' SHAHID ANWAR BAJWA, J.--- This Constitutional Petition was disposed of vide order dated 6-11- 2008. The entire order reads as under:--- "1. For Katcha Peshi.
2. For hearing of Misc. No, 8468/08(Stay): (Notice issued for 23-9-2008)
(Bailiff Report filed)
(Comments filed)
6-11-2008.
"Learned A.A.-G. Filed parawise comments on behalf of respondent No,1, in paragraph 8 whereof it is admitted to the effect that two posts of DIGP in BS-20 of Provincial Police Cadre are vacant and petitioner's case of promotion will be considered in the next meeting of election Board No,1 at the earliest in accordance with law. Learned counsel for the petitioner requested that the petition may be disposed of in view of the statement made by respondent No,1 in paragraph 8 of the parawise comments. . The respondents are directed to convene the meeting of Selection Board No,1 at their earliest. Sd/-Judge Sd/-Judge"
2. Brief facts are that petitioner is an employee of BS-19 in Police Service of. Sindh Province. For the purpose of promotion to BS-20 the promotion policy prescribed minimum qualifying service of 17 years and a threshold of 70% marks in ACRS/PERs, The petitioner met both the criteria. There were posts vacant under the Provincial Police Cadre and the petitioner claiming legitimate expectation approached this Court with this petition which was disposed of vide order quoted above. After the , order was passed by this Court, on 7-12-2009, a notification was issued. The notification is in the following words:- NO . SOIII(S&GAD)POL-7-60/2009 ' GOVERNMENT OF SINDH SERVICES, GENERAL ADMINISTRATION & COORDINATION DEPARTMENT Karachi, dated 7th December, 2009.
NOTIFICATION ' On the recommendation of the Provincial Selection Board No,I and with the approval of the Competent/Appointing Authority, Mr. Muhammad Malik, Senior Superintendent of Police (BS-19) officer of Provincial Police Cadre, is hereby promoted to the post of Director General (TPR)(BS-20), Sindh Police/equivalent to DIG Police (BS-20), Police Department, Government of Sindh, for the purpose of entitlement only, on regular basis, subject to successful completion of Senior Management Course."
' Another notification dated 17-12-2009 was also issued. The notification is in the following words:--- ' NO. SOIII(S&GAD)POL-7-60/2005 ' GOVERNMENT OF SINDH ' SERVICES, GENERAL ADMINISTRATION & COORDINATION DEPARTMENT Karachi, dated 17h December, 2009.
NOTIFICATION ' The two posts of Deputy Inspector General of Police (BS- 20) created in Provincial Police Cadre, under Finance Department Order No, SOIII(SGA&CD)POL-7-60/2005, dated 5-6-2009, are re- designated as Director General Sindh Police, Finance and Development (BS-20)/equivalent to the rank of DIG (BS-20) and Director General Sindh Police, Traffic Planning and Regulation (BS- 20)/ equivalent to the rank of DIG (BS-20), for the purpose of entitlement only. CHIEF SECRETARY GOVERNMENT OF SINDH"
3. Civil Miscellaneous Application No,6954 of 2010 has been filed seeking that the promotion granted to the petitioner, is merely a mirage.
4. Learned counsel for the petitioner made the following submissions:---
(1) That the posts of Director General, Sindh Police were created after promotion of the petitioner had taken place.
(2) It was: not available to the Provincial Selection Board to change the mandate of the post.
(3) That petitioner is a Police Officer and the post to which the petitioner was promoted does not fall within the ambit of Police Order, 2002.
(4) While no recruitment rules exist for the now sought to be created post, recruitment rules to the post of DIG exists since 1964.
(5) That the promotion given to the petitioner is a mirage and such post do not exist in the Police Order.
5. Mr. Adnan Karim, learned A.A.-G. Referred to Police Service of Pakistan (Compositions, Cadre and Seniority) Rules, 1985 and submitted that in the Province of Sindh there are 8 posts of Deputy Inspector General of Police and he referred to Rule 7, which is in the following words:--- Appointment of members of Police cadre of a Province.---Members of the Police cadre of a Province shall be appointed to the Service on the basis of selection made on the recommendation of the Governor:"
' Learned A.A.-G. Referred to Articles 7, 12 and 17 of the Police Order. He submitted that as far as DIGs are concerned, it is the Federal Government which appoints on the recommendations of the Governor and only an employee who has been encadred can be posted as DIG. He submitted that the Provincial Government has power to designate and redesignate post and the order passed by this Court has not been violated in any sense whatsoever.
6. While exercising his right of reply Mr. M.M. Aqil Awan, referred to Rule 11(2)(c) of the Police Service of Pakistan (Compositions, Cadre & Seniority) Rules, 1985 and submitted that it is not a requirement that cadrement took place before any such promotion.
