AMIR HANI MUSLIM, J.---These matters emanate out of two reported judgments of this Court, i,e, Contempt Proceedings against Chief Secretary, Sindh (2013 SCM R 1752) and Ali Azhar Khan Baloch v. Province of Sindh (2015 SCM R 456), whereby this Court declared that the concept of out of turn promotions was unconstitutional and against the Fundamental Rights enshrined in the Constitution. The copies of these judgments were ordered to be sent amongst others to the Chief Secretaries of all the Provinces and the Secretary, Establishment Division, Government of Pakistan who were directed to streamline the service structure in the line with the directives contained in these judgments.
2. On 26.01.2016, Civil Appeal No,184-L of 2013, came up for hearing before this Court, when this Court passed the following order: "3. ... We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be refixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from constable to any gazetted officer shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I.G Police Punjab. Home Secretary, Punjab and Chief Secretary. Punjab, shall submit compliance report with the Assistant Registrar of the Court for our perusal in chambers. This order shall be communicated to the I. G, Punjab, Home, Secretary, Punjab and Chief Secretary, Punjab, for their information and compliance and noncompliance of this judgment shall expose the concerned officials to contempt proceedings."
The aforesaid order was challenged through Civil Review Petition No,49 of 2016, etc. by police officers who claimed that they had earned their out of turn promotions on the basis of acts of bravery during their duty or otherwise. The said Review Petitions along with other applications were dismissed, by the judgment dated 30.12.2016, reported as Shahid Pervaiz v. Ejaz Ahmed (2017 SCM R 206) (hereinafter the "Shahid Pervaiz case").
3. On 20.03.2017, the Home Department, Govt. of Punjab, and the Inspector General of Police, Punjab ("IG"), submitted their separate reports. The IG issued notices to all the police officers and after providing them with an opportunity of a hearing, prepared a comprehensive and voluminous report which dealt with the case of each police officer separately. The Additional Secretary (Police) of the Home Department vide letter dated 16.03.2017 objected to the report of the IG only to the extent that a few of the out of turn promotion cases were "judicially protected". It appears that these officers were granted out of turn promotion by judicial fora. The learned Advocate General, Punjab supports this letter of the Home Department, and both he and the counsel representing these officers contend that such promotions were also specifically saved by paragraphs 111 and 143 of the judgment in Shahid Pervaiz case.
4. For convenience, the referred to paragraphs 111 and 143 from the judgment of the Shahid Pervaiz case are reproduced hereunder: "111. Yet another anomalous consequence of this argument is that while two identical provincial laws are enacted and acted upon and one province repeals the law while the other continues with its operations. Subsequently, the vires of the law that continues on the statute books is examined by the Court and its provisions have found to be inconsistent with the Constitution or Fundamental Rights with the result that the benefits conferred or availed thereunder, unless protected by the category of past and closed transaction, have to be reversed and its deleterious effects undone. This category, quite obviously, consists of the cases wherein 'out of turn promotion' was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed. Even otherwise, it does not appeal to logic that in such a situation, while those benefitting from a law which continued to be on the statute book and eventually found to be ultra vires the Constitution would stand deprived of such illegal benefits, those continuing to enjoy the same under the omitted/repealed law in other Province would stand protected. If an illegal benefit was accrued or conferred under a statute, whether repealed (omitted) or continuing, and its benefits continue to flow in favour of beneficiaries of such an unconstitutional Act, and it is declared ultra vires, the benefits so conferred would have to be reversed irrespective of the fact that the conferring Act was still on the statute book or not. Where such an anomalous situation surfaces - i,e, where one province continues to countenance the benefits of an unconstitutional (though repealed/omitted) Act, while the other Provincial statute has been struck down on the same touchstone, and thereby determined whether those enjoying benefits pursuant to the repealed law are entitled to continue to do so, such reversal of benefits is imperative."
"143. For the aforesaid reasons, all the listed Review Petitions and the Applications are dismissed.
The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion. However, the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held without further loss of time and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers. This exercise shall be completed within a period of one month. The Advocate General, Punjab, and the learned Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities."
