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Petitioner: ISLAMIC REPUBLIC OF PAKISTAN VS Respondent: ISRARUL HAQ AND 23 Other
Court Name: Supreme Court of Pakistan Judge(s): Shafi-ur-Rehman Title: ISLAMIC REPUBLIC OF PAKISTAN vs ISRARUL HAQ AND 23 Other Case No.: Civil Appeal No. 37 of 1979 Date of Judgment:1981-05-05 Reported As: PLD 1981 Supreme Court 531 Result: H.
JUDGMENT
JUDGMENT SHAFI-UR-REHMAN, J.-This appeal filed by the Islamic Republic of Pakistan under Article 212(3) of the Constitution has come up for examination of substantial questions of law of public importance, in particular, the following (1) Whether the respondent, formerly a P. S. P. Officer, on appointment as Deputy Secretary, Federal Government (Grade 19 Post) which appointment he took over on 15-10-1973, would be deemed in law to be ipso. Facto promoted as D. I: G. (Grade 19 Post) in the P. S. P. Cadre ; (21 Whether his seniority in Grade 19 of P. S. P. Would be reckoned from 4-6-1973 or near about, the date he was cleared by the Selection Board for appointment as Deputy Secretary, Federal Government and approved by the Competent Authority notwithstanding that he took up that appointment on 15-10-1973. 2. The respondent Israrul Haq, a domicile of what was then known as East Pakistan, joined Police Service of Pakistan as a direct recruit in 1952. He was allocated to East Pakistan Cadre in terms of - rule 3 of Police Service of Pakistan (Composition and Cadre) Rules, 1969. Large scale interwing, inter-province, and inter-Sub-cadre transfer of P. S. P. Officers was resorted to in the second half of the year 1971. The respondent was transferred to West Pakistan and allocated to Government of Sind. On 4-8-1971 while at Rawalpindi the respondent addressed two letters to Establishment Secretary, Government of Pakistan. By one he complained of the omission of the Government of East Pakistan to confirm him in the senior scale of the P. S. P. And by the other he claimed promotion as D. I. G. On the ground that "Officers junior to me are already officiating as D. I. G. In West Pakistan". The first letter was forwarded to Government of East Pakistan for comments, and as regards the second the respondent was informed in the following words on 17-9-1971:
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"As you belong to East Pakistan Sub-Cadre of P. S. P., you cannot claim promotion in West Pakistan on the basis of your seniority in the P. S. P. Cadre. Moreover, you are junior to some P. S. P. Officers in East Pakistan Sub-Cadre who have not yet been promoted to Deputy Inspector-General of Police," The respondent responded to it by a very long representation dated 23.9-1971 in which he emphasized the following aspects: "The object of interviewing transfer will be therefore frustrated if my promotion to the rank of D. I. G. Of Police is turned down on the ground that I do not belong to West Pakistan Cadre. The extra Cadre postings of P. S. P. *Officers are of special -relevance to -my case as I had the honour of being picked up by the then Finance Minister of East Pakistan, Dr. M. N. Huda, for my contribu--petition in the field of Economics, for appointment as Deputy Chief Planning Government of East Pakistan and the Provincial Govern--ment, I understand, recommended my name to the Establishmen+ Division for appointment as Deputy Secretary to the Central Government, way back in 1969-70." This representation was forwarded by the Establishment Division to the Secretary of Council of Governors, which was the body competent to consider and approve of the promotion of P. S. P. Officers. 3. By an order dated 30th September, 1971 the Governor of East Pakistan confirmed the respondent in the Senior Scale of the Police Service of Pakistan with effect from 20th April, 1970. 4. On 14-10-1971 the respondent filed another representation to the Governor of Sind, forwarding its copy to Establishment Secretary, with the request that "my case for promotion be promptly taken up and vigorously pursued with the proper authority" In due course the Government of Sind recommended .And forwarded this representation on 25th November, 1971. On 6-1-1972 yet another representation was filed by the respondent, this time addressed to the President of Pakistan. This representation was also forwarded to Secretary Council of Governors on 11th February, 1972. On 24-4-1972, the respondent addressed another- . Representation to President when a West Pakistan Cadre P. S. P. Officer junior to him was promoted. The Establishment Secretary, informed the respondent through Chief Secretary Government of Sind on 23-5-1972 that : . "Israrul Haq belongs to the East Pakistan sub-cadre of P. S. P. He cannot therefore claim promotion as Deputy Inspector-General of Police in West Pakistan on the basis of his seniority in the East Pakistan Sub-Cadre. His case will however be considered in due course." On receipt of this reply the respondent addressed another representation to the President of Pakistan on 14-6-1972 claiming that "I as a member of the Police Service of Pakistan enjoy an all Pakistan Seniority based on the results of the competitive examinations held in the year 1952. It is only natural that a member of All Pakistan Service should enjoy an all Pakistan seniority which does not change with the change of Province which he serves. . . I cannot, therefore, be debarred from claiming my promotion on the basis of all Pakistan Seniority based on the results of the competitive examinations held in the year 1952". 