PLJ 2010 SC (AJ&K) 98
[Appellate Jurisdiction]
Present:
Muhammad Reaz Akhtar Chaudhary, C.J. and
Muhammad Azam Khan, J.
MUHAMMAD RIAZ
KHAN, SUB-INSPECTOR SHO GARHI DOPATTA, MUZAFFARABAD--Appellant
versus
INSPECTOR
GENERAL OF POLICE, AZAD GOVERNMENT OF THE STATE J&K, MUZAFFARABAD and 19
others--Respondents
Civil Appeal No.
9 of 2005, decided on 18.2.2010.
(On appeal from
the judgment of the Service Tribunal of Azad Jammu and
Preliminary
objection--
----Proceeding--Objection
cannot raised before Supreme Court--Civil servant was terminated from service
and representation was turned down by authorities--Objection of--Civil servant
was not an employee of police department--Appeal before service tribunal and in
Supreme Court was not competent--Such point was not argued before service
tribunal--Validity--A point which was not argued in the service tribunal and
relates to inquiry into the facts cannot be allowed to be raised for the first
time in Supreme Court. [P. 103] A
AJ&K Service
Tribunals Act, 1975--
----S.
4(6)--Proviso--Appeal to tribunal--Reckoned from date of filing appeal before
departmental authority--Period of limitation of 30 days had been substituted to
90 days--Validity--Any person aggrieved from the order was bound to file an
appeal before service tribunal within 120 days reckoned from the date of filing
appeal before departmental authority. [P.
105] C
Appeal Before Service Tribunal--
----Civil
servant--Acquiesced to file appeal--Question of competency--Seniority list was
challenged before departmental authority by way of appeal, the appeal was
withdrawn, therefore, the civil servant had acquiesced by his conduct to file
appeal before Service Tribunal--Appeal before Service Tribunal was not competent. [P. 103] B
Service
Tribunals (Amendment) Act, 1975 (XXII of 1975)--
----S.
4(i)--Comparison of amended and un-amended provisions--Under proviso a of S.
4(i), a civil servant aggrieved by any final order cannot file direct appeal in
service tribunal--Civil servant had to file an appeal, review or representation
to departmental authority, provided in Civil Servants Act, 1976 and rules made
thereunder--Validity--If an aggrieved person filed an appeal, review or
representation before departmental authority and it was not decided within a
period of 90 days then an aggrieved civil servant could prefer an appeal within
30 days and total period from the date of filing appeal before departmental
authority would be 120 days for filing the appeal before service tribunal--After
amendment of S. 4 of Service Tribunals Act, position had been changed--After
deletion of proviso an aggrieved civil servant could file an appeal directly in
the service tribunal within a period of 90 days from date of communication of
such order--Held: If a civil servant was aggrieved from an original order then
he could file appeal from that order within 90 days of communication of order
of appellate authority--Period of limitation shall be reckoned from the date of
communication. [P. 106] D & E
1994 SCR 214, ref.
Police Rules,
1934--
----R.
12.2(3)--Seniority and probation--Seniority was to be reckoned from the date of
confirmation--Validity--Seniority of an upper subordinate police officer in the
same cadre would be determined from the date of first appointment and finally
would be settled from date of his confirmation on the post held by
him--Seniority of any upper subordinate police officer had to be settled from
the date of his confirmation irrespective of the fact that prior to confirmation
any upper subordinate police officer was serving in Reserve Police. [P. 109] F
Standing Order
of Police Department (I of 1975)--
----Para
3--Appeal on strength of Standing Order--Seniority of Reserve and Rangers
Police shall be confined only to their respective wings--Validity--In case of
transfer into regular force from Reserve or Rangers, their seniority with other
employees of same cadre would be determined from the date of their transfer
into regular force. [Pp. 109 &
110] G
Police Act,
1861--
----S.
