WAQAR AHMAD SETH, J.--- Muhammad Israr, ASI and 138 others have invoked the writ jurisdiction of this Court, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayers: "That on acceptance of this writ petition an appropriate writ may please be issued declaring the petitioners as fit to hold the rank of Sub-Inspector, was duly considered by the Departmental Selection Committee and validly promoted vide notification dated 24.07.2015. The letter dated 31.08.2015, whereby directions were issued for the cancellation of the promotion of the petitioners and order dated 04.09.2015, whereby the promotion notification dated 24.07.2015 is cancelled, is illegal, unlawful, without lawful authority and of no legal effect. The petitioners have even right to continue in the rank of sub-Inspector".
2. The averments made by the petitioners in the petition are that, the petitioners herein are of two categories, first category are consisting of those police officers who are promoted from the rank of Constables and reached to the status of confirmed ASI's, while the second category are the police officers, who were directly appointed as ASI's by the Khyber Pakhtunkhwa, Public Service Commission. It is averred in the petition that prior to the instant writ petition a writ petition bearing No.3652-P of 2014 was filed, wherein direction was sought to finalize the seniority list of the direct/promotee Assistant Sub-Inspector and then promotion to the rank of Sub-Inspector on the basis of seniority cum-fitness was asked, which was disposed of on furnishing the said seniority list prepared under Rule-XIII (10) list (E) and according to the said list, petitioners were placed at the top of the seniority list, and thus were considered eligible for promotion to the post of Sub- Inspector; that on 17.07.2015, the meeting of Departmental Promotion Committee was held wherein petitioners were promoted to the rank of officiating Sub-Inspector and accordingly notification dated 24.07.2015 was issued. It is further averred that at present there are no separate promotion rules in the different branches of police department, the officer from regular police are transferred to traffic police etc, but vide impugned letter dated 31.08.2015, referring to minutes of the 18th Police Policy Board Meeting dated 13.08.2015, it was directed that the promotion of SI's should be cancelled immediately as, these posts belongs to traffic wardens, so vide impugned notification dated 04.09.2015, the promotion notification dated 24.07.2015 was cancelled.
3.Petitioners feeling aggrieved from the actions of respondents and having no other adequate and efficacious remedy have knocked the door of this Court through the petition in hand.
4.Comments were called from respondents, which they furnished, wherein they stated that the Departmental Promotion Committee had wrongly made recommendations for promotion of petitioners to the rank of SI, against the vacancies exclusively sanctioned and reserved for newly created Traffic Wardens Service unit of Police. Police Policy Board took notice of promotion of petitioners made against wrong post and decided that the promotion order shall be rescinded; that promotion against vacancies sanctioned and allotted to Traffic Warden Service confer no right on petitioners. It is well settled principle of law that wrong and void orders do not create any right. Further stated that Traffic Wardens Service was recently introduced, and Provincial Government accorded sanction of creation of separate strength for the said unit of Police.
Respondent No.2 has promulgated Standing Order No.5/2015 for regulating the recruitment and promotion of Traffic Warden Services Officer, therefore, the competent authorities correctly made decision of cancellation of the promotion of petitioners made against the vacancies of Traffic Warden Service.
5.We have heard learned counsel for the parties and available record perused with their valuable assistance.
6. Record is suggestive that being fit, competent and eligible for promotion, petitioners were duly considered and promoted vide promotion order dated 24.07.2015, as officiating Sub-Inspectors by the Departmental Promotion Committee. Respondents have not grudged their promotion on their eligibility, competency, fitness or otherwise. The notification dated 24.07.2015, whereby petitioners were promoted to the rank of officiating Sub-Inspector, with immediate effect was also published in the police gazette part-II. The grievance started with a letter No.2402-E III dated 31.08.2015, which in fact are the minutes of the 18th Police Policy Board meeting held on 13.08.2015 and for the purposes of petitioner's case, the relevant portion i.e. paragraphs 2 and 3 reads as under:- 2."The Board took serious note of the recent promotions of also by CCPO on the posts of Traffic Wardens. They Board directed that since these seats belong to the traffic warden, these promotions should be cancelled with immediate effect.
3.It is therefore, requested that action about Para-2 of PPB may he taken forthwith and report be communicated to this office please.
7.The above referred orders/directions of the alleged Police Policy Board was implemented vide order No.16570/EC-I dated, Peshawar 04.09.2015, issued by CCPO, Peshawar, which reads as under:- "In pursuance of 18th Police Policy Board Meeting held on 13.08.2015 duly approved by Inspector General of Police Khyber Pakhtunkhwa, Peshawar issued vide DIG/HQrs; Letter Endst: No.1598- 1650/PA DIG/HQrs; dated 28.08.2015 and AIG Establishment, Khyber Pakhtunkhwa, Peshawar Letter No.2404/E-II, dated 31.08.2015, the promotion Notification of 139 promoted Offg: Sub-Inspectors issued vide this office Notification No.13706/EC-I, dated 24.07.2015 is hereby cancelled".