5. On 20-1 ~'-1972 the respondent was cleared by the Intelligence Bureau, there being "nothing adverse against him from Security point of view". On 9th December, 1972 the Establishment Division asked the Director, Intelligence Bureau to "indicate in positive terms whether the option for service in West Pakistan given by Mr. Israrul Haq may be accepted or not". The Central Selection Board examined the case of the respondent for promotion as D. I. G. And the decision was "This was postponed as positive security clearance in respect of Mr. Israrul Haq P. S. P. Had not so far been received". On 16-12-1972 the Director, Intelligence Bureau informed as follows "The Intelligence Bureau have no objection if the opinion of Mr Israrul Haq P. S. P., Assistant Inspector-General of Police, Karachi, to serve in West Pakistan is accepted."
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The Selection Board again met on 22-2-1973 examined the reports of the respondent and concluded "The Board did not find him suitable for promotion to the rank of D. I. G. Police". 6. On 10-4-1973 the respondent addressed another representation to the Establishment Secretary, para. 6 of which reads as hereunder: "I therefore submit that my promotion brooks no further delay. In case it is not possible to consider my promotion in the Police Department, I may kindly be considered for some ex-cadre or some equivalent Sectt: appointments such as Director, Complaints and Investigation, C. B. R., Director Passport and Immigration, Chief Superintendent, Watch and Ward, Railways, Member, Governor, Inspection Team etc. Etc. So that I do not suffer in my pay, rank and status." , 7. Central Selection Board in its meeting held on 21-5-1973 re-considered the case of the respondent and the following decision was taken "Mr. Israrul Haque, P. S. P., who had been recruited in 1953 against East Pakistan sub-cadre was transferred to West Pakistan in July, 1971, and was at present posted in Sind. He opted for service in West Pakistan and had been cleared by the Intelligence Bureau. It was noted that the P. S. P. Officers of 1956 batch of West Pakistan sub-cadre had already been promoted as Deputy Inspector-General. Of Police. Mr. Lsrarul Haque was also considered by the Central Selection Board for promotion as Deputy Inspector-General of Police in its meeting held on 22-2-1973 but he was not cleared for promo--petition. His case was; therefore, placed before the Board for clearance for appointment to the grade of Deputy Secretary to the Central Government. On scrutinising the C. R. Dossier of Mr. Haque, the Board found that- he had a mixed record of service. In view, however, of his long service, the Board decided that he might be cleared for appointment to the grade of Deputy Secretary and placed on trial for 6 months from the date of his appointment." The recommendation of the Selection Board was submitted to the Minister who approved it on 4- 6-1973. The formal notification appointing the respondent as Deputy Secretary issued on 31-8-1973 after consulting the Ministry of Finance where he was posted. As be was not relieved forthwith by Government of Sind to take up the appointment another notification issued on 15-10-197C on which date he took over his new appointment. 8. On 4-9-1973 the respondent addressed another representation to the Establishment Secretary highlighting as follows "It is unfortunate that I belonged to a service (P. S. P.) which did not provide much scope for the realization of my potentials as reflected to those contributions and in the spirit of the present Reform I should receive all the recognitions that belong to me in the new scheme of evaluation and career planning. . .. . . I shall therefore, request that my case should be re-examined in the spirit of the new Reform and I should be allowed to move all the way to a position where my performances and potentials would have taken me, if I were not beset with the constraints and limitations that have been now so merrily consigned to the dust bin of history. In this context, I seek permission to submit that my case for appoint--ment as Joint Secretary to Federal Government is still under considera--petition in the Establishment Division." . He was Wormed on 12th November, '1973, that "he has already been promoted to Grade 19 from Grade 18 and further that he was not selected for the post of Joint Secretary. 9. On 11-5-74 the respondent addressed another representation to the Establishment Secretary informing him that he had opted for Domicile of N: W. F. P. And requesting that "I may be formally cleared for the post of D. I: G. And allowed seniority among the former P. S. P. Officers, now acting as Deputy Inspector-General of Police in Pakistan based on the results of the C. S. S. Examination held in 1952. Unless this is done, there is no chance of my being considered for further promotion in my department and to that extent my prospects in the Department would be seriously jeopardized"." 10. On 3-6-1974 the Central Selection Board again considered the case of the respondent and recorded the following minutes:
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"The Board noted that M. Israrul Haq had been appointed on trial basis for 6 months as Secretary, Central Board of Revenue, in the Grade of Deputy Secretary, to the Federal Government. The Central Board of Revenue had given a special report on Mr. Lsrarul Haque for the period from 15-10- 1973 to 15-4-1974 which was good. The Board accordingly approved Mr. Lsrarul Haq for regular appoint--ment in the grade of Deputy Secretary to the Federal Government." 11. The respondent, on appointment as Deputy Secretary was proposed for posting in Ministry of Finance and posted there on 31-8-1973. As he could not then be relieved to take up this appointment he was on 15-10-1973 posted as Secretary, Board of Revenue which appointment he took over on that date. His services were then on 28-1-1975 placed at the disposal of interior Division, for appointment as Director, Immigration in the Special Police Establishment in his own grade. On 12th June, 1975, his services were placed at the disposal of Finance Division for appointment as Director (Complaints) in his own grade in the Agricultural Development Bank of Pakistan. 12. A Provisional seniority list of Officers of All Pakistan Unified Grades in Grade 19 Police Group was circulated on 20-11-1973 with a foreward. The Foreward mentioned the principle adopted in preparing the list. One of the principles stated was that "Officers who are holding the posts of Deputy Secretary/Deputy Inspector General of Police but have not so far completed 13 years service in Grade 17 and above have been shown separately in Annexure to this Gradation List. They will be included in the Grade List for Grade 19 after they have completed 13 years service. The respondent was shown at S r. No. 20, below Muhammad Nawaz Malik. 13. Another Provisional Seniority list was issued on 1-10-1975. The need for it arose because as explained in the Foreward: "The Gradation list of Officers of all Pakistan Unified Grades in Grades 20 to 23 was circulated in September, 1973, and Gradation list of Officers of Grades 19 and 18 were circulated in November, 1973, and May, 1974, respectively. The A P U G has since been reorganized into four occupational groups-namely the Secretariat Group, the District Management Group, the Police Group and the Tribal Areas Group. Consequently the Gradation lists have, now, been drawn up separately in respect of each group." The principle adopted in preparing the list was also explained in the following words: "This Gradation List pertains to Officers of the Police Group which was constituted vide this Divisions Office Memorandum No. 3/2/75--ARC dated 31-5-1975. The seniority in different grades as determined under the provious rules before promulgation of the Civil Servants Ordinance, 1973 (15- 8-1973) has not been disturbed in view of this Division, Office Memorandum No.1/36/75-D.11, dated 1-9-1975. However seniority of persons promoted to higher posts after 15-8-1973 has been determined strictly in accordance with the provisions of subsection (4) of section 8 of the Civil Servants Act, 1973." 14. The respondent was shown at Serial No. 40 below Mr. Muhammad Nawaz Malik. He was not shown as promoted to the rank of D. I. G. But was shown as Deputy Secretary since 15-10-1973. His claim was that according to rules he should have been placed at No. 17 immediately below Mr. Anwar Gilani Syed. He represented in the matter but his representation was turned down on 8-9- 1977. On 30-10-1977 the respondent filed an appeal before the Tribunal. In appeal his case was that he was cleared for promotion as Deputy Secretary in "June or July, 1973," but in the exigencies of service took over on 15-10-1973. On the date ha was cleared for promotion, the rule of the P. S. P. Governed his seniority and not the provisions of Civil Servants Act applied from 15-8-1973. This rule required that "if an Officer cleared for promotion was not available on legitimate grounds for taking up his new assignment and as a result a Junior Officer was promoted, a pro forma promotion was granted to the senior Officer". Even regular appointment to a grade, according to this Officer could take place, only after confirmation in the lower grade and the regular appointment had to follow