12--Police Rules, 1934--Rr. 12.2.(1)(2)&(3)--Powers of Inspector General
Police to make rules--I.G. Police has powers to frame such orders and rules
relating to organization, classification and distribution of police force and
other matters relating to administration of the force subject to approval of
the Govt.--Any Standing Order adversely affecting the terms and conditions of
service of a police officer, guaranteed by rules, cannot be issued--I.G. Police
from time to time with approval of Govt. can issue such orders or frame rules
he deem expedient for rendering the police force efficient in discharge of
duties, but he has no jurisdiction to issue such Standing Order which affects
the terms and conditions of service of a police officer--I.G. Police has no
power to amend the rules affecting thereby the terms and conditions of service
of police officers--Method of promotion provided in original Rules was
intact--Appeal was allowed. [Pp.
110, 111 & 112] H, I, J, K & L
Raja Muhammad
Hanif Khan, Advocate for Appellant.
M/s. M. Tabassum
Aftab Alvi and Mr. Mujahid Hussain Naqvi, Advocates for Respondents.
Date of hearing:
26.11.2009.
Judgment
Muhammad Azam
Khan, J.--This appeal by leave of the Court calls in question the order passed
by the Service Tribunal of Azad Jammu and
2. The appellant was appointed as ASI vide order
dated 4.11.1991 on the basis of recommendations of selection authority. He
joined on 07.11.1991 and subsequently, he was confirmed from the same date i.e
07.11.1991. Respondents No. 4 and 5 were promoted as ASIs from Head Constables
on 01.01.1992 and were confirmed from the same date. Respondent No. 6 was
promoted as ASI from Head Constable on 19.03.1992 and was confirmed from the
same date. Respondent No. 7 was appointed and confirmed from 01.08.1993.
Respondents No. 8 to 12 were appointed on 26.10.1993 and were confirmed from
the same date. Respondent No. 14 was promoted as ASI on 31.08.1994 and was
confirmed from the same date. Respondent No. 17 was promoted as ASI on
27.01.1995 and Respondents No. 18 to 20 were promoted
on 01.07.1995 and were confirmed from the same dates, respectively. Respondent
No. 2, Deputy Inspector General of
3. Raja Muhammad Hanif Khan, Advocate, while
arguing on behalf of the appellant contended that it is an admitted fact
between the parties that appellant was appointed and confirmed as ASI much
earlier than private respondents and seniority is to be reckoned from the date
of confirmation. While relying upon the Section 1 of Police Act 1861 and Rule
12.2(3) of Police Rules 1934 he contended that seniority of an upper
subordinate is to be reckoned from the date of his confirmation. He maintained
that the appellant was appointed as ASI on 07.11.1991 and he was confirmed vide
order dated 30.04.1998 w.e.f the date of appointment i.e 07.11.1991 and the
private respondents were appointed much later than the appellant and were also
confirmed as such. He contended that seniority list has to be prepared in
accordance with Rule 12.2(3) of Police Rules 1934 and it was prepared against
the accepted rules governing the seniority. He vehemently argued that there is
no concept of separate functional units in Police Service and seniority is to
be determined under Rule 12.2(3). The Service Tribunal dismissed the appeal
being against the law while relying upon Standing Order No. 1 of 1975 issued by
the Police department declaring that the said standing order was issued in 1975
and was never challenged by any person, therefore the seniority list was issued
correctly in accordance with this standing order. He maintained that this
enunciation of law is alien to the accepted norms of interpretation of
statutes. He contended that Police Rules 1934 were framed by the Govt. by
exercising the powers conferred on it and only the Govt. is competent to amend
or alter the rules. The Inspector General of Police has no jurisdictional
competence to amend the rules in the guise of standing order without approval
of the Govt. He contended that no doubt that the Inspector
General of Police has powers to issue a standing order but such powers are
confined only to the extent of administration matters in conformity with the
rules. No standing order in derogation of Rule 12.2(3) can be issued by the
Inspector General of Police which affects the terms and conditions of service.
