Syed Hamid Ali Shah, J.--This intra court appeal is directed against the judgment of learned Judge in Chamber, whereby one step promotion as Head Constable on joining the training school was treated as regular promotion/confirmation in all respects.
2. The case of the respondents in all the three writ petitions, as set out in the petitions is that they were initially appointed as Constables and were granted one step promotion as Head Constable Instructor on their joining the staff of Police Training School and they claimed confirmation in the tank of Head Constable from the date of one step promotion. The I.G Police through letter dated 22.032008 declined their request on the ground that they had not qualified Lower School Course and could be detailed for such course on completion of at least 3 years at the Training School; and after having it completed successfully, only then they could be promoted as Head Constable and could retain their rank. They sought the declaration that one step promotion be declared "promotion for all purposes and they may be allowed to join "Intermediate Training Course". The Writ Petitions were accepted by treating one step promotion of the respondents as Head Constables, a regular promotion in all respects. The respondents were also held entitled for Intermediate Training Course required for promotion as A.S.I.
3. The department through present Appeal has assailed the judgment of learned Judge in Chamber on the grounds that the issue of determination of seniority of officials gaining benefit of one step promotion in training centers as well as undergoing Lower School Training Course, creates bad precedents and also causes resentment amongst regularly promoted Head Constables, therefore, the competent authority rightly directed to withdraw their promotion orders; that accol ding to Police Rules 13.1 and 13.8, Lower School Course qualification/seniority is pre-requisite for promotion of a Constable to the rank of Head Constable. After qualifying Lower School Course a Constable is brought on Promotion List and becomes eligible for Promotion as Head Constable; that the selection policy issued by the Central Police office vide Circular No,6025/T-3 dated 08.11.2002 does not indicate that an official can claim his promotion from the date he joins any Police Training School/police Training Institution. On the contrary, it clearly says that his seniority in the rank of Head Constable will be considered along with the batch mates of the Lower School Course; that even the posting order to Police Training Institute makes it very clear that they are transferred to Police Training Institution on "one step". The word promotion is not used in the transfer order. They are merely posted to the Police Training School/Police Training Institution as Instructor and are liable to be repatriated to their home district as Constable if their performance is considered unsatisfactory within a minimum period of 3 years of their stay in training centers; that even no show cause notice or enquiry is required in this case as one step posting does not endow them with the vested right of seniority or regular/substantive promotion; that the respondents got the benefit of seniority amongst regular Head Constables by misinterpretation of law and by encroaching upon the vested rights of seniority of regular Head Constables as they gain seniority according to Police Rule- 13.1 and 13.8, which clearly lays down that seniority/promotion shall be governed according to merit list of Lower School Course result. It was further contended that there was resentment all over the Province amongst Head Constables over one step promotion on posting in training centres. This policy will ensure that only senior most Head Constables on list "CI" are sent for inter class course purely in order of merits, according to the rules; that the impugned judgment is on old circular of 19.4.94 which had no concern with the prevailing policy of 2002 which was in accordance with Police Rule 13.1 and 13.8 and regulated one step posting in Training Centers. Hence the impugned order passed by the learned Judge in Chamber, is coram- non-judice and not in consonance with the facts and law. Reference was made to rule 13.1, 13.8 and para 7a of circular letter No,6025/T-3 dated 08.11.2002.
4. Learned counsel for the respondents submit that the petitioners were promoted as Head Constables on one step promotion basis and were confirmed as such in view of the policy letter dated 30.09.2006 and in line with the judgment of the Punjab Service Tribunal in S.A. No, 888 of 2005 dated 6.4.2006 titled "Khalid Farooq vs. Inspector General of Police" and the judgment of the apex court reported as Inspector General of Police, Lahore us. Qayyum Nawaz Khan (1999 SCMR 1594).
However, contrary to the well established practice, the confirmation from the date of one step promotion was declared as incorrect through memorandum dated 22.3.2008. It was claimed that the office memorandum dated 22.3.2008 was a nullity in the eye of law because it had adversely affected respondents' prospects of promotion and seniority etc., as they were un-able to join the Intermediate Course for promotion as ASI, which was pre-requisite for promotion.