5. The Advocate General Punjab ("the AG") states that there was a conflict between the opinion of the Home Department and that of the Inspector General of Police on the point, whether the out of turn promotions given to some of the police officers were protected by the afore-quoted paragraphs of the judgment in the Shahid Pervaiz case. He relied upon the letter dated 16.03.2017 of the Home Department, Government of Punjab with regard to the out of turn promotion granted to the nine police officers mentioned in the said letter which was addressed to the Secretary Services, Government of Punjab, except Shahid Razzaq Qureshi who has since retired. According to the learned AG meetings were held to resolve the said controversy, but till date to no avail. The learned AG stated that there are three categories of persons who would be protected and would be construed to come within the purview of the aforesaid paragraphs 111 and 143, which are: i. Where a Court had directed that a particular officer or official should be given out of turn promotion and a notification to this effect be issued; ii. Where an official or officer had approached a court and it was held that he be treated at par with some other official/officer who was given <i>out of turn promotion</i> since he had also participated in the same operation or encounter; and iii. An officer or official who was given out of turn promotion however later than his colleagues and after he had approached a court the date of his out of turn promotion was ante-dated to the date when his companions were given out of turn promotion.
6. Khawaja Haris Ahmed, learned senior ASC, represented eight officers, namely, Awais Malik, Ijaz Shafi Dogar, Muhammad Umer Wirk, Rana Shahid Pervez, Muhammad Usman Anwar, Naeem ul Hassan Babar, Syed Jarrunat Ali Bukhari and Karamat Ullah Malik. He states that the orders of cancellation/withdrawal of out of turn promotion of the first four police officers named by the Home department should be recalled. As regatds the remaining four officers, the Home Department has not offered any view. The learned counsel contends that the said paragraphs 111 and 143 are very clear and by relying thereon states that, any out of turn promotion which was given to a police officer/official through any court order is protected and this protection extends to the following three categories of officials/officers: i. Those who approached a court and were allowed/granted out of turn promotion; ii. Those a court directed to grant out of turn promotion on the basis that the Department had granted out of turn promotion to some of the police officers/officials similarly placed; and iii. Those who the Department did not grant out of turn promotion but once a court had granted out of turn promotion thereafter the Department itself gave out of turn promotions to them in line with the principles laid down in the judgments despite the fact that the persons did not approach the Court.
7. The learned Senior ASC Khawaja Haris Ahmed contends that this Court has specifically held in the said paragraphs 111 and 143, that out of turn promotions made on the basis of a court or tribunal's order shall remain intact, however, the IG of Police Punjab has done away with even those out of turn promotions. He sought protection of the out of turn promotions granted to Awais Malik, Ijaz Shafi Dogar, Muhammad Umar Virk and Rana Shahid Parvez, stating that on 18.01.1997, Awais Malik along with other police officials was deputed to perform security duty and to protect the leaders of Sipah-e-Sahaba who had to appear in the Court of Additional Sessions Judge Lahore where a bomb blast took place and he received injuries along with others. The other members of the Police party approached the Lahore High Court, by filing Writ Petition No,17474 of 1997, seeking out of turn promotion and the High Court directed that a formal notification of their out of turn promotion be issued. Awais Malik also filed Writ Petition No,19749 of 1997 for grant of out of turn promotion as he was similarly placed and the learned High Court allowed the Writ Petition in terms of judgment passed in Writ Petition No,17474 of 1997, therefore, his case falls squarely within the parameters of paragraphs 111 and 143. As regards Ijaz Shafi, the learned senior ASC submitted, that he was granted out of turn promotion pursuant to the orders of the Lahore High Court passed in Writ Petition No,1257/2005, whereby it was directed that his case for grant of out of turn promotion be placed before the Provincial Selection Board; consequently, the Provincial Selection Board considered his case and recommended him for out of turn promotion as a Deputy Superintendent of Police ("DSP") and later he was promoted as Superintendent of Police ("SP"), but he has been relegated to the post of DSP. As regards Muhammad Umer Virk, the learned senior ASC contended, that while he was posted as Inspector he had participated in an operation launched by the Police to curb the terrorist activities of Sipah-e-Muhammad, a militant group with its headquarters at Thokar Niaz Beg, Lahore. Since he was not granted out of turn promotion for his said act of bravery he approached the Lahore High Court through Writ Petition No, 17232 of 1997, which was accepted and it was observed that his case be placed before the Provincial Selection Board which shall ensure that his case is treated at par with those who had participated in the incident. As regards Shahid Pervez, the learned Senior ASC contended, that he also participated in the Thokar Niaz Beg incident and he also approached the Lahore High Court through Writ Petition No,28879 of 1997, on the basis of discrimination, which was allowed and he was granted one step out of turn promotion.