He relied upon the cases titled Azad Government of the State of Jammu and
Kashmir v. Sardar Muhammad Rafique Khan [1993 PLC (CS) 286], Mehr Muhammad
Nasir v. IGP Punjab and others [2002 PLC (CS) 1403] and Sardar
Khurshid-ul-Hassan v. IGP and others [1991 PLC (CS) 208].
4. Mr.M. Tabassum Aftab Alvi, the learned
counsel for the Respondents No. 7 and 12, raised preliminary objections that;--
(a) the appellant
was terminated from service in 1992 and his representation was dismissed as
such he is not an employee of Police department, therefore, his appeal is not
maintainable.
(b) the appellant
filed departmental appeal against the seniority list and withdrew the same on
15.05.1999, therefore, by conduct he is estopped to challenge the orders by way
of appeal before the Service Tribunal. He relied upon the case titled Faizullah
Vs. Govt. of the
(c) the appeal of
the appellant was time barred by one year, therefore, it is liable to be
dismissed. He maintained that the seniority list was issued on 22.10.1998 and
appeal before the Service Tribunal was filed on 20.10.1999, therefore, the
appeal merits dismissal. He contended that limitation starts from the date of
order of the authority, therefore, the appeal was hopelessly time barred. He
relied upon the cases referred as Shabir Ahmed Vs. AJK
Govt. and another [1996 SCR 382] and Muhammad Fazal Khan Vs. Azad Govt. and
others [1986 PLC (CS) 710].
(d) the order dated
13.04.1998, whereby, the appellant was confirmed has been cancelled vide order
dated 28.07.2000, therefore, the appellant is not confirmed Police Officer and
is not entitled for promotion. He argued that this point was taken in the
Service Tribunal but the Service Tribunal failed to consider the same.
On merits of
appeal, Mr. Tabassum Aftab Alvi, admitted that according to Police Rules 1934
there is no concept of separate functional units as described in the Standing
Order No. 1 of 1975, but the Azad Jammu and Kashmir Police Service (Composition
and Cadre) Rules 1983, for recruitment and promotion of Superintendents of
Police and Assistant Superintendents of Police when read with Rule 12.2 of
Rules 1934 provide separate branches in Police service and each branch is a
separate functional unit. He maintained that in the Rules of 1983 four
functional units have been provided where Reserve Police is defined as a
separate functional unit and the appellant was initially appointed in Reserve
Police and the seniority is to be reckoned from the date of his induction in
regular police i.e 01.01.1995, much later than the private respondents,
therefore, seniority list was correctly issued. He relied upon the cases titled
Islamic Republic of Pakistan v. Israrul Haq and others [PLD 1981 SC 531]. He
also referred Standing Order No. 23 of 1993 issued on 11.07.1995.
5. Mr. Mujahid Hussain Naqvi, the learned
counsel for Respondent No. 12 while relying upon the arguments of Mr. Tabassum
Aftab Alvi, argued that appellant filed an appeal before the departmental
authority against the seniority list which was withdrawn, therefore, he has
acquiesced and is estopped by his conduct to challenge the seniority list in
the Service Tribunal and in this Court. He contended that Inspector General of
Police is competent to issue standing orders under the Police Act 1861. He
referred the case titled The Province of West Pakistan Vs. Ch. Din Muhammad and
others [PLD 1964 SC 21].
6. While rebutting the arguments, advanced by
the learned counsel for the respondents, Raja Muhammad Hanif Khan contended
that arguments in respect of maintainability of appeal were not advanced in the
Service Tribunal, therefore, the point which was not
raised and argued in the appeal before the Service Tribunal cannot be raised in
this Court. He contended that respondents have raised a number of new points
which were not raised in the Service Tribunal, cannot be allowed to be raised
in this Court. While relying 1983 Rules, he argued
that Rules 12.2 (1) and 12.2(2) of Police Rules 1934 have been changed while
Rule 12.2 (3) which deals with the cases of ASIs has not been changed. Raja
Muhammad Hanif Khan has also filed written arguments.
