: SYED MUHAMMAD ABBAS RIZVI and others VS Respondent: FEDERATION OF PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Shahnawaz Tariq Title:SYED MUHAMMAD ABBAS RIZVI and others vs FEDERATION OF PAKISTAN
JUDGMENT
Reported As: PLJ 2015 Karachi 66 Result: Petition disposed of Judgment 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 there in 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
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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 not 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 encadrement with effect from date of occurrence of vacancy in the P.S.P. With ante-dated 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-1085/2013 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, A1G 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 sub- section (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 Petitioner 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 Petitioner 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 S.C. 612 (S.H.M.Rizvi v. Maqsood Ahmed). Section 22 Service Tribunals Act (Da 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 (CS) 1178 (Mian Muhammad Aslam v. The Auditor General of Pakistan). Articles 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 & others v. Federation of Pakistan). The learned division bench of this Court dilated upon various dictums and Concluded as under:--
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"(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 the every order passed by the Departmental Authority would be challengeable before the Service Tribunal. It only an order which determines a substantive point issue relating to terms and conditions of service of 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 ante-dated 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 ante- dated 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 Petition Nos. 907 and 957/2011. 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. Govt. 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 (CS) 182 (Punjab Small Industries Corporation v. Ahmad Akhtar Cheema). Constitutional Jurisdiction of High Court would be declined, where petitioner had not exhausted all
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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 (Govt. Of Sindh v. Nizakat Ali & 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 Mahraood Wattoo v. Govt. Of Punjab & 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 Respondent Nos.4 and 5 in C.P.No, D-1085/2013, 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 not 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 Servant 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 above mentioned situations deal with procedural matters. (2) PLD 1991 S.C. 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 & 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
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service to be ante-dated. Seniority or induction into service in case of initi recruitment cannot be taken to a date earlier to actual selection or taking over of post. (4) 1990 SCMR 1216 (Farman Ali u. 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 & 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 case was not justifiable at all. (7) 2001 PTD 2383 (Additional Collector Sales Tax Lahore v. Rupafab Limited & 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 was passed in the above case nor seniority list was finalized hence appeal was not found maintainable. In the case of Mian Muhammad Aslam (supra) also the jurisdiction of the High Court was dilated upon vis-a-vis. Article 212 of the Constitution in which it was held that the ouster of jurisdiction is limited in those matter which could be taken up by the Service Tribunal but no order in the matter was passed by the departmental authority. The case of Riffat Hassan (supra) is also based on the similar premise and endorsed the view that for the purpose of barring jurisdiction of the High Court there must be an order whether original or appellate if any such order has not been passed, the aggrieved civil servant can invoke the jurisdiction of High Court for alleviating his grievance. The learned Standing Counsel and Mr.Shahab Usto referred to the cases of Khalilur Rehman, Punjab Small Industries Corporation, Govt. Of Sindh v. Nizakat Ali & others and Khalid Mahmood Wattoo (supra) in all such cases Article 212 was under discussion and the dictum laid down in the above precedents do show that in the matters relating to the terms and conditions of the civil service the appropriate remedy would be to invoke the jurisdiction of service tribunal. In the present case the encadrement under Rule 7 is not an issue but what is in issue is the award of seniority from the date of vacancy arose under P.S.P. For that province. In the notification dated 17.12.2012 issued by Establishment Division, Government of Pakistan it is mentioned that inter se seniority of the officers in PSP shall be determined in accordance with Rule 11(2)(c) of P.S.P. Rules, 1985. The learned Standing Counsel during his argument stated that the seniority cannot be granted as claimed by the petitioners from the date of vacancy arose in the Province of Sindh. In an identical case, FST has set aside the notification to the extent of its retrospective effect and matter is now pending in the hon'ble Supreme Court. It is clear that there is no final order of any departmental authority in field which should have been assailed in the Federal Service Tribunal and one more crucial aspect in this regard is the nonfunctioning of F.S.T. The hon'ble Supreme Court in the case of Sarfraz Saleem
