YAHYA AFRIDI, J.--- Muhammad Zafar Ali and ten others, the petitioners, seek the Constitutional jurisdiction of this Court praying:-- "In view of the above it is prayed that the Hon'ble High Court may be pleased to allow this writ petition by directing the Provincial Government to take urgent steps to ensure the due and rightful promotions of Provincial Police Officers (BPS-18 to BPS-21) in view of Khyber Pakhtunkhwa Civil Servants Act, 1973, read with relevant provisions (Articles 240(b) and 142(b)) set out in Constitution of Pakistan and as in practice in all other departments of Khyber Pakhtunkhwa and, The application of PSP Rules to the Provincial Police Service Officers of Khyber Pakhtunkhwa Province, for the purposes of their promotion to BS-18 and above by the Federal Government may be declared unconstitutional, null and void and without any lawful authority, The Provincial Government of Khyber Pakhtunkhwa may be directed to induct Deputy Superintendents of Police in BS-17 directly against 30% BS-17 posts as is the practice in all other provincial civil service departments.
Any other relief deemed appropriate may also be granted."
2. Brief and essential facts, asserted by the petitioners in the present writ petition are that, the petitioners Nos,1 to 10 being qualified and eligible, were selected and appointed as DSP (BPS-17), on the recommendations of Public Service Commission, Khyber Pakhtunkhwa, Peshawar, in 1988, 1990 and 2001; that their appointment orders expressly stated that their services would be governed under the Khyber Pakhtunkhwa Civil Services Act, 1973; that the officers of the batches of 1988 and 1990 were due for promotion in the year 199d5-96, but were locked into litigation with promotee DSPs, which lasted for five years, and finally they were given their due right by the Provincial Services Tribunal. Consequently, fourteen officers were promoted after a delay of more than ten years, while six of these officers were promoted after nineteen years of service, which was blatantly against the law; that though all the officer cadre seats from BS-17 to BS-22 are created by the Khyber Pakhtunkhwa Province from its own resources and budget, yet there is no service structure of Provincial Police Officers beyond BS-18 at provincial level and are being forced to be appointed (en-cadred) in the ("PSP") Police Service of Pakistan cadre as per rule 11, (2) (c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules 1985 ("Rules"); that fourteen Provincial Police Officers of Khyber Pakhtunkhwa were en-cadred, vide Notification No,F.No,7/4/2007-E3 (Police) dated 11th December, 2007, in PSP; that the other PSP cadre officers, challenged the said Notification, which resulted in its cancellation, depriving them from their already availed seniority, the officers were again dragged into litigation for their seniority, resulting in wasting of another six years of their service; that as is done in the case of all other sister provincial departments, the Province has the authority to exercise its powers regarding promotions of its own officers against BS-18 and above, created in the Province from its own budget and resources and secure them from victimization and personal vendettas of PSP officers; that the Police Department has always been maintained out of provincial resources, for which the Government of Khyber Pakhtunkhwa spends more than Rs,26 billion per annum; that the Police is a provincial subject, and thus the promotions of the Provincial Police Officers by the Federal Government is illegal and unlawful; that the Police Order, 2002 has not been properly adopted by the Khyber Pakhtunkhwa Province in accordance with the provisions contained in Article 142 and Article 270 A A (6) of the Constitution; and finally the petitioners made several representations to the government, but in vain. Hence the present writ petition.
3. During the proceedings of the present petition, notices were issued to the Provincial and the Federal Government. They filed their separate comments in response to the assertion made by the present petitioners raising preliminary objections regarding the maintainability of the present petition and the jurisdiction of this Court to entertain the same, and also controverted the factual aspect raised by the petitioners. In conclusion both Provincial and Federal Governments prayed for the dismissal of the present petition.
4. Strangely enough, the Provincial Government through Home and Tribal Affairs Department filed their additional comments, wherein there was a departure from its earlier stance taken and there was a tilt in favour of the prayer sought by the present petitioners.
5. During the proceedings of the present case, Rab Nawaz, a Provincial Police Officer, who was yet to be encadred in the Police Service of Pakistan sought to be impleaded, as a petitioner in the instant petition, the same was allowed and he was impleaded as petitioner No,11.
6. Another set of 21 Police Officers, who had joined Police Service of Pakistan through the Civil Service Competition Examination conducted by the Federal Public Service Commission of Pakistan, also sought to be impleaded as respondents in the present petition and they were also allowed impleadment (hereinafter referred as added respondents) in the instant petition.
7. The worthy counsel for the petitioners vehemently argued the cause of the petitioners and also provided written submissions, which were in terms that; "(a) That it goes without saying that the law and order and Provincial Police Organizations do not figure in the Federal Legislative list nor were ever included in the erstwhile (deleted) concurrent list.
This was also held by Supreme Court vide its judgment in PLD 1985 SC 159 (Inspector General of Police Versus Mushtaq Warraich and others).
(b) That as per Article 142(c) of the Constitution, Police establishments of the Provinces are purely provincial matter, hence exclusively relate to the legislative domain/jurisdiction of the respective Provincial Assemblies, even the Parliament is debarred from exercising jurisdiction with regards thereto.
(c) That as per Article 240(b) of the Constitution, the appointments to and the conditions of service for posts in connection with affairs of the province shall be governed by or under act of the respective provincial assembly.
(d) That all police organizations in the provinces are purely provincial in character and are established and governed under the provincial police acts/orders (Police Acts and Police Order).
All these exclusively concern the affairs of the province concerned.
It is necessary to mention that the petitioners were appointed by the Provincial Government and their services were governed under NWFP (Khyber Pakhtunkhwa) Civil Servant Act, 1973, which pertains to the "Affair of the Province". The Federal Civil Servant Act pertains to the "Affairs of the Federation" and does not recognize the Civil Servants of a province. A Provincial Civil Servant can only serve in the Federal Government on deputation basis.
(e) The SRO 1033(1)/85 provides; "4 Cadre Strength,
(1) The cadre strength of the service shall be as specified in schedule
(2) The President, or a person authorized by him, in this behalf, may, from time to time, and in the case of posts in connection with the affairs of a Province after consultation with the Governor of the Province, remove from or include any post in the Schedule.
This provision is repugnant to Article 142(c) of the Constitution of Pakistan.
That all posts in BS-17 to BS-22 in the provincial police departments are created as per provinces' requirements for maintenance of provincial law and order and purely created out of the respective Police Budgets which are in turn allocated from the respective Provincial Budgets which are made out of the Provincial Consolidated funds (Article 118) of the provinces.
(t). That the Federal Government has no involvement nor does it contribute a single penny towards the creation of senior or junior posts in the provincial police departments nor towards the maintenance, establishment and running of the respective Provincial Police organizations in Provinces.
(g). That the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 were made on 23.10.1985 by the President in exercise of powers conferred vide Section 25 of the Federal Civil Servant Act, 1973, whereas as per Articles 142(c) and 240(b) these could not be made applicable to the Provincial police posts which are intrinsically concerning the "Affairs of the Provinces" hence beyond the jurisdiction/domain of the Majlis-e-Shoora (Parliament), let alone President.