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the batch seniority and the confirmation in lower grade. Next, the respondent cited what he considered to be glaring cases of injustice to him where Officers far junior to him in all Pakistan list superseded him and he was not at all considered for promotion on all Pakistan basis. He mentioned by name each individual Officer who was made to supersede him. 15. The Tribunal noted in great detail the submissions of the two parties in the appeal. Its finding on some of the important issues were as follows :- "(i) We are not persuaded to agree that the appellant was promoted against a post of Deputy Secretary only because it has not been pointed out to us whether any procedure or rule existed at the relevant time under which Mr. Israrul Haq could be brought on as Deputy Secretary without having been approved for promotion in his present cadre against a grade 19 post----. The Officer is therefore entitled to promotion even as D. 1. G. With effect from date of his approval on 21-6-1973 and the seniority determined on the basis of that promotion irrespective of the date of his being allowed to join.---Mr. Israrul Haq has to be treated to have been promoted with effect from 21-6- 1973 on even on date falling between February, 1973, and June, 1973, when his next junior Officer was approved for promotion subsequent to 22-2-1973. (ii) Irrespective of the fact whether the Selection Board would or would not have considered him suitable for promotion to grade 19 post in the Police cadre or outside it, the Officer was entitled to this consideration under the rules. (iii) In any case in December, 1971, with the fall of Dacca, the East Pakistan sub-cadre was destroyed and alongwith it went the seniority list of that sub-cadre. The Officer being an employee of the Federal Government became ipso facto the member of the Sub-Cadre that remained by virtue of his option to serve in West Pakistan subsequent--ly exercised by him with claim of continuity in service and retention of seniority originally enjoyed by him in the Police Group since his initial entry to P. S. P." The result was that the claim of Mr. Israrul Haq for seniority below Mr. Anwar Gilani on the 17th position on the list issued on Ist October, 1975, with all consequential benefits for consideration of promotion etc. Being available to him, was allowed. 16. The main plank of the Government case in this appeal is that the Tribunal has totally ignored the rules applicable to the case, has in derogation of express words, of appointment orders, drawn inferences by implication, and gone outside is jurisdiction in determining the suitability of the respon--dent for promotion as D. I.-G. 17. We find that the entire case of the respondent proceeded, and even now rests, on certain assumptions of law and fact: all of which car, by reference to rules and the record be shown to be palpably untenable. Hereunder is a list of such erroneous assumptions. (i) All posts of Deputy Secretaries in the Federal Government were till 15-8-73 borne on the cadre of C. S. P. And no appointment from outside could be made; (ii) A P. S. P. Officer could be appointed a Deputy Secretary in Grade 19 only after being promoted as a Grade 19 Officer in P. S. P. i. e. As D. I: G. This the respondent calls a horizontal movement for one cadre to other; (iii) Selection Board having approved him for appointment in the Grade of Deputy Secretary which came to be in N. P. S. 19 he should be deemed to have been duly promoted as D. I. G. Also in N. P. S. 19. (iv) On his promotion as D. I.-G. Deemed to have taken place in June, 1973, when he was approved he is entitled to count his seniority from the date of selection rather than from the date of appointment (31-8-1973) or the date of his taking over the post (15-10-1973); (v) The post of Director, Immigration and Passports, being that of D. I. G. Should be taken to be a cadre post and his appointment to that post should necessarily imply that he was treated as an officer duly promoted ;
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(vi) In determining his suitability for the post of D. I. G. The Selection Board should have confined the appraisal to A. C. Rs. Of the last ffve years preceding the date of selection. Having gone beyond, it exceeded the jurisdiction ; (vii) The Selection Board was bound to reconsider the case of the respondent every time that an officer junior to him on All-Pakistann list was sought to be promoted ; (viii) The Selection Board being a recommending body his case should have in any case been submitted to the competent authority, for the competent authority could have differed with the views of the Selection Board ; (ix) The respondent was an All Pakistan Service Officer and his seniority on All Pakistan basis should have determined his right to promotion and not the Provincial Cadre seniority ; (x) In any case with the fall of Dacca there was no Provincial Cadre left and the respondent had to be dealt with on the basis of unified seniority list ; (xi) The representation made by the Establishment Division that he stood promoted as grade 19 officer even in Police Group should bind the Government notwithstanding the true legal character of the appointment/promotion made ; (xii) The respondent has been dealt with unjustly, oppressively and prejudicially, making out a clear case of mala fide ; (xiii) The second seniority list in spite of being termed Provisional is in law final. What has struck us as most unusual in the judgment under appeal is that in spite of being an elaborate document it omits to take note of the rules applicable to the case, all of which are available codified in Establishment Manuals and also the decision of this Court on important questions of law in issue. 