' Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Syed Safeer Hussain Shah petitioner has claimed for one step promotion on account of distinguished performance and alleged that the conduct of the respondents in this regard being discriminatory is in violation of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. In accordance with the contents of this petition Syed Safeer Hussain Shah after his appointment as an A.S.-I. w,e,f, 6-3-1971 served in the Police Department with hard work, efficiency and devotion to duty, consequently he was promoted as Sub-Inspector, Inspector and finally as Deputy Superintendent on 30-7-1988. The Home Secretary Punjab, respondent No,2 while recommending the name of Safeer Hussain Shah for 'one step promotion as Superintendent Police, reflected on the career of Safeer Hussain Shah by stating that Safeer Hussain Shah earned good name and has excellent career, even by referring to two cases of performance his senior officers recommended for him one step promotion. The details of the case bearing F.I.R. No,21 dated 20-2-1994, under sections 364-A, 365-A, P.P.C. Read with sections 8, 3 and 4 of the Explosive Act, 1908, registered with Police Station Secretariat, Islamabad, were that on 20-2-1994 three Afghan Nationals being terrorist, hijacked a School Children Bus from Kohat and had brought it to Islamabad, Safeer Hussain Shah being the S.D.P.O. Rushed to the spot dealt with the matter actively and with wisdom, last of all due to successful exercise/operation the bus as well as the minor passengers without any harm were saved while hijackers were killed during the Commando action. The details of another case bearing F.I.R. No,254 dated 22-9-1996 under section 302, P.P.C., Police Station Industrial Area Islamabad are that on 12-9-1996 Allama Mureed Abbas Yazdani Salar-e-Aala Sapah-eMuhammad was murdered by unknown person and when Safeer Hussain Shah took up the investigation of this case he by minute interrogation and adopting scientific methods, arrested the culprits, Musa Khan and Ghulam Raza Naqvi, etc., through Syed Javaid Hussain Shah D.S.P.
Nawan Kot, Lahore and other police officials and because of successful performance in the operation Safeer Hussain Shah was recommended for one step promotion by his senior officers as a consequence of which Home Secretary Punjab submitted a Summary for the Chief Minister dated 30-6-1998 and respondent No,2 (Home Secretary Punjab) endorsed the petitioner's one step promotion under the provision of section 8(A) of the Punjab Civil Servants Act, 1974 read with Rules 14-A of the Punjab Civil Servant (Appointment and Condition of Service) Rules, 1974. But this effort did not bear fruits despite the expiry of considerable period, last of all, Safeer Hussain Shah submitted representations dated 24-1-1998, 25-2-1999 and 1-1-2000 which remained unattended whereas in connection with murder of Allama Mureed Abbas Yazdani as mentioned above, Syed Javaid Hussain Shah D.S.P. Alongwith other officers were granted one step promotion vide Notification dated 19-6-1997 and two officers named Muhammad Umar Virk and Shahid Pervaiz got the relief from this Court when their writ petitions filed against the discriminatory treatment were allowed vide order dated 7-8-1999 and since his representations as mentioned above are not being disposed of for the last five years and that the petitioner is being inabled to challenge any order passed on his representations at the competent forum, therefore, he has filed this writ petition to redress his grievance.
' Whereas in parawise comments on behalf of respondents Nos.1 and 2 it is submitted that on 1-8- 1998, Inspector General of Police, Islamabad reported that Syed Safeer Hussain Shah, D.S.P. Was entrusted with the investigation of a blind murder case bearing F.I.R. No,254 dated 12-9-1996 under section 302, P.P.C. Registered with Police Station Industrial Area Islamabad in which a religious leader Allama Mureed Abbas Yazdani was murdered, he provided lead to D.S.P. Syed Javaid Hussain Shah, Punjab -Police Nawan Kot, Lahore to arrest one of the culprits, so far this act on the part of Syed Safeer Hussain Shah is concerned, the Inspector General Police, Islamabad suggested that Safeer Hussain Shah may be considered for promotion to the rank of S.P. It is further disclosed that on 3-3-1999, Deputy Inspector General Rawalpindi Range forwarded a representation of aforesaid D.S.P. For further necessary action by requesting that Syed Safeer Hussain Shah may be promoted as S.P. On out of turn basis for his excellent performance in the above-mentioned case but the said recommendation after consideration was returned to D.I.G. Police Rawalpindi vide Memorandum No,1239/SE-H-VIII, dated 16-3-2001 with the remarks which are asunder:-- "In the light of policy of the Government of the Punjab, Home Department vide No,HP-III/2-22/2000, dated 4-4-2000 whereby no out of turn/shoulder promotion cases in respect of police officers/officials are to be considered, the I.G.P. Directed that old cases lying pending in CPO should be returned to respective D.I.G.s for consideration and reviewing recommendation either CC.I alongwith cash reward for gallantry award medal of QPM/PPM may be sent to CPO".