(h). That post-1973 Constitution, every law, rule and regulation concerning services must be consistence with the Constitution-Article 241- whereas the PSP Rules, 1985 were notified on 23.10.1985 while Provincial Assemblies were in existence and there is nothing on record that proves the concurrence of the Provincial Assemblies vis-a-vis the ceding of entire control over the senior provincial Police posts (the then and future) to the Federal Government or Federal Establishment Division, therefore, the scope and application of PSP Rules, 1985 to the Provincial Police Departments and senior posts created therein is highly questionable and ultra vires to the Constitution.
(i). That Federal PSP officers appointed through initial recruitment in the ranks of Assistant Superintendent of Police (ASP) (BS-17) are appointed under the Federal Civil Servants Act, 1973, which only governs federally appointed civil servants and posts concerning the affairs of the federation.
That the Provincial Police Service officers in the rank of Deputy Superintendent of Police (DSP) (BS-1 7) are appointed/promoted and governed under their respective Provincial Civil Servants Acts and Deputy Superintendent of Police Service Rules, 1964 (amended in 1997) read together respectively Provincial Civil Servants (Appoihtment, Promotion and Transfer) Rules, 1973.
(k). That only the apportionment of the few Junior posts (BS-1 7) which currently stand at 7% of all provincially created posts in BS-17 and apportionment of all/entire (100%) BS-18 to BS-22 posts in the Khyber Pakhtunkhwa Police Department to the Federal Establishment Division is prima facie questionable and ultra vires of the Constitution.
(1). That as per Article 260, the term "Service" includes all services whether provincial and are defined/construed as Service of Pakistan and does? attribute any inferior status to the provincial posts or provincially appointed civil servants, including police officers.
(m).That the Article 25 of the Constitution guarantees equal protection of law to all citizens, (n).That the Article 27 of the Constitution guarantees against any discrimination in services except, affirmative action in the case of initial induction for the persons from any particular class or area to ensure their adequate representation in the service of Pakistan and that too for a limited time period, which is being extended by the parliament after every ten years through constitutional amendments.
(o). That Article 14 of the Constitution guarantees the inviolability of the dignity of the person; (p). That the Article 9 of the Constitution provides for the protection of life and liberty of every person except in accordance with law and this has been interpreted by the Honourable Supreme Court to include legitimate expectancy and right of promotion in service 2013 SCMR 1 752 (Contempt Proceedings against Chief Secretary Sindh and others dated 9th May 2013)
(q). That the Article 8 of the Constitution declares all laws shall be void in case if these are inconsistence or violate the fundamental rights guaranteed by the Constitution, the same has also upheld by the Honourable Supreme Court in its landmark judgment 2013 SCMR 1 752 (Contempt Proceedings against Chief Secretary Sindh and others dated 9th May, 2013)
(r). That it is strange that the PSP Rules; 1985 i,e, SRO 1033(1)/85, ultra constitutionally, prohibits and restrains the Provinces from making promotions against all the BS-18 and higher posts which are created by the Provinces themselves, whereas no such prohibition exists in any other service, i,e, Provincial Management Services, Judiciary and / or any other service.
(s). That the Provinces are otherwise making promotions in all other departments and services which are created and funded by them from their respective resources /budgets/ provincial consolidated funds, (t). That the Establishment Division vide paras 3 and 4 of Estt. Division D.0 letter No,1/1/73-ARC dated 10.11.1973 and Establishment Division, Notification No, SRO 1530(1)73, dated the 3rd November, 1973 abolished all quotas for the services in the other services and then the temporary retention was supposed to be set right and ultimately abolished. Hence, the said SRO 1033(1)/85 issued on 23.10.1985 is in contravention and violation of the initial Notification and all express provisions of the Constitution.
(u). That it is again quite ironical that persons promoted in BS-18 in the provinces through regularly constituted provincial selection boards and duly notified by the Provinces as Superintendents of Police (BS-18) are subjected to another scrutiny by the section officers in the Federal Establishment Division and inordinate delays and bottlenecks are imposed upon the career progression of the Provincial Police Service Officers by causing huge loss of genuine seniority.
(v). That ironically the number of BS-17 posts of ASPs have not altered since 1985, but their sharing of quota in senior posts (BS-18 to BS-22) has remained unaltered and therefore the same numbers at BS-17 are availing promotions against an extremely unnatural inverse "Pyramid"
(quadrupled) which is entirely at the phenomenal cost of denial of promotion rights to the Provincial Police Service officers against the provincially created posts.
(w). That ironically the Federal Establishment Division through encadrement is depriving the provinces of their highly trained, experienced and professional Provincial Police Service officers without giving these officers any commensurate share from the federal posts and evenhanded career progression opportunities.
(x). That under the current scheme of things the accumulation by Establishment Division of all senior cadre posts in the provinces has become highly questionable on the grounds that the Provincial Police Service officers from the smaller provinces are not getting promoted against the same number of posts created by their provinces in BS-19, BS-20, BS-21 and BS-22. In fact Officers from Khyber Pakhtunkhwa are crossly underrepresented in BS-2I, 20 and 19 vis--vis numbers of posts contributed by the Khyber Pakhtunkhwa and its provincial share in higher posts in the federally created posts in federal law enforcement agencies.
(y). That the promotion of the federally appointed PSP/CSS officers against the provincially created senior cadre posts in the provinces runs counter to any rationale or logic as well as judgment of the Supreme Court in the 2013 SCMR 1752 (Contempt Proceedings against Chief Secretary Sindh and others dated 9th May 2013) which held that the absorption of the federal officers against the provincially created police posts is unlawful, null and void.
(z). That as regards all other Federal Services/Federal Unified Grades where initial recruitments are made through the same Central Superior Services Competitive examination through FPSC, the initial inter se seniority amongst direct recruits and cadre officers is ascertained and determined at BS-17 level.
(aa) That Federal Government does not impose mandatory/ compulsory encadrement upon the cadre officers of the Federal law enforcement agencies like FIA and IB, who enjoy in-cadre promotion up to BS-21, whereas strength of both organizations is much less vis--vis provincial police organizations.
(bb). That in the case of Azad Jammu and Kashmir, except for appointment of the Inspector General of Police, the federal government does not interfere in any promotions up to the rank of Additional/Deputy Inspectors Generals of Police.
(cc) That post-18th Amendment the issues of continued conflict between Federal and Provincial Civil services are bound to create serious frictions impinging upon the smooth running of the state machinery and service delivery to the public, which is least affordable in the current fluid scenarios.
2. In the final analysis, the entire promotion and career progression mechanism at the Federal Establishment Division is working against the legitimate service rights and career progression prospects of the Khyber Pakhtunkhwa Provincial Police Services officers (as well as provincial police service officers from other provinces), notwithstanding they being original members of the Khyber Pakhtunkhwa Police Department are entitled to prior right over the same. It is an extreme case of matchless injustice vis-a-vis any other service in Pakistan, abroad or internationally. If Establishment Division continues with this policy this might lead to escalation and aggravation of the discrimination, deprivation and alienation and consequent weakening of the Federation and national integrity."
