This is a writ petition filed by Turaj Ahmad Khan, petitioner, for the quashment of the order of the Deputy Inspector-General of Police, Multan Range, respondent, dated I-3-1980 ordering that departmental action should be taken against the petitioner.
2. The brief facts relating to this case are that the petitioner along with other police officers was tried under Martial Law Regulation No. 16 of 1969. The allegations against the petitioner under the aforesaid Martial Law Regulation were not proved and, therefore, he was discharged. The petitioner made a statement under section 342, Cr. P. C. In the aforesaid case as an accused in defence. The said statement was made by the petitioner during the course of proceedings against him, which was held by the President of the Summary Military Court as false and thus the petitioner was convicted under Martial Law Regulation No. 27 of 1969, for allegedly making a false statement. The petitioner was consequently convicted and sentenced to one year's R. I. By the Summary Military Court on 7.6-1969. It was due to the aforementioned conviction that the services of the petitioner were terminated.
3. A Mercy Petition was submitted by the petitioner before the then Governor of the Punjab, who granted pardon to the petitioner. After the grant of pardon the petitioner along with other police officers, was re-instated with retrospective effect in service i.e. 27-6-1969.
4. Subsequently, the Department of Police sought advice from the Government with regard to the regularization of the intervening period between the date of conviction and order of re- instatement.
5. The Government of the Punjab, by its letter dated 21-9-1974, addressed to the Inspector-General of Police, Punjab, intimated that the grant of pardon, whether in respect of an offence committed under the Pakistan Penal Code, a local or special law or a Martial Law rule or regulation, nullified the effect of conviction and the civil servant concerned had to be re-instated in service w.e.f. The date of dismissal/removal/suspension which may have already been ordered in his case. Since grant of pardon did not affect the facts of the case, the competent authority could, on the merits of each case, take appropriate action under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960. It was stated that such an action would be independent of the trial and must be initiated and completed accordingly. As regards the question whether such a case would be covered by clause (a) or clause (b) of rule 347 of the C. S. R. (Punjab), Vol. X, Part X, the competent authority was directed to take decision in its discretion keeping in view the facts and circumstances of each case.
6. In accordance with the advice received from the Government, the Inspector-General of Police, Punjab, authorised the Superintendent of Police, Sahiwal, vide his letter dated 10-10-1974 to decide the petitioner's case with regard to the regularization of his service. In compliance with the directions of the Inspector-General of Police, the Superintendent of Police, Sahiwal, passed the following order on 5-2-1975 :- "No departmental action should be instituted against Turaj Ahmad, S. I and H. C. Barkat Ali No. 1058/741. The intervening period should be treated as on duty."
7. After the passing of the aforesaid order, the Superintendent of Police, Sahiwal, sent an intimation to the Deputy Inspector-General of Police, Multan Range, Multan. The then Deputy Inspector- General of Police, Multan Range, Multan, agreeing with the aforesaid order passed by the Superintendent of Police, Sahiwal, in early 1976 confirmed the petitioner in the rank of A. S. I. Of Police w.e.f. 1-3-1968 and also ordered admission of the petitioner's name in promotion list 'E' w.e.f.
28-5-1971, vide his order dated 14-3-1976. So far as the promotion and confirmation of the petitioner for the post of Sub-Inspector of Police was concerned, it was observed in the said letter by the Deputy Inspector-General of Police that the petitioner's case would be considered after passing the upper senior course according to the seniority on list 'E'.
8. The petitioner was selected for the upper School course. He passed the said course and thereafter he submitted a representation to the Deputy Inspector-General of Police, Multan Range, Multan, praying therein for the grant of due seniority according to list 'E' granted to him in the year 1971.
9. Instead of deciding the representation of the petitioner on merits with regard to the seniority, the Deputy Inspector-General of Police, Multan Range, illegally opened the departmental case against the petitioner by setting aside the order dated 5-2-1975 passed by the Superintendent of Police, Sahiwal, who was the competent authority under the rules, and directed the Superintendent of Police, Sahiwal, to take Departmental proceedings against the petitioner. Being aggrieved by the said order, the petitioner preferred a writ petition in this Court which is now before me for disposal.
