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Petitioner: ALI IFTIKHAR JAFRI and 12 others VS Respondent: I.-G. POLICE, PUNJAB and 336 others
Court Name: Lahore High Court Judge(s): Iftikhar Hussain Chaudhry Title: ALI IFTIKHAR JAFRI and 12 others vs I.-G. POLICE, PUNJAB and 336 others Case No.: Writ Petition No.16015 of 2004 Date of Judgment:2005-04-18 Reported As: 2005 PLC (C.S.) 811 Result: Order accordingly
JUDGMENT
JUDGMENT ' IFTIKHAR HUSSAIN CHAUDHRY, C.J---Petitioners were appointed as Inspectors of Police through Public Service Commission in Punjab Police Department in the year 1993 in terms of provisions of Chapter 12.1(12.3) of the Punjab Police Rules, 1934. By Notification No.HP-11/A.S.-I./PPSC/93 dated 20- 3-1997, 10% of the posts of Inspectors were reserved for direct appointments. 2. A seniority-list of Punjab Police Officers (General Executive Branch) in the rank of confirmed Inspectors, as it stood on 2-5-2001, was circulated. According to petitioners, this list reflected the correct seniority of petitioners and other Police Inspectors and no objection, whatsoever, was raised qua the afore-referred seniority-list. 3. In January, 2004, another seniority-list of Police Inspectors was circulated in which certain Lady Police Inspectors were shows senior to other Inspectors. The objections were raised with regard to the seniority-list. The objections have not been attended to by the relevant Police authorities, so far. 4. Later, a Committee comprised Addl. Inspector General of Police, Punjab, Lahore, Deputy Inspector General (Headquarters), Deputy Inspector General (Establishment), and Assistant Inspector General (Legal) was constituted for the purpose of issuing revised seniority-list and also for confirmation of Inspectors. A meeting of the Committee was held on 1-7-2004 in which it was decided that 208 posts of Deputy Superintendents of Police be filled and a list of 632 senior most Inspectors be circulated for the purpose. The Committee also decided that 183 Officiating Inspectors be confirmed first and their names be placed at appropriate position in the seniority-list of 632 Inspectors. It was also decided that a revised "F-list", which is maintained under Chapter 13.1 of the Punjab Police Rules, be also prepard.
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5. The petitioners considered the decision taken by the afore-referred Committee as unlawful. However, a list of 571 Police Inspectors was circulated on 17-8-2004, which included the names of those Inspectors, who were confirmed in their posts pursuant to recommendations of the Committee. 6. Aggrieved by the seniority-list dated 17-8-2004, under consideration petition was submitted. 7. Notices to respondents were issued by order dated 29-9-2004. Some of the respondents were proceeded against ex parte, which orders were later recalled. Thereafter, respondents Nos.1,2 and 3 to 5 filed written reports and comments to petition. Respondents Nos.110, 255, 274, 309; 190; 187; 112; 113; 269, 319, 320; - respondents Nos.63, 260; respondent No.72; respondent No. 290; respondents Nos.287,. 329; respondents Nos.60, 73, 115, 229, 71, 72 and 228; respondent No.314; respondent No.238; respondent No.315; respondent .No.263 and respondent No.120 filed separate written statements. 8. Learned counsel for the parties have been heard at length. 9. Learned counsel for the petitioners submitted that the petitioners were appointed directly as Police Inspectors in the year 1993 and.They have been serving ever since in the Police Department and, thereafter the seniority-list circulated in the year 2001 was the correct seniority-list and no objection, whatsoever, was raised by any party and, therefore, that seniority-list should have been treated as the final list for the purposes of considering cases of Inspectors for promotion to the post of Deputy Superintendents of Police. It was submitted that on 1-1-2004, names of some of Lady Police Inspectors were included in the seniority-list, which was objected to by some of the petitioners only and those two seniority-lists attained finality and valuable right having been acquired by the petitioners could not have been taken away subsequently by the Police authorities. It was submitted that under Punjab Police Rules, 1934 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the seniority-list of the civil servant is to be reckoned from the date he actually holds the post or is appointed on regular basis against said post but in the seniority-list, being impugned, the respondents were being shown senior to petitioners, though, they never held the posts of. Police Inspectors in any capacity prior to appointment of the petitioners and that no ante-dated promotion could be given to them nor they could be confirmed in their. Posts. It was