' It was further submitted that besides the above mentioned representation there was no other recommendation/appeal of Syed Safeer Hussain Shah, D.S.P. Pending in the Department, moreover, the matter pertains to terms and conditions of service and as such the jurisdiction of this Court is barred under Article 212 of the Constitution of Pakistan, 1973. Similarly, the promotion as well as pro forma promotion cannot be claimed as of right by any Government Servant under the rules and finally it was requested that the writ petition filed by Syed Safeer Hussain Shah be disposed of graciously.
3. It would be pertinent to mention here that for one step promotion recommended for Safeer Hussain Shah, petitioner's Summary for Chief Minister was also sent wherein the 'examplary performance in an operation of rescue of school children from hijackers on the part of the petitioner as mentioned above was highlighted and his case was recommended for one step promotion by:--.
(1) Mr. Abdul Qadir Haye, Former I.-G. Of Police, Islamabad.
(2) Mr. Asif Latif Khan, Officer Commanding I.S.I. Field Detachment, Islamabad.
(3) Directorate General, I.S.I. Islamabad.
(4) Mr. Jehan Zaib Burki, Director, Ministry of Interior, Islamabad.
(5) Mr. Waseem Afzal Khan, S.P. Kohat.
(6) Deputy Commissioner, Islamabad.
(7) Maj. (R) Imtiaz Hussain, S.S.P./Islamabad.
(8) Former I.-G.Of Police, Punjab, Lahore.
' And it was submitted that the cases of out of turn promotion are covered under section 8-A of the Punjab Civil Servant Act and Rule 14-A of the Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974 and out of turn promotion for the post of BPS-17 and above are to be made on the recommendation of the Provincial Board with the approval of Chief Minister and it was added that as per the Cabinet decision dated 13-8-1990 there is a ban on out of turn promotion, therefore, in the light of recommendation as discussed above, the case of Safeer Hussain Shah was submitted on which the Chief Minister Punjab vide his minutes dated 20-2-1998 observed as under:-- "Chief Minister has seen the enclosed documents and has desired that the matter may be processed and put up for his information/orders".
' Meaning thereby out of facts and circumstances as disclosed in this writ petition and that of the parawise comments there were two admitted examplary incidents on basis of which Safeer Hussain Shah was recommended for one step promotion.
4. I have heard the learned counsel for the parties and have gone through the relevant record placed before me.
5. Learned counsel for the petitioner contended that the petitioner's case for accelerated promotion is hanging fire for the last six years despite its recommendation from all quarters as well as from superior police officers and in fact it is being avoided by not passing any final order on any representation made by the petitioner and without doing so that petitioner is not in a position to approach to the Service Tribunal, therefore, last of all the petitioner has come up before this Court in the writ petition. He argued that all the police officers involved in the investigation of murder case of Allama Murid Abbas Yazdani including Javaid Hussain Shah have been allowed one step promotion but the petitioner who initially investigated the murder case by using scientific methods is being denied from the same right which has already been granted to the other police officers and in such circumstances the petitioner believes that there is a violation of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 where the concept is that all citizens are equal before law and are entitled to equal protection of law and that is why it has been held in cases reported in I.A. Sharwani and others v. Government of Pakistan through Finance Division and others, 1991 SCMR 1041, Ch. Mukhtar Ahmad v. Government of Punjab and others, 2000 CLC 1073 (Lahore), as under:-- "Authority having failed to consider the case of the petitioner at par with the similarly placed persons, action of the Authority was violative of Article 25 of the Constitution, Yardstick must be identifical in identical cases".
' Learned counsel for the petitioner further argued that there is statutory provision for accelerated promotion of civil servants in Punjab in the form of section 8(a) of the Punjab Civil Servants Act, 1974 read with Rules 14 of the Punjab Civil Servant (Appointments and Conditions of Services) Rules, 1974 which provides that any civil servant who exhibits exemplary intellect and gives extraordinary performance in the discharge of his duties may be granted out of turn promotion and same idea was reflected on the case titled "Abdul Jabbar Iqbal v. Government of the Punjab, Local Government and Rural Development Department, Lahore through Secretary and 4 others, reported in 1995 PLC (C.S.) 246, that Competent Authority is empowered" to grant out of turn promotion to a civil servant exhibiting extraordinary ability in discharging of his duties and finally he submitted that it is quite astonishing that the officers at par to the petitioner in connection with outstanding performance have been allowed one step promotion but the petitioner is being refused, therefore, by accepting this writ petition the respondents be directed to allow one step promotion to the petitioner.