The Department assailed the High Court judgment before this Court by filing C.P. No,259-L of 2000, which was dismissed on 26.04.2000 as it was time barred.
8. Malik Muhammad Qayyum, the learned Senior ASC, appears on behalf of Akhtar Umer Hayat Lalika and in addition to adopting the arguments advanced by Khawaja Haris Ahmed, Senior ASC, contended that the applicant had filed Writ Petition No, 2445 of 1995 for the grant of out of turn promotion on the basis of discrimination, which was allowed on 03.12.1996 and out of turn promotion as prayed for was granted. C.P. No, 656-L/1997 was filed before this Court by the Province of Punjab against the said order of the Writ Petition, but it was dismissed by this Court on 03.02.1998 as it was barred by time. However, the C.P. No, 1446-L/1997 filed by another official against the judgment in the said Writ Petition was dismissed on merits and the Civil Review No, 19-L of 1998 filed in C.P 1446-L of 1997 was also dismissed by this Court on 08.07.1998. He next contended that the promotion of Akhtar Umer Hayat Lalika was a past and closed transaction in view of the judgments in his favour upto this Court, therefore, out of turn promotion granted to him is protected in view of the principles laid down in the said paragraphs 111 and 143.
9. Ms. Asma Jehangir, the learned ASC, represents Applicant Muhammad Anjum adopted the arguments of Kh. Haris Ahmed, learned ASC. In addition, the learned ASC submits that the question of seniority was involved in the case of the Applicant and his case was erroneously dealt with by the Department to be a case of out of turn promotion. She contended that the Applicant approached the Punjab Service Tribunal in Appeal No,2094 of 2006, and the Tribunal accepted his Appeal, by its judgment dated 13.10.2006, by remanding his case to the concerned authority for re- consideration of his case for confirmation as Assistant Sub-Inspector (ASI) from the date he was due for promotion to the post of ASI, subject to his service record being satisfactory after the period when he would have completed his two years' probation period. Therefore, the learned counsel submitted that the orders of the IG in the case of the Applicant are required to be set aside.
10.Sardar Ashiq Mehmood Khan Saddozai, learned ASC, appears for the Petitioner in Criminal Original Petition No,55 of 2017 and contends that the case of the Petitioner is identical to the case of Muhammad Haseeb Anjum. According to him, the Petitioner filed Appeal No,140 of 1998 before the Punjab Service Tribunal, which was allowed, with the observation that he was due for consideration as well as promotion as an Inspector along with the confirmed Sub-Inspectors and that he be considered for promotion with effect from 20.08.1995, without prejudice to the seniority of Mohammad Ramzan and Mohammad Nazir whose promotion was deferred for want of requisite record, subject to fulfillment of prescribed requirement.
11.Mr. Talat Farooq Sheikh, learned ASC, appeared for the Applicants, namely Muhammad Sarwar Awan and Muhammad Iqbal who were issued notices by this Court on 20.03.2017. He, on the legal plane, adopted the arguments of Kh. Haris Ahmed, learned ASC, and contended that Muhammad Sarwar Awan was given out of turn promotion pursuant to the directions of the Lahore High Court in Writ Petition No,8147 of 1998, on the analogy of the cases of SSP Javed Hussain Shah and SP Umer Virk, to avoid discrimination. The Department challenged the judgment of the Lahore High Court, by filing Civil Petition No,226-L of 2000, which was dismissed on 26.04.2000, by this Court, as it was barred by time. He further submits that the matter had attained finality, therefore, the out of turn promotion granted to Muhammad Sarwar Awan was protected in light of the said paragraphs 111 and 143. As regards Muhammad Iqbal the learned ASC stated, that he was granted out of turn promotion as Inspector with effect from 01.08.1992, by the Additional IG, Punjab. However, in compliance of the judgment dated 15.06.2005, passed by the Punjab Service Tribunal in Appeal No,2548 of 2004, the date of his out of turn promotion was revised as 09.07.1990. The Department filed Civil Appeal No,203 of 2006 before this Court, which was dismissed on 28.05.2007, on the ground that Appeal filed by the said police officer without impleading the Government of the Punjab was not competent. The learned counsel submitted that the case of Muhammad Iqbal is also protected in view of the aforesaid paragraphs 111 and 143.