8. The worthy counsel representing the added respondents apart from raising preliminary objection regarding maintainability of the petition and the jurisdiction of this Court, also objected to the petitioners being estopped by their conduct to agitate their promotions under the Rules, as they had availed benefits thereunder and also concealed that the matter of their seniority had been resolved by the Apex Court in Muhammad Zafar Ali's case (2015 SCMR 365). The worthy counsel also in a very comprehensive manner traced the history of the law governing Police Officers in our country from pre-partition era. The same was also recorded in writing, which reads; "1. That SRO No,1033(I)/85 is neither ultra vires of the Constitution of Pakistan nor the Civil Servants Act, 1973; legal/factual position whereof is that Police Service of Pakistan (PSP) is all Pakistan Service as envisaged in Explanation to Article 240 of the Constitution of Islamic Republic of Pakistan, 1973, and it was constituted in 1950 as a service common to the Federation and the Provinces pursuant to decision taken by the Federation and the Federating units. This service was comprised of cadres on Provincial as well as Central basis.
2. That pursuant thereto, the Central Government in consultation with the Provincial Government framed Police Service of Pakistan (Probationary services) Rules, 1950, in exercise of powers conferred by Subsection (2) of section 241 of Government of India Act, 1935 as adopted by Pakistan Provisional Constitution Order, 1947. For facility of reference, section 241 of Government of India Act, 1935 is reproduced as under; "241. (1) Except as expressly provided by this Act, appointments to the Civil services of and civil posts under, the crown in India, shall, after the commencement of Part-III of this Act, be made;
(a) In the case of services of the Federation, and posts in connection with affairs of the Federation, by the Governor General or such person as he may direct;
(b) In the case of service of a province, and posts in connection with the affairs of a Province, by the Governor General or such person as he may direct;
(2) Except as expressly provided by this Act, the conditions of service of persons serving his majesty in a civil capacity in India shall, subject to the provision of this section, be such as may be prescribed.
(a) In the case of persons serving in connection with the affairs of the Federation, by rules made by the Governor General or by some person or persons authorized by the Governor General to make rules for the purpose;
(b) In the case of a person's serving in connection with the affairs of a province, by rules made by the Governor General of the province or by some person or persons authorized by the Governor to make rules for the purpose: Provided that it shall not be necessary to make rules regulating the conditions of service of persons employed temporarily on the terms that their employment may be terminated on one month's notice or less, and nothing in this subsection shall be constructed as requiring the rules regulating the conditions of service of any class of persons to extend to any matter which appears to the rule making authority to be a matter not suitable for regulation by rule in the case of that class..."
3. That the Government of India Act, 1935 was adopted by the Constituent Assembly of Pakistan as Provisional Constitution of Pakistan in 1947. The Government of India Act, 1935, and the Indian Independence Act, 1947, together with all enactments amending or supplementing those Act, were repealed by Article 221 of 1956 Constitution but the enactments promulgated by legislature under powers derived from the two constitutional instruments in relation to specified subjects were not affected by provisions of Article 221 and, hence, were continued in force. By virtue of Article 224 ibid, all laws including Ordinances, Orders in council, orders, rules bye-laws, regulations, notifications and other legal instruments in force in Pakistan or in any part thereof or having extraterritorial validity, immediately before the Constitution day were allowed to remain in force until altered, repealed or amended by the appropriate legislature or other competent authority.
4. That with the promulgation of constitution of 1962, Article 225 kept all existing laws alive. The terms "existing law" was explained in Sub-Article (7) of Article 225 as all laws including Ordinances, Orders-in-council, orders, Rules, Bye-laws, and regulations having the force of law.
5. That thereafter, Police Service of Pakistan (Composition awl Cadre), Rules, 1969, were made by the President in pursuance of proclamation of the 25th day of March, 1969, read with the Provisional Constitutional Order, and in exercise of all powers enabling him in that behalf and in supersession of all previous rules and orders made on the subject. Under Rule 4 (b) of the rules ibid, there was explicit provision for appointment of Provincial Police Officers in PSP up to one third of the member of Senior Cadre posts in that Province.
6. That the interim Constitution of Islamic Republic of Pakistan, 1972, through its Article 280(8) saved the existing laws including Rules made thereto. The Constitution of Islamic Republic of Pakistan, 1973, on 12.4.1973, again unequivocally saved the existing laws under Articles 268(7) and
241. Thereafter, in terms of the mandate given by Article 240 of 1973, of the Constitution, initially the Civil Servants Ordinance, 1973, was promulgated on 18.8.1973 and this Ordinance, after presentation in the Parliament, became the Civil Servants Act, 1973 on 29.9.1973.
7. That in view thereof, Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 have been made by the President vide SRO 1033(1)185 in exercise of powers conferred by Section 25 of the Civil Servants Act, 1973 (LXXI of 1973) by repealing Police Service of Pakistan (Composition and Cadre), Rules, 1969. It is thus abundantly clear that SRO 1033(1)185 is strictly in accordance with the Constitution of Pakistan and the provisions contained in the Civil Servants Act, 1973 and the same cannot be regarded as violative of Article 240 of the Constitution.
8. That the Police Service of Pakistan (PSP) derives its origin from Article 240 of the Constitution of Pakistan. It is all Pakistan Service which means a service common to the Federation and the Provinces. The conditions of service of persons of all Pakistan Service are governed by an Act of the Parliament, which in this case is the Civil Servants Act, 1973, In exercise of the powers conferred by Section 25 of the Civil Servants Act, 1973, Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 have been framed." (emphasis provided)
9. The worthy AAG for the Federation, raised a preliminary objection regarding the jurisdiction of this Court to entertain the present petition, as it involved the terms and conditions of service of the petitioners. He vehemently argued that Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), vested exclusive jurisdiction in the Federal Service Tribunal to decide all matters raised in the present petition and thus the jurisdiction of this constitutional Court was expressly barred.
10. In order to appropriately consider and decide this preliminary objection regarding the jurisdiction of this Court to entertain the present petition, it would be appropriate to first consider the true import of the Constitutional bar contained in Article 212, which provides that:- "212. Administrative Courts and Tribunals. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act [provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or (c)...............
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal."
(emphasis provided).
11. The aforementioned constitutional provisions commence with the non obstinate clause, reflecting the true intention of the law makers, which very forcefully bars the jurisdiction of all Courts, including this Constitutional Court, to entertain cases relating to terms and conditions of service, which can be decided by the Federal Service Tribunal or Provincial Services Tribunal (hereinafter collectively referred to as "Services Tribunals") under the Civil Servant Service Tribunal Act, 1974 and Khyber Pakhtunkhwa Services Tribunal Act, 1974 ("hereinafter collectively referred to as "Acts"). Thus, all cases, which cannot be adjudicated upon by the Service Tribunals under the Acts would be justiciable before this constitutional Court under Article 199 of the Constitution. In order to appreciate which cases can be dealt with by the Service Tribunals, it would be pertinent to review section-4 of the Acts. The said provision in Federal Services Tribunal Act, 1974, reads as under; "Appeal to Tribunals. Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal of the Tribunal having jurisdiction in the matter: Provided that:- (a)
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining;
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969."
