MUZAMIL AKHTAR SHABIR, J. Through this Constitutional Petition, petitioner Noman Amanat Advocate has challenged the appointment of respondent No.3 Sardar Ali Khan, Provincial Police Officer Punjab Lahore, who earlier was holding the post of Additional Inspector General of Police Punjab.
2. It is contended by the learned counsel for the petitioner in this constitutional petition that the said respondent was not appointed as Provincial Police Officer by following the procedure prescribed under Article 11 of the Police Order, 2002 and has made the following prayer:- "PRAYER: Under the above-mentioned circumstances, it is, most respectfully prayed that a writ of co- warranto may very kindly be issued by asking the respondent No.2 under what authority he. is holding the office of Provincial Police Officer, in the supreme interest of justice.
It is further prayed that the respondent No.4 may kindly be directed to recommend the panel of three police officials who are having the qualification of Inspector General of Police, in accordance with Articles 11 and 2, sub-clause (xvii) of Police Order, 2002.
It is also prayed that during the pendency of instant writ petition, operation of Notification No.F.No.12(16)/90-E3(Police), dated 07.09.2021 may kindly be suspended and respondent No.2 may graciously be restrained from exercising the powers of Provincial Police Officer Punjab in any manner whatsoever.
Any other relief which this Hon'ble Court deems fit and proper may also be granted."
3. The main contentions raised by learned counsel for the petitioner in support of his afore-referred prayer is (i) the procedure provided under Article 11 of the Police Order, 2002 has been violated; (2)
Provincial Police Officer is defined in Article 2 (1) (xvii) of the Police Order, 2002, which provides that Provincial Police Officer is to be head of the police of a general police area of the rank of Inspector General of Police posted under Article 11 and the respondent No.3 being of the rank of Additional Inspector General of Police is not qualified to hold the same. Further it has also been claimed that only officer of BS-22 could be appointed as Provincial Police Officer whereas respondent No.3 is an officer of the rank of basic scale 21 and is not authorized to be appointed. It is moreover stated that Inspector General of Police is to be appointed by the Government of Province and not by the Federal Government whereas in the instant case, the respondent No.3 has been appointed as Provincial Police Officer by the Federal Government, therefore, autonomy of the Province has been adversely affected.
4. The respondent No.3 in his capacity as respondent No.2 i.e. Provincial Police. Officer has replied to the afore-referred petition by stating that he has been appointed as Provincial Police Officer in his own pay and scale by the Government of Punjab Establishment Division after approval from the Federal Cabinet. Where after, he called upon the. Chief Minister of the Punjab and with his permission and approval, assumed the charge of Provincial Police Officer on 08.09.2021 The Government of the Punjab S&GAD vide Notification No.SO(S-II)PF/529/PSP dated 15.09.2021 has endorsed the charge assumption report of the said respondent as Provincial Police Officer. Further, it is stated that neither the Police Order, 2002 nor the Police Act, 1861 or the Police 'Rules, 1934 prescribe that only a Grade-22 Officer could be appointed as Provincial Police Officer and various other officers prior to the petitioner holding BS-21 were appointed to the post of Provincial Police Officer. Further states that the Inspector General of Police is a post and not a rank, therefore, any person holding the office of Provincial Police Officer would automatically hold the post of Inspector General of Police and the appointment of the petitioner is administrative matter and not violative of any fundamental right of the petitioner or any other person having been made on the discretion of the appointing authority. Further it is claimed that the term "Inspector General of Police" appears in section 4 of the Police Act, 1861 wherein it is stated that "administration and superintendence of police shall vest in an officer to be styled the Inspector General of Police" which post has been predesignated under the Police Order 2002 as "Provincial Police Officer" by Article 2 (1)(xvii) of the Police Order, 2002.
5. Learned AAG, under instruction, states that the respondent No.3 was appointed with the approval and in consultation with the Provincial Government after due deliberations and there is no defect in his appointment. Further states that the petitioner has placed reliance upon the appointment letter only whereas the process culminating into the same relates to internal working of the Federal and Provincial governments which is not usually disclosed while issuing appointment letter, hence, the stance taken by the petitioner that Provincial Government was not consulted before making the said appointment is without any basis. Moreover states that the purpose of recommendation of three names for appointment is that the Provincial Government may appoint a person of its own choice by selecting anyone of them and where the Federal and Provincial Government in consultation with each other have appointed the respondent No. 3 with consensus the same amounts to substantial compliance of Article 11 of Police Order, 2002, furthermore, the reply submitted by the respondent No.3 in his capacity of respondent No.2 be considered as reply of all the respondents.
