Full Judgment Text & Judicial Ruling

1999 P L C (C

1999 P L C (C.S.) 1347

[Service Tribunal Punjab]

Present: Abdul Hafeez Cheema, Chairman, Syed Aal‑e‑Ahmad, Member‑I and Syed Ali Mohtshim, Member‑II

M. SALEEM‑UR‑REHMAN, INSPECTOR LEGAL

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT and 2 others

Appeal No.721 of 1994, heard on 28th October, 1998

(a) Civil service‑‑‑

Transfer from one Department to another‑‑‑Reversion to parent Department‑‑‑Effect‑‑‑President of Pakistan issued directions for separation of Prosecution Agency from Police and transfer of its control to Law Deparment‑‑‑In order to complete transfer of control, in persuance of said direction of the President, Authorities invited options from employees for going to the Law Department‑‑‑Civil servants on their option, were transferred to Law Department where they were posted at different places as Assistant District Attorneys‑‑‑After about 6/7 years such scheme was dropped and civil servants, on their option, rejoined their parent Department‑‑‑Transfer of civil servants to Law Department and their subsequent reversion to Police Department which was result of option invited by Authorities in compliance of direction of the President of Pakistan and then by order of Chief Minister, their transfer and reversion could not be construed to be transfer or reversion on request of civil servants‑‑‑Civil servants, after reversion to parent Department, had automatically regained their original seniority‑‑‑Opposing civil servants who were junior to civil servants, had illegally been declared senior to the civil servants and were wrongly confirmed/promoted on basis of illegally prepared seniority list‑‑ Equity, justice and fair play demanded that previous service of civil servants should be kept intact.

Mazhar Ali's case 1992 SCMR 435; PLD 1985 SC 195; Mansoor ul‑Hassan's case 1972 PLC (C.S.T.) 180; 1983 PLC (C.S.) 872 and Muhammad Saleem Sadiq's case 1974 PLC (C. S. T.) 11 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Principles‑‑‑Best rule of interpretation of a statute is to look into the, purpose of law for which it was enacted/made, which was called "purposive approach".

Masud Ahmed Riaz, M.Y. Bhatti and Ch. M.I. Zahid for Appellants.

Ch. Manzoor Hussain, D.A. Saleem Sikandar, A.I.‑G. (Legal), Ch. Musthaq Masud and Hafiz Tariq Naseem for Respondents.

Date of hearing: 28th October, 1998.

JUDGMENT

ABDUL HAFEEZ CHEEMA (CHAIRMAN). ‑‑‑Identical question of law emanating from similar facts is involved in Appeals No. 721 of 1994, 1392 of 1994, 1528 of 1994, 1554 of 1994, 60 of 1995, 1074 of 1996, 717 of 1997, 1493 of 1994, 1494 of 1994, 1352 of 1994, 1456 of 1994 and 633 of 1998, as such this judgment shall govern all these appeals.

2. This appeal by M. Saleem‑ur‑Rehman and 15 other Inspectors (Legal) posted at various Departments of Punjab calls in question order dated 20‑3‑1993 and 20‑9‑1992 by the Inspector‑General of police whereby the respondents Nos. 4 to 16 who were junior to the appellants were confirmed as Inspectors (Legal) with effect from 12‑12‑1987 and 30‑8‑199 It also assails 'all consequential notifications of confirmation of the respondents Nos. 4 to 16 by the respective Deputy Inspector‑Generals of Police including notifications dated 28‑9‑1992 and 31‑1‑1993. They have also prayed for a declaration that all these orders and notifications may be held to have been issued illegally and with mala fide intention with z direction to respondent No.3 to cancel /withdraw the same and fix the seniority of the appellants with the, respondents according to their dates and orders of admission to promotion list‑F. Quashment of impugned seniority list and of the criterion laid down in letter dated 25‑5‑1994 by respondent No.3 was also prayed.

2.Facts of the case which led the parties to this litigation briefly are set down hereunder:‑-

Being convinced of the usefulness and importance of the report of the Police Commission (1969‑70) popularly known as Mitha Commission, President of Pakistan was pleased to issue directive No. 78 of 1983 for separation of prosecution agency from police and transfer of its control to the Law Department. Reasons for the Transfer as spelt out in the summary dated 17‑5‑1983, submitted to the Government, Punjab briefly were:‑

(a) Prosecution is not a police function. Once it is taken away, there will be a more objective appraisal of the policeman's prime work of investigation and detection of crime, and its prevention.

