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Petitioner: MUHAMMAD RIAZ KIYANI, D.S.P. C & I WAPDA, LAHORE VS Respondent: INSPECTOR-GENERAL, PUNJAB, LAHORE
2000 P L C (C
2000 P L C (C.S.) 697
[Punjab Service Tribunal]
Before Syed Jawad Ahmed Mufti, Member
MUHAMMAD RIAZ KIYANI, D.S.P. C & I WAPDA, LAHORE
Versus
INSPECTOR‑GENERAL; PUNJAB, LAHORE
Appeal No.3187 of 1999, decided on 7th February, 2000.
(a) Police Rules, 1934‑‑‑
‑‑‑‑Rr.13.18 & 13.20‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑ Constitution of Pakistan (1973), Art.4‑‑‑Anti‑dated promotion/ confirmation‑‑‑Entitlement‑‑‑Civil servant despite being senior was ignored whereas juniors to him were granted anti‑dated confirmation/promotion‑‑ Service record of junior officers was not better than the civil servant and Authority had not given any valid reason or justification to give the civil servant a different treatment except that powers under Rr.13.18 & 13.20 of Punjab Police Rules, 1934 were discretionary and that Authority in his discretion did not find it fit case to permit period of officiating service to be counted towards period of probation‑‑‑Powers of exercising discretion vesting in Authority, must be bounded by rules of equity, fairplay and justice and could not be exercised arbitrarily and capariciouly‑‑‑Failure to treat all like persons in like situations without any reasonable distinction would tantamount to discrimination which was not allowed by law arid discrimination in like situation would offend against Art. 4 of the Constitution of Pakistan (1973) and also would be violative of principles of Sharia.
KLR. 1998 CC 6 ref.
(b) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑Ss.4 & 5‑‑Service Tribunal‑‑‑Status and powers of ‑‑Service Tribunal was a Court of appeal and had powers under S.5 of Punjab Service Tribunals Act, 1974 to confirm, set aside, vary or modify orders appealed against‑‑‑Tribunal also possessed with all powers of a Civil Court to pass orders on appeal and then to carry them to logical end‑‑‑Service Tribunal, on principles contained in 5.107, C.P.C. would have same powers and would perform as nearly as could be the same duties as were conferred and imposed on Competent Authority.
(c) Police Rules, 1934‑‑‑
Rr.13.18&13:20‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑ Anti‑dated confirmation/promotion‑‑‑Judgment/order of Service Tribunal ‑‑ Non‑compliance ‑‑‑ Effect ‑‑‑ Service Tribunal had set aside orders passed by Authority refusing to confirm appellant/civil servant as "Inspector" from date of his promotion with a direction to consider his case in terms of 8.13.18 of Punjab Police Rules, 1934, but orders/judgments of Service Tribunal we're frustrated by the Authority ‑‑‑Orders judgments of Service Tribunal were not challenged by Authority before Supreme Court‑‑‑Service Tribunal being appellate forum for aggrieved civil servants and being substitute for High Court vide Art. 212 of Constitution of Pakistan (1973), its judgments/orders must receive consideration and respect and Authority was bound to comply with same in its true perspective.
(d) Appeal‑---
‑‑‑‑ Meaning of‑‑‑Expression "appeal" means "removal of cause or a suit from inferior forum to superior forum".
PLD 1970 SC 506 ref.
Muhammad Yasin Bhatti for Appellant. Muhammad Shafl, Representative of the Police Department for Respondent.
Date of hearing: 17th January, 2000.
JUDGMENT
Muhammad Riaz Kiyani, D.S.P. Police,‑ has filed this appeal to
Challenge the validity J of order, dated 30‑10-1999 passed by respondent I.‑G.P., whereby his claim for confirmation as Inspector w.e.f. 2‑10‑1975 was once again rejected.
2. The resondent I.‑G. P. has since filed his written objection'/comments, contending that the powers under rules 13.18 and 13.20 of the Punjab Police Rules, 1934 were discretionary and that the respondent in his discretion did not find it a fit case to permit the period of officiating service to count towards the period of probation in terms of rule 13.18 of the Rules (ibid) and that consequently rule 13.20 the said Rules was not to be relaxed in his favour.
3. After hearing the parties, I have gone through the record. In the judgment, dated 2‑5‑1995, passed by the then Chairman of the Punjab Service Tribunal in Appeal No. 1465 of 1994 brought by the appellant for the same relief, it was observed that the appellant was recommended by his supervisory officer, namely, the S.S.P., Faisalabad for accelerated confirmation as Inspector; that the appellant's claim was wrongly ruled out on the impression that it would create discontentment amongst his seniors; and that the "performance of the appellant was not properly appreciated to invoke rule 13.20" of the aforesaid Rules. When the appellant was not given confirmation w.e.f. 2‑10‑1975, he had to file another Appeal No.61 of 1998 which too, was accepted by the then learned Member‑I of this Tribunal on 18‑2‑1998. It was held in para. 6 of this judgment that without considering any act of gallantry, the appellant "seemed to be straightaway eligible for confirmation from the date of the promotion on the basis of record, good performance as well as seniority." Date of promotion of the appellant as Inspector is admittedly 2‑10‑1975. The departmental order, dated 24‑12‑1997 was set aside and the respondent was again directed to reconsider the appellant' for confirmation as Inspector w.e.f. 2‑10‑1975 in terms of rule 13.18 of the Rules (ibid).