12. In view of the above provision of the Act of 1974, the condition precedent for invoking the jurisdiction of the Tribunal are as under:- i. Civil servant is to be aggrieved of a final order; ii. The said order has to passed by the departmental authority; and iii. finally, the said order is to relate to terms and conditions of service of the aggrieved civil servant.
13. The issue relating to the jurisdiction of the Service Tribunals and the High Court in view of the bar imposed under Article 212 of the Constitution was initially taken up and explained in the authoritative judgment of this Court in Mian Amanul Mulk's case (PLD 1981 Peshawar 1) and the decision of full bench Court of the Sindh High Court in Abdul Bari's case (PLD 1987 Karachi 290). The Apex Court further clarified the said principle in Qamar Dost Khan's case (2006 SCMR 1630), and observed that; "There has not been such an order within the contemplation of section 4, which could be brought under challenge before the learned NWFP Service Tribunal. The relief claimed by the respondents through the appeals was in the nature of a command to the departmental authority to give them suitable posting. In essence, they were seeking issuance of writ of mandamus which jurisdiction the learned Tribunal did not possess."
14. The ratio decidendi of the aforementioned decision has been followed consistently by Constitutional Courts of our jurisdiction. In this regard, reference can be made to decision of this Court in Engineer Musharaf Shah's case (2015 PLC (C.S.) 215), wherein this Court had, while discussing the attributes of final order, being the condition precedent for invoking the jurisdiction of the Service Tribunals under the Acts, the challenge made to vires of Rules governing term and condition of service of a civil servant and order passed during departmental proceedings were explained in terms that; "It would be interesting to note that the apex Court has in some cases clearly vested the Tribunal with exclusive jurisdiction on matters relating to terms and conditions of a civil servant, wherein the impugned action or inaction of the departmental authority did net have a formal "final order"
Vires of Rules.
Service Tribunal was competent to adjudicate on the question of "vires" of rules framed by the department, even if the same were challenged on the basis of violating fundamental rights of the civil servant. The very rules were deemed to be the "final order". Cases in point are Iqan Ahmed Khurram's case (PLD 1980 SC 153) and I.A. Sharwani's case (1991 SCMR 1041).
Departmental Inquiry Proceedings.
A challenge was made to the enquiry proceedings before the Constitutional Court, where it was argued that as there is no "final order", the enquiry proceedings could be challenged before a Constitutional Court. The Apex Court in Abdul Wahab Khan's case (PLD 1989 SC 508), while dealing with matter held otherwise with the following observations: "Even without such observation, the petitioner is entitled to seek remedy in accordance with the law applicable to the tribunal concerned with regard to the filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with the relevant Service Tribunals Act. But the order impugned before the High Court vis-a-vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the tribunal".
The above principle has recently been further explained by this Court in Irian Aman's case (W.P No,68-P/2015), wherein it was reiterated that; "14. Now to the challenge made to rules on the touch stone of violating the Fundamental Rights of the civil servant and question of mala fide of the department are concerned, the Apex Court has also in this regard clearly laid down in lqan Ahmed Khurram's case (PLD 1980 SC 153). In the said case, rules relating to appointment were amended through a notification, which altered and enhanced the quota allocated to the inductees, and affected promotees challenged the same before the Apex Court, as it adversely affect their prospects of promotion to the higher post. The Apex Court addressed the issue in terms that: "As to the ground ,concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Government of the Punjab and others with which I agree.
This is a common grievance in the other two petitions and they would also be hit by the same bar.
We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal."
The Apex Court has expounded on the principle laid down in the aforementioned case, in I.A.
Sherwani's case (1991 SCMR 1041) in terms that: "9. From the above quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, aollow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order, original or appellate, passed by a departmental authority in respect of any terms and conditions of service."
"10From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' ease is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot byepass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights." (emphasis provided)"
15. In conclusion, it can safely be stated that for a Civil Servant in order to invoke the jurisdiction of the Services Tribunals under the Acts, he has to, inter-alia, challenge a final order passed by Departmental Authority. The challenge to vires of the rules and orders passed during the inquiry proceedings, have also been termed by the superior Courts to come within the purview of final order, and thus, challengeable before the Service Tribunal and not justiciable before the Constitutional Courts under Article 199 of the Constitution. The issue of challenge to vires of rules, would be more relevant to Prayer No,2 and thus, discussed later.
16.Now, let us consider each prayer sought by the petitioners so, as to decide, whether the same can be agitated and decided by the Service Tribunals under the Acts, and if so, then the said matter would not be justiciable before this Constitutional Court.
PRAYER NO.I "In view of the above it is prayed that the Hon'ble High Court may be pleased to allow this writ petition by directing the Provincial Government to take urgent steps to ensure the due and rightful promotions of Provincial Police Officers (BPS-18 to BPS-21) in view of Khyber Pakhtunkhwa Civil Servants Act, 1973, read with relevant provisions (Articles 240 (b) and 142(b)) set out in Constitution of Pakistan and as in practice in all other departments of Khyber Pakhtunkhwa."
17.When we review the above Prayer No,1, it is noted that it does not impugn a final order, which is a condition precedent provided in section-4 of the Acts for invoking the jurisdiction in the Services Tribunals. Now, when we apply the ratio decidendi of the judgments discussed hereinabove to this crucial fact, it becomes clear that the petitioners would not be able to seek this relief before the Services Tribunal. Accordingly, this Court would then have the jurisdiction to consider and decide this Prayer No,1 sought by the petitioners. Accordingly, the preliminary objection raised by the Federation regarding Prayer No,1 is thus repelled for the reasons stated above.
18.Now, to the particulars sought in Prayer No,l. In essence, the petitioners are seeking therein, the writ of mandamus for appropriate directions to the provincial government for ensuring the promotions of Provincial Police Officers from BS-18 to BS-21. Historically, the writ of mandamus could only be invoked by a Court of law, as explained by the Apex Court in Mehrajuddin's case (PLD 1959 SC (Pak) 147); "If there was a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice."
Presently, sub-Article (1)(a)(i) of Article 199 of the Constitution has embodied a right to an aggrieved person to seek the writ of mandamus in terms that:- "199. Jurisdiction of High Court. (I) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, -
(a) on the application of any aggrieved party, make an order-
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (emphasis provided)
19.Let us see if there is any law, which requires the Provincial Government to do what they have sought in this Prayer No,1; essentially their due and rightful promotion in BS-18 to BS-22.
20.As pointed out by the worthy counsel for the petitioners that the petitioners were appointed as Deputy Superintendent of Police in BS-17 and their appointment orders clearly provided that they shall be governed under the provisions provided in Khyber Pakhtunkhwa Civil Servants Act, 1973.
Reviewing the provisions of the said Act, it is noted that under section 26, the Governor has the authority to frame rules regarding terms and conditions of service, including those relating. to promotion of Provincial Police Officers, who are admittedly civil servants. It was also correctly pointed' out that other civil servants appointed, by the provincial government under Khyber Pakhtunkhwa Civil Servants Act, 1973, had appropriate rules regarding their promotion. Thus, as a case of first impression, there is apparently a stark discrimination meted out to the Provincial Police Officers, who are not provided the protection of promotion within the provincial set up, as is being provided to other civil servants appointed by the provincial government under the enabling provincial services regime.