(b) Objective appraisal of investigation will force Investigating Officers to raise their standard of investigation.

(c) By taking away this duty police investigation will become better and fairer; a big source of corruption and highhandedness will be cut off and justice will be ensured.

(d) It will eliminate an area of political and other undue pressures on the police.

(e) The present police prosecution system is unsatisfactory.

(f) Because of low pay and limited prospects for promotion the best material does not come to the prosecution branch and those who are in it are disgruntled, and indulge in dubious practices.

3. In order to complete the transfer of the control, in pursuance of the aforesaid directive, Government of the Punjab in the relevant Department invited options from the police prosecutors as to whether they would prefer to remain in the Police Department or would like to go to Law Department. The appellants alongwith a sizeable number of their colleagues opted to remain prosecutors and desired to be transferred to the Law Department. Consequently .375 posts of prosecutors Inspectors and Prosecuting Sub Inspectors were surrendered to the Law Department. The appellants had by then been promoted as P.Is. i.e. Inspectors (Legal) on varying dates and after probation had become eligible for confirmation as Inspectors (Legal).

4. Consequently on transfer to Law Department they were notified as Assistant District Attorneys (A.D.A's.) and posted at different places. This scheme of prosecution under Law Department continued for about 6/7 years. Subsequently the Inspector‑General of Police pleaded before the then Chief Minister that the Police had become totally ineffective due to lack of prosecution control and as such was unable to effectively control the incidence of crime. As a sequel to their effective pleading before, the Chief Minister, the Police Department successfully retrieved the prosecution back to its control.

5. It is however, important to mention here that after the separation of prosecution from police and its placement under the administrative control of Law Department the police could manage to retain, what the Governor of Punjab called, a skeleton staff with them. This was composed of officers who did not like to part with the Police Department for the reasons better known to them.

6. On the reversal of the arrangement, options were once again invited by the authorities as to who would like to revert to or opt for police Department or who would like to be absorbed in the existing set up under the Law Department.

7. The appellant ad number of other officers who were essentially police prosecutors opted to rejoin their parent department.

8. It is claimed by the appellants that they had opted for the Law Department in the first instance, in view of the scheme of things proposed by the Federal Government and not on their own volition and likewise their option to revert to the Police Department was mainly in public interest. As such their transfer to Law Department and their subsequent reversion to Police Department cannot be construed to be a transfer or reversion on their own request. It was as a result of the organization of the Department initially m pursuance of presidential directive and then by the orders of the Chief Minister. It was further pointed out that their lien with the Police Department was intact as such on reversion to their parent department they have automatically regained their original seniority. It was further submitted that their transfer from one Department to the other was in public interest as a result of reorganization of the Department. The respondents Nos.6 to 16 who were admittedly junior to the appellants have been illegally declared senior and wrongly confirmed/promoted on the basis of an illegally prepared seniority list.

9. The respondents Nos. l to 3, on the one hand, and remaining on the other, through separate objections/comments defended the appeals: It was claimed inter alia, that posts of the appellants and their colleagues, on their transfer to the Law Department, were abolished. On reversion to Police Department their appointments shall be deemed to be fresh and new ones, hence they shall be placed at the bottom of the seniority list.

10 It was alleged by respondent No. l that in Police Department they were serving in BS.7 and 11 whereas on joining the Law Department they were in BS. 16, thus, they preferred to join Law Department for better service conditions.

11 It was, however, conceded that all the P.S.Is./P.Is. who preferred toy remain with Police Department had been given BS.14 alongwith executive police Inspectors with effect from 1‑7‑1985 and the post of Pf was re designated as inspector (Legal) by making amendment in the relevant police rules.

12. In this case main question/proposition for determination before us precisely is: ‑‑

"Whether, in the given circumstances, transfer of the appellants and their colleagues to the Law Department on the basis of their options and subsequent reversion to their parent Department i.e. Police again on their option would be construed as a transfer on their own request and with what consequences. "

While hearing the arguments we took down detailed notes jotted down the references made by the learned counsel to various decisions of the Hon'ble Supreme Court and other superior Courts.