argued that under rule 7(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, a person appointed to a post in a grade against a substatnive vacancy is to be remained for probation for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise and then the persons are confirmed in a post. It was submitted that as far as respondents were concerned, they never performed the duties, of Police Inspectors, either on probation or in officiating capacity, prior to the appointments of petitioners, therefore, they connot be ranked as senior to petitioners and this was against the provisions of law and the rules on the subject. It was contended that provisions of rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were also violated. It was submitted that the Committee had also relied upon certain judgments of the Punjab Service Tribunal, which were not applicable to petitioners' case. 10. Learned counsel for the respondents, on the other hand, raised a preliminary objection, which was in terms that the petition was barred under Article 212 (2) of the Constitution of Islamic Republic of Pakistan and this was a matter, which squarely fell within the purview of Punjab Service Tribunal. It was submitted that so many instances could be cited where the seniority-list was challenged before the Punjab Service Tribunal and the Service Tribunal then gave a requisite relief to the party, which deserved that particular relief. Learned counsel for the petitioners, in reply, submitted that bar contained in Article 212(2) in the Constitution of Pakistan did not stand in their way and decision on merits of this petition could be given by this Court. 11. Reliance in, support of this submission has been placed on a Division Bench decision of Balochistan High Court reported as Muhammad Idrees v. Government of Pakistan through
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Secretary Establishment Division, Islamabad and 5 others (1998 PLC (C.S.) 239). It has been further argued on behalf of the petitioners that under section 4 of the Punjab Service Tribunals Act, 1974, an appeal before the Tribunal is competent only against a "final order" made by a departmental authority in respect of any of the terms and conditions of service of a civil-servant and that since the petitioners have thrown a challenge to the tentative seniority list, the appeal would not be incompetent and the only appropriate remedy available to them is the Constitutional petition. Lastly, it has been submitted that for every. Wrong there is a remedy and notwithstanding the ouster clause, i.e., Article 212 (2) of the Constitution, the power of judicial review of an administrative act is always available to the superior Courts if the act complained of is coram non judice or is tainted with mala fides. 12. Learned counsel for the petitioners and respondents relied upon The State v. Zia-ur-Rehman and others (PLD 1973 SC 49), Malik Ghulam Mustafa Khar v. Pakistan and others (PLD 1988 Lahore 49), Federation of Pakistan and others v. Ghulam Mustafa Khar (PLD 1989 SC 26), Nabi Bakhsh and another v. The State through Collector, D.I. Khan and others (PLD 1991 Peshawar 10), Mst. Bismillah and others v. Muhammad Jabbar and others (1998 SCMR 863), Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263), Jamal Khan Jaffar and another v. Rahim Shah and 3 others (1994 SCMR 759), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), Mst. Noor Jehan v. Federation of Pakistan and others (1997 SCMR 169), Muhammad Siddique Ahmed Khan and others v. Pakistan Railways through Financial Advisor and Chief Accounts Officer, Lahore and others (1997 SCMR 1514), Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129), Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), Pakistan International Airlines and another v. F.M. Shamsi (PLD 1990 SC 943), The Chairman, P.I.A.C. And others v. Nasim Malik (PLD 1990 SC 951), Ashiq Hussain Shah v. Province of Punjab through Collector and 6 others (2003 SCMR 1840), Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others (2004 SCMR 521), Khadim Hussain v. Dr. Farzana Chaudhry and others (2001 PLC (C.S.) 1239), Muzaffar Hussain v. The Superintendent of Police, District Sialikot (2002 PLC (C.S.) 442), Iftikharullah Khan, Sub-Divisional Officer and others v. The Secretary, Irrigation and Power Department and 3 others (2002 PLC (C.S.) 720), Qazi M. Asif Jah Baadur v. Government of Punjab through Education Secretary, Lahore and 3 others (2004 PLC (C.S.) 292). 