' ROOH-UL-AMIN KHAN, J.--- By way of this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek issuance of an appropriate writ directing the respondents/authority to issue combined seniority list of two Branches of the Police Department i.e, Legal and Executive and thereafter to make promotions on the basis of seniority cum fitness in accordance with law.
2. Learned counsel for the parties were heard at length and record annexed with the petition and comments also gone through.
3. The main grievance of the petitioners is that they have been discriminated by the authority at the time of making promotion, on the ground of maintaining separate seniority lists of the employees of the two branches, notwithstanding the fact that employees of both the Units of same Department, joined their service on one and the same date and year, but employees of the Executive Unit have been given rapid promotion while the petitioners, who are serving in the Prosecution Unit, have been overlooked, who are still waiting for their promotion for decades.
4. Record depicts that petitioners joined the Police Department as Prosecution Sub-Inspectors on different dates, ranging from 1982 to 1993; who basically are the employees of the police department. The police system working in Pakistan, prior to Police Order, 2002, was 140 years old colonial legacy, as it was based on the Police Act, 1861. Since long, several attempts had been made to reform the police system in Pakistan to turn the police from "Force" into "Public Service", hence in the year 2001, a major breakthrough was made when the Government embarked upon a policy initiative to reform the police system, which resulted into Police Order, 2002. This Police Order, provides a framework in legal fashion and manner, transferring police from a mere preventive and detective body to a service-oriented organization by A providing ample opportunities for citizen participation in the institutional structures, in shape of safety commission at the district, provincial and national level. The internal administration, for the purpose to ensure that every one plays his/her role effectively and acts within clearly laid down parameter, the organization on functional basis was split up into units/branches/divisions/bureaus and sections, with a condition that every police officer shall be liable for posting to any branch, division, bureau and section or any where in or outside the police, subject to necessary training and experience in accordance with rules.
Consequently the Prosecution Branch was separated in terms of Article 8(2)(P) and the provincial government sought options from the prosecution inspectors (PIs) and sub-inspectors (SPIs), functioning at that time, under the police department, as to whether they would prefer to join the prosecution or the police department in the new setup. By then, due to lack of proper service structure in the prosecution department, most of the prosecution inspectors and sub-inspectors opted to join the police service in the new setup. At that time, in most of the cases the public prosecutors and additional public prosecutors retired in the same grade in which they had been appointed. The APPs appointed in grade 17 remained in the same grade till their retirement and likewise, the PPs appointed in grade 18, although, they had been given move-over to grade 19, but most of them remain in the same grade throughout their career. In consequence of their option, the petitioners' services were placed at the disposal of Law Department for performing functions qua the affairs of the department. To remove the anomaly between the two branches, a committee was formulated to look into the matter, which, after going deeply into the matter, unanimously recommended that one branch shall not be separated from the other for future fringe benefits i.e, promotion etc., but without any fruitful result. The seniority list annexed with the petition, divulges that the incumbents of the Executive Unit, whose entries into the service falls on same footing with the petitioners have earned rapid promotion than that of the petitioners. The widely accepted universal principle propounds that amongst equal the law should be equal and that shall be administered equally to all similar placed persons and all alike should be treated alike, both in respect of privileges conferred and liabilities imposed. It may not be out of context to mention here that Prosecution plays an important role in the administration of criminal justice.
Without successful prosecution, the desired objects cannot be yielded. The role of prosecutors not only commences soon after registration of a case, but it also lasts up to the final verdicts delivered by the criminal courts. It is also an unyielding fact that throughout the services of the petitioners have been regulated by the Police Department. Thus, in the circumstances, treating the Prosecutors on different measures and benchmarks from Executive and Investigation would be a worst instance of discrimination on the part of the respondents, which is not permissible under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Where the persons are in comparable situation, they must be treated alike, thus differently treating them would be direct discrimination. It is also settled law that discrimination can arise only through application of different rules to comparable situations of the application of the same rules to different situations.
Eventually, the separation of the two Units from one another would not be a step justified in law and would be against the spirit and commandants of the provisions of Police Order as well as of the Constitution of the Pakistan.
5. According to Article 8(2)(4) of the Police Order, 2002, the police establishment constituted under Article 7 shall, as far as practicable be organized on functional basis into branches, divisions, bureaus and sections. It is manifest from Article 8(4) of the Order ibid, that every police officer shall be liable for posting to any branch, division, bureau and section or anywhere in or outside the police. Similarly, under Article 22 of the Order ibid, subject to rules the appropriate government may transfer any police Officer appointed under this Order from police constituted for one general police area to another. Thus, by no stretch of imagination, all these branches may not be separated being units of one Department. In this backdrop, bifurcation of the seniority list of the two units i.e, the Prosecution and the Executive would be unlawful and against the spirit of the provision of Police Order, 2002 as well as Article 25 of Constitution of Pakistan. Learned counsel for the petitioners during the course of arguments referred to W.P. No,246 of 2008, titled, "Sajjad Haider Tareen, PDSP Quetta and others v. The Provincial Police Officer Balochistan Quetta" decided by the High Court of Balochistan Quetta on 23-4-2009, and contended that identical matter has been resolved in the aforesaid writ petition wherein their lordships have observed that since no separate Rules have been framed therefore, without framing separate Rules, deleting the names of the petitioners from the Seniority list would be without lawful authority depriving the petitioners from their future promotions.
6. Admittedly, the petitioners are employees of the police Department performing their duties in one cadre (Inspector), but in different Branches. It is also admitted that the services of all the police employees, working in cadre of Inspector, in different Branches are governed and regulated by same rules. No separate service structure is provided for regulating the different Branches, nor separate rules have been framed for describing the terms and conditions of employees of different Branches with different yardstick and distribution of their duties in different Branches under Article 8(2)(4) of the Police Order, 2002, would not bifurcate them in separate departments. It is therefore, maintaining separate seniority lists of the two units i.e, the Executive and Prosecution in the circumstances would be without any legal justification and against the spirit of section 8 of the Civil Servant Act, 1973 and being discriminative, would deprive the petitioners from their lawful rights and future prospects i.e, future promotion. Accordingly, this writ petition is admitted and allowed and consequently, the respondents are directed to issue a combined seniority list of the two Branches and to consider the promotion of the petitioners in light thereof in accordance with law, rules and policy.