13. Let us understand and appreciate the circumstances, which necessitated this re‑organisatuion of the two Departments/shifting of the prosecution from one Department to the other. The first step in this regard was. a meeting held on 6‑7‑1983 (Annexure A of Solicitor File No.I‑PA-1983‑84). This was chaired by the Home Secretary and attended to by the following: ‑‑

(1) Secretary Law.

(2) Inspector‑General of Police, Punjab. .

(3) Secretary Finance.

(4) Additional Secretary (Regulation). .

(5) Commissioner Lahore.

(6) Deputy Commissioner, Lahore.

(7) S. S. P. Lahore.

(8) Solicitor to Punjab Government.

(9) District Attorney, Lahore.

14. The Home Secretary briefed the participants about the proposed transfer of the control of prosecution from Home Department to Law Department in. pursuance of Presidential Directive No. 78 of 1983 and orders of the Governor of Punjab thereon.

15.After due deliberations, the following decisions were taken: ‑‑

(i) The scheme for separation of prosecution from Police be experimented in Lahore District without any delay. In any case this should be put into operation by 15‑8‑1983.

(ii) The entire prosecution staff and the ancillary staff alongwith the PDSPs office Lahore will be placed under the control of the Law Department through Solicitor to the Punjab Government in their present pay w.e.f. 15‑8‑1983. All this staff will be treated on deputation with the Law Department till further orders. For this purpose the I.G.P. will furnish a complete list of the prosecution staff and the ancillary staff working at Lahore to the Home Department by 20‑7‑1983 so that a notification regarding transfer of the staff to the Law Department on deputation basis can be issued. The Law Department would advise about the mode of issuing such notification and the authority competent to do so.

(iii) The Prosecutors and the ancillary staff placed under the control of the Law Department will continue to perform their duties in the usual manner in uniform. Their related duties i.e. service of processes, malkhana maintenance of record about disposal of cases etc. will also remain unaffected. They will be subject to supervision by the District Attorney under the overall control of the District Magistrate.

(iv) The I.G.P. Punjab will take steps to create a Legal Advisory Cell in the office of D.1.G. Lahore Range consisting of one D.S.P. (Legal) and two Inspectors (Legal) from out of the existing strength of P.D.S.Ps. and P.Is. through internal adjustment.

(v) The working of the prosecution staff in Lahore District will be closely supervised by the Law Department directly and through the Solicitor and the District Attorney. The Law Department will put up a study report about the impact, response and results of this experiment after 6 months of its working.

(vi) All the departments/agencies concerned must complete necessary formalities in this connection by 1‑8‑1983 positively.

16. It was further decided that the question of obtaining options from the P.S.Is, P.Is. and P.D.S.Ps. regarding their transfer under the Law Department in the event of full implementation of the scheme in the whole Province, should be pended till the results of the experiment undertaken in the Lahore District are duly examined and analysed.

17.Consequently while finally transferring the control of the Prosecution Agency through, Notification No. CAB‑III‑2‑41 /87, dated 30‑8‑1983, it was, inter alia, clarified that the Governor of the Punjab is pleased to direct that with effect from 1‑9‑1983 services of the officers and members of the staff stood placed under the administrative control of Law Department to be exercised through the Solicitor to Government of the Punjab. The Governor was further pleased to direct that, for the time being: ‑‑

(i) The terms and conditions of the officers and staff shown in schedule shall remain the same as were applicable to them immediately before this notification;

(ii) the inter se seniority of the officers and staff shown in schedule vis- a‑vis the officers and staff working in the Prosecution Agency in the rest of the Province shall remain uneffected;

(iii) subject to the orders of the Law Secretary or the officer appointed by him as incharge of the Prosecution Agency, the officers and staff mentioned in Schedule shall continue to perform the same duties and in the same manner as was being done immediately before this notification;

(iv) The District Magistrate shall continue to have the same role subject to the control of Law Department in respect of the prosecution agency as was being performed by him under the law immediately before this notification;