5. Learned Assistant Advocate General assisted by the Additional Inspector General of Police (Legal) submitted that one step promotion was granted to the petitioner as an incentive on joining the training center and their seniority in the rank of Head Constable could only be considered alongwith their batch mates of the Lower School Course. Further added that the word promotion is not used in the transfer order because they was liable to be repatriated to their home district as constable if their performance was considered unsatisfactory within a period of three years of their stay in training centre.
6. Admittedly the respondents gained the benefit of lower school course as well as one step promotion by virtue of their posting in Training Centers i,e, Police Training School. This policy gave the respondents financial as well as promotion benefits. Besides the above two benefits, these officials are now trying to jeopardize the Principal of seniority, which is the vested right of every Government Official; that an illegal order cannot attain finality merely on the grounds of its issuance. No financial benefits are being withdrawn from the officials, only principles of seniority are being followed for the rule of the law.
7. Heard learned counsel for the parties and record perused.
8. Under section 12 of the Police Act, 1861 the Inspector-General of Police was empowered, with the prior approval of the provincial Government, to frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the police force. The ranks and classes of police officers, are classified in Rule 1.13 of Police Rules, 1934. Under the said rule "Enrolled Police Officers" include Inspectors, Sergeants, Sub Inspectors, Assistant Sub Inspectors, Head Constables and Constables. The police officers above the rank of Assistant Sub Inspector are called "Upper Subordinate" while all others are "Lower Subordinates". Rule 12 deals with appointment, confirmation and seniority of "enrolled police office. It is provided that head constable and constables will be borne on district rolls and will receive constabulary number.
Seniority of lawyer subordinates, as provided in Rule 12.2. reckons from dates of appointment subject to condition of Rule 12.24. Promoted officer is ranked senior to direct appointee in the same rank on the same date. The Head constables as per Rule 12.10 are appointed by promotion from selection grade constables in accordance with Rules 13.7 & 13.8. According to Rule 13.1, the factors f9r promotion are seniority, efficiency and honesty. Specific qualifications in nature of training courses or practical experience are also the consideration. Rule 13.2 provides for six promotion lists i,e, A, B, C, D, E & F which are to be maintained in each district. Rule 13.5, makes the promotion of constable (subject to vacancy) contingent upon his capability of reading and writing simple Urdu and English sentences, Character roll without stigma and physical fitness upto required standard.
Temporary promotion to the selection grade, according to Rule 13.5(4), is accorded to those who are posted to onerous and responsible duty such as Instructors permanent traffic staff, secret service and central investigation agency etc. The constable having educational qualification above matriculation and exceptional family claims can be promoted to selection grade immediately on passing their recruitment course with credit, as envisaged in Rule 13.5(5). The officiating promotion to the selection grade, according to Rule (sic) recruits training course and ordinarily such promotion is granted to the recruit who gains first place in the order of merit. Rule 13.6(2), speaks about grant of promotion to those constables who gain 1st and 2nd place in the order of merit on the recommendation of principal. It will advantageous to reproduce Rules 13.7 & 13.8 here under :-- ENTRY OF LIST 'B"
R. 13.7 List B (in Form 13.7) shall also be maintained by each Superintendent of police and shall be divided into two parts
(1) Selection grade constables considered suitable as candidates for the Lower School course at the Police Training School.
(2) Constables (selection or time-scale) considered suitable for drill and other special courses at the Police Training School. Selection shall be made from this list as vacancies occur for admission to the courses concerned at the Police Training School, provided that no constable shall be considered eligible for any such course until the entry of his name in list 'B' has been approved by the Deputy Inspector-General of the Range. Ordinarily seniority in age shall be given prior consideration in making such selections, irrespective of the date of admission to the list, and care must be taken that a constable borne on the list is not allowed to become over age for admission to the school before having selected. The restrictions on admission to the lower school course and Instructors courses at the Police Training School limit the conditions for admission to list B. No constable shall be admitted to that list whose age is such that he cannot in the normal course be sent to the Training School before he attains the age of [33] years. No constable, who has failed to qualify at the Training School, shall re- admitted to the list unless the Superintendent and the Principal of the school are in agreement that he is deserving of another chance of qualifying in the courses, in the event of disagreement as to such a case the Deputy Inspector-General shall decide.