12.The Applicant Jameel Ahmed appeared in person, pursuant to the notice issued on 20.03.2017.
He states that he adopts the arguments of Kh. Haris Ahmed, learned ASC.
13. Ms. Aysha Hamid, the learned ASC, represents the petitioner in Crl. O.P. 33/2017 and contends that the present contempt petition is filed under the impression that the Punjab Government which had formed a Committee to look into and remove the so called anomalies in the judgment of this Court in the Shahid Pervaiz case and that the Government intends to recall the orders/letters withdrawing the out of tun promotions given to many police officers/officials. She stated that there are no anomalies in the said judgment and that the real purpose of the Committee, headed by the Law Minister, was to undo the effect of the judgment on a pick and choose basis. Learned counsel submits that the IG's report is based on individual speaking orders and she supports those orders as they are in consonance with the principles enunciated in the judgment in the Shahid Pervaiz case dated 30.12.2016; whereas the opinion of Home Department, Government of Punjab, misconstrues the said judgment, moreover, the IIome Department's opinion also agrees with the whereby the out of turn promotions granted to some of the police officers/officials were recalled without mentioning any reason to take a divergent view in respect thereof. She quoted the example of Sarwar Awan, Akhter Umer Hayat Lalyka, Rana Shahid Pervaiz and Awais Malik and contended that Sarwar Awan was granted out of turn promotion twice and his second out of turn promotion was pursuant to Court orders dated 22.06.1999 passed by Lahore High Court, in Writ Petition No,8147 of 1998 on the analogy of SSP Javed Hussain Shah and SP Umer Virk, due to purported discrimination. Akhter Umer Hayat Lalyka was also granted out of turn promotion as DSP, by the Lahore High Court through Writ Petition No,2445 of 1995, on the basis of purported discrimination by citing precedent of Sub-Inspector Waqar Ahmed, who was granted out of turn promotion by the Department and not by the Court, therefore, after the judgment dated 30.12.2016, when the out of turn promotion given to S.I Waqar Ahmed, was recalled, the reason of discrimination on the basis of which Writ Petition of Akhter Umer Hayat Lalyka was allowed no longer remained. Moreover, the earlier recommendation of the Department in favour of the said officer was withdrawn. Rana Shahid Pervaiz was also granted out of turn promotion through Writ Petition No,28879 of 1997, by the Lahore High Court, on the ground of purported discrimination, by holding that the other participants of the Thokar Niaz Beg operation including, inter alia, Javed Hussain Shah and Muhammad Umer Virk, had been granted out of turn promotions. The learned counsel next quoted the case of Awais Malik, who too was granted out of turn promotion on the basis of verdict in Writ Petition No,19749 of 1997, which was based on decision in Writ Petition No,17474 of 1997. As regards Karamatullah Malik, Naeem ul Hassan and Jamat Ali Bukhari, the learned counsel contended, that they were not protected by any judicial pronouncement and the cases of Haseeb Anjum and Muhammad Iqbal relate to the issue of seniority and not out of turn promotion. The learned counsel concluded by contending that all the cases which came before this Court were dismissed on the ground of limitation and not on merits, therefore, it would not constitute res judicata or be covered by the afore-quoted paragraphs 111 to 143.
14.Before proceeding to decide the aforesaid matters we want to dispel the notion that we are reviewing the judgment in the Shahid Pervaiz case in general or paragraphs 111 and 143 in particular. The IG of Police, Punjab pursuant to the judgments of this Court looked at each case of out of turn promotion. He issued notices to all concerned and considered their respective comments and thereafter decided each individual case. These matters pertain to the Punjab Police, which is a disciplined force at the apex of which is the IG of Police. The matters of seniority are settled/determined by the designated competent authority and, if any official or officer has any reservation with regard thereto a representation can be preferred to the designated authority and if he/she is still not satisfied an appeal can be filed before the competent tribunal, which in this case would be the Punjab Service Tribunal. Article 212 of the Constitution categorically mandates that such a tribunal has exclusive jurisdiction with regard to all matters relating to the terms and conditions of service. Against the decision of the tribunal an appeal can only be entertained by the Supreme Court provided it involves a substantial question of law of public importance and leave is granted to consider the same (Article 212(3) of the Constitution).
15.The aforesaid officials/officers of the Police were recommended for out of turn promotion either by their superiors or claimed it because similarly placed persons were given it.