18. After the decision in principle about the revision of the prosecution, the Inspector‑General of Police submitted a summary to the Chief Minister for his approval, inter alia, with the following proposals regarding inter se seniority of the officers who would stage a comeback to the parent Department: ‑‑

"Out of the existing posts in the Law Department eight posts of D.A. (Prosecuting S.Ps. and 22 posts of D.D.A. (PDSPs) and 375 posts of A.D.A's. (P.Is. and P.S.Is.), transferred to Law Department on 2‑3‑1985 may be transferred back to the Police Department and the officers so transferred shall resume their inter se seniority as they were having on 1‑3‑1985 when Prosecution Agency of the Police was placed under the control of Law Department.

Copy of the summary at Annexure B

It further added: ‑‑

The amendment in Chapter 27 of the Police Rules, 1934 may be withdrawn and the chapter of the Prosecution restored to its original position as if no separation has taken place.

No financial implications are involved in the restoration of the agency. Budgetary grants for the above posts transferred from Law Department will be diverted to the Police Department. "

19. Likewise summary submitted by Home Secretary through Law Secretary and the Chief Secretary to which the Chief Minister was pleased to accord approval (Annexure C), inter alia envisaged: ‑‑

"Since as per order of Chief Minister the orders regarding reversion of Prosecution Agency to the Police are to be implemented from the next financial year (1992‑93) the same can be implemented if the posts of Inspectors (Legal) are filled by transfer of A.D.A's. from the Law Department with the protection of their seniority. However, this can be done if such a provision is made in the existing Police Rules by way of amendment because in the absence of such a provision, the induction of A D A's on transfer as inspector (Legal) cannot take place.

The proposed amendments accordingly approved by the Chief Minister vide his orders minuted on 31‑5‑1992.

Annexure C

20. These two suggestions which were consequently approved by the Chief Minister would show and show clearly that this was not a case of an initial appointment. It was transfer from one Department to the administrative control of the other Department. And as put up by the Inspector‑General of Police in his summary (Annexure‑B) to the Chief, Minister, no financial implications were involved in this exercise because the budgetary grants of Law Department qua these officers were diverted to the Police Department. Even if the choices/options were invited from the concerned officers yet viewed in its real perspective these bulk transfers would indicate the wholesale transfers on the basis of a policy decision. The officers who could stay back with the Police Department after the transfer of Prosecution Agency were only minimal in number. It is noteworthy that when at the outset Police Department put up a proposal for creating a legal cell the Governor was pleased to remark: ‑‑

"I feel that if you are going to provide a cell for each S.P. then the whole purpose of the exercise will be defeated. However, I do not mind creation of skeleton cells at the level of District Headquarter and one for the I.G.P.

Working papers placed before Law Department Meeting in 1983 (4‑12‑1983) (Annexure‑D)."

When further pressed by the Police Department the Governor was pleased to remark: ‑‑

I have not quite understood why a legal cell is required in each S.Ps. office. However, I see no harm in providing such a skeleton cell at the District level which can render advice in complicated cases only."

"(7‑6‑1983 Governor's remarks on the summary/submitted by Home Secretary.) (Annexure E)"

21. This would indicate that the transfer of Prosecution from police to the Law Department was virtually in toto and only a few officers were retained in the police to provide/render advice in the complicated cases as desired by the Governor. So, the option in this context cannot be stretched to mean and option to abandon one's department which can consequently deprive one of the benefit of ones past service which in some case may be more than a decade.

22. There indeed is sufficient weight in the submissions of the learned counsel for the appellants that had there been no indication from the Police Department that their seniority shall not be disturbed, they might not have exhibited/expressed their willingness to rejoin the Police. When it was clearly committed by the Inspector‑General of Police as well as the Home Department in their summaries to the Chief Minister that inter se seniority of the officers reverting to the parent Department would not be affected it now does not behave the respondent Department not to honour their unequivocal undertaking