13. I have considered the arguments of the learned counsel for the parties, and have gone through the long list of reported decisions cited at the Bar from both sides in support of their respective contentions. ' The foremost question is whether the Service Tribunal can competently look into the petitioners' grievance, subject-matter of this petition. To begin with, reference may be made to a decision of the Hon'ble Supreme Court reported as Inspector General of Police, Punjab, Lahore and others v. Mushtaq Ahmed Waraich and others (PLD 1995 SC 159). Mushtaq Ahmed Waraich and Arshad Hussain, respondents in that case, were placed on list 'F' on 11th of November, 1976, maintained in accordance with the rule 13.15 of the Punjab Police Rules, 1934; they were promoted as Inspectors w.e.f. 6th November, 1979 and 11th of January, 1979, and were confirmed as such on 24th of December, 1979 and 16th of December, 1981, respectively. Because of their confirmation as Inspectors, both of them became due for next promotion as Deputy Superintendents of Police and their cases were recommended for promotion along with other Inspectors .To the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. A question arose before the Committee whether the seniority of Inspectors should be determined from the date of their confirmation under rule 12.2 of the Punjab Police Rules or from the date of continuous appointment as provided under rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with section 7 of the. Punjab Civil
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Servants Act, 1974. The Committee, acting on the advice of the Punjab Law Department, held that rule 12.2 of the Punjab Police Rules, 1934, being inconsistent with rule 8 of the aforementioned 1974- Rules read with _section 7 of the 1974-Act, was invalid and, therefore, .Did not clear both the above- named Inspectors for promotion on account of their low placement in the seniority list. Their representations before the Governor having not been attended to within the statutory period, they filed appeals before the Punjab Service Tribunal, which having been allowed, the decision of the Tribunal was challenged before the Supreme Court. The question whether in the matter of confirmation/seniority/promotion and other related issues concerning the respondents-Police Inspectors, the Punjab Police Rules, 1934, read with the Police Act, 1861, would be applicable or the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 applied, -by reason of their general application to the civil servants as a whole, was examined thread bare. After tracing out the historical background of the said enactments, as well as the Constitutional history, with particular reference to the relevant provisions of the Constitution of the Islamic Republic of Pakistan 1973, the controversy was set at rest by holding that there being no words of exclusion of the Police Act, 1861, or the Punjab Police Rules 1934, in Articles 240 and 241 as to impede their operation as existing law under Article 268 of the Constitution of 1973, the Police Act and the Rules made thereunder stood saved as existing laws, the term "existing laws" not, in any manner, excluding or detracting the Police Rules from its ambit; that the Police Act and the Rules must co-exist with the Punjab Civil Servants Act, 1974, and the rules saved thereunder until the appropriate Legislature expressly repeals, alters or amends the Police Act or the Rules made thereunder; and that since special law prevails over the later law of general application, therefore, rule 12.2 of the Punjab Police Rules, 1934, will provide the criterion for determining the seniority of the subordinate ranks of the Police Force as from the dates of their confirmation and not ' from the dates of continuous appointment in the grade as laid down in rule 8(1)(b) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with section 7(2) of the Punjab Civil Servants Act, 1974. Thus, the question as to under what dispensation seniority of Inspectors was to be determined was originally dealt with by the Punjab Service Tribunal and then in appeal, from its decision, by the Supreme Court. ' Jamal Khan Jaffar and another v. Rahim Shah and others (1994 SCMR 759) is a case of Tehsildars of Balochistan Province. -While repelling the contention that the right of a civil servant to a particular seniority in service is not recognized as a vested right under the Balochistan Civil Servants Act (No. IX) of 1974, and as such the grievance by a civil servant that he was entitled to a particular place in the seniority list could not justifiably be made subject-matter of an appeal before the Tribunal, it was inter alia held that:-- "No doubt, section 8(1) of the Act has declared that a civil servant has no vested right to a particular seniority in service but this only means that where a competent authority passes an order with regard to seniority competently, it cannot be interfered with. However, if the competent authority on a wrong basis and contrary to the provisions of the law fixes the seniority of a civil servant such order is not immune from attack