' MUHAMMAD ALAM, J.--- This is a writ petition, whereby, petitioners have sought the following remedy:-- "It is, therefore, very humbly prayed;
(a) that the respondents may graciously be directed to provide line of promotion to the petitioners by including their names in the combined seniority list as implemented in the Province of Balochistan on the directives of Honorable Balochistan High Court. The respondents may further be directed that the seniority of petitioners in the combined seniority list of DSPs from the date of their promotion, i,e,, 12.10.2010 in GB police department may kindly be maintained on the same analogy.
(b) that any other adequate remedy which this Honorable court deems fit and proper may also be granted in favour of petitioners to meet the ends of justice."
2. From joint perusal of petition, parawise comments submitted by learned Assistant Advocate General and parawise comments of respondent No,5, it is evident and admitted that all the petitioners are serving as Deputy Superintendent Police in the police department of G.B. Since 12- 10-2010. Initially all the petitioners were appointed as Sub-Inspectors of Police (S.I.Ps) in the police department and then obtained promotions at different times to the existing rank. Combined seniority list of petitioners and other police of general cadre was maintained by the respondents till 1982-83. Petitioners have excellent profiles.
3. We have heard learned counsel for parties and have thoughtfully considered their arguments.
Learned counsel for petitioners argued that the most important ground of the petition is that respondents are not ready to promote petitioners in accordance with their seniority with other police officers of the same rank and instead officers of the general cadre of the rank of petitioners are being promoted as SPs or SSPs and onwards. The normal promotions of the petitioners to the posts of SPs are denied on the pretext that petitioners are DSPs Legal and are not of general cadre.
In the opinion of learned counsel for petitioners, this very practice being adopted by respondents is discriminatory and needs to 'be abolished or otherwise petitioners will suffer in the hands of respondents. Counsel for petitioners further argued that there is no law justifying the said discrimination. On the other hand, learned Assistant Advocate General argued that respondents have adopted the practice of Punjab, where. DSP Legal are not placed at par with the DSPs of general cadre.
' In the opinion of learned Assistant Advocate General, only DSPs of general cadre are entitled to be promoted to the posts of SPs or SSPs and upwards.
4. In our opinion, the questions debated before us can be formulated in questions form and we have formulated the same in the form of following questions:--
1. Whether the discrimination highlighted by the petitioners is a real discrimination as defined and interpreted by the superior judiciary? If so, whether the same can be done away through this writ petition?
2. Whether the discrimination highlighted by the petitioners cannot be termed as discrimination in the correct meaning and interpretation of the word? If so, whether it is in accordance with the administration of substantial justice that petitioners are correctly forced to retire from the post they are presently holding?
3. Whether anywhere in our country, persons similar to those of petitioners have ever been placed in any common seniority list as petitioners have prayed for?
4. Whether maintaining separate lists of seniority, bifurcating petitioners from other similar officers, is in accordance with the correct spirit of any law governing the promotions of petitioners and other police officers of similar rank, in the police department?
5. Whether respondents are bound to maintain combined list of seniority of petitioners and other officers of the same rank?
6. Once it is admitted that petitioners are officers in the department of respondents Nos.2 to 6. It is duty of the respondents Nos.2 to 6 to justify the separate seniority of the petitioners. In this connection, learned Assistant Advocate General simply argued that respondents Nos.2 to 6 have adopted the practice of Punjab Province of Pakistan regarding maintaining the separate list of promotion. Meaning thereby that respondents Nos.2 to 6 are maintaining two lists of seniority of the petitioners and ordinary DSPs. It is not disputed that petitioners have never been promoted to the rank of SP or SSP or onwards, therefore, maintaining two lists of seniority is meaningless to the petitioners as the next step of promotion is obviously of SP and then onwards. It is also not disputed that petitioners had to file this petition only because they were denied promotion to the post of SP.
So, the question for determination is whether respondents Nos.2 to 6 draw this power of maintaining two lists of seniority from any law or code of rules or they have any such inherent power, only because the post they are holding or they are bound to follow some law or ethics in connection with maintaining seniority lists of petitioners and other officers of the same rank. In our opinion, respondents Nos.2 to 6 have no powers whatsoever to maintain two separate lists of seniority of the officers of the rank of DSPs. Learned Assistant Advocate General could not show any law empowering respondents Nos.2 to 6 to maintain two lists of seniority. The learned Assistant Advocate General talked about adopting practice of Punjab province for maintaining two seniority lists but did not present any such list from record of the Punjab Police. We are of the further opinion that even if there is such practice in Punjab, the same cannot be accepted as yardstick for adopting the same in G.B. Obviously, every case has its own peculiar circumstances. The discrimination highlighted by the petitioners is discrimination and can never be justified even on the strength of any law or rules or simple practice. We feel that laws are always framed in accordance with the ratio legis of every law and laws are always framed in accordance with the common sense of human beings of every society which varies from area to area. In our opinion, respondents Nos.2 to 6 cannot justify any such discrimination which goes counter to the normal human values on the strength of any so called practice or law etc. We sincerely feel that, if the discrimination highlighted by the petitioners is allowed to be continued, petitioners will certainly be forced to retire from the rank they are holding presently, meaning thereby, that there is a practical ceiling in the process of promotion of the petitioners and, in our opinion, the same is worst kind of discrimination and also the worst kind of injustice.