18. The Police Service of Pakistan (Composition and Cadre) Rules, 1969 (Page 588 Estab. Code) which admittedly governed the respondent at the relevant time, and whose benefit he invoked at all stages, had provisions directly applicable to his case. For example Rule 3 had sub-rules (2) and (3) in following words "3: (1) (2) The Cadre strength of the service shall, in cousultation with the Provincial Governments be divided into two Provincial Cadres, one relating to each Province. (3) Every member of the Service shall be shown to belong to one of the two Provincial Cadres to which he shall continue to belong throughout the entire period of his service. Provided that the President may, for special reasons, transfer any member of the service from one Provincial Cadre to. Another." Rule 6 provided "A member of the service shall be liable to serve anywhere in Pakistan in any post to which he may be appointed and to hold, if he is so directed, more than one post at the same time." If these two rules had been kept in view, the Tribunal could not have possibly recorded the findings that (i) with the fall of Dacca, the East Pakistan Cadre was destroyed and the respondent ipso facto become member of the Cadre that remained, effacing altogether the authority of the President expressly reserved in the matter or (ii) that there existed no rule or procedure under which the respondent could be brought on as Deputy Secretary without having been approved for promotion in his parent cadre, or that the (iii respondent would be treated as promoted within the period February, 1973 to June, 1973 when his next junior officer was approved for promotion irrespective of the sub-cadre and the clearance by the Selection Board. 19. The C. S. P. Composition and Cadre Rules, 1954 are to be found at page 152 of O. & M. Establishment, Vol. I and page 534 of Estab. Code. The Police Service of Pakistan (Composition and Cadre) Rules appear at page 244, Vol. II Establishment Manual and of 1969 at page 588 of Estab. Code. These Rules at the end contain a schedule which specifies and enumerates each cadre post.
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Any post, even though of the specified designation and description, if in excess of that number does not form part of the cadre unless the cadre is extended by an order to include it or it is included formally into the cadre. It is admitted that the posts of Deputy Secretaries existing in 1973 or other posts comparable to D. I. G's. Post exceeded the number mentioned in respective cadre. These were ex cadre posts and more specific examples of such posts will follow. 20. The transferability of a P. S. P. Officer before the promulgation of Civil Servants Ordinance was determined by P. S. P. Composition and cadre rules. A P. S. P. Officer could object to it only by reference to and in the light of the rules applicable to him and not by reference to rules applicable to those eligible to hold that ex cadre post. Rule 6 (already quoted) made the respondent liable to "serve anywhere in Pakistan in any post to which he may be appointed". He could only claim that his terms and conditions shall not be more adverse on such transfer than there immediately before such transfer. (Fundamental Rule 15). 21. On the question of transfers to and posting on ex-cadre posts and irrelevance of the advancement therein to the advancement in the cadre, there is a string of authorities of this Court. Two such cases of Police Officers of the P. S. P. Cadre of a Province moving on to ex cadre posts of the Central Government (comparable to police cadre posts) and gaining advancement there came up before Supreme Court in 1959. These are cases of Pakistan v. Moazzam Hussain Khan etc. (PLD 1959 SC (Pak.) 13) and Pakistan v. Fazalur Rahman Khondkar and others (PLD 1959 SC (Pak.) 82). In both the officers wanted to avoid their substantive position in the cadre, a lower one, ,. a having attained improvement, or advancement on ex cadre posts. Their claim was negatived. Two recent cases on the same subject are of Muhammad Sadiq v. Secretary Education (1979 SCMR 139) and Ghulam Sarwar Khan v. Federation (1980 SCMR 566). 22. The word "promotion" itself has been defined in Chapter XX (O & M Establishment Manual, Vol. Il) as hereunder: "In precise official terminology, `promotion' is defined as the 'Advancement of an official from a lower to a higher post or grade against a vacancy specifically reserved for such advancement under the relevant Recruitment Rules." Applying this definition of…
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