6. On the other hand the learned counsel for the respondents while referring to the parawise comments submitted that in the light of the policy of the government no out of turn/shoulder promotion cases in respect of police officers/officials are to be considered and as per Governor's decision dated 13-8-1990 there is a ban on out of turn promotion. They finally submitted that it is correct that in connection with out of turn promotion of Safeer Hussain Shah the petitioner's summary was sent for Chief Minister but it never came back and that since the matter relates to terms and conditions of service, as such the jurisdiction of this Court is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.
7. The perusal of parawise comments and the relevant record brought by Muhammad Gulab Awan, Senior Clerk of Home Department, would show that there is no reply of para.8 of the writ petition wherein there is mention of representations dated 24-1-1998, 25-2-1999 and 1-1-2000 and at the most it is mentioned in para No,3 of the comments and the report as well that no appeal of Syed Safeer Hussain Shah. D.S.P. Is pending in the Police Department and when the record has been examined with the assistance of said Muhammad Gulab Awan, Senior Clerk, it has transpired that there is no decision on the representations as mentioned above. Meaning thereby that there is something in the bottom or there is a secret hand which has restrained the petitioner from availing the legal remedy. In such situation all citizens are in a position to claim that they are equal before the law and are entitled for equal protection of law and when the situation is such it cannot be argued that the jurisdiction of the Court is barred under Art.212 of the Constitution of Islamic Republic of Pakistan and that there is violation of Articles 4 and 25 of the said Constitution, so that writ petition is a competent before this Court.
8. One thing is admitted on the record that Javaid Hussain Shat. Was promoted to the rank of a Superintendent of Police on out of turn basis and allowed to bear the rank of Superintendent of Police and he was posted as Superintendent of Police CIA Gujranwala against a vacant post and in case of his promotion some documents (photocopies of Summary for Chief Minister) have been produced by the learned State counsel which show that in recognition of outstanding performance during Thokar Niaz Baig operation, the Home Secretary Punjab submitted a Summary to the Governor proposing out of turn promotion of the officer in relaxation of the Punjab Cabinet decision dated 13-8-1990 and in relaxation of procedure laid down under the provisions of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974 read with Notification No,SOR-III-2- 24/86 dated 21-9-1996 .And, thereafter, the Summary was submitted by the Home Department for relaxation of Cabinet decision and the procedure laid down in section 8(a) of the Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974 and on consideration of the Summary in a meeting of the Cabinet held on 26-1-1997, and last of all Javaid Hussain Shah was cleared for promotion of the rank of Superintendent of Police but when his matter of promotion was in the process, a unanimous letter was received in the department stating, therein that Javaid Hussain Shah had played no role in the arrest of accused Musa and it was also alleged that Javaid Hussain Shah is being patronized by certain senior Police Officers. This unanimous letter was referred to Inspector-General of Police who stated that the complaint is unanimous and the officer is being promoted through the decision of the Cabinet on the recommendation of his seniors. The object of referring the matter of Javaid Hussain Shah, D.S.P. Is that he got out of turn promotion on the basis of the same case bearing F.I.R. No,254 of 1996 as mentioned above, which was initially interrogated by Safeer Hussain Shah, petitioner with scientific techniques and he provided lead to D.S.P. Javaid Hussain Shah for arrest of the culprits involved. It means that the officer who was all- in-all in the above-mentioned case was kept behind and the officer on the second line was considered and promoted. There can be no other observation except that the treatment in case of matters of out of turn promotion to be allowed to two officers, was discriminatory in nature. Even the exemplary performance of the petitioner in operation to rescue the school children was not taken into consideration by the Competent Authority and the reply in this regard by the respondents is to this extent that the Summary had gone towards the Moon, but it has not come back. Even it could not be alleged by the respondents that there was anything adverse in the career of the petitioner which restrained the department from allowing one step promotion. It is quite astonishing that the cabinet decision and the relevant rules were lacked in case of Javaid Hussain Shah, D.S.P. And that in the case of the present petitioner the Cabinet decision and the rules have been shown as a hurdle to allow one, step promotion to the petitioner.
9. In the same situation on discriminatory treatment or in other words favouritism, liking and disliking and pick and choose, some police officers came before this Court in Writ Petition No,28879 of 1997 and Writ Petition No,8147 of 1998 which were disposed of by this Court vide judgment dated 22-6-1999 and after detailed discussion the respondents were directed to grant one step promotion to the petitioner. After all when the department concerned is not disposing of the representations for orders, an aggrieved person has got the remedy of filing the writ petition before this Court.
10. Therefore, in view of above-discussion, the writ petition is accepted and the respondents are directed to grant one step promotion to the petitioner from the date when his colleagues Javaid Hussain Shah, D.S.P., Muhammad Umar Virk, D.S.P. Shahid Pervaiz Inspector and Ajmal S.-I: were promoted alongwith back-benefits.