1. Through this petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 following relief is prayed for: "It is therefore, very humbly prayed that by issuing an appropriate writ:-
1. Declare, in the circumstance aforesaid, all regional seniority lists i.e Muzaffarabad, Poonch and Mirpur regions to the extent of ASI's recommended, in light of advertisement 01/2008, null and void, void ab initio and of no legal effect being issued in contravention of the constitution, convention and law.
2. Direct the respondents to implement the order d ated 11.01.2012, book No, 13, (Annexure "PF"), prepare and issue a single seniority list of ASI'S recommended in light of amended advertisement of Public Service Commission 1/2008 keeping in view the general order of merit issued by the Public Service Commission.
3. Direct in the circumstance aforesaid, that suitable amendments be made in the Police Rule, 1934 for the issuance of single seniority list of the ASI's Recommended by the Public Service Commission.
2. Any other relief which this Hon'ble Court deems fit may also be granted to the petitioner in the interest of justice.
2. Facts of the case precisely stated are that petitioner is first class State Subject of the Azad Jammu and Kashmir and hails from District Bagh. It was. contented that Azad Jammu and Kashmir Public Service Commission advertised 53 posts of Assistant Sub-Inspectors Police vide Advertisement No, 01/2008 and invited applications for the appointment from desirous candidates.
3. It was also stated that vide notification dated 08.09.1999 an amendment has been made in Sub- rule (2) of Rule 12.1 of the Police Rules, 1934 and thereafter, the appointment of ASI's BPS-09 are being made on the recommendations of Public Service Commission. It was further contended that petitioner and pro-forma respondents applied for their appointments as Assistant Sub-Inspector against the quota of their respective units. The petitioner and pro-forma respondents were declared successful by the Public Service Commission vide hand out dated 10.10.2009. It is stated that Public Service Commission issued General Order of merit dated 06.04.2012, whereby, petitioner was placed at the top of the list of 42 candidates vide order dated 24.11.2009 the petitioner and pro-forma respondents were appointed as Assistant Sub-Inspector Police BPS-09 w.e.f 01.12.2009 on the recommendations of Public Service Commission. It is stated that an order to the effect that seniority of newly recruited ASI's shall be determined in accordance with the order of merit obtained in Probationer Class Course was issued by the C.P.O. It is further stated that the petitioner also stood first in Probationer Class Course at Police College Sihala. It is further contended that Inspector General Police on 11.01.2012 issued an order that the seniority of newly recruited Assistant Sub-Inspectors shall be determined on the basis of order of merit issued by the Public Service Commission. It is alleged that respondents have issued 3 seniority lists of ASI's on the basis of region in accordance with the order of merit issued by the Public Service Commission. The precise stand of the petitioner is that due to issuance of separate seniority list for each region the petitioner and other ASI's selected from Poonch region are suffering a lot and despite obtaining better position in the test and interview conducted by Public Service Commission and in Probationer Class Course the petitioner will be promoted much later than the ASI's selected from Mirpur and Muzaffarabad regions, hence, the issuance of seniority list of ASI's on the basis of region is against the law and fundamental rights of the petitioner and natural justice.
4. Respondents No, 20 to 33, interveners have filed written statement wherein, it is submitted that petitioner has no locus-standi to file the instant writ petition. It is further stated that under Chapter 13(10) of Police Rules, 1934, the promotion of Sub-Inspectors is to be made amongst the ASI from the region. It is further submitted that earlier practice of police department regarding promotion of ASI's is also with the same effect and is in accordance with relevant rules. It is further submitted that the petitioner stands at Serial No, 24 of the seniority list of Poonch region, hence, has no concern with the promotion in region Mirpur and Muzaffarabad. It was also stated that petitioner seeks amendment in the police rules of his choice which is illegal, arbitrary because the rules cannot amended on the sweet will of a person.