21. When the worthy Additional Attorney General, representing the Federation was confronted with the aforementioned position of the petitioners, he responded by drawing the attention of the Court to Article 240(a) of the Constitution and contended that the petitioners along with other Provincial Police Officers, on reaching their due seniority in BS-18, are under rule 11 of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985, encadred into Police Service of Pakistan, which is an All Pakistan Service and thereafter, posted as Superintendent of Police (BPS-18) in different parts of Pakistan. To further supplement his contention, the worthy Additional Attorney General submitted the Report prepared by the Establishment Division of the Federation, which stated in terms that:- "According to Article 240 (a), Parliament can legislate on services of the Federation including All Pakistan Services. In terms of Article 240(b), the Provincial Assembly can legislate on the services of the Provinces only. As per explanation to Article 240 Police Service of Pakistan is an All Pakistan Service being in existence prior to the commencing day/promulgation of the Constitution. This bars the Provincial Assembly to legislate on Police Service of Pakistan.
2. After becoming part of PSP; these officers are entitled to be posted anywhere in Pakistan including other Provinces and Federal Government Organizations. As per practice, requisitions of PSP officers are received in Establishment Division and subsequently their NOCs/sparabilities are sought from the respective place of postings. Upon receipt of sparabilities, notifications for transfers are issued.
3. At present, thirty seven (37) Provincial Police Officers appointed in Police Service of Pakistan
(PSP) from Khyber Pakhtunkhwa Province are serving in different Provinces and Federal Government Organizations. History of their postings after appointment in PSP is at (Annex-I). After appointment of Provincial Pglice Officers into PSP, these officers are eligible for further promotions- to the higher ranks/grades in PSP on their own merits and seniorities.
4. At any given point of time, there can be 55 Provincial Officers out of a total of 137 senior posts of KP. Presently, 37 officers have been encadred into PSP. At present 17 officers out of 37 officers are posted out of the Province while the rest are still posted in the KP Province. Apart thereof, directly appointed PSP officers of KP and FATA have also been posted to Balochistan.
5. Rotation Policy of Establishment Division issued pursuant to the orders of Supreme Court of Pakistan is clear which had laid down categories of officers who have to serve out of the Province, (Annex-II). It is based on over all rotation of officers. Least Rotated Officers are transferred first according to this Policy. Amongst the officers appointed in PSP from KP Province, some officers got rotated and have not been transferred to Government of Balochistan/Gilgit-Baltistan. However, those who have never been rotated were due for transfer to Government of Balochistan in the light of Rotation Policy and their transfers have been made to that Province. Apart from above, officers appointed from other Provinces i,e, Punjab, Sindh, Balochistan, ICT and PRP have also been posted to other Provinces/Federal Government Organization." On the Court's query regarding the posting of encadred police officers to Provinces other than Balouchistan, another Report was submitted to confirm that the allocation of postings were not restricted to Balouchistan but that the same were extended to all other Provinces and that too was based on a rational policy of rotation. The Report reads:- "At present, one hundred sixty seven (167) officers (BS-18 to 20) appointed from the four Provinces, ICT and PRP are serving in PSP Cadre. Out of these officers, thirty (30) officers have served in other Provinces/Federal Government Organizations (other than Balochistan) besides the Province/Organization from where they were encadred/appointed in PSP, Province-wise details of above mentioned officers is as under; Sr.NoName of ProvinceTotal Officers appointedNo, of Officers who have served in Other Provinces/Federal Government Organizations (except Balochistan) besides the Province/Organization from where they were encadred/appointed in PSP 1 Punjab 58 08 2 Sindh 32 06 3 KPK 37 06 4 Balochistan27 06 5 ICT and.
PRP13 04 Total 167 30 Moreover, seventy five (sic) PSP officers are presently posted in Government of Balochistan (from BS-17 to BS-22) including Provincial Police Officers appointed/encadred in PSP. Scale-wise break of details is as under; Scale TotalNo, of Total No, of No, of No, of officers postedDirect PSP OfficersNo, of Encadred PSP Officers.Encadred Officers from BalochistanEncadred Officers from other Provinces.
BS-22 01 01 00 00 00 BS-21 03 03 00 00 00 BBS-2007 06 01 00 01 BS-19 17 09 08 02 06 BS-18 41 14 27 25 02 BS-17 07 07 00 00 00 Total 76 40 36 27 9
22. Now, to consider the response of the respondents, let us review Article 240 of the Constitution, which provides:- "Article.240. Appointments to service of Pakistan and conditions of service. Subject to the Constitution, the appointments to and the conditions of service of persons in the services of Pakistan shall be determined;
(a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament) and
(b) In the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation. In this Article, "All-Pakistan Services" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament)." (emphasis provided)
23. Federation, on the one hand is insisting that the terms and conditions of service of petitioners Nos,1 to 10 are governed by or under the Act passed by the Parliament under clause (a) of Article 240 of the Constitution, while the petitioners on the other hand, are contending to the contrary that, the same should be governed by or under the enactments of. Khyber Pakhtunkhwa Provincial Assembly as per clause (b) of Article 240 of the Constitution.
24. On closely reviewing clause (a) of Article 240 of the Constitution, it is noted that the following services have been expressly provided to fall under the legislative domain of the Parliament; I. Services of the Federation.
II. Posts in connection with the affairs of the Federation.
III. All Pakistan Services.
The Explanation to Article-240 of Constitution has clearly depicted All Pakistan Services to be a service common to the Federation and the Provinces, which was in existence immediately before 12.4.1973, the commencing day of the Constitution. All Pakistan Service has its origin recognized and protection provided under Article 183 read with Article 218 of the Constitution of 1956. Thereafter, the Constitution of 1962 also preserves All Pakistan Service by expressly preserving its essential features under the Articles 176 and 178 read with Article 242 ibid. And finally, Article 240 read with Articles 241 and 260 of the Constitution of 1973 continues to preserve and protect the mandate of the Parliament to legislate on matters relating to appointments and conditions of service of persons in the All Pakistan Service.
25. Police Service of Pakistan is admittedly an All Pakistan Service. - Now, tracing its origin and thereafter, following its development over time reveals that the process of encadrement of Provincial Police Officers into the Police Service of Pakistan has remained an integral part thereof. In this regard, the relevant particulars of its origin and development over the decades are as under; 11.3.1950.
Government of Pakistan, Ministry of Interior Home Division vide letter No,10/1/50-Police dated 11.3.1950 established the Police Service of Pakistan. The essential features of the service were stipulated as under;
(1) The name of the Service will be the Police Service of Pakistan (P. S. P)
(2) Recruitment to the Service will be made by the Central Government through the Pakistan Public Service Commission on all Pakistan basis.
(3) The cadres of the Service will be on Provincial basis as in pre-partition India and an officer once allotted to a province will be required to serve in that province for the whole period of his service
(6) 25% of the superior posts of the Service (called the listed posts) will be reserved for Provincial Police Officers, who on confirmation of their promotion will come on to the cadre of the Police Service of Pakistan. (emphasis provided)
31.8.1950.