7. Kh. Muhammad Nasim, the learned counsel for
Respondent No. 14 is absent with prior permission of the Court. He has also
filed written arguments.
8. We have heard the learned counsel for the
parties and perused the record. Before proceeding further the preliminary
objections raised by Mr. M. Tabassum Aftab Alvi, are being resolved first.
The first
preliminary objection is that appellant was terminated from service and his
representation was turned down by the departmental authorities, therefore, he
is not an employee of Police department. His appeal before the Service Tribunal
and in this Court is not competent.
A perusal of
judgment of the Service Tribunal reveals that this point was not argued before
the Service Tribunal. A point which was not argued in the Service Tribunal and
relates to inquiry into the facts cannot be allowed to be raised for the first
time in this Court. Even otherwise the department in para-5 of its written
statement/comments filed before the Service Tribunal took specific stand that
the service of the appellant was terminated but he was restored on the order of
the Court on 02.04.1994. The preliminary objection has no substance and is
hereby repelled.
The next
objection is that the seniority list was challenged before the departmental
authority by way of appeal, the appeal was withdrawn on 15.04.1994, therefore, the appellant has acquiesced by his conduct to
file appeal before the Service Tribunal. His appeal before the Service Tribunal
was not competent.
The case law
referred to by Mr. M. Tabassum Aftab Alvi titled Faizullah v. The Govt. of the
Punjab and others [2006 PLC (CS) 18] is correct that a person who himself
abandons a claim and reconciles with the situation, cannot come to the Court by
reopening the matter again, but a perusal of memorandum of appeal filed before
the Service Tribunal reveals that the appellant took specific stand that after
hearing, his appeal was dismissed without communicating him the order on
appeal. The appellant filed an affidavit in support of the contents of appeal.
His claim is proved from the affidavit which was not rebutted by the
departmental authority, no counter affidavit was filed. This Court in a case
titled Muhammad Sharif Khan v. Mirza Fazal Hussain and others [1993 SCR 88] has
held as under:--
"......but there is another important factor which escaped the
attention of the learned Judge. We find that Muhammad Sharif while
filing his writ petition duly filed an affidavit in support of the contents of
the petition, meaning thereby, that he claimed on oath that the disputed land
was partly in his possession and also that the decree and the allotment chit
mentioned above were in respect of the plot in dispute. The contents of this
affidavit were not controverted by Fazal Hussain or other respondents before
the High Court by filing a counter affidavit. Ordinarily this is considered
sufficient in a writ petition prima facie proof and if not rebutted by cogent
evidence it become conclusive proof. This aspect of
the matter was over looked by the learned Judge in the High Court. Apart from
that the reasons on which the conclusion was drawn, as mentioned above, are not
sustainable."
After filing
affidavit to the effect that he has not withdrawn the appeal there is no
question of acquiescence or estopple. The objection is without any substance
and is hereby repelled.
The next preliminary
objection is that appeal before the Service Tribunal is one year time barred.
The Inspector General of Police passed order on 27.05.1999 and appeal was filed
before the Service Tribunal on 20.10.1999. From the record it appears that
seniority list was issued on 22.10.1998. The appellant filed appeal before the
Inspector General of Police within time which was decided on 27.05.1999. The
order passed by the departmental authority was never communicated to the
appellant. The appellant has taken the position that after hearing the arguments, the order was reserved which was announced in his
absence on 27.05.1999. It was never communicated to him. As soon as he acquired
the knowledge in respect of order passed on appeal, he immediately obtained the
copy of order and filed appeal.