5. The learned advocate appearing for the petitioner argued that the petitioner stood first in the exam conducted by the Public Service Commission and thereafter, also obtained first position in Probationer Class Course Police College Sihala. It is submitted that I.G.P. issued an order on 11.01.2012, stating therein, that seniority of newly recruited ASI's shall be determined on the basis of order of merit prepared by Public Service Commission instead of Probationer Class Course. The I earned advocate fur there argued that the respondents have issued three seniority lists of 42 selected ASI's in pursuance of advertisement No, 1/08 region-wise. The learned advocate also stated that if single seniority list is prepared of all 42 selected ASI's on the basis of order of merit prepared by the Public Service Commission the petitioner is liable to be promoted against the available seat of Sub-Inspector however, if the respondents are allowed to continue in light of three separate seniority lists region-wise, the petitioner and other selected candidates from region Poonch who are ahead to the candidates selected from region Mirpur and Muzaffarabad in the test and interview conducted by the Public Service Commission, shall be promoted later which is against the natural justice. The learned advocate submitted that preparation of three separate lists of newly recruited ASI's region-wise is against the Police Rules hence, the same are liable to be set aside and respondents may be directed to implement the order of IGP, dated 11.01.2012 and prepare the single seniority list of all 42 selected candidates of Public Service Commission.
6. The learned advocate appearing for the other side contended that petitioner has no locus-standi to file the instant writ petition. The learned advocate contended that no illegality or irregularity has been pointed out hence, the petition is not maintainable. The learned advocate submitted that seniorities of selected candidates have been made in accordance with Chapter 13(10) of Police Rules, 1934. The learned advocate also submitted that petitioner wants amendment in the Police Rules, 1934 of his own choice which cannot be allowed.
7. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
8. Firstly I would like to deal with the prayer of the petitioner that preparation of three separate seniority lists for Mirpur, Muzaffarabad and Poonch regions in pursuance of advertisement No, 1/2008 may be declared illegal, void ab-initio and without lawful authority. Chapter 13 of the Police Rules, 1934 deals with the matter relating to the promotion of police officers including ASI to Sub- Inspector. Under' Chapter 13(10) of the Police Rules, 1934 it is provided that officiating promotion of short duration from ASI to Sub-Inspector shall ordinarily be made within the district concerned but vacancies of long duration may be filled by promotion of any eligible man in the range. Chapter 13(10) of Police Rules, for ready reference is reproduced as under: List E. Promotion to sub-inspectors.--(1) A list of all assistant sub-inspectors, who have been approved by the Deputy Inspector-General as fit for trial in independent charge of a police station, or for specialist posts on the establishment of sub-inspectors, shall be maintained in card index form by each Deputy Inspector General. Officiating promotions of short duration shall ordinarily be made within the district concerned (vide sub-Rule 13.4(2)) but vacancies of long duration may be filled by the promotion of any eligible man in the rage at the discretion of the Deputy Inspector- General. Half-yearly reports on all men entered in the list maintained under this rule shall be furnished in form No, 13 9(3) by the 15th October, in addition to the annual report to be submitted by the 15th January in accordance with Police Rules, 13.17(1).
9. In Chapter 13(2) clarifies that promotion of ASI to the rank of Sub-Inspector shall be made by Superintendent of Police and Assistant Superintendent of Police. The D.I.G. Range, who maintain promotion lists will notify the superintendent of Police of a district when vacancy in either rank is to be filled by the officer in his district. The relevant portion is reproduced as under: Substantive promotions to the rank of sub-inspector and assistant sub-inspector shall be made by Superintendents of Police and the Assistant superintendent, Government Railway Police. Deputy Inspectors-General of Ranges, who maintain promotion lists (`D' and 'E') of these two ranks in the case of District Police will notify the Superintendent of Police of a district when a vacancy in either rank is to be filled by an officer in his district.
10. A perusal of the above reproduced provisions of law makes it crystal clear that D.I.G of the range shall maintain list D. promotion to assistant .sub-inspectors and E. promotion to sub-inspectors. It is also clear that short duration promotion to the post of Sub-Inspectors shall be made within district concerned and the promotion for long duration shall be made from any eligible man in the range. As the promotion to the post of Sub-Inspector under Rule 13(10) of the Police Rules for short duration is to be made from district concerned and the long duration promotion shall be made amongst any eligible man in the range, than how the single seniority list can be prepared for different regions.