Police Service of Pakistan (Probationary. Service) Rules, 1950. These Rules only applied to direct inductees by the Public Service Commission and thus, excluded its application to the encadred Provincial Police Officers.
26.11.1969.
Police Service of Pakistan (Composition and Cadre) Rules, 1969 ("Rules of 1969"). These Rules applied to both the Police Officers, who were appointed by the Public Service Commission and the encadred Provincial Police Officers. The salient features of its application and the process of encadrement of Provincial Police Officers was maintained therein in terms that; "2. In these rules, unless there is anything repugnant in the subject or context;..................
(d) "Service" means the Police Service of Pakistan constituted by the Ministry of the Interior (Home Division) letter No,10/1/50- Police, dated the 11th March, 1950, as a Service common to the Federation and the Provinces in pursuance of an agreement made under section 263 of the Government of India Act, 1935 (26 Gec. 5 c. 2), at the Prime Ministers' Conference held on the 27th December, 1949
4. (1) All appointments to the Service shall be made by the President;
(a) On the basis of the results of the competitive examinations held for the purpose by the Commission; and
(b) On the basis of selection made on the recommendation of the Governor and in consultation with the Commission from amongst the members of the Police Service of Pakistan; Provided that the number of appointment under clause (b) of the members of the Police Service of a Province shall not exceed one-third of the member of Senior Cadre posts in that Province.
Explanation. In this sub-rule, "senior cadre posts" means a cadre post shown as a senior post in the Schedule.
13.05.1975.
In Continuation of the Establishment Division O.M. No,2/2/75/ARC, dated 21.2.1975, it was decided to constitute another occupational group called the Police Group, which was to comprise of all Police posts in Grade-17 and above viz. ASP, SP, DIG, Addl. I.G, I.G, etc. The Police Group was to be under the administrative control of the Establishment Division. Encadrement of Provincial Police Officers was also provided therein, in terms that; "5. Appointments to posts in Grade 18 will be made by promotion of officers of Grade-17 of the Police Group and also of Grade-17 officers of the Provincial Police of the rank of DSP of requisite service and experience who are recommended by the Provincial Governments. Selection for appointment to posts in Grade-18 and above will be made on the recommendations of the Central Selection Board"
23.10.1985.
S.R.O. 1033(I)/85. In exercise of the powers conferred by section 25 of the Civil Servants Act, 1973 (LXXI of 1973), the President was pleased to frame The Police Service of Pakistan (Composition and Cadre) Rules, 1985. Some of the essential features were as under; "3. Change in nomenclature and composition.
(1) Notwithstanding anything contained in the All-Pakistan Services (Change in Nomenclature)
Rules, 1973, the Police Group in the All-Pakistan Unified Grades is renamed as the Police Service of Pakistan...................
11. Seniority; (1) The members of the Service referred to in clauses (a) and (b) of sub-rule (2) of rule 3 shall retain the same seniority as is shown in the gradation list as it stood immediately before the commencement of these rules.........
(c) Members of the police cadre of a particular Province selected in a year shall on appointment to the Service take seniority inter se as in the Provincial cadre and in keeping with that sequence, each such member shall reckon his date of regular appointment to the Service from the day the respective vacancy arose in the senior cadre posts reserved in that Province for such officers as specified in the schedule; Provided that, if the date of regular appointment of officers of two or more Provinces be the same, their seniority inter se shall be determined on the basis of their date of regular appointment to the post of Superintendent of Police.
12. The Police Service of Pakistan (Composition and Cadre) Rules, 1969, are hereby repealed.
(emphasis provided)
26.Now, canvassing through the above mentioned development of the Police Service of Pakistan over the last six and half decades, reveals that not only is the Police Service of Pakistan an All Pakistan Service, but that the process of encadrement of Provincial Police Officers into the Police Service of Pakistan has been consistently flowing through the applicable rules framed under enactments passed by the Parliament. What is also very striking to note is that the Rules of 1969, repealed by Rules of 1985, were provided a Constitutional cover under Article 241 of the Constitution of 1973 by expressly protecting and preserving all Rules and Orders, which were enforced immediately before 12.4.1973. Article 241 ibid reads; "Article-241. Existing rules, etc, to continue. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be the Provincial Government."
Thus, in view of the above Constitutional protection provided to the Rules of 1969, the encadrement of Provincial Police Officers into the All Pakistan Service of Police Service of Pakistan entailed therein was preserved, and only thereafter, repealed by Police Service of Pakistan, (Composition, Cadre and Seniority) Rules, 1985.
27. The command of sub-Article (a) of Article 240 of the Constitution is very clear that; any service, which is All Pakistan Service, would be governed by or under the enactment passed by the Parliament. In the present case, the worthy counsel for the petitioners has not disputed the fact that Police Service of Pakistan, comprising of Police Officers in BS-18 to BS-21 is an All Pakistan Service. Accordingly, it would be safe to state that the Provincial Police Officers on reaching BPS-18 enter the All Pakistan Services and thereafter, are to be governed under the Civil Servants Act, 1973 and the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. In the circumstances, the directions to the Provincial Government, as prayed for by the petitioners, would be of no legal avail.
28. Now, moving on to the contention of the worthy counsel for the petitioners that the Provincial Police Service has not been mentioned in the Federal Legislative List, and thus, would make the Police Service come within the purview of the Service of the Province, and posts in connection with the affairs of the Province. Accordingly, it was contended that then under clause (c) of Article 142, the Provincial Assembly of Khyber Pakhtunkhwa shall have the exclusive jurisdiction and mandate to pass laws regulating the terms and conditions including the promotions of the Provincial Police Officers.
29. To consider the above contention of the petitioners, let us now review the provision contained in Article 142 of the Constitution, it reads; "Article-142. Subject-matter of Federal and Provincial laws.
Subject to the Constitution.
(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List.
(b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence.
(c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List.
(d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province." (emphasis provided)
30. Reviewing the afore-stated constitutional provision, it is noted that the same commences with a restrictive clause; cautioning that the provisions contained therein is to be read subject to the other provisions of the constitution. However, despite this restrictive clause, the reading of clause
(c) of Article 142 as a whole, reveals a command couched in negative language by the use of words "shall not". This negative command to the Parliament to refrain from legislation on matters not stated in the Federal Legislative List is very clear and express.
31. Admittedly, the service of Provincial Police Officers or even Police Service of Pakistan have not been included in the Federal Legislative List, and it would, as asserted by the petitioners, appear that matters relating thereto would thus fall within the legislative domain of the Provincial Assemblies. This proposition, as forcefully argued by the worthy counsel for petitioners, is very attractive, if viewed in isolation to the other provisions of the Constitution, and in particular Article- 240 read with the definition of Service of Pakistan, as provided in Article 260 of the Constitution and entries 22 and 58 of the Federal Legislative List.
32.Let us trace the constitutional history of entries relating to Federal Service provided in the Federal Legislative List, in our three Constitutions. To start with, it is noted that entries 23 and 30 of the Federal List provided in the Fifth Schedule to the Constitution of 1956, provided for; Entry No, 23.
"Federal Services, and the Federal Public Service Commission; Federal Pension."