LIST C PROMOTION TO HEAD CONSTABLES R. 13.8
(1) In each district a list shall be maintained in card index form [Form 13.8 (1)] of all constables who have passed the Lower School Course at Phillaur and are considered eligible for promotion to head constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2), and notes by the Superintendent himself, or furnished by gazetted officer under whom the constable has worked, on his qualifications and character.
(2) Promotions to head constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comparing qualifications. In cases where other qualifications are equal, seniority in the Police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to head constable up to a maximum of the ten per cent of vacancies.
9. As a general rule, as contained in Rule 13.1 promotion of enrolled police officers is dependent on
(a) selection tempered by seniority; (b) efficiency and honesty (c) specific qualifications, and if qualifications of two officers are equal seniority shall be the guiding principle.
Combine reading of above referred rules bring us to conclude that Promotion of a constable to the selection grade head constable shall be made if he (a) fulfills the required physical standard (b) can read and write simple Urdu sentences and English numerals, (c) has a character roll clear of any stigma, (d) earns marks as per marking system laid down in rule 13.5(2) and (e) availability a vacancy. However the following exceptions have been made to the rule:
(i) Constables posted to onerous and responsible duties such as instructor etc may be given temporary promotion to the selection grade.
(ii) Matriculate constables having exceptional family claims may be promoted to the selection grade immediately on passing recruits course with credit.
(iii) Officiating promotion may be made to the selection grade in respect of those recruits who show outstanding merit in the recruit training course.
10. A list (List B) of selection grade constables considered fit to undergo Lower School Course at the Police Training School shall be maintained in form 13.7. Selection for the Lower School Course is made from the said list. Ordinarily seniority in age shall be given prior consideration in making such selections.
All constables who have passed Lower School Course are considered eligible for promotion to the rank of head constable and their names are entered in list "C" maintained in Form No, 13.8(1).
Promotions to the rank of head constables are made from amongst constables who have qualified Lower School Examination after taking into consideration order of merit in the examination passed.
11.Promotion to the post of head constable is not dependent a merely on qualifying the Lower School Examination but it is a stepwise promotion, the first step being promotion as selection grade constable. After earning selection grade, entry in list "B" is next step for being nominated for Lower School Course. The third step is entry in list "C" after qualifying the Lower School Course. Promotion to the head constable is made from the constables who have been enlisted in list "C". The selection of course is dependent on merit, qualification and seniority of the constables. Seniority alone is not the main criteria for promotion.
Even, date of confirmation is not relevant as seniority of lower "subordinates is to be reckoned from the dates of their appointment.
12. To resolve the instant controversy, what actually is relevant, that have the respondents had been duly promoted as selection grade head constables as provided, in the rules discussed above? If they were not so promoted then they were not entitled to be detailed/nominated for the Higher School Course in preference to the regularly promoted selection grade head constables.
13. Apart from the above there is no concept of accelerated or of out of turn promotion in the police force except on the grounds of feats of extraordinary courage and bravery and outstanding performance in the line of duty. Reference in this regard can be made to the case of Abdul Ghaffar etc. Vs. D.I.G. etc. 1997 PLC (CS) 1150; wherein it was held:-- Grievance of the petitioners is that since they were given out of turn promotion for their outstanding performance on different occasions, therefore they were exempted to take examination and qualify the same for being enlisted in list B/1 of District Multan. However, the S.S.P., Multan had conducted such examination in the year 1995, wherein the petitioners did not appear.
Rule 13.1 of Police Rules, 1934 no doubt, bases promotion of police officials on general concept of seniority-cum-fitness, but Rules and Regulations also do exist whereby the police officials who had sustained injuries and shown bravery at critical times were awarded out of turn promotion and such instructions and Rules had been implemented carrying force of law behind them in order to boost up courage of the police force.
Order passed by the D.I.G. deleting the names of the petitioners from the said List B/1 and all consequent orders passed in pursuance thereof, were set aside in circumstances.