8. The Police Policy Board, who issued the directions and in reference to those directions the subsequent order dated 4.9.2015, was B issued, figures nowhere in the law. Learned counsel for the respondents/AAG along with departmental representative present in the court, was time and again directed to show that under what authority of law the Police Policy Board has been constituted and what are their functions, especially in reference to the Departmental Promotions Orders issued by the duly constituted Promotion Committee, but failed to produce so. We have gone through the Police Laws of Pakistan. but nowhere could locate the said Police Policy Board and its functions or powers. On the face of it the impugned order/directions dated 31.8.2015 of Police Policy Board and subsequent order of Capital City Police Officer, Peshawar dated 04.09.2015 are void ab initio as the same are not issued on the directions and on behalf of competent authority or lawful authority.
9. The void order as defined by Corpus Juris Secundum, in (Vol. 92 PP-1021.1024) is "Expression void in the strict or accurate sense means "absolute null" that is to say incapable of rectification or confirmation and of no effect whatever". The Supreme Court of Pakistan in the case of Chief Settlement Commissioner v. Raja Muhammad Fazil Khan (PLJ 1975 SC 15) defined a void order as follows: "As order is to be treated as void only when it is made by a court, tribunal or other authority which has no jurisdiction either as regards the subject matter, the pecuniary value or the territorial limits when the dispute arise. Such an order would amount to usurpation of power unwarranted by law and accordingly it would be nullity".
10. A void order was that order, which was passed by an authority not competent to pass it and in the instant case, when the Police Policy Board nowhere figures in the Administration Authority of the police department then its directions are prima facie void ab initio and are of no lawful authority, thus, the subsequent order dated 4.9.2015 of Capital City Police Officer, Peshawar, regarding cancellation of earlier promotion order are also of no effect. In the case of Moulana Atta ur Rehman v. Al-Hail Sardar Umer Faroog and others reported in PLD 2008 SC 663(b) it has been held as under:- "---When the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls on the ground automatically".
Again in the case of Mustafa Lakhani v. Pakistan Defence Officer Housing Authority, Karachi, reported in 2008 SCMR 661(b) it has been held:- "----Subsequent orders passed on basis of void order---Legal effect stated. If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the superstructure of rights and obligations built upon them, must unless some statue or principle or law recognizing as legal the change position of the parties is in operation, would fall to the ground, because such orders have as little legal foundation as the void order".
11. In the Police Department, right from Police Rules, 1934, Khyber Pakhtunkhwa, Police Rules, 1975, Police Order, 2002 and all the relevant provision of departmental law / rules / regulations for promotion purposes, the Departmental Promotion Committee is the relevant and competent for the purpose of promotions and as such the same authority has the powers to rescind/withdraw or cancel the same, therefore, where under the rules, regulations and policy have been framed for regulating promotions, any breach or deviation from them for mala fide reasons or due to arbitrary act of the competent authority would entitled an aggrieved employee to challenge the same in the Court of law. Reliance IF in this respect is place on PLD 2003 SC 175(d).
12. The perusal of impugned directions dated 31.8.2015 would reveal that the reasons for cancellation of promotions of the petitioners was that, they were promoted on the posts of Traffic Wardens, whereas, a glance over the promotion order would show that in all 139 ASI's were promoted as officiating Sub-Inspectors out of which only 17 have been posted against the traffic post, which even otherwise are inter-transferable, hence the reasons given for withdrawal / cancellation is riot legal nor lawful.
13.Learned counsel for the respondents strongly objected to the maintainability of writ petition in view of Article 212 of the Constitution' of Islamic Republic of Pakistan, 1973; the non availing of departmental remedy / alternate remedy by way of departmental appeal and that officiating Sub- Inspectors promotion do not confer a right as the same promotion was officiating only.
14.The plea of officiating promotion is not correct because in the police hierarchy there is a cadre of officiating Sub-Inspectors from the "E" list of ASI's and the officiating is not in the sense as is otherwise used in the civil servant promotions. As regarding the objections of maintainability of writ petition and the cancellation of promotion, as per learned AAG, pertains to terms and conditions of service, therefore, the petitioners being civil servants were supposed to have challenged the impugned orders before Service Tribunal under Section 4 of the Khyber Pakhtunkhwa, Service Tribunal Act, 1974, by availing first the remedy of departmental appeal, which even otherwise, was mandatory before filing the writ petition by way of alternate remedy by relying on PLD 1997 SC 351, 1990 SCMR 1238, 2015 SCMR 253, 2002 SCMR 549 and 2002 PLC (CS) 244.