Mr. M. Tabassum
Aftab Alvi, while relying upon the case titled Shabir Ahmed v. AJK Govt. and
another [1996 SCR 382] argued that the appellant filed appeal before the
departmental authority on 04.03.1999. Under Section 4 of the Service Tribunals
Act he has to file appeal in the Service Tribunal within a period of 120 days,
a period of 90 days under proviso `a' of Section 4 and if appeal was not
decided by the departmental authority within 90 days, a further period of 30
days was available to the appellant, meaning thereby, that the appeal before
the Service Tribunal has to be filed on or before 4th July 1999. The appeal
before the Service Tribunal was filed on 20.10.1999, therefore, it was
hopelessly time barred. We have gone through the judgment of full bench of this
Court in case titled Shabir Ahmed v. AJK Govt. and another [1996 SCR 382] and
also perused the relevant law. The judgment in Shabir Ahmed's case was
delivered on the basis of law holding the field at the relevant time but before
filing the appeal before the departmental authority i.e 03.03.1999 the law had
been changed on 01.02.1999 and proviso `a' of sub-section (1) of Section 4 of
Azad Jammu and Kashmir Service Tribunals Act had been deleted and period of
limitation of 30 days had been substituted to 90 days. It will be appropriate
to reproduce Section 4 and provision `a' which is as under:--
"4. Appeal
to Tribunals:--(1). Any civil servant aggrieved by any
final order, whether original or appellate made by a departmental authority, in
respect of the any of the terms and conditions of his service, may, with in
[thirty] days of the communication of such order to him or within six months of
the establishment of the appropriate Tribunal, whatever is later, prefer an
appeal to the Tribunal.
Provided that:
(a) where an
appeal, review or representation to a departmental authority is provided under
the Azad Jammu and Kashmir Civil Servants Act 1976 or any rules against any
such order, no appeal shall lie to a Tribunal unless the aggrieved civil
servant has preferred an appeal or an application for review or representation
to such departmental authority and a period of ninety days has elapsed from the
date on which such appeal, application or representation was so
preferred."
In the light of
proviso `a' this Court in Shabir Ahmed's case held that any person aggrieved
from the order is bound to file an appeal before the Service Tribunal within
120 days reckoned from the date of filing appeal before the departmental
authority. The relevant portion of the judgment is reproduced as under:--
"After giving deep consideration to the matter. We are of the
view that there is hardly any justification for approving the view that a civil
servant has two options either to file appeal within 120 days or to wait
indefinitely till the disposal of his appeal, review, representation etc. and
thereafter prefer an appeal to the Service Tribunal. We are of the opinion that
he is bound to prefer an appeal to the Service Tribunal within in 120 days,
reckoned from the date of filing of an appeal etc. to the departmental
authority."
On 01.02.1999
Section 4 of Service Tribunals Act was amended which is reproduced as under:--
Amendment of Section 4 Act XXII of 1975:--In the Azad Jammu and Kashmir
Service Tribunal Act, 1975 (Act XXII of 1975), in sub-section (1) of Section
4."
(a) for the words
"30 days" the words "ninety days" shall be substituted; and
(b) the provisos
(a) and (b) shall be omitted.
9. A comparison of both the amended and
un-amended provisions reveals that under proviso `a' of sub-section (1) of
Section 4, a civil servant aggrieved by any final order cannot file direct
appeal in the Service Tribunal. He has to file an appeal, review or
representation to the departmental authority, provided in Civil Servants Act
1976 and rules made there under. In Shabir Ahmed's case it was categorically
laid down by this Court that if an aggrieved person files an appeal, review or
representation before the departmental authority and it is not decided within a
period of 90 days then an aggrieved civil servant may prefer an appeal within
30 days and total period from the date of filing appeal before the departmental
authority shall be 120 days for filing the appeal before the Service Tribunal.