14. One step promotion was allowed to the instructional staff of Training Institutions of the Punjab Police through Office Order No,6025/T-3 dated 08.11.2002 issued by the Inspector-General of Police Punjab Lahore. Perusal of the office order reflects that vide Para 7(2) of the order one step promotion was allowed to a constable as head constable inspector on his posting in the Police- Training Institution. Para 7(3) provided that on successful completion of three years tenure the said head constable will be sent for Lower School Course. On successful completion of Lower School Course he will be brought on list C-1 as head constable and will be reverted back to his District/Unit as head constable of list C-1. Through the impugned letter dated 22.03.2008 the preferential treatment given to the head constables of Police Training School, was withdrawn and it was directed that such officers shall not be treated as regularly promoted head constables and on their return to their department shall be reverted to their substantive post.
15. It was observed in the impugned judgment that respondents were accorded one step promotion as head constable, on appointment as instructor in the Police Training School.
Respondents were treated as confirmed head constable on the strength of the law laid down in the case of Inspector General of Police, Lahore Vs. Qayyum Nawaz Khan 1999 SCMR 1594. Office memorandum dated 22.03.2008 was declared departure from policy and violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan.
The rules and procedure for promotion as head constable has been examined in some detail above. The rules do not admit of any out of term promotion except on the two grounds mentioned above. The Hon'ble Single Judge has relied on the case of Inspector General of Police, Lahore Vs. Qayyum Nawaz Khan (1999 SCMR 1594) which deals with the promotion of Upper Subordinates only. The seniority of Upper Subordinates is finally determined from the date of their confirmation in the post. While the seniority of Lower Subordinates is determined from the date of their appointment and their confirmation for the said purpose is immaterial.
16. There is another angle to view Instant controversy. The office order dated 22.03.2002, has not been issued under proper authority. According to Section 12 of the Police Act 1861 the Inspector- General of Police may issue orders and rules etc, subject to approval of the Government. The office order under consideration does not show that the same has been issued after approval by the provincial Government. The framing of orders and rules by the Inspector General of Police, with the approval of provincial Government came up for consideration before the Honourable apex court, in the case Raza Khan through its Legal Heirs and 3 others Vs. Member, Board of Revenue, N.W.F.P. PLJ 1999 SC 873; wherein it was held:-Under Section 12 of Police Act, Inspector-General of Police may, from time to time, and subject to approval of Provincial Government, frame such orders and rules as he deems expeditious relating to the organisation, classification and distribution of police force and for rendering such force efficient in discharge of its duty. Word "approval" occurring in Section 12 of Act implies act of passing judgment, use of discretion, and a determination as a deduction therefrom, to confirm, rectify sanction or to consent to some act or thing done by Inspector- General of Police. Word "approve' implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action. Merely because a Standing Order has held ground for a number of years is not sufficient to assume grant of "approval". Standing Order No, II issued, by Inspector-General of Police having not been approved by Provincial Government was devoid of its legal status and was, therefore, of no legal authority.
Honourable Supreme Court dealt with identical in the case of Siddiq Akbar, AS.I and others Vs. Sanobar Khan, AS.I, and others (1998 SCMR 2013) as under:-- Under Section 12 of Police Act, Inspector-General of Police may, from time to time, and subject to approval of Provincial Government, frame such orders and rules as he deems expeditious relating to the organisation, classification and distribution of police force and for rendering such force efficient in discharge of its duty.
The word "approval" occurring in Section 12 of Act implies act of passing judgment, use of discretion, and a determination as a deduction therefrom, to confirm, rectify, sanction or to consent to some act or thing done by Inspector-General of Police. The word "approval" implies exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action.
Merely because a Standing Order has held ground for a number of years is net sufficient to assume grant of "approval: of issuance of Standing order by Provincial Government.
Applying the dictum of the honourbale apex court in the above referred cases, to the case in hands, we have no hesitation to hold that office order dated 23.02.2002 issued by Inspector General Police, without approval of the Govt. of Punjab has no legal sanctity.
17. For the foregoing we are of the view that one step promotion as head constable was temporary measure and could not be considered a regular promotion in accordance with the Police Rules.
Similarly the Office Order issued by the Inspector-General of Police was without lawful authority and of no legal effect and it was rightly withdrawn through he office order dated 22.03.2002. These appeals are therefore accepted and order/judgment impugned is set aside.