7. We have considered the submissions made by the learned counsel and have also gone through the record.
8. Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 were framed and promulgated in exercise of powers conferred by section 25 of the Civil Servants Act, 1973. The very fact that these rules were framed under the power conferred by the Civil Servants Act, 1973 is clearly indicative of the fact that these rules are not applicable to persons who are not civil servants as defined in section 2(b) of the Act of 1973. Civil servants in the service of a province are not civil servants for the purpose of the Civil Servants Act, 1973. Therefore per se these rules have no applicability to the employees of the Provincial Government.
9. Be that as it may, under the rules of 1985 three methods of appointment have been prescribed.
First is the method prescribed in Rule 5, second is the method prescribed in Rule 6 and third is the method prescribed in Rule 7. Rule 7 has been quoted above. Rules 5 and 6 are in the following words:---
5. "Initial appointment.-- (1) Initial appointment to the service against cadre posts in basic pay scale 17 shall be made on the basis of the results of the competitive examinations held for the purpose by the Commission.
(2) Unless the appointing authority in any case otherwise directs, a person appointed to the Service under sub-rule (1) shall be appointed to the Service as a probationer in accordance with the rules which the Federal Government may make from time to time, including rules and orders relating to training during probation, and shall be required to undergo such departmental training and pass such departmental examinations as may be specified by the Federal Government or the Government of the Province to which he is allocated."
6. "Appointment of officers of Armed Forces.--- Officers of the Armed Forces of the rank of Captain and Major or equivalent shall be eligible for appointment to the Service in accordance with the procedure laid down by Government and against the cadre posts reserved for them from time to time.
10. A perusal of the above rules indicates that appointment under Rule 5 takes place on the basis of results of competitive examination held for this purpose by the Commission. "Commission" has been defined in Rule 2(b) of the Rules to means the Federal Public Service Commission.
Appointment under Rule 6 is in respect of officers of Armed Forces in the rank of Captain and Major and their induction in the Police Service of Pakistan. These two obviously do not have any application to the case of the petitioner.
11. Rule 7 says that a member of Police Cadre of a province shall be appointed on the basis of selection made on the recommendations of the Governor. This means that the person must already been in the police service of the province and if he is recommended for the purpose by the Governor, he may be selected for appointment to Police Service of Pakistan (PSP). The proviso states that such members of the province shall not exceed 40% of the senior cadre posts in that Province as specified in the Schedule. This means that 40% quota is only in respect of the posts specified in the Schedule and no posting of a provincial cadre police Officer on a post specified in the Schedule can be made unless he is appointed in PSP cadre in accordance with Rule 7. As a necessary corollary as far as posts in the Provincial Police other than the posts specified in the Schedule are concerned, the matter is left to be dealt with by the Province concerned and an officer of Provincial Police Cadre may be appointed to any such posts i.e, posts other than those specified in the Schedule without them being appointed in term of Rule 7 of the Rules of 1985.
12. In the case of petitioner what has happened is that on 6-11-2008 by consent of the Assistant Advocate-General petition was disposed of. It was stated that posts of DIG Police were lying vacant in the Provincial Police Cadre and the petitioner would be considered for promotion. After above order was passed it appears that the Provincial Selection Board assessed and evaluated the petitioner and recommended him for promotion to BS-20. Vide notification December 7, 2009 (quoted above) the petitioner was promoted to BS-20 but posted on, the then nonexisting, post of Director-General (TPR) declared equivalent to DIG Police for the purpose of entitlement only on regular basis subject to successful completion of Senior Management Course. After having promoted the petitioner then departmental authorities realized that such post of DIG had not yet been created and on December 17, two posts of DIGs were re-designated as Director-General Sindh Police, Finance and Development. It is thus, clear that when promotion of the petitioner was notified, vide notification December 7, 2009 post of Director General did not exist as it was created 10 days later. Second thing which emerges is that two posts of DIGs Police in the Provincial Police Cadre were existing. The order passed by this Court on 6-11-2008 was that the petitioner will be considered for promotion to the post of DIG Police. Therefore, it was incumbent upon the departmental authorities, once the Provincial Selection Board had evaluated and recommended them for promotion to BS-20, to promote them to BS-20 as DIG. Police. Having been thus promoted they could only be posted to the posts specified in the Schedule to the Rules of 1985 only and only once they were appointed in terms of Rule 7 thereof. Needless to observe that whether they were appointed under rule 7 of 1985 or not their promotion to BS-20 could only take effect if they clear Senior Management Course which has now become a prerequisite for promotion to BS-20.
13. Result of the above discussion is that C.M.A. No, 6954 of 2010 is disposed of by directing the departmental authorities to promote the petitioner to BS-20 subject to his successful completion of Senior Management Course. However, the petitioner shall only be posted to the posts specified in the schedule to the Rules of 1985, if he is appointed in accordance with Rule 7 of those rules. Subject to the above, it is within the discretion of the Provincial Government to post the petitioner on any post in accordance with the law.