But after amendment of Section 4 position has been changed. After deletion of
proviso an aggrieved civil servant may file an appeal directly in the Service
Tribunal within a period of 90 days from the date of communication of such
order. From the above it has become crystal clear that an aggrieved Civil
Servant may prefer an appeal before the Service Tribunal within 90 days of
communication of order whether the order is original or appellate. If a civil
servant is aggrieved from an original order then he may file appeal from that order
within 90 days of the communication of the order and if he is aggrieved from an
appellate order of the authority then he may file appeal within 90 days from
the communication of the order of appellate authority. The period of limitation
shall be reckoned from the date of communication. This Court in a case titled
Asif Majeed Khan Vs. Tahir Tayyub Abbasi and 3 others [1994 SCR 214] held as
under:--
"After
giving anxious thoughts we regret we are unable to agree that the appeal filed
with Service Tribunal before the expiry of 90 days waiting period becomes
matured if the appeal comes up for preliminary hearing after the expiry of 90
days. According to the scheme of Section 4 of the Service Tribunals Act a civil
servant who is aggrieved by an original or appellate final order made by a
departmental authority, may prefer an appeal to the Service Tribunal within 30
days from communication of that order."
The same view
was reiterated in another case titled Muhammad Naseer Jhangari and others Vs.
Abdus Sami Khan another [1997 SCR 26] as under:--
"In the
judgment of Rehmatullah Zia and Asif Majeed it has been laid down by the Court
that appeal before the Service Tribunal can be filed within 30 days from the
date of communication of the order and a further period of ninety days can be
added if appeal, review etc. where maintainable has been filed."
10. The departmental authority decided the appeal
on 27.05.1999. The decision of appeal was not communicated to the appellant. He
moved an application to the Superintendent of Police District Bagh, stating
therein that, he has preferred an appeal to the Inspector General of Police. He
was summoned and his appeal was heard. The order was not communicated to him.
The Superintendent of Police made remarks on his application that no order on
his appeal has been received in the office, however, he may apply to Central
Police Office for the copy of the same. Thereafter, he applied to the Central
Police Office and after obtaining copy of the order he filed appeal in the
Service Tribunal of Azad Jammu and
The next
objection is that appellant was confirmed by order dated 13.04.1998 and this
order was withdrawn on 28.07.2000, therefore, the appellant is not a confirmed
police officer and has no right to challenge the seniority list. It was also
argued by Mr. M. Tabassum Aftab Alvi, that this point was argued before the
Service Tribunal but the Service Tribunal has not decided the same.
We have
considered the contention of Mr.M. Tabassum Aftab Alvi, that this point was not
resolved by the Service Tribunal. If a point is taken in the objections/written
statement but it is not pressed at the time of arguments it shall be presumed
to be abandoned. If counsel takes a plea that he has taken the same then it is
essential for the counsel to file an affidavit in support of his stand. No
affidavit to this effect has been filed in this Court which
proved that he has not argued this point in the Service Tribunal. The argument
is repelled. This Court in a case titled Abdul Shakoor v. Mrs. Shamaim Khalid
and 5 others [2003 SCR 351] has held that:--
".... It
was contended that the point was raised in the pleadings and was also argued at
the time of arguments but the learned Judge in the High Court failed to decide
the same. The learned counsel for the opposite side opposed the aforesaid point
on two grounds. Firstly, the aforesaid point was abandoned before the High
Court and secondly the counsel for the petitioner who also happened to be a
counsel before the High Court did not file any affidavit in support of his
assertion. The learned counsel also pressed the point with further argument
that even at this stage the counsel for the petitioner did not offer to file
any affidavit that he had argued the aforesaid point before the High Court but
the same was not resolved. It is correct that Mr.Alvi did not file the
affidavit at this stage. It seems proper that he has abandoned the aforesaid
point as no resolution is found in respect of the same in the exhaustive
judgment passed by the High Court."