10. It is contended on behalf of the petitioner that once the Superintendent of Police, Sahiwal, who was the competent authority took a final decision in the petitioner's case on 5-2-1975 that no departmental action should be initiated against the petitioner and that the intervening period should be treated as on duty, which decision was communicated to the petitioner and acted upon later by the Police Department, the Deputy Inspector, General of Police, Multan Range, Multan, respondent, could not review- the said order.
11. On behalf of the respondent, Mr. Khalil Ramday, Assistant Advocate-General, Punjab, submitted that since a show-cause notice had been issued to the petitioner on 17-8-1980 to show cause as to why action should not be taken against him for the misconduct as stated therein, that the petitioner could raise whatever necessary objections he desired, in reply to the said show-cause notice. The learned A. A.-G. Submitted that since the petitioner has an alternate remedy, the present writ petition was incompetent.
12. After the arguments were addressed in this case by both the learned counsel, it was mutually agreed that this petition should be admitted and also decided, as both the learned counsel had made whatever necessary submissions they had desired to make in the case. Accordingly, this writ petition was admitted and will be disposed of as such. ,
13. The brief facts of the case as stated above are not disputed by the learned counsel for the petitioner and the learned A. A.-G. Appearing for the State. According to the Government policy letter dated 21-9-1974, it was left to the competent authority to decide on the merits of each case whether to take disciplinary action against a person who had previously been granted pardon by the Governor in respect of the conviction recorded inter alia by the Martial Law Court. The case of the petitioner was put up by the office before the Superintendent of Police, Sahiwal, as to whether departmental action was to be taken against the petitioner and whether his intervening period should be treated as on duty. On 5-2-1975, the Superintendent of Police, Sahiwal, ordered that no departmental action should be taken against the petitioner and that his intervening period should be treated as on duty. In pursuance of that order, the Deputy Inspector --General of Police, Multan, on 14-3-1976 confirmed the petitioner in the rank of Assistant Sub-Inspector w.e.f. 1-3-1968 and his name was included in the list 'E' w.e.f. 28-5-1971. It cannot be denied that by this action the order of the Superintendent of Police, Sahiwal, dated 5-2-1.975 took legal effect and was acted upon by no less a senior officer than the Deputy Inspector: General of Police himself, who granted the petitioner the rights falling due to him by virtue of that order, and that the petitioner having been informed of the said two orders, a vested right accrued to the petitioner which could not be withdrawn or rescinded to his detriment. The powers of a superior officer of the police force to initiate departmental proceedings against a member of the police force who is under his jurisdiction, is provided by rule 16.23 of the Punjab Police Rules, 1934. The powers of such an officer to add to, amend, vary or rescind that order is implicit; by virtue of section 20 of the W. P. General Clauses Act, 1956. The Punjab Police Rules, 1934, do not provide a power of review; though power of revision, subject to further investigation, is provided by rule 16.28. (See D. L-G. Police v. Ch. Gulzar Ahmad 1973 SCMR 24However, where an order passed ` a senior police officer is communicated to the ,person affected by it and the order has also been acted upon so as to grant to such person a vested right, the said order, if it is not subject to revision under rule 16.28, cannot be revised, as Government in such a case has no locus poenitentiae. In the instant case, the order of the Superintendent of Police, Sahiwal, dated 5-2-1975 was communicated to the petitioner. It was acted upon by the Deputy Inspector-General of Police, Multan Range, Multan, himself, so as to grant to the petitioner certain vested rights flowing from the said order. This order was also communicated to the petitioner. The petitioner continued to enjoy the fruits flowing from the said order for more than three years. The order of the Superintendent of Police, Sahiwal, dated 5-2-1975 is not subject to revision under rule 16.28 of the Punjab Police Rules. The Deputy Inspector-General of Police cannot now recede from the earlier position and set aside the order of the Superintendent of Police. If any authorityis required for this view Pakistan v. Muhammad Himayat Ullah PLD 1969 SC 407may be cited. The order of the Deputy Inspector-General of Police, Multan Range, Multan, dated 1-3-1980 directing that the departmental enquiry should be held against the petitioner is, therefore, not only illegal but also one passed without lawful authority.
15. For the foregoing reasons, this writ petition is accepted and the order of the respondent dated 1- 3-1980 is declared as illegal and one having been passed without lawful authority and consequently having no effect.
16. There shall be no order as to costs.