Thursday, 27 September 2018

PLJ 2018 Tr.C. (Services) 147

PLJ 2018 Tr.C. (Services) 147[Punjab Service Tribunal, Lahore]
PresentJustice (R) Shoaib Saeed, Chairman
Malik MEHMOD NAWAZ--Appellant
versus
CCPO, LAHORE etc.--Respondents
Appeal No. 108 of 2017, decided on 25.9.2017.
Punjab Service Tribunal Act 1974--
----S. 4--Punjab Civil Servants (E&D) Rules, 1999, R. 4--Punjab Civil Servants (ACS) Rules, 1974--Civil servant was appointed as cook on family claim basis--Application for recruitment and appointed as Driver constable--Appointment order was withdrawn--Question of--Whether initial appointment of civil servant is hit by judgment of Supreme Court reported as 2015 SCMR 456 nullifying out of turn promotions--Civil Servant contended that department, by misinterpreting judgment of Supreme Court of Pakistan declared subsequent appointment of as illegal, due to change of cadre, which is liable to be interfered with--Validity--Tribunal held that pith and substance of judgment of Supreme Court of Pakistan is in context of cases regarding out of turn promotion/ante dated promotion granted on gallantry award or otherwise--Civil servant was neither promoted nor given ante dated promotion in lieu of any gallantry performance--Order dated 17.6.2004 was withdrawn in the garb of orders passed by the Hon’ble Supreme Court of Pakistan is distinguishable wrongly applied, the order dated 16.8.2016 cannot be sustained which is hereby set aside--Appeal allowed.
                                                                           [Pp. 149 & 150] A & B
Malik Asif Javed, Advocate for Appellant.
D.A.
Yasir ImranInspector Legal, DR for Respondent.
Ahmed Nabeel, ASI DR
Date of hearing: 25.9.2017.
Order
Appellant joined police department and was appointed as Cook on family claim basis vide order dated 30.4.1999 by DIG, Sheikhupura Range at Lahore.
Later appellant moved an application for recruitment as Driver Constable, on completion of requirement, appellant was appointed as Driver Constable in BPS-05 vide order dated 17.6.2004 passed by CCPO, Lahore. It was a condition in the letter of “Appointment” that appellant “will undergo full training course meant for Driver Constables”.
Appellant started performing duty as Driver Constable to the satisfaction of his superiors with unblemished record.
The order of “Appointment” as Driver Constable made on 17.6.2004 by CCPO, Lahore was withdrawn holding earlier order as illegal as cadre of appellant was changed from Cook to Driver Constable which was held to be against the law/rules/policy in the light of order dated 20.1.2016 passed by the Hon’ble Supreme Court of Pakistan in Civil Appeal No. 184-L/2013 by exercising powers conferred under Section 21 of the General Clauses Act, 1897 vide order dated 16.8.2016 passed by CCPO, Lahore.
Aggrieved appellant filed appeal before the Inspector General of Police, Punjab, Lahore which remained undecided. Hence this appeal.
2.  Perusal of the record reveals that undoubtedly appellant was initially appointed in Police Department as a Cook in the year, 1999 on family quota due to death of his father during service. He kept performing duty as Cook till he moved an application to CCPO, Lahore who vide order dated 17.6.2004 “Appointed” him as Driver Constable in BPS-05.
Appellant performed duty, thereafter on 16.8.2016, CCPO, Lahore in the light of order dated 26.1.2016 passed in Civil Appeal No, 184-L/2013 by exercising powers under Section 21 of the General Clauses Act, 1897 withdrew order dated 17.6.2004 holding that the order passed earlier was illegal as change of cadre from Cook to Driver Constable was against law/rules/policy.
3.  The pith and substance of the judgment/order dated 26.1.2016 passed by the Hon’ble Supreme Court of Pakistan is in context of cases regarding out of turn promotion/ante-dated promotion granted on gallantry award or otherwise. The case of the appellant is different as he was neither promoted nor given ante-dated promotion in lieu of any gallantry performance or otherwise, rather he was “Appointed” as Driver Constable vide order dated 17.6.2004 passed by CCPO, Lahore. The rescindment of order of “Appointment” from Langri to Driver Constable under Section 21 of the General Clauses Act, 1897 was not in the light of the order passed by the Hon’ble Supreme Court of Pakistan.
4.  Departmental Representative also placed on record copy of the order dated 4.5.2017 passed in case titled Ghias Ali Shah vs. SSP Motor Transport Wing Punjab etc.” in Writ Petition No. 11513/2016 wherein the learned Hon’ble Judge relying on Para-130(10) in case titled “Ali Azhar Khan Baloch and others vs. Province of Sindh and others” (2015 SCMR 456 at Page-505) for reference the relevant extract is reproduced as under:
“We for the aforesaid reasons direct the respondents to immediately take steps to withdraw all the officers (mentioned in the list) posted either on the basis of deputation and or on transfer out of their cadre and posted to different cadre posts in different departments of Sindh, be repatriated to their parent department in the Federal Government and or to be transferred and posted to their own cadre and department in Sindh within 15 days from the date of communication of this order. In fixture the Sindh Government/competent authority is

restrained from issuing order of posting of any non-cadre officer against cadre posting by transfer under Section 10 of the Civil Servant Act nor they would depute any officer from Occupational Group of the Federal Government or from autonomous except in exigency unless he meets the criteria of matching qualification, eligibility and experience to the proposed post”.
5.  The HonTole Apex Court in paragraph above referred cases of such officers who were posted to other departments on deputation and/or transferred out of their cadre posts in other departments, the case of the appellant is that of “Appointment” and not of a deputationist and/or transferred out to any other department in a different cadre post, therefore the judgment being referred relied upon is neither attracted nor applicable in the appellant’s case.
6.  The order impugned dated 16.8.2016 by virtue of which order dated 17.6.2004 was withdrawn in the garb of orders passed by the Hon’ble Supreme Court of Pakistan is distinguishable wrongly applied, the order dated 16.8.2016 cannot be sustained which is hereby set aside. The appellant is restored to the rank of Driver Constable w.e.f. 16.8.2016.
(Z.I.S.)            Appeal allowed

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