by the aggrieved civil servants. Service Tribunals set up under Article 212 of the Constitution of Islamic Republic of Pakistan have been conferred exclusive jurisdiction to decide the disputes relating to terms and conditions of a civil servant. It is not disputed that seniority in service is also one of the terms and condition of the service of civil servant. We are, therefore, of the view that a dispute regarding seniority raised by a civil servant is amenable to the jurisdiction of the Service Tribunal established under the mandate of Article 212 of the Constitution by the Act of a Provincial Government." "There is nothing either in the language of Article 212 of the Constitution of section 4 of the Balochistan Service Tribunals Act, 1974, to indicate that the Tribunal cannot give relief in respect of a grievance brought before it by a civil servant relating to his terms and conditions of service, unless such grievance is founded on a right
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recognized by the service law as a 'vested right'. Vested rights only means 'rights which are not dependent on any contingency.' However, for enforcement of a right, it is not at all necessary that the right must be a vested one. If a person is wrongfully deprived of something or is denied something to which he is entitled to or his title to something is wrongfully affected he is said to have suffered a legal grievance and if a forum is provided for redress, he can successfully impugned the wrongful action. We are therefore, of the view that notwithstanding the fact that seniority in service of a civil servant has been specifically declared under section 8 of the Act as not a vested right of the civil servant, a civil servant who has been wrongfully denied this rightful seniority in service is entitled to seek redress before the Service Tribunal in a properly instituted proceedings." ' In Imam Bakhsh and 4 others v, Deputy commissioner Layyah and 1 others (1992 SCMR 365) an order passed by the Deputy Commissioner appointing Kanungos was challenged before the Commissioner who set aside the same by directing inter alia that a joint list of all the Patwaris functioning in the District be prepared and matter be decided afresh in terms of the guidelines given by him. The order of the Commissioner was challenged in the High Court by filing a writ petition, which was entertained and allowed. The aggrieved persons, some of whom were not even parties before the High Court, challenged the decision in the Supreme Court, by contending that:-- "Mr. Hamid Khan, Advocate, the learned counsel for the appellants contended that the High Court failed to take note of the fact that there was a Constitutional bar to the jurisdiction of the High Court in view of Article 212 of the Constitution. The controversy related neither to the fitness nor to the suitability of the writ petitioners for appointment/promotion to the post of Kanungo but one of rules of eligibility/ineligibility for being considered for such promotion. Such a question had of necessity to be resolved by the Service Tribunal and not be the High Court. He also contended that while adjudicating on merits, the High Court completely failed to take note of rule 4(b) (ii) of unrepealed. The Punjab Kanungos Service Rules, 1945 and rule 11 of the West Pakistan Kanungo Service (Northern Zone) Rules, 1964. For the first proposition he relied on the decision of this Court in Aish Muhammad and 68 others v. Pakistan and 75 others 1985. SCMR 774; Government of Pakistan v. Muhammad Sadiq 1985 SCMR 699 and Nan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153. ' The Hon'ble Supreme Court held as under: "The facts pleaded before the High Court and the decision given do not relate either to fitness or suitability of the writ petitioners. The question directly in issue was the specific rule making them eligible/ineligible for being considered for promotion of or excluding them from consideration for promotion. This question squarely falls within the exclusive jurisdiction of the Service Tribunal as held by this Court in the cases Superintendent of Police, Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387, Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 and Nek Muhammad Ropaal v. Government of the Punjab through Secretary to Cooperative Department and 2 others PLD 1990 SC 672. ' For the foregoing reasons, without going into the merits of the rule applicable, we accept both the appeals, set aside the judgment of the High Court as without jurisdiction and recall the writ." ' The facts of the case reported as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539) were that certain staff members of the Customs Department voiced their grievances before late President Muhammad Ziaul Haq when he visited West Wharf of Karachi Port to see off Haji pilgrims, and under orders of the then President, CBR issued Notification upgrading the posts of Preventive Officers working in NPS-10 to NPS-13 and those of Principal Appraisers/Appraisers working in NPS-16 and 13 respectively, to NPS-17. Later on, it was clarified that the Preventive Officers and Appraisers shall continue to draw pay in the upgraded Scales "as personal to them so long as they hold those posts." A seniority list was then issued, along with a
