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Case No. 239/27 of 1982, decided on 28^th December, 1983.

‑‑‑S. 4‑‑Limitation Act (IX of 1908), S.5‑‑Limitation‑‑Condonation of delay‑‑Appellant appointed as P.S.I. in Police Department against a permanent post‑‑Claim for being declared permanent from date of appointment (1960) refused on unfounded grounds but appellant throughout agitating his justified claim‑‑Department not taking point of limitation into consideration while disposing of his representations‑ Appeal before Tribunal sought to be dismissed as time‑barred‑‑Tribunal after taking into consideration antecedent background observing that rejection of appeal summarily on limitation score alone would be on act of great hardship and it was a case where merits should prevail more than law of limitation against appellant‑‑Delay, in circumstances, condoned by Tribunal.

(b) Punjab Police Rules, 1934‑‑

‑‑‑R. 19.28(4)‑,Seniority of P.S.Is.‑‑Passing of P.S.I. Examination with credit, held, is not relevant for purpose of seniority.

Muhammad Ilyas Kayani v .I.‑G . P. 1971 P L C (C.S.T) 228 rel.

Syed Latif Hussain jafri for Appellant.

A. G. Humayun, District Attorney for Respondents Nos. 1 and 2.

‑‑Ali Abbas has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Inspector‑General of Police, Punjab, Lahore, Deputy Inspector‑General of Police, Bahawalpur Range, Bahawalpur and Messrs Amir Hassan Magsi and 24 others as respondents.

2. By virtue of this appeal he has prayed that the impugned order, dated 10‑4‑1982, be set aside and order treating the appellant as confirmed P.S.I. from 1973, be modified to read and declare him as confirmed P.S.I. w.e.f. 12‑9‑1960 and entitled to all consequential service benefits.

3. Brief facts of the case are that the appellant was appointed as Temporary P.S.I. in Bahawalpur Range from 12‑9‑1960 against a permanent post on successfully completing the P.S.I. course at Police Training School, Sihala. The appellant was eligible to be confirmed against a permanent post w.e.f. 12‑9‑1960, the date of his appointment but he was confirmed against a permanent post w.e.f. 1‑6‑1973 and as a consequence the appellant was deprived from the benefit of 12 years 8 months 25 days seniority. The appellant claimed that he had made departmental representation to the Deputy Inspector‑General of Police, Bahawalpur Range and the Inspector‑General of Police Punjab, for the redress of his grievances in the matter of seniority, but the same were turned down repeatedly. Finally, the appellant's representation was filed by respondent No..2 vide his Memo. No. 4924/1, dated 10‑4‑1982, addressed to the S.P. Sahiwal, which was communicated to the appellant on 18‑4‑1982. Hence this appeal.

4. We have heard the learned counsel for the appellant Syed Latif Hussain Jafri, Advocate, as well as learned District Attorney assisted by the representative of the Department as well as contested respondents who appeared in person.

5. Learned counsel for the appellant has submitted that initially five permanent posts of P.S.I. were available in the defunct Bahawalpur State and later on twelve more permanent posts were added to the said strength raising the total to 17 permanent posts. According to the learned counsel the appellant was absorbed as a permanent incumbent from the very inception of his service but whenever he claimed that he should be treated, as such the Department in one way or the other, treated his permanent employment as temporary and did not confer upon him the status of a confirmed P.S.I. to which he was so entitled. Learned counsel for the appellant has further submitted that these 17 posts were allocated in the following manner:‑

Bahawalpur ‑‑ 7

Bahawalnagar ‑‑ 5

Rahimyar Khan ‑‑ 5

____

17

But this was in fact an internal arrangement for executive purpose, whereas all these 17 permanent posts belonged to one Range i.e. Bahawalpur Range. Learned counsel for the appellant has mainly relied on the Letter No. 714/1, dated 23‑2‑1974 Annexure 'A', which according to him, remained in discreed thus, causing confusion in the office of the D.1.‑G. Police, Bahawalpur and the appellant also was unaware of the same. According to the learned counsel for the appellant, it is only when this most important letter, which would be the sheet anchor of the case of the appellant has come to his knowledge and then he decided to take his grievance before this Tribunal and for that purpose the learned counsel for the appellant has prayed that the delay caused was not intentional and may be condoned. In this manner it has been argued that the appellant was a confirmed P.S.I. since 1960, the date on which he joined service and denial of the same has been caused due to inefficiency as well as confusion prevailing in the D.I.‑G. Police Office, Bahawalpur.

6. On the other hand, learned District Attorney has submitted that the claim of the appellant is highly belated as he is agitating the matter which pertains to his confirmation relating to the year 1960 against a permanent vacancy, therefore, his case would be hit by the law of limitation and is liable to be dismissed on this score alone. It has been further submitted by the learned District Attorney that in fact the claim of the appellant is misconceived as he was never absorbed a against a permanent vacancy and his appointment to the post of P.S.I. in 1960 was purely on temporary basis and remained as such till he got his confirmation in the year 1973. Joining hands with the learned District Attorney, the contesting respondents have also submitted that in fact another argument goes against the appellant as he failed to qualify P.S.I. examination with credit, which would be the pre‑requisite for promotion to the rank of Prosecuting Inspector vide Rule 19.28(4). Police Rules.