6. Learned counsel for the petitioner at the stage, states that this court under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 can issue writ of quo-warranto on application of any person requiring the respondent to show under what authority of law he claims to hold the office of Provincial Police Officer when neither procedure prescribed under Article 11 of the Police Order, 2002 has been followed nor the respondent No. 3 prior to his appointment as Provincial Police Officer was of the rank of Inspector General of Police. Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") is reproduced below for the purpose of reference:- "199. Jurisdiction of High Court(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a)_____________
(b) on the application of any person, make an order--
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
7 The Article 11 of the Police Order, 2002 is reproduced below:-
11. Posting of Provincial Police Officer, Capital City Police Officer and Head of Federal Law Enforcement Agency.---(1) The Provincial Government shall, out of a panel of three police officers recommended by the Federal Government, post a police officer of the rank of Inspector General of Police as Provincial Police Officer of the Province: Provided that before' a police officer is posted as Provincial Police Officer under clause (1), the Federal Government shale place his services at the disposal of the Provincial Government.
(2) The Federal Government in the case of Islamabad Capital Territory and the Provincial Government in the case of Capital City District shall post a police officer not below the rank of Additional Inspector General of Police as Capital City Police Officer out of three officers recommended by the National Public Safety Commission, or on the recommendation of the Provincial Police Officer, as the case may be.
(3) The Federal Government shall, out of a panel of three suitable police officers recommended by the National Public Safety Commission post head of a Federal Investigation Agency, Pakistan Railway Police, Pakistan Motorway and Highway Police and Frontier Constabulary.
(4) During temporary absence of the police officers mentioned under clause (1) and clause (2) the next senior officer may exercise all or any of the powers, perform all or any of the-functions and duties, and discharge all or any of the responsibilities of the Provincial Police Officer, or Capital City Police Officer, as the case may be.
(5) The Provincial Police Officer, posted under clause (7) shall have administrative and financial powers as ex-officio Secretary to the Provincial Government and. other powers under this Order, or any other law for the time being in force and Islamabad Capital City Police Officer posted under clause (2) shall have the same administrative and financial powers.
(6) Subject to job description of each post under the rules, the police officers mentioned in clauses (1) and (2) may, by a general or special order, empower any officer subordinate to him to exercise and perform all or any of the powers, functions or duties to be exercised or performed under this Order.
Sub-Article (1) of Article 11 of the Police Order, 2002 provides that Provincial Government shall, out of a panel of three police officers recommended by the Federal Government, post a police officer of the rank of Inspector General of Police as Provincial Police Officer of the Province. The Proviso to Sub-Article (1) of Article 11 of the Police Order, 2002 states that before a police officer is posted as Provincial Police Officer under clause (1), the Federal Government shall place his services at the disposal of the Provincial Government. It is contended by the learned counsel for the petitioner that only one officer was recommended instead of three, which was not permissible under the law. He has referred to notification of the Federal Government whereby petitioner has been posted as Provincial Police Officer in the Government of Punjab which is reproduced hereunder:- "F.No.12 (16)/90-E-3 (Police)
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION Islamabad, the 7th September, 2021.
NOTIFICATION With the approval of the Federal Government, Sardar Ali Khan, a BS-21 Officer of Police Service of Pakistan, presently serving under Government of the Punjab, is transferred and posted as Provincial Police Officer (PPO), Government of the Punjab, in his own pay and scale, with immediate effect and until further orders.
(Arqam Tariq)
Deputy Secretary to the Government of Pakistan"
8. Although the said notification does not mention that procedure prescribed under Article 11 Police Order, 2002 was not followed, yet, learned AAG has stated that prior to appointment of the Provincial Police Officer consensus was developed between the Federal Government and Provincial Government for his appointment which was substantial compliance of Article 11 of Police Order 2002, besides the Provincial Government is not aggrieved of the said appointment or the procedure followed for purpose of appointment of respondent No. 3 as Provincial Police Officer which is evident from the Notification No.SO(S-II)PF/529/PSP dated 15.09.2021 issued by the Government of the Punjab Services and General Administration Department, whereby the respondent No.3 assumed the charge of Provincial Police Officer, which is reproduced below as reference:- "GOVERNMENT OF PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT Section (Services-II)
Dated: Lahore the, 15th September, 2021 NOTIFICATION No. SO(S-II)PF/ 529/ PSP . Pursuant to Establishment Division, Government of Pakistan, Cabinet Secretariat, Islamabad's Notification No.12(16)/90-E-3 (Police), dated 07.09.2021, MR.SARDAR ALI KHAN (PSP/BS-21), has ,assumed the charge of the post of the Provincial Police Officer, Punjab (in his own pay and scale), on 08.09.2021.