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covering letter wherein it was mentioned that in the combined seniority list of promotees and direct appointees, the promotees shall have placed against vacancies which become available against promotion quota. Muhammad Anis and others, appellants before the Supreme Court were then promoted, whereupon the respondents filed a Constitutional petition in the High Court of Sindh a Division Bench of the said High Court allowed the writ petition, overruling the objection to the maintainability of the petitioner founded on Article 212 of the Constitution. The decision was challenged before the Supreme Court. The contention raised on behalf of the appellants prevailed with their lordships, resultantly the decision of the High Court was reversed by inter alia holding as follows:-- "We are, therefore; inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade-18 as Assistant Collectors along with the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were give higher grade, namely, Grade-17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Haq, which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it." ' In Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) upon merger of C.S.P. And P.S.P. Cadres into All Pakistan Unified Grades, the question of inter se seniority of officers, opting for any of the four occupational groups created as a consequence therefore, in the Gradation Lists, was raised before the Federal Service Tribunal. The appeal filed by Hamed Akhtar Niazi having been dismissed by the Tribunal, he challenged the decision before- the Supreme Court. Doubtless, Mr. Justice Mukhtar Ahmad Junejo had struck a dissenting note that the appeal before the Tribunal was not maintainable but the majority of the learned Judges accepted the appeal and remitted the matter to the Tribunal for re-consideration by inter alia observing as under:-- "There is no doubt that the seniority of an officer, who is working in a Province or elsewhere, cannot be distorted/disturbed to his determent on account of the merger of above two cadres of C.S.P. And creation of APUG. His junior cannot be made senior to him nor a junior to his junior can be made senior to him. But, this is to be done within the framework of the rules of reorganization as given in the above ESTACODE. If the case of any civil servant does not fall within the ambit of the above rules, section 23 of the Act can be pressed into service by the President to obliviate the inequitable and unjust result arising out of the above reorganization in respect of seniority of any of the civil servants." ' From the above observations, it is abundantly clear that the question of inter se seniority, involved in that case, was remitted to the Tribunal for its determination. ' In Muhammad Siddique Ahmed Khan v. Pakistan Railways (1997 SCMR 1514) one of the questions involved was as to from which date seniority of the parties as Sectional Pay Masters should be reckoned. In the seniority list issued by Pakistan Railways with letter, dated the 27th of September, 1984, placement of certain persons senior to the appellants on the ground that they had been granted Selection Grade was also questioned. The appeals were entertained by the Federal Service Tribunal but .Were rejected on merits. The decision of the Federal Service was challenged in'the Supreme Court. The appeals were accepted by the Supreme Court and Pakistan Railways was directed to grant Selection Grade in BS-15 to the appellants from the date their juniors were given such grade. Doubtless, maintainability of appeals does not appear to have been raised in the said case, but the fact remains that the appeals were entertained and decided.
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' In Iftikharullah Khan, Sub-Divisional Officer and others v. The Secretary, Irrigation and Power Department, Government of Punjab, Lahore and 3 others (2002 PLC (C.S.) 720) certain Constitutional petitions were dismissed by a learned Judge of this Court by observing that:- "Even otherwise this Court has consistently held that the preparation of a seniority list is a matter which relates to the terms and conditions of a civil servant and this Court has no jurisdiction to…
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