7. On the other hand, learned counsel for petitioners convinced us that maintaining separate lists of seniority is the worst form of discrimination and superior courts of our country have repeatedly discouraged the same. We are reproducing relevant parts in full, of the judgments of superior courts, feeling impressed from the beautiful sentences used by the said courts, while giving findings on the topics very similar to the topic of case in hand. In this connection, learned counsel for petitioners submitted the judgment/order of Peshawar High Court that they have passed in connection with a case, Writ Petition No,1680 of 2012. For ready reference, we reproduce hereunder the relevant parts of views of the said court expressed in the said case:-
8. 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 then 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 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 directly 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.
9. 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,246/2008, titled, "Sajjad Haider Tareen, PDSP Quetta and others v. The Provincial Police Officer Balochistan Quetta" decided by the High Court of Balochistan Quetta on 23.04.2009, 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.
10. 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.
' Announced: ' 24.04-2013 ' Sd/- CHIEF JUSTICE ' Sd/- JUDGE ' Learned counsel for petitioners further relied on a decision of the Supreme Court of Pakistan, whereby, the apex court set aside orders of the Honorable Sindh High Court. For ready reference, we reproduce the relevant parts of the said judgment hereunder:- 71 We are clear in our mind that there should be common seniority of police Personnel serving in all the establishments to be maintained by District Police, the Range DIG and Central Police Office (C.P.O.) strictly as provided by the Rules in Chapter XIII, as discussed in Para 56 supra. Therefore, the Sindh Government and the competent authority under the Police Rules shall prepare the common seniority list of the Police Personnel serving in different establishments within three (03) months of the date of this judgment in terms of Police Rules and report compliance."
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76. For the reason stated hereinabove, we allow all these appeals and set aside the judgment of the learned Sindh Service Tribunal. It is expected from the Sindh Government and the Inspector General of Police, Sindh that the directives contained in this judgment shall be implemented in its letter and spirit without any undue delay and the seniority list of all the Police personnel belonging to any of the establishment created in terms of Rule 1.4 of the Police Rules, 1934 shall be prepared within the time stipulated in the judgment.
77. Copies of this judgment be sent through fax and otherwise to the Sindh Chief Secretary, Home Secretary Sindh, Inspector General of Police, Sindh and Advocate General Sindh, for their information and compliance."
7. Yet another very important case law that learned counsel for petitioners relied upon is the beautifully worded judgment of the High Court of Quetta. We have gone through the said judgment/order, wherein, even the words of PDSPs and DSPs have been used by the said learned High Court. It is important to note that petitioners are PDSPs. The circumstances of this case are very similar to the above referred case decided by the Quetta High Court. Learned judges of the said High Court have expressed their views in the case, C.P. No,246/08, Quetta. For ready reference, we reproduce hereunder the relevant part of the said judgment which goes as under:- "We have heard the learned counsel for parties and perused the record of case. The parawise comments filed on behalf of respondent No,1, revealed that the department is considering for issuing of a Joint Seniority list of DSPs and PDSPs and on our query, as to how the names of petitioners were deleted from the Seniority List, no satisfactory reply could be given.
' As observed herein-above, since no separate Rules have been framed therefore without framing separate Rules, the names of petitioners could not be deleted. On our query; as to whether, any such action of bifurcation of Seniority Lists has been taken in the sister Provinces, no answer was given. Since no separate Rules have been framed and department by deleting the name of petitioners from the Seniority List have acted without lawful authority, depriving the petitioners from their future promotion, thus the petition is allowed and respondent is directed to issue a Joint Seniority List."
8. As a result of above discussion, we are of the view that respondents have displayed the worst kind of disparity with the petitioners and the petition in hand merits to be accepted. We allow this petition throughout with direction to the respondents to maintain common C seniority list of petitioners and other PDSPs with DSPs of general cadre with effect from the date, i,e, 12-10-2010, and then process the promotion case of petitioners at par with DSPs of general cadre. This file be consigned to record.