15. We have given our anxious consideration to the proposition and are of the view that an appeal under section 4 of the Service Tribunal Act, 1974, lies against an order passed by a "Departmental Authority" in respect of any of the terms and conditions of service and in the explanation given to the said section 4 the word "Departmental Authority" means an authority other than a tribunal, which is "competent" to make an order in respect of any of the terms and conditions of civil servant. In the instant case as pointed out earlier, that the impugned orders/directions issued by Police Policy Board are void, of no lawful authority as the Police Policy Board is not a Departmental Authority as defined in the section ibid. Same is the condition for departmental representation. Since the impugned orders are of no lawful authority or even no authority of the department for the purpose of promotions, service discipline etc hence without availing the departmental remedy writ is competent and maintainable. In the case of Collector of Custom Valuation and another v. Karachi Bulk Storage and Terminals Ltd., reported in 2007 SCMR 1357(a) it has been held that:- "---Art. 199---Constitutional petition before High Court--- Maintainability ---Impugned order found to be illegal, contrary to law or void ab initio---Remedies under departmental hierarchy, non-availing of---Aggrieved party in such case would be entitled to invoke constitutional jurisdiction of High Court".
16. In such like cases, as the present one where an order has been passed by an authority whose existence is doubtful along with powers and functions, not explained anywhere, then the availability of adequate remedy would not be an absolute bar against the exercise of constitutional jurisdiction of this Court. In exceptional cases, like the present one, this Court can entertain the constitutional petition directly, therefore, the objection in this regard is spurned. Even otherwise, the High Court was competent to interfere such provision of law in exercise of constitutional jurisdiction where the competency of the authority is in question. In the case of Farzand Raza Naqvi and 5 others v. Muhammad Din and others, reported in 2004 SCMR 400, it has been held that <i>"if an order impugned is a void order or it has been passed without lawful jurisdiction, the non availing of alternate remedy of appeal against such order would not bar High Court to proceed in constitutional jurisdiction and declare such orders as without lawful authority, rule that High Court should not entertain constitutional petition and adjudicate the matter in a constitutional jurisdiction in which remedy of appeal, review or revision is applicable, under the statute, is not an absolute rule and in exceptional cases, the strict observations of the rule that extra ordinary, remedy of constitutional petition cannot be availed in a matter in which relief being sought under Article 199 of the Constitution could be granted by way of appeal, review or revision may cause in justice in substance, therefore, application of such rule would defend on facts and circumstances of each case".</i> Likewise, in similar situation the Apex Court in the case of Brig. Muhammad Bashir v. Abdul Karim and others reported as PLD 2004 SC 271(d) has held that:- "---Art. 199---Constitutional jurisdiction of High Court, exercise o---Principles object and scope--- Articles 199 of the Constitution casts an obligations on High Court to act in aid of law, protect the rights of citizens within the framework of the Constitution against infringement or law and constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and auctions of State functionaries, claimed to be in the larger interest of Society---Such power is conferred on High Court, under the Constitution and is to be exercised subject to Constitutional limitations---Provision of Art. 199 of the Constitution is intended to enable High Court to control executive so as to bring it in conformity with the law---Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizens of the effects of illegal action---Relief can be granted to the citizens of the country under Art. 199 of the Constitutions, against infringement of any provisions of law or of the Constitutions as it is an omnibus Article---If the citizens of the country are deprived of the guarantee given to them under the constitution, illegally or not in accordance with law, then provision of Art. 199 of the constitution can always be invoked for redress--- Paramount consideration in exercise of constitutional jurisdiction is to foster justice and right a wrong--- So long as statutory bodies and Executive Authorities act without fraud and bona fides within the powers conferred on them by the statue, the judiciary cannot interfere with them---Ample power is vested in High Court to issue directions to an Executive Authority when such an Authority is not exercising its power bona fide for the purpose contemplated by the law or is influenced by extraneous and irrelevant considerations- --Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, High Court in exercise of its constitutional jurisdiction has ample power to grant relief to the aggrieved party".
17. Lastly learned AAG while relying on 2013 SCMR 1752, contended that perpetual rights cannot be claimed on an illegal order, therefore, the authority cancelled the promotion orders of the petitioners and the same cannot be granted as of right. Indeed, perpetual rights cannot be claimed on an illegal order, but in the instant case, the order of promotion dated 24.07.2015 is quite legal and lawful, because the same has been issued with the approval by of Departmental Promotion Committee, by the Competent Authority and nowhere in the comments, so filed by the respondents and arguments at bar, they have contended that petitioners were neither fit nor eligible for promotion, rather it has been proved on record that the cancellation order is of no lawful authority and a void order. The principle of locus poenitentiae could be invoked by competent authority till the time the decisive stage was not reached. In the instant case it is established that the orders were conveyed and acted upon, the said orders were even published in the gazette part-II and petitioners have reported to their place of posting as well, then a valuable right have accrued to the petitioners and as such they cannot be deprived of vested right by the authority, in view of which this writ petition is allowed as prayed for. Petitioners are deemed to be promoted from the date of their promotion order dated 24.7.2015.