The recommendations were either not accepted by the competent authority/IG or they were disregarded. They therefore proceeded to file a petition in the High Court or approached the Tribunal. We are clear in our mind that the High Court had no jurisdiction to entertain such petitions under Article 199 of the Constitution, let alone to issue writs of the nature that were issued. If at all the said petitioners were aggrieved by not receiving out of turn promotion they should have proceeded on the stipulated legal path which has been mentioned above. The learned AG and the learned counsel representing the said officials/officers of Police have made much of the fact that the cases of some of these persons had come before this Court, even though this Court had simply dismissed the petitions on the ground of limitation. Such orders of this Court cannot be categorized as a decision in terms of Article 189 of the Constitution. The issue whether. out of turn promotion was legal and whether the High Court could consider the same under Article 199 of the Constitution was not considered either by the High Court or by this Court in any of the referred to judgments/orders. As regards the decision of the Tribunal it was given on the basis that the appellant had been discriminated against vis--vis his companions, however, when the companions out of turn promotion too has been withdrawn there remained no element discrimination. The matter in issue before us is also not the same which was in issue before the for a below and, therefore, it would also not constitute res judicata.
16.As mentioned above, the IG of Police, Punjab considered the judgments of this Court with regard to the out of turn promotion cases C and after examining each person's case decided the same. Neither the referred to letter of the Home Department nor the learned AG have pointed out any legal defect in the determination by the IG. They have simply referred to the afore-quoted paragraphs 111 and 143 and stated that the officials/officers, mentioned above, had been declared to*be entitled to receive out of turn promotion by the for a below, and that these orders/judgments had not been set aside by this Court, therefore, the case of these individuals would be protected.
With respect to the learned counsel we cannot bring ourselves to agree with this contention because it is not based on any legal or constitutional premise. The foundation of the said paragraphs 111 and 143 on which they have erected their case also overlooks both the context and wording of the said paragraphs. Paragraph 111 specifically states that out of turn promotions would remain intact, "unless reviewed", without restricting such review by this Court alone. The IG of Police has reviewed the matter at his end after issuing notices to all concerned and hearing all those who availed of the opportunity of the hearing which was provided to them and thereafter passed separate detailed orders in respect of each individual. As already mentioned the orders of the IG have not been assailed on the ground that the same are contrary to any legal or constitutional provision. We have also examined the same and have not found any illegality therein. On the contrary it is based upon the principles in the cited judgments of this Court. In such a situation, and where the orders passed by the IG conform to the law as has been declared by this Court in the referred to judgments, no exception can be taken thereto. The report of the IG should be acted upon and notifications with regard to withdrawing the out of turn promotions be immediately issued and compliance report in this regard be submitted for our perusal in Chambers within ten days.
17.It should also not be lost sight of that the competent authority/the had decided not to grant out of turn promotion to the officials/officers who then went to court/tribunal. At that juncture the Government of Punjab had resisted these cases, but, had belatedly filed appeals before this Court against the orders/judgments granting out of turn promotions. However, now before us the Home Department and the learned AG have taken a complete U-turn and support the very same out of turn promotions that were earlier opposed by them on the pretext of the judgment in the Shahid Pervaiz case. We were not informed by the Government that a Committee headed by the Law Minister was formed to attend to the purported anomalies in our judgments. What the Committee did is also not known. It is a matter of concern that it was not disclosed to us that the said Committee had been set up by the Government, of which we come to know from private parties.
The referred to letter of the Home Department also makes no reference to this Committee.
18.Before departing with this judgment we once again reiterate that the Police is a disciplined force and officials/officers employed in the police should not embark upon unnecessary litigation such as claiming out of turn promotions. If, however, they have a genuine grievance the same should be taken before the forums that the law provides instead of initiating proceedings before the High Court under Article 199 of the Constitution. Not a single one of the judgments, on which reliance is placed by the counsel who represent the said police officials/officers, have discussed how jurisdiction was assumed in a matter which the Constitution clearly does not permit or how the constitutional bar contained in Article 212 was overcome.
19. The listed Applications and Criminal Original Petitions were decided vide order dated 28.03.2017: "For reasons to be recorded later, the listed Applications and Criminal Original Petitions are disposed of in the terms that the view point of the Inspector General of Police,. Punjab is correct and the officers shall be de-notified in terms of the speaking orders passed by the Inspector General of Police, Punjab."