' SHAHID ANWAR BAJWA, J.--- Since common questions of facts and law are involved in these three Constitution Petitions, these petitions were heard together and are being decided through a common judgment.
2. Grievance of the petitioners is that in order to allow out of turn promotion to their favourites the authorities have formed a Special Protection Group (S.P.G) in Sindh Police. Creation of the Group, it is claimed by the petitioners, is not sanctioned by the Provincial Government which sanction is required under Section 10 of Police Act, 1888. Therefore, neither such group could be formed nor any promotion can be given while ignoring petitioners who are much senior to the officers selected for SPG. Mr. Gohar Iqbal, learned counsel for the petitioners in C.P. No,D-2156 referred to order dated 29-6-2010 (available at page 171 of the petition) 'which has been issued by AIGP Establishment stating that 29 named officers being SPG qualified Inspectors will be considered for promotion to the rank of DSP for newly raised SPG. It was further stated that the promotions will be confined to SPG and they will undertake to serve in SPG until their regular promotion on turn. Learned counsel submitted that all the 29 persons are their juniors and their promotions will disturb seniority of the petitioners. Learned counsel referred to Siddiq Akbar, A.S.-I. And others v. Sanobar Khan, A.S.-I. And others 1998 SCM R 2013 to contend that Inspector General of Police does not have powers to make or create group without approval of Provincial Government and no such approval has been given for the purpose of creation of SPG. Learned counsel submitted that in any case seniority of the petitioners could not be disturbed.
3. Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioner in C.P.No,D-2104 of 2010 referred to order dated 24-2-2010 wherein names of 50 senior most confirmed Inspectors were listed and it was stated as under:--- "In continuation to this office letters No,584-94/E-I dated 15-1-2010, No,1534-44/E-I dated 10-2-2010, on the subject noted above and to request you to please furnish the information/documents in respect of following more Senior Most Confirmed Inspectors along with others in the format already forwarded under this office letter referred to above to this office at the earliest for taking further necessary action in the matter."
' Learned counsel submitted that instead of processing the cases of the persons listed in order dated 24-2-2010 another order for promoting juniors was issued on 29-6-2010 and therefore it is a mala fide action. Learned counsel referred to additional statement filed by respondent No,2 in C.P.
No,D-1446 of 2010 and referred to notification dated 24-8-2010. The notification states as under:--- "With the approval of competent authority i.e, Chief Minister Sindh and in pursuance of Finance Department Order No, SO (B&E-II) 3-105/2008-09 dated 22-8-2009, a separate cadre called "Specialized Counter Terrorism Force" (SPG) has been created w.e.f, 22-8-2009, which will consist of following officers and men:--"
' Thereafter number of posts in relevant scales 5 to 20 is mentioned. Learned counsel submitted that firstly this notification was issued on 24-8-2010 i.e, much after the order dated 29-6-2010 was issued. Therefore it is a post facto approval and is therefore mala fide. He further submitted that in the notification no provision of law is quoted. He further submitted that rules for promotion have not been amended and therefore it is a void order and a nullity in the eyes of the law.
' Mr. Nishat Warsi, learned counsel for petitioner in C.P. No,D-1446 of 2010 adopted arguments of Mr. Gohar Iqbal and Mr. Muhammad Nawaz Shaikh and submitted that a notification cannot be given retrospective effect. He relied upon A.M. Sheikh v. National Refinery Limited and another 1990 CLC
479. Learned counsel further submitted that petitioner's seniority over SPG qualified personnel was admitted by the respondents in the comments filed by them in C.P.No,D-875 of 2010. (Para 9 of comments):- "09. That in correct. The objection of the petitioner were considered by the larger committee and his claim against assignment of seniority to SPG qualified personnel was accepted by the committee vide order at 24-12-2009 the same be (Annexure "Hyderabad-2")." ' and now the petitioner is being denied promotion. He submitted that he has no objection if SPG group is created but the petitioner is also promoted.
5. Mr. Adnan Karim, learned A.A.-G. Referred to notification dated 22-8-2009 and submitted that separate cadre has been created. Learned A.A.-G. Further submitted that Police Order 2002 repealed the Police Act, 1888. Learned counsel referred to Article 6 of the Police Order to contend that Provincial Government is competent to maintain separate police establishment in each general police area. Learned counsel referred to Article 112 of the Police Order and contended that the Provincial Police Officer is competent to make rules with the approval of the Provincial Government. Learned counsel referred to Standing Order 232 of 20Q9 issued by the Provincial Police Officer on 1-6-2010. Learned A.A.-G. Submitted that this is a Specialized Counter Terrorism Force which has been specially trained and is designed by the government to curb and deter menace of terrorism.