4. On reconsideration, the I.‑G.P. came to the same old conclusion and once again rejected the claim of the appellant. He had to come to this Tribunal again in Service Appeal No.894 of 1998 taking exception to the order, dated 5‑5‑1998 whereby the respondent had refused to exercise his powers in favour of the appellant under rule 13.18 of the said Rules as a sequel to the judgments of the Punjab Service Tribunal as aforementioned. The learned Chairman of this Tribunal, who was seized of the appeal, by order dated 22‑3‑1999 once again directed the respondent to hear the appellant and pass appropriate orders. On 30‑10‑1999, the case of the appellant was again rejected by the respondent. This is how the present one is the 4th service appeal in the series.
5. In the written comments, the plea taken up by the respondent is that the power under rule 13.18 of the aforesaid Rules is discretionary and that
such discretion could not be claimed by the appellant as of right. In reply to para.12 of the memo of appeal, it was admitted that the precedent of M/s. Manzar Ali Shah, D.S.P., Musthaq Hussain S.P, Ghulam Ahmed Kalyar S.P. etc. were junior to the appellant and that they were promoted by giving ante‑dated promotions but that his performance in those cases was better. It was also admitted that M/s. Abdul Khalid, S.P. Muhammad Raza Inspector, Mushtaq Ahmed S.P, Zulfiqar Ahmed, S.P. Ghulam Ahmed Kalyar S.P., Shafqat Ahmed. D.S.P. and Mst. Naseem Chaudhry, Lady Inspector, etc. were also granted ante‑dated confirmation/promotion under rule 13.18 of the Rules ibid.
6. I have examined the service record of the appellant and found that the record of the aforementioned Police Officers was no better than his. There is, therefore, to valid reason or justification to give him a different treatment. It is time‑honoured rules of Constitutional law that like should be treated alike in like situations. Service Tribunal is a Court of appeal and has the powers under sections 5 of the Punjab Service Tribunals Act, 1974 to "confirm, set aside, vary or modify, the orders appealed against". It is also possessed with all the power of a Civil Court under the said section 5, to pass order on appeal and then to carry them to logical end. On the principle as contained in section 107, C.P.C. the Tribunal "shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed" on the competent authority. All the times, this Tribunal had set aside the orders passed by the respondent refusing to confirm the appellant as Inspector w.e.f 2‑10‑1975 with a direction to reconsider his case in terms of rule 13.18 of the aforesaid Rules. The respondent frustrated every time the purport of the orders/judgments of the Tribunal. Relief, they say, means "satisfaction of a genuine claim in the best possible manner." The expression "appeal" has received judicial interpretation. It means "removal of the cause or a suit from the inferior forum to a superior forum". AIR 1970 Rajasthan 26 and PLD 1970 SC 506 may be referred to. According to Oxford English Dictionary Volume‑I "appeal" means to "remove a. case formally from an inferior to the higher Court". The Punjab Service Tribunal being the appellate forum for the aggrieved civil servants and being substitute for the High Court vide article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, its, judgments/orders must receive due consideration and respect. There is also a Notification issued by the Chief Secretary, Government of the Punjab vide No.SOR‑III (S&GAD)1-18/74(pt.lI), dated 8‑9‑1979, to the effect that it was imperative that "the orders of the Tribunal must be implemented if it is not considered a fit case for appeal to the Supreme Court." It was further directed in the said notification that the judgment/order of the Tribunal must be implemented within fourteen (14) days of the receipt of the letter from the Tribunal and that failure to comply with the instructions contained therein would be reflected in the A.C.R. of the officers at fault. In the present case, none of the orders/judgments of this Tribunal was ever challenged before the Honourable Supreme Court. That being so, the judgments/orders passed in favour of the appellant were a fortiori bound to be complied with in true perspective. Discrimination in like situations offends against Article 4 of the Constitution‑ and is also violative of the principles of Sharia enunciated in Articles 3 and 4 of the Enforcement of Sharia Act, 1991. The present case appears‑to be at par with the precedent cases. The respondent has indeed the powers of exercising discretion under rules 13.48 and 13.20 of the Police Rules, 1934 but essentially it must be bound by rules of equity, fairplay and justice, and could not be exercised arbitrarily and capriciously. Failure to treat all like persons in like situations without any reasonable distinction, tantamounts to discrimination, which is not allowed by law. KLR 1998 C.C. 6 is direct authority on the point.
7. As a sequel to the above, this appeal is accepted, the orders, dated 30‑10‑1999 passed by the respondent are set aside and it is directed that the appellant shall be considered as Inspector confirmed w.e.f. 2‑10‑1975 with all consequential benefits of service. There shall be no order as to costs.
H.B.T./2/P(S. Trib.) Appeal accepted.