23. A perusal of the record (File No.l‑PA' 83 and 1984) maintained to the Solicitor's Department/Law Department regarding the transfer and reversion of the Prosecution Agency would leave no doubt in ones mind that the officers could not satisfactorily settle down under the Law Department as there remained almost a perpetual conflict between the Police, the Law Department and the representative of the executive in the District i.e. Deputy Commissioner about the control of the prosecution at the district level, as such the prosecutors never felt at home with the Law Department. Till late Naib‑Courts, Malkhana and the process serving agency remained with the Police. Their Reporting Officer was the Solicitor, transferring authority was the Law Secretary and within the District the Deputy Commissioner. They had to ensure/earn the pleasure of the Solicitor, Deputy Commissioner and that of the Law Secretary. This trichotomy of control led to the corruption as well as puzzled the prosecution and so also resulted in inefficiency. Unhappy the police Department indeed was with the departure of the prosecution control, they, however, never extended fullest cooperation to their erstwhile employees, Obviously under these conditions they remained shaky and suffered with irresolution.

24 Positioned, as they were preferred to revert to the control of one master‑‑the Police Department. They were neither confirmed in the Law Department expressly nor by implication. As such they held lien with their parent Department i.e. Police. It would be helpful here to refer to the decision of the Supreme Court in Mazhar Ali's case (1992 SCMR 435). It is instructive to quote the relevant portion of the judgment regarding the termination of lien: ‑‑

"The law applicable to such an admitted position of facts find mention in rules 3.13 to 3.17 of the Civil Service Rules Punjab Vol-I and fundamental rules 13.14 and 14‑A. According to these the lien of a permanent civil servant cannot be terminated even with his consent. It can be terminated only when the civil servant is confirmed against some other permanent post. "

25. It is noteworthy that the posts held by the transferees to the Law Department were still not permanent as such their lien continued with the Police Department. The entire exercise of transfer and reversion was not taken/initiated at their instance or for their benefit. In fact administrative exigencies called for the transfer of prosecution from police to the Law Department. It was in pursuance of the policy decision of the Government of Pakistan and that too at the level of President of Pakistan that their services had to be transferred to the Law Department in the first instance and then to the Police Department in view of the decision of the Chief Minister of Government of the Punjab. It is, therefore, obvious that all this was not substantially done at their initiation.

26. While discussing the duties of the authorities charged with maintaining and observing a disciplined force it was held by their lordships of Supreme Court in PLD 1985 SC 195: ‑‑

"The authorities charged with the duties of maintaining and overseeing a disciplined force have an abiding duty to hold out even‑handed and fair treatment to all concerned. The passage of time and the turns of events may deprive a person of his right to seek redress but it cannot prevent the authority from granting relief unless the authority itself has taken an irreversible step, an action beyond recall. None can claim that when the government abolish a post the incumbent must necessarily be thrown out of service or continued in service on new terms and conditions."

27. It is equally instructive here to make a reference to a decision of this Tribunal in Mansoor ul Hassan's case (1972 PLC 180 CST) where almost an identical question was involved and the Tribunal held that the transfer was not on the basis of ones option/choice. Facts of the case briefly were that the appellant was appointed as an Overseer in the Public Health Engineering Circle of the Buildings and Roads Department of the Government of the Punjab. A new Department of Social Welfare Organization was created in 1957 and options were called for the posts in the organization from Overseers of the B & R Department. The appellant opted for the Social Welfare Organization. He was, however, not spared by the Department for transfer to the new organization. The Social Welfare Organization was merged enblock with the Public Health Department on 1‑8‑1961. Options were called by the B & R Department on 31‑8‑1962. Appellant again opted for Public Health Engineering but was not posted to that Department. Once again the options were called for after sometime for serving either of the two Departments i.e. Public Health Engineering Department or B & R Department. The appellant opted for Public Health Engineering Department but again was not allowed to join that Department. He represented to the Secretary Communications and Works Department but in vain. However, on the advice of the S&GAD the appellant was accepted in Public Health Department on 16‑10‑1970. Main contention of the appellant before the Tribunal was that he was entitled to count his past service and was entitled to seniority w. e. f. the date of joining service as Overseer in B & R Department. He, therefore,, sought a declaration that in this view of the situation he was senior to respondents Nos.2 to 81 who joined service on later dates. Upholding the contention of the appellant the Tribunal held: ‑‑

"We hold that the transfer of the appellant to the P.H. Engineering Department is the result…

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