6. While exercising his right of reply Mr. Gohar Iqbal referred to an order passed by the honourable Supreme Court in the case of Muhammad Nadeem Arif v. Inspector-General of Police, Punjab, Lahore and others C.P. No,492 of 2009 on 13-5-2009 and submitted that the seniority should not be disturbed.
7. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case law cited at the Bar.
8. First question whether SPG has been created in accordance and with the sanction of law or not.
Two documents have been referred in this regard. One is letter dated 29-6-2010. This letter is written by AIGP/Establishment and he stated that he was "directed to state that following SPG qualified Inspectors of Sindh Police will be considered for promotion to the rank of DSP in the newly raised SPG." Thereafter names are mentioned and requisite information is solicited. Second is notification dated 24-8-2010. This notification has been reproduced above. This notification states that the Chief Minister being the competent authority has approved creation of separate cadre called "Special Counter Terrorism Force (SPG)" with effect from 22-8-2009. Learned counsel for the petitioner relied upon Siddiq Akbar's case (supra). Facts of the reported case were that Respondent No,1 was initially appointed as Constable in 1971 and upon passing lower school certificate in 1975 he became Head Constable in 1976 and was confirmed as such in 1979. He was shown in seniority list as such and was promoted as A.S.-I. In 1987. It was claimed that the opponents were his juniors.
In the meanwhile Inspector-General of Police N.-W.F.P. Without approval of the Provincial Government issued Standing Order No,2 on 15-1-1987 and it was claimed that in view of Standing Order his seniority had been affected. Section 12 of the Police Act was referred. The said section 12 was in the following words:- "Power of Inspector-General to make rules.--- The Inspector General of Police may, from time to time, subject to the approval of the Provincial Government, frame such orders and rules as he shall deem expedient relative to the organization, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information; and all such other orders and rules relative to the police force as the Inspector General, shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
9. The honourable Supreme Court held that since the Standing Order was issued without approval of the Provincial Government it was without lawful authority and of no legal effect. Learned Additional Advocate General submitted that Police Act, 1888 has been repealed by the Police Order, 2002 and Article 112 thereof makes provisions in this regard. Said Article 112 is in the following words:- "112. Rules making by Provincial Police Officer or Islamabad Capital City Police Officer.--- Provincial Police Officer, or Islamabad Capital City Police Officer, as the case may be, with the approval of the Government, may by notification in the official Gazette, make rules for carrying into effect the provisions of this Order."
10. It may be pointed out that words "prior" which originally occurred in section 112 before the word 'approval' has been deleted by the Police Order (Amendment) Ordinance, 2007. A perusal of section 12 of the Police Act, 1888 indicates that Inspector-General of Police was clothed with power of making of such "orders and rules" subject to the approval of the Provincial Government. However under the Police Order, 2002 the Provincial Police Officer with the approval of Provincial Government can make only "rules" for carrying into effect provisions of the Police Order. Thus, it appears that whereas previously the Provincial Police Officer could not issue a Standing Order without approval of the Provincial Government now he requires the approval of the Provincial Government only for the purpose of making rules. And if within competence of his powers he issued Standing Orders, he does not require any approval from the Provincial Government.
11. Learned counsel for the petitioners contended that first letter was issued on 29-6-2010 and notification creating the SPG with the approval of the Chief Minister is dated 24-8-2010 and therefore if any thing SPG could be created with effect from 24-8-2010 and not with effect from any date prior thereto. Learned counsel relied upon A.M. Shaikh's case (supra). In this case a notification under the provisions of Pakistan Essential Services (Maintenance) Act, 1952 was issued. Notification was dated 23-2-1978 and it stated that the Act of 1952 would be applicable for a period of six months commencing from 26-2-1978. The Supreme Court observed that had there been no date specified in the notification then it would have taken effect on the date of its publication but since the date was specified in the notification itself it would be effective from the date specified in the notification itself. In the present case, we cannot loose sight of the two facts; firstly the word 'prior' has been deleted from Article 112 of the Police Order and secondly the notification itself states that.
SPG has been created with effect from 22-8-2009. In presence of these two clear facts and the approval by the Chief Minister it cannot be said that SPG has been created without authority of law.