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v. Federation of Pakistan reported in PLD 2014 S.C. 232 has already dealt with this situation and held that in so far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended but subject to certain limitations prescribed therein, one of which is with reference to the availability of other adequate remedy to the aggrieved party. It was further held that constitution petition should be entertained in accordance with the law until establishment and functioning of the FST, as bar of Article 212 of the Constitution would not apply to such proceedings. Through the instant petitions, the petitioners have not challenged the seniority of others but they have sought the declaration that they are entitled to the seniority in the PSP from the date of vacancy arose, against which there is no order of any departmental authority. Basically they want implementation of Notification dated 17.12.2012 issued by Establishment Division, Government of Pakistan with reference to Rule 11(2)(c), so we have no hesitation in our mind to hold that the petition is maintainable and objection to the maintainability is overruled. 8. If we look into the definition clause of the PSP Rules, under Clause (d) of Rule (2) service means the Police Service of Pakistan as referred to in Rule (3). The Police Service of Pakistan consists of persons appointed in accordance with the Police Service of Pakistan (Composition and Cadre) Rules, 1969; the persons other than, those mentioned in Clause (a) appointed to the police group whose names appeared in the gradation list issued on 28.8.1980; persons appointed in the police service after that date but before the commencement of these rules and persons appointed to the service in accordance with these rules. Under Rule (7), it is provided that the appointment of members of police cadre of a province shall be appointed to the service on the basis of selection made on the recommendation of the Governor provided that appointment shall not exceed 40% of the senior cadre posts in that province as specified in schedule. It would be advantageous to reproduce, Rule 7 and Rule 11 of the PSP Rules, 1985 which are as under:-- 7. Appointment of members of Police cadre of a Province.--Members of the police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor. Provided that appointment of members of the police cadre of a Province under this rule shall not exceed 40% of the senior cadre posts in that Province as specified in the Schedule. 11. Seniority.--(1) The members of the Service referred to in clause (a) and (b) sub-rule (2) of Rule 3 shall retain the same seniority as is shown in the gradation list as it stood immediately before the commencement of these rules. (2) Persons appointed to the Service in accordance with these rules shall count seniority from the date of regular appointment against a post in the Service subject to the following conditions, namely:-- (a) persons selected for initial appointment on the basis of the same competitive examination shall on appointment reckon seniority inter se in accordance with the merit position obtained in that examination. (b) officers of the Armed Forces selected for appointment to a cadre post on regular basis in a batch shall on appointment retain their seniority inter se. Provided that officers of the Armed Forces appointed in basic Grade 17 in a year shall be treated as senior to probationers appointed in the same year .On the basis of the competitive examination held by Commission. (c) Members of the police cadre of a particular Province selected in a year shall on appointment to the Service take seniority inter se in the Provincial cadre and in keeping with that sequence, each such member shall reckon his date of regular appointment to the Service from the day the respective vacancy arose in the senior cadre posts reserved in that Province for such officers as specified in the schedule: Provided that, if the date of regular appointment of officers of two or more Province be the same their seniority inter se shall be determined on the basis of their date of regular appointment to the
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post of Superintendent of Police. (d) officers selected for appointment in the same batch shall on promotion retain their seniority as the lower post; and (e) "the general principal of seniority set out the Establishment Division O.M. No, 1/16/69-D. II dated the 31st December, 1970, shall apply in matters not covered by these rules. 9. At this juncture, we cannot ignore Section 8 of the Civil Servant Act, 1973 which governs the seniority. This section provides that for administration of a service cadre or post the authority shall cause a seniority list but nothing shall be construed to confer any vested right to a particular seniority. Sub-sections (3) and (4) of Section 8 have a significant impact, if we dissect both these Sections separately, the outcome of sub-section (3) envisions that the seniority on initial appointment shall be determined as may be prescribed while sub-section (4) made it clear that seniority in a post to which…
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