7. We have given our anxious thought to the arguments advance by the parties and would first of all deal with the point of limitation raised by the learned District Attorney as well as contesting respondents against the appellant.

8. In this case what we find is that the appellant has been agitating his claim since long against the status so held upon him by the Department, but the Department all along has taken a stand that he is a temporary P.S.I., therefore, he has no justified claim to ask for confirmation from the date of his appointment. Even today while submitting its comments the department Is still adamant in the said claim which all along has been so ventilated by the appellant through the representations made to the Department. While going through the record of this case we. find that there were clear cut direction laid down by the Inspector‑General of Police Punjab in his letter addressed to the D.I.‑G. Police a mention of which has been made in the earlier part of our judgment which in fact should have settled the controversy and the confusion so prevailing must have settled down. It is really unfortunate that despite this letter on the record which was kept back by the people so interested against the appellant's seniority, only came to light when the appellant himself went into the matter to justify his claim, which according to him all along was justified from all angles. We also further find that the appellant's representation was never considered by the Department itself as with this background of the case, the superiors of the appellant were fully conscious of the fact that the case of the appellant did not suffer from laches and in fact the same remained undecided due to the omission of the Department itself to take a notice of this important direction so given in the said letter of I.‑G.P. The learned counsel for the appellant has vehemently argued that as the case of the appellant was basically a case of grave injustice so made out to him by the D.I.‑G. Police, Bahawalpur Range, against the established facts on the record that he was employed against a permanent post of P.S.I. in the year 1960, when earlier five permanent posts have been extended to 17 posts, therefore, the law of limitation was of procedural in nature and always came into display where it is found that neither the appellant has been sleeping over the matter so that his claim otherwise does not consider any merits, should not stand in his way to justify his established claim. The appellant has filed application for condonation of delay as a matter of abundant caution which is on the record and we taking into the antecedent background of this case are of the considered opinion that when the Department itself has not taken this point of limitation against the appellant while disposing of his representation it will be an act of great hardship, if A we reject his appeal summarily on this score alone. In view of the above, we are of the confirmed view that this is a case where merits, should prevail more than the law of limitation against the appellant. We, therefore, proceed to condone the delay so occurred in this case because the same has been condoned by the department itself as well as the letter of 1974, has clearly established at least one thing without any dispute that the stand of the respondents, that the appellant's appointment was temporary in nature was without any foundation. After disposing of the point of limitation we now proceed with the merits of the case.

9. The perusal of the record vis‑a‑vis the letter of 1974 of the I.‑G.P., Punjab addressed to the D.I.‑G. Police Annexure 'A' clearly reveals that the permanent strength of P.S.I. in Bahawalpur Range would be as under:‑

Bahawalpur ‑‑ 7

Bahawalnagar ‑‑ 5

Rahimyar Khan ‑‑ 5

This would clearly indicate that even before 1960, five posts of P.S.1. in the defunct Bahawalpur State were also permanent in nature and later on 12 more were added in the same category. The appellant being employee of 1960, would definitely be an employee recruited against a permanent post of P.S.I. in the Bahawalpur State. According to the terms of employment the appellant would be considered to have been confirmed P.S.I. from the date of initial appointment viz. 12‑9‑1960.

We are at a loss to understand, with this established position on the record, the department is still crying hoarse that the appellant's appointment was temporary in nature. The next step of promotion for the appellant would be to list‑F and is entered into the same. According to record of this case the appellant was brought on list‑F much later than the date to which he was so entitled via‑a‑via his established claim as a permanent P.S.I. since 12‑9‑1960.

10. With regard to the objection raised by the contesting respondent that as the appellant has failed to qaulify the departmental examination with credit and was not entitled to promotion as such, we repel this claim as being without any foundation on the strength of the, judgment so given by the Punjab Civil

Services (Appellate) Tribunal reported as 1971 P L C (C.S.T) 228 Muhammad Ilyas Kayani v. I.‑G.P. It was held that rule 19.28(4) of the Police Rules would be the Rule of seniority ultimately to be determined with reference to the date of passing the P.S.I. examination with credit Rule 19.28(4) was not relevant for the purpose of seniority. This rule we have followed in many of our own judgments given from time to time.

11. In view of the fact that it has been so established without dispute that the appellant was recruited against the permanent post on 12‑9‑1960, as P.S.I., we, therefore, accept the appeal, set aside the impugned order and the impugned seniority list, Annexure 'B' in so far as the appellant is concerned with the direction that his claim to be placed on list 'F' be also maintained in accordance with the decision so given above. However, there will be no order as to costs.

A. E. Appeal accepted.

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