12. Contention of Mr. Nawaz Shaikh that no provision of law has been quoted in the notification dated 24-8-2010 does not a wee bit detract from legality and effectiveness of the notification. It is the contents and not the title or reference which determine legal effect of a document. Therefore we hold that SPG has been validly created in accordance with the law and created with effect from 22-8-2009.
13. Now SPG creates a special cadre. When a special cadre is created it is essential under Rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 that method of appointment and the qualification and other conditions applicable to the posts in consultation with the Services and General Administration Department be prescribed by rules. It is also essential that where promotions are to be made on the basis of seniority-cum-fitness separate seniority list be prepared and rules for promotion in that particular cadre be laid down. It appears that no such exercise has been done except Standing Order No, 232 which has been issued by the Provincial Police Officer. The first point to be noted is that the rules are to be made with the approval of the Provincial Government and since the Standing Order does not have approval of the Provincial Government, it cannot be treated as rule and is merely a departmental instruction. Standing Order No,232 of 2009 was issued on June 1, 2010. It is stated in the Standing Order that SPG is a Specialized Counter Terrorism Force and therefore it was deemed important that only those personnel who meet the eligibility criteria and who are willing to serve in SPG are selected for SPG. It was also stated that promotions against vacancies in SPG should be made from the personnel who fulfil the eligibility criteria for SPG. After providing different Committees for such promotions and selection it was provided in Clauses (iii) and (iv) as under:- "(iii) Provided that the promotions of officers on the basis of seniority lists of SPG will be confined to their tenure of positing in SPG. Consequently if an officer is posted out of SPG to any other unit of Sindh Police he will revert back to his original seniority and rank maintained in his parent unit.
(iv) Further that the names of an official serving in SPG will not be removed from the promotion lists maintained in his parent Unit and he will be considered for regular promotion on turn along with his batchmates by the relevant DPC of the parent unit/CPO."
14. Clause (iii) of Standing Order has been quoted above. What it means to say is that when a person is promoted in SPG his promotion is limited to that cadre and if he is transferred back to police he will be reverted to his previous scale and cadre. We have not been able to find any provision either in the Civil Servants Act or in the Civil Servants (Appointment, Promotion and Transfer) Rules enabling any departmental authority to, in the event of a transfer of a civil servant, to demote him or to denude him of his promotion. Demotion and reversion have been specifically provided as penalties and we are not familiar with any provision in any law whereas promotion lawfully granted can be withdrawn merely on account of a transfer. Therefore, this particular provision in the Standing Order appears to be in violation of law.
15. In Muhammad Nadeem Arif's case (supra), petitioners were initially appointed as constable.
Subsequently they were granted one step promotion as Head Constables on their joining the staff of Police Training School as instructors and they claimed confirmation in the rank of Head Constable from the date of one step promotion. Inspector-General of Police declined their request on the plea 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 completed and passed successfully, only then they could be promoted as Head Constable and could retain their rank.
Petitioner filed constitution petition in the High Court with the prayer that one step promotion be declared as promotion for all purposes and they may be allowed to join intermediate training course. Writ petition was accepted by treating one step promotion of the petitioners as Head Constable as regular promotion in all respects. The Supreme Court dismissed the petition.
However, it had also observed as under:--- "Out of turn promotion, as envisaged in the impugned instruction is not only against Constitution but also against Injunctions of Islam. Out of turn promotion in a public department generates frustration ad thereby diminishes the spirit of public service. It generates undue preference in a public service. Element of reward and award is good to instill the spirit of service of community but it should not be made basis of accelerated promotion."
15-A. Therefore promotion is a promotion and it just cannot be withdrawn when a civil servant is transferred. Similarly since SPG has been created as a separate cadre, if a civil servant is transferred and absorbed in another cadre, he has to rank junior most in the transferred cadre and cannot be interposed at any other place.
16. Above discussion leads us to the following conclusions:---
(1) Creation of SPG is within the competence of the Provincial Government and SPG has been created in accordance with the law.
(2) However, unless rules including qualifications etc. For recruitment, induction and promotion are laid down it is not permissible for the authorities to permanently post any employee in the SPG cadre. Needless to say that such rules must lay down a clear and transparent method for induction.
(3) Though the Provincial Police Officer can issue Standing Orders IM but Standing Orders cannot take place of the rules.
(4) Without deciding the legality of the other clauses of the Standing Order No,232 of 2009 issued on June 1st, 2010 Clauses (iii) and N (iv) of the Standing Order are held to be without lawful authority and of no legal effect.
' These Constitution petitions are disposed of in the above terms.