In another case
titled Mushtaq Hussain Khan Vs Mst. Hafeeza Aziz and 3 others [2001 SCR 331]
the observation of this Court is as under:--
"It is
indeed correct that the petitioner in para No. 2 of his memo. of appeal has specifically taken the stand that issues have
not been framed in accordance with the pleadings of the parties but the same
was not argued before the
11. The Service Tribunal while deciding the
appeal has held that it is admitted position that the appellant was inducted
and confirmed in the Police service much prior to the private respondents. The
Service Tribunal held that the appellant was inducted in the Reserve police and
his induction in Regular Force is much later than the private respondents.
While relying upon para-3 of Standing Order No. 1 of 1975 of the Police
Department the Service Tribunal dismissed the appeal on the ground that
seniority of a police officer shall be reckoned from the date of transfer of
Police Officer from Reserve Police to Regular Police. The question which needs
resolution is what is relevant law for determining seniority of a Police
Officer in such a case and what is status of standing order.
Chapter XII Rule
12.2 of Police Rules 1934 deals with the seniority and probation of the Police
officers which is reproduced as under:--
Rule 12.2
Seniority and Probation:--(1)
(2)
(3)
Seniority, in
the case of upper subordinates, will be reckoned in the first instance from the
date of first appointment, officers promoted from a lower rank being considered
senior to persons appointed direct on the same date and the seniority of
officers appointed direct on the same date being reckoned according to age.
Seniority shall, however, be finally settled by dates of confirmation, the
seniority infer se of the several officers confirmed on the same date being
that allotted to them on first appointment; provided that any officer whose
promotion or confirmation is delayed by reason of his being on deputation
outside his range or district shall, on being promoted or confirmed regular the
seniority which he originally held vis-a-vis any officer promoted or confirmed
before him during his deputation.
Sub-rules (1)
and (2) of Rule 12.2 deals with the seniority of Assistant Superintendent of
Police and Deputy Superintendent of Police while sub-rule (3) deals with the
seniority of upper subordinates police ranks. A
perusal of Rules 12.2(3) reveals that seniority of an upper subordinate police
officer in the same cadre shall be determined from the date of first
appointment and finally shall be settled from the date of his confirmation on
the post held by him. The seniority of any upper subordinate Police Officer has
to be settled from the date of his confirmation irrespective of the fact that
prior to confirmation any upper subordinate Police Officer was serving in the
Reserve Police or the other. The record reveals that the appellant was directly
appointed as ASI much prior to the private respondents and he was confirmed
from the date of appointment i. e. 07.11.1991. Any other interpretation is not
permissible under law.
12. The Service Tribunal decided the appeal on
the strength of Standing Order 1 of 1975. The
The standing
order provides that seniority of Reserve and Rangers police shall be
confined only to their respective wings. In case of
transfer into regular force from Reserve or Rangers, their seniority with the
other employees of same cadre shall be determined from the date of their
transfer in to regular force. Rules making power vests with
the Govt. The Police Rules 1934 were framed by the Govt. under Police
Act 1861. Any policy decision, instruction, or standing order contrary to
service rules affecting the terms and conditions of service of a civil servant
issued by such authority which has no jurisdictional competence to frame the
rules cannot have a force of rules. This Court in an unreported case titled
Muhammad Ejaz Khan Vs. Mushtaq Ahmed Khan and others
[Civil Appeal No.56/2009 decided on 18.08.2009], observed as under:--
"The Senior
Member Board of Revenue issued order/policy on 02.06.1996 providing 3 written
papers for promotion as Naih Tehsildar from Ministerial Staff. The rules
provide competitive examination only for initial recruitment. The rules making
powers vest in the Government. It is the right of the Government to frame the
rules and amend the same whenever required. The Senior Member Board of Revenue
was not competent to issue such policy which overrides the provisions of rules.
It may be observed that the policy or notification cannot override the
statutory rules framed by the Government under the statute. Instructions and
policies cannot amend the statutory rules. It could only be done through
amending the same and not by a policy. The policy can be made in the light of
rules."