11. In view of above discussion, I am of the view that in presence of clear cut rules that promotion of ASI to SI shall be made from region, no illegality or irregularity has been committed by the respondents while preparing separate seniority lists region-wise.
12. So far as the amendment in the Police Rules, 1934 is concerned, it is the sole prerogative of government and this Court cannot interfere in the business of the government and law is well settled that rules cannot be amended on the choice of a person. This Court can only issue direction for amendment in the rules if the same are in conflict with the Interim Constitution Act, or parent Act or violative of fundamental rights. Mere on the request of the petitioner no writ can be issued for amendment in the rules. Reliance can be placed on a case titled Syed Rasheed Hussain Shah vs. Azad Govt. and 6 others [2014 SCR 883] wherein it has been held that:-- "The vires of the Rules have not been challenged at the relevant time. Moreover, the Rules making Authority is fully competent to amend the same and the act of the Authority cannot be declared illegal until the same is in conflict with the powers of parent Act or the Constitution.
13. Even otherwise, Rules cannot be framed/amended at the sweet-will of a party and it is the sole prerogative of the Authority concerned to frame or amend the same, therefore, the argument of the learned counsel for the appellant in this regard has no substance, hence, the same is hereby repelled."
14. In case titled Rizwan Muzaffar vs. Azad Government & 8 others [2010 SCR 156] it has been observed by the apex Court as under: "We have also examined the application moved by the father of Respondent No, 4 to Prime Minister.
15. We agree with the contention of Kh. Muhammad Naseem that rules cannot be framed for the benefit of a particular person. It is order by the Prime Minister on application that "the request made in the application appears to be genuine, the rules shall be reconsidered by the committee".
16. This practice is not appreciable. However, after examining the rules we are of the view that fundamental rights of the appellant have not been violated. A person cannot claim a vested right for promotion to a particular post with the claim that the rules be framed in such a manner so that he may be promoted. In the impugned rules the Gout, has fixed such qualification which is necessary for relevant field. No fundamental rights of the appellant have been infringed.
17. In view of above discussion this prayer of the petitioner that the Police Rules, 1934 may be amended is not accepted.
18. So far the implementation of order dated 11.01.2012 is concerned nowhere in the order it is mentioned that single seniority list shall be determined for three separate regions. In the order it is simple stated that seniority shall be prepared on the basis of order of merit prepared by Public Service Commission instead of probationer class course. If for the sake of arguments the claim of the petitioner that the order has been issued in order to prepare the single seniority list for all the regions is correct even than no direction can be issued for implementation of the order of Inspector General of Police being violative of the Police Rules, 1934. As stated above, the seniority of the Assistant Sub-Inspectors shall be prepared by the Deputy Inspector General of the range region wise, therefore; the order of the IGP is not implementable because any standing order contrary to service rules issued by the authority who has no jurisdictional competence to frame rules cannot have a force of rules. As has been held in case titled Muhammad Riaz Khan vs. Inspector General of Police and 19 others (2010 SCR 131). The relevant observation has been recorded at page 152 of the report as under:-- "Any policy decision, instruction or standing order contrary to service rules, effecting the terms and conditions of the service of a civil servant issued by such authority which has no jurisdictional competence to frame the rules cannot have a force of rules."
19. Moreover, the petitioner has taken contradictory stand and sought contradictory relief. On the one hand the petitioner prayed that seniority lists prepared region-wise may be declared null and void being violative of the Police Rules while on the other hand he sought direction to the respondents for amendment in Police Rules to the effect that single seniority list of ASI's be prepared for all the regions. Law is well settled that a party cannot be allowed to blow hot and cold at one breath. As has been held in 1994 SCR 74.
20. In view of above finding no substance in the captioned writ petition it is hereby dismissed.