Entry No,30. "All matters which under the Constitution are within the legislative competence of Parliament, and matters incidental thereto."
The Constitution of 1962, having one Central Legislature, did not require the bifurcation of subject matters for legislation, as provided for in the Constitutions of 1956 and 1973.
While the Constitution of 1973 has provided in Entries Nos,11 and 58 of the Federal Legislative List, matters relating to Federal Service, in terms that; Entry No,11 "Federal Public Services and Federal Public Service Commission."
Entry No,58.
"Matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation."
33.What emerges from the above is that, Article 142 of the Constitution is commanding the Parliament not to pass any legislation regarding any Provincial Police Officer, as it is not enumerated in the Federal Legislative List, while Article 240 ibid is mandating the Parliament to legislate on matters relating to appointments and conditions of service of persons in All Pakistan Service, which includes not only the Officers of the PSP but also the encadred Provincial Police Officers in BS-18 to BS-21. The apparent divergence is reconciled, when we closely read Entries Nos,11 and 58.
34. To consider and finally determine the contention of petitioners, this Court will have to keep in mind that, while interpreting apparently divergent Constitutional provisions, the principles of interpretation are to be more guarded to ensure harmonizing, and preserving every provision in the Constitution. In this regard, the Apex Court in Shahid Nabi Malik's case (PLD 1997 SC 32) has provided to us important guidelines to follow. The same are in terms; "It is well established principle that while interpreting a Constitutional provision it must be remembered that a Constitution unlike a statute cannot be changed or amended frequently. A document of such a basic nature is not merely the imprisonment of past but is also alive to the future aspiration and need of the nation. Therefore, while interpreting a Constitutional document it must be read and considered as a whole to discover the true intention of its framers. It is for these reasons that no redundancy, surplusage, absurdity or inconsistency can be attributed to the framers of the Constitution. The rule of harmonious interpretation provides that the Court while literally interpreting a provision of the Constitution notices apparent inconsistency as a result of such construction with another provision of the Constitution on the same subject, it may not follow the grammatical and literal construction of the words and adopt a construction which would harmonise the two apparently conflicting provisions and make their working purposeful and in accordance with the intention of Legislature. The rule of harmonious interpretation in case of conflict was stated by the Supreme Court of India in the case of M. Pentiah v. Veeramallappa (AIR 1961 SC 1107), as follows; "Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence...."
In the case of Union of India v. Sankalchand AIR 1977 SC 2328, the Indian Supreme Court while quoting the above mentioned passage with approval, stated the rule of harmonious interpretation in the event of incompatibility between the two provisions of the Constitution in these words; "11. The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. Lord Ried in Westminster Bank Ltd. v. Zang, 1966 AC 182, observed that "no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in Act." Applying such a rule, this Court observed in S.Narayanaswami v. G. Panneerselvam, AIR 1972 SC 2284 at p.2290 that 'here the statute's meaning is clear and explicit, words cannot be interpolated.' What is true of the interpretation of an ordinary statute is not anytheless true in the case of Constitutional provisions, and the same rule applies equally to both. But if the words of an instrument are ambiguous in the sense 11.ot they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction."
The Apex Court in Sabir Shah's case (PLD 1994 SC 738) had earlier in addition to the above guidelines for interpreting Constitutional provisions provided that; "It is well established principle of interpretation of statutes and constitutional instrument that the same are to be construed in a manner which may organize the various provisions of the statutes or of the Constitutional instrument and may not cause any conflict or may not render any other provision in operative or redundant(per dicta of Ajmal Mian, J, as he then was). It is well established principle of interpretation that if an act contains two separate provisions dealing with two distinct situations, each provision operates in its allotted field independently (as per dicta of Saad Se ud Jan ACTG. CJ)" (addition made)
Similarly, Lord Herschell LC in regard to conflicting provisions in the same Act, coined the principle of "construction as a whole" in terms that; "You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other."
35. Keeping in view the ratio decidendi of the above celebrated judgments, it would be safe to deduce the following principles in interpreting Constitutional provisions; i. Unlike other instruments, Constitutional provisions cannot be changed or amended frequently. ii. Constitutional provisions are not to be slaves of the past and are to be read with the changing circumstances as a living organism. iii. Constitutional provisions is to be read as a whole, to discover the true intention of the law makers. iv. Constitutional provisions cannot be declared redundant, absurd or inconsistent. v. Constitutional provisions, if found to be apparently inconsistent with each other, then grammatical and literal construction of the words are not to be adopted, and instead the same are to be interpreted in order to harmonise the apparently conflicting provisions and to render its application purposeful and in accordance with the intention of the law makers. vi. Constitutional provisions, when they deal with two distinct situations or matters, then each provision is to operate in its allotted field independently. vii. Subject to the above guidelines, what is true of the interpretation of the ordinary statute is not anytheless true to the case of Constitutional provisions and the same rules apply equally to both.
Now, let us consider the contended divergent commands emanating from Article 142 and Article 240 of the Constitution. The core issue in hand is that; whether the Provincial Police Service, which has not been expressly provided in Federal Legislative List, can be dealt with by or under the act of the Parliament.
36. When we read Article 142 of the Constitution in juxtaposition with Article 240 read with the definition of Service of Pakistan provided in Article 260, and Entries Nos,11 and 58 of the Federal Legislative List, the position that emerges is contrary to the contention of the petitioners.
37. To start with, it is noted that the term Service of Pakistan, as defined in Article 260 of the Constitution, provides for; "any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service" (emphasis provided)
Thus, keeping in view the above definition of Service of Pakistan provided in the Constitution, it is noted that the same also includes any office, post or service in connection with a Province.
Accordingly, the said term would also bring within its purview the Provincial Police Officers appointed by the Provincial Government. This leads us to a more fundamental fact that the Provincial Police Officers up to BPS-17 are not dealt with by or under the Federal Service Laws. It is only when these worthy Officers are ripe for promotion to BPS-18 that they enter (encadred into) the Federal Public Service, and only thereafter, their services would come under the Federal Service regime, provided in Entry No-11 and the legislative domain provided under Entry No,58 of the Federal Legislative List. As far as their endcadrement into Federal Public Service is concerned, the same is not something novel introduced by Article 240(a) of the Constitution. In fact, it is a consistent service practice, which dates back to pre-partition days and as explained earlier, has been given Constitutional recognition by all three successive Constitutions.
38. Even if this Court applies the principle of "construction as a whole" to the Constitution of 1973, the situation that emerges is that Provincial Services and Federal Services are not only distinct services but are also kept separate, with their distinct allocated realm of administrative fields.
However, certain services, which are common to both, the Federation and the Provinces, such as All Pakistan Services, their mandate for appointments and other conditions of service, have been expressly vested in the jurisdiction of the Parliament.
39. When in the wisdom of the law makers, the legislative domain over the appointment of and terms and conditions of service of members of All Pakistan Service has been specifically, under clause (a) of Article 240 of the Constitution, vested in the Parliament, then the general legislative powers distributed amongst the Federal and the Provincial legislative bodies, would surely not impose upon the more special provisions provided in the Constitution, as is expressly protected and preserved under Entry No,58 of Federal Legislative List. Even otherwise, if this contention of the petitioners is accepted, then the command of clause (a) of Article 240 would become redundant.