Under Section 12
of Police Act, 1861 the Inspector General of Police has powers to frame such
orders and rules relating to organization, classification and distribution of
Police force and other matters relating to administration of the force subject
to approval of the Govt. It is appropriate to reproduce Section 12 of the
Police Act, 1861 which is as under:--
12. Powers of
Inspector General to make rules.--The Inspector General of Police may, from
time to time, subject to the approval of the Government, frame such orders and
rules as he shall deem expedient relative to the organization, classification
and distribution of the Police-force, the places at which the members of the
force shall reside and the particular services to be performed by them; their
inspection, the description of arms, accoutrements and other necessaries to be
furnished to them; the collecting and communicating by them of intelligence and
information; and such orders and rules relative to the Police-force as the
Inspector General shall, from time to time, deem expedient for preventing abuse
or neglect of duty, for rendering such force efficient in the discharge of its
duties."
The Inspector
General of Police is competent to make such orders from time to time as he
deems expedient relating to organization, classification and distribution of
Police force subject to approval of the Government. Any standing order
adversely affecting the terms and conditions of service of a Police officer,
guaranteed by the rules, cannot be issued. The Service Tribunal has relied upon
the standing order on the ground that it was issued in 1975 and since then it
is holding the ground for a long time, no one has challenged it, therefore, it
is a valid law. This enunciation of law is alien to the interpretation of
statutes. After plain reading of Section 12, we have no hesitation in holding
that inspector General of Police from time to time with the approval of the
Government may issue such orders or frame rules he deems expedient relating to
organization, classification and distribution of Police force of rendering the
Police force efficient in discharge of duties, but he has no jurisdiction to
issue such standing order which affects the terms and conditions of service of
a Police officer. This proposition came under consideration of the Supreme
Court of Pakistan in a case titled Siddique Akbar and others v. Sanobar Khan
and others [1998 SCMR 2013] where the Court observed that standing order issued
by the Inspector General of Police without approval of the Government is devoid
of legal status. The relevant portion of the judgment is as under:--
"We are
therefore of the considered opinion that word `approval occurring in Section 12
of the Act implies the act of passing judgment, the use of discretion, and a
determination as a deduction therefrom, to confirm, ratify sanction or to
consent to some act or thing done by the Inspector General of Police. The word
`approval' implies exercise of sound judgment, practical, sagacity, wise
discretion and final direct affirmative action. Merely because the impugned
Standing Order has held the ground for a number of years is not sufficient to
assume the grant of approval of the issuance of the standing order by the
Provincial Government."
The Standing
Order No. 1 of 1975 issued without the approval of the Government has no legal
force. The case titled Islamic Republic of Pakistan V Israrul Haq and others
[PLD 1981 SC 531] and Standing Order No. 23 of 1993 referred to by Mr. M.
Tabassum Aftab Alvi are not relevant in the present case. The rule of law laid
down in the case titled The Province of West Pakistan Vs. Din Muhammad and
others [PLD 1964 SC 21] is correct that administrative instructions issued by
an authority competent to alter or amend the rules can be as effective as
statutory rules, but in the present case the rules making powers vest in the
Government. The Inspector General of Police is competent to issue standing
order for the administration of Police force with the approval of the
Government. He has no powers to amend the rules affecting thereby the terms and
conditions of service of police officers.
13. We have also gone through the Police Cadre
Rules 1983 for recruitment and promotion of ASPs and SPs. Through
these rules. Rules 12.2 (1) and 12.2(2) of Police Rules, 1934 have been
changed while Rule 12.2(3) which deals with the cases of ASIs and upper subordinates
has not been changed and the method of promotion provided in the original Rules
is intact.
The result of
above discussion is that we feel inclined to allow the appeal. Appeal is,
therefore, accepted and it is ordered that appellant shall be entered in the
seniority list from the date of his confirmation as ASI i.e. 07.11.1991 with no
order as to costs.
(R.A.) Appeal
allowed.