BY ORDER OF THE GOVERNOR OF THE PUNJAB KAMRAN ALI AFZAL CHIEF SECRETARY"
9. Perusal of the same shows that assumption of charge was with the approval and by the order of Governor of the Punjab, who was to represent Executive Authority of the Province in terms of Article 129 of the Constitution and in terms of Article 139 of the Constitution and all executive actions of the Provincial Government have to be expressed to be taken in the name of Governor. Both the above referred Articles i.e. Articles 129 and 139 of the Constitution, are reproduced for reference:- "129. The Provincial Government.--(1) Subject to the Constitution, the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and Provincial Ministers, which shall act through the Chief Minister.
(2) In the performance of his functions under the Constitution, the Chief Minister may act either directly or through the Provincial Ministers. '
139. Conduct of business of Provincial Government.(1) All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor.
(2) The Provincial Government by rules specify the manner in which orders and other instruments made and executed in the name of Governor shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the Governor.
(3) The Provincial Government shall also make rules of the allocation and transaction of its business."
10. As the learned A.A.G. has argued that appointment was made with consensus of both governments and Provincial Government is satisfied with the said arrangement and has no reason to call the same in question, hence, the purpose of Article 11 of Police Order, 2002 that the Provincial Police Officer be appointed by the Provincial Government from the officers recommended by Federal Government has been achieved, therefore, even if three names had not been proposed by the Federal Government out of which one candidate could be selected by the Provincial Government, yet the consensus between both Governments amounts to substantial compliance of the said provision of law and this Court is not inclined to hold that there was any procedural defect in the same.
11. The petitioner has not shown from any provision of law either in the Police Act, 1861, the Police Order, 2002 or the Police Rules, 1934 that only a grade 22 Officer can hold the post of Inspector General of Police. Section 4 of the Police Act, 1861 is reproduced below for reference:- "4. Inspector-General of Police, etc. The administration of the police throughout a general police- district shall be vested in an officer to be styled the Inspector-General of Police, and in such Deputy Inspectors-General and Assistant Inspectors-General as to the Provincial Government shall deem fit.
The administration of the police in a district shall vest in a District Superintendent and such Assistant District Superintendents as the Provincial Government shall consider necessary."
12. Rule 1.2 of Chapter 1 of the Punjab Police Rules, 1934 in respect of Departmental Organization is reproduced as under for ready reference:- "1.2. Inspector-General. - The Inspector-General of Police is responsible for the command of the Police force, its discipline administration. He is responsible for advising the Provincial Government in all matters connected with it.
The Inspector-General of Police is assisted by such number of Additional Inspectors-General, Deputy Inspectors-General and Assistant Inspectors-General as the Provincial Government may from time to time appoint."
13. The Article 11 of Police Order, 2002 provides that Provincial Police Officer is to be appointed from the penal of three police officers recommended by Federal Government but the grade of such officers has not been mentioned in the said Article and none of the afore-referred provisions of law provide that the officer having Grade-22 could only be appointed to the rank of Inspector General of Police, hence, objection that the respondent No. 3 is a Grade-21 and not Grade-22 officer, therefore, not qualified to be appointed is without any substance and the same cannot be held as a disqualification for appointment to the said post. The objection of the petitioner that an officer already holding the rank of Inspector General of police only could be appointed as Provincial Police Officer and a person holding post of Additional Inspector General cannot be promoted and appointed to the said post during the availability of an officer of the rank of Inspector General of police is also without any substance as the terms "Provincial Police Officer" and "Inspector General of Police" specifically in the case of appointment of Provincial Police Officer are used as synonymous and who so ever was appointed as Provincial Police Officer shall automatically ,hold the rank of Inspector General of police.
14. The petitioner has failed to point out that the respondent No.3 Was not qualified to hold the office of Provincial Police Officer or that there was no consensus between Federal and Provincial Governments for his appointment resulting into procedural defect going to the root of matter and causing prejudice to rights of the Provincial Government for said appointment. It is within the domain of appointing authority to determine who to appoint while making such appointment and this Court cannot take upon its function of appointing authority in order to judge the suitability of a candidate for such appointment. Writ petition in the form of quo-warranto is an extra-ordinary discretionary jurisdiction and this Court is not bound to exercise such jurisdiction in each and every case. Reliance in this respect may be placed on "Asif Hassan and others v. Sabir Hussain and others" (2019 SCMR 1720). Hence, this Court is not inclined to hold that the appointment of the petitioner was not in accordance with law.
15. For what has been discussed above,' this petition being devoid of merits, is dismissed.