As discussed earlier, it is a cardinal principle of interpretation of Constitutional provisions that there can be no redundancy of Constitutional provisions, each and every provision has to be given its due and appropriate weight, and that too in its appropriate field.
40. Thus, in view of clear provision of Article 240 of the Constitution explaining the peculiar attributes of All Pakistan Service, and vesting the legislative domain thereon in the Parliament, and this being appropriately backed by the general Entry No,11 and the particular Entry No,58 of the Federal Legislative List. This being the position, it would be fair to say that the commands emanating from Article 142 of the Constitution are not in conflict with those provided for in Article 240(a), and in fact, both provisions can prevail, without either circumventing the other. The jurisdictional domain of each legislative organ is not only clear but well defined and thus, cannot be stated to be in conflict with each other.
41. This Constitutional Court also considered the rule laid down in Wood v. Riley (1867) LR 3 CP-26, which is more commonly known as the rule, "where the last must prevail". Simply, this principle of interpretation of statutes provides that in an enactment where different provisions relating to one subject matter are provided then the latter would prevail in its application. Thus, according to this principle of interpretation of statutes, as Article 142 of the Constitution is followed by Article 240, the latter shall override the former. There are precedents of application of this principle of interpretation of statutes to provisions contained in ordinary legislation. However, the application of this principle of interpretation to Constitutional provisions cannot be approved, as by doing so, the earlier Constitutional provision would be hit by the Redundancy Rule. This declaration of redundancy of a Constitutional provision cannot be allowed. Even in other jurisdictions, this principle has now lost its efficaciousness. In this regard, it is noted that, Nicholls LJ in Re: Marr and another (bankrupts) case (1990 2 All ER 880), has declared this rule of interpretation to be obsolete, in terms that; "such a mechanical approachis altogether out of step with the modern, purposive, approach to the interpretation of statutes and documents."
42. What is striking to note is that Entry No-58 of the Federal Legislative List, clearly stipulates for matters, such as All Pakistan Service, which under Article 240 of the Constitution are within the legislative competence of the Parliament. This entry in the Federal Legislative List completely nullifies the contention of the petitioners for there being any conflicting commands emanating from Articles 142 (c) and 240 (a) of the Constitution.
43. Thus, viewed from all angles, this Court is not in consonance with the line of arguments expounded by the learned counsel for the petitioners for their being conflict between two Articles of the Constitution and in particular that Police Service of Pakistan having not been provided in the Federal Legislative List.
44. In conclusion, as far as Prayer No,1 of the present petition, this Court is of the view that petitioners Nos,1 to 10 are PSP Officers and being Officers of All Pakistan Service, are to be governed by the Civil Servants Act, 1973 and Police Service of Pakistan (Composition, Cadre and Seniority)
Rules, 1985. Thus, no direction in this regard could be made to the Provincial Government for their promotion to the higher grade.
45. As far as Rab Nawaz, petitioner No,11, the young respected Provincial Police Officer, who seeks to have an independent Provincial Police Service within the Province of KPK, it is noted that his prayer cannot be acceded to by this Constitutional Court. Any direction for framing Rules for Police Officers in BS-18 to BS-21 under the Khyber Pakhtunkhwa Civil Servant Act, 1973, would in fact result in creating a parallel Provincial Police Service, and thereby infringe upon the spirit of the All- Pakistan Service, as provided under sub-Article (a) of Article 240 of the Constitution. This would on the face of it, be ultra vires and without lawful authority. At this stage, it would also be pertinent to note that a similar attempt was made by the Province of Sindh to introduce an enactment relating to appointment, absorption and seniority of the Provincial Police Service, which when found by the Apex Court to be in violation to the spirit envisaged under Article 240 of the Constitution, was struck down in the celebrated case of Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752), in terms; "The impugned legislation on deputation is violative of the service structure guaranteed under Articles 240 and 242 of the Constitution which provides mechanism for appointments of Civil Servants and their terms and conditions as envisaged under Act of 1973 and the rules of 1974 framed thereunder. The object of the Act of 1973 is to maintain transparency in appointments, postings and transfers of Civil Servants, whereas deputationists who otherwise are transferred and appointed by the Sindh Government under the impugned instruments have destroyed the service structure in Sindh and has blocked the promotions of the meritorious civil servants in violation of the fundamental rights guaranteed to them under Articles 4,8,9,25,240 and 242 of the Constitution, as discussed hereinabove and are liable to be struck down."
PRAYER NO.2.
The application of PSP Rules to the Provincial Police Service Officers of Khyber Pakhtunkhwa Province, for the purposes of their promotion to BS-18 and above by the Federal Government may be declared unconstitutional, null and void and without any lawful authority."
In essence, the petitioners are seeking to strike down the authority of the Federal Government to promote the petitioners, and thereby in effect challenging the vires of Police Service of Pakistan (Composition Cadre and Seniority) Rules, 1985. As discussed earlier, it is by now settled that the constitutional Court lacks the mandate to strike down rules relating to terms and conditions of service of a Civil Servant, even if the challenge is made on the touchstone of violation of the fundamental rights enshrined under the Constitution.
46.In view of the clear constitutional bar provided under Article 212, this Court lacks the jurisdiction to issue the writ sought by the petitioners in their prayer No,2.
PRAYER NO.3.
The Provincial Government of Khyber Pakhtunkhwa may be directed to induct Deputy Superintendents of Police in BS-17 directly against 30% BS-17 posts as is the practice in all other provincial civil service departments.
In the first place, the present petitioners cannot be termed as aggrieved persons to invoke the jurisdiction of this Court under Article 199 of the Constitution to seek this prayer, as they are already Civil Servants. However, the Provincial Government may consider the prayer sought by the petitioners, as induction of DSP in BS-17 comes within the Police Service of the Province.
47. Before parting with this Judgment, this Court during the proceedings observed with grave concern that the petitioners were perturbed by their present disposition. The Police Officers serving in Khyber Pakhtunkhwa have selflessly protected the populace, despite the persistent waves of terrorism and in doing so rendered grave sacrifices. Thus, they deserve the Governmental attention. Both, Provincial and Federal Governments, have to render them parental attention to constructively address their grievances. Constitutional Courts can refuse relief on the ground of jurisdiction, but the Government has to ensure a transparent and conducive service environment.
Without naming the petitioners, lest it may adversely affect their service, some of them were even ready to forgo their seniority in BS-19 to be reverted back to the care and administrative control of the Provincial Government. This Court, thus, expects the Provincial and the Federal Government to convene a high power joint meeting to meaningfully consider afresh the present grievances of the petitioners. While, doing so, it may also address the allocation of placements/seats of the Provincial Police Service in PSP and the status of Khyber Pakhtunkhwa as a "hard area". The report thereon be submitted by the worthy Secretary Establishment Division, Government of Pakistan, within a period of 30 days, if not earlier, from the date of the receipt of this order, to the Additional Registrar (Judicial) of this Court.
Accordingly, for the reasons stated hereinabove, this petition is dismissed, in the above terms.