NAEEM AKHTAR AFGHAN, J. This common judgment disposes of C.P. No.246/2008 and C.P.
No.334/2019.
2. Relevant facts are that in the Police Department of Balochistan, Joint Seniority List of Deputy Superintendents of Police (DSsP) of different branches of Balochistan Deputy Superintendent of Police Service (hereinafter "the Service") including DSsP of prosecution branch was maintained till year 2000 on the basis whereof few DSsP of prosecution branch of Service were promoted as Superintendents of Police (SsP).
In the Joint Seniority List of DSsP issued in 2001, the names of DSsP of prosecution branch of the Service were removed but no separate Seniority List of DSsP of the prosecution branch was issued by the Police Department.
After excluding the names of DSsP of the prosecution branch from the Joint Seniority List, the DSsP of the other branches of the Service junior in seniority to DSsP of prosecution branch were promoted as SsP or were granted shoulder promotion as SsP.
3. In this background, C.P. No.246/2008 was filed by eleven DSsP of the prosecution branch of the Service on 29th May 2008 claiming the following relief: "It is therefore, humbly prayed that this Hon'ble Court may be pleased to accept the petition in the following terms.
A. Declaring that the act on the part of respondent in deleting and not incorporating the names of the petitioners from the seniority list of Deputy Superintendent of Police (DSPs) is totally illegal, improper, in excess and mis-exercise of the authority and jurisdiction vested in him and is based with mala fide intention.
B. On having declared so, the respondent may be directed to include/incorporate the names of the petitioners in the seniority lists of DSPs as per their seniorities strictly in accordance with the Rules and Laws.
C. Any other relief deemed fit and appropriate in the circumstances of the case, may also be awarded in favor of the petitioners along with the cost of petition, in the interest of justice, fair play and equity."
4. While submitting reply dated 19th August 2008 in C.P. No.246/2008 it was contended by respondent No.1 that Seniority List of DSsP of the service was maintained jointly till 1997 whereafter it was separated as maintained in the other provinces; that the matter with regard to maintenance of Joint Seniority Lists of DSsP and PDSsP and simultaneously of Prosecuting Inspectors and Inspectors of various branches of Police Department is under consideration in the office of respondent No.1 which will be considered in due course of time.
5. Constitutional Petition No.246/2008 was accepted by this Court vide judgment dated 23rd April 2009 whereafter Joint Seniority List of DSsP including DSsP of prosecution branch was issued by the Police Department on 16th August 2009 and onwards.
6. The judgment dated 23rd April 2009 passed by this Court in C.P. No.246/2008 was challenged by filing C.M.A. No.1470/2012 dated 9th June 2012 under section 12(2), C.P.C. before this Court by ten DSsP of other branches of. the Service, some of whom were already posted as SP, Acting SP, Additional DIG or Assistant Director FIA.
The above application was contested by the petitioners (DSsP of the prosecution branch) by filing rejoinder.
7. Civil Miscellaneous Appeal No.1470/2012 filed under section 12(2), C.P.C. by DSsP of the other branches of the Service was accepted by this Court vide order dated 20th June 2017 and while recalling the order dated 23rd April 2009 passed in C.P. No.246/2008, the petitioners were directed by this Court to amend C.P. No.246/2008 by impleading the contesting DSsP of the other branches of the Service as respondents.
The order dated 20th June 2017 passed by this Court was challenged by DSsP of the prosecution branch before Hon'ble Supreme Court by filing Civil Petition No.5196/2017 and Civil Misc. Application No.4520/2018 which were dismissed by the Hon'ble Supreme Court vide order dated 11th June 2018.
8. During pendency of C.P. No.246/2008, on 31st August 2017, Joint Provisional Seniority List of DSsP including DSsP of the prosecution branch of the Service was issued by the Police Department as it stood on 29th August 2017 and objections were invited for the same.
9. After receiving objections and deciding the same, Joint Final Seniority List of DSsP including DSsP of the prosecution branch of the Service was issued by the Police Department vide notification dated 11th December 2017.
10. During pendency of C.P. No.246/2008, vide impugned notifications dated 6th March 2019, Police Department issued separate Provisional Seniority List of twenty-six DsSP of the prosecution branch by mentioning them as DSsP Legal (BPS-17) and also separately issued Seniority List of twenty- eight DSsP of other branches of the Service The DSsP of the prosecution branch filed objections/ made representation on issuance of separate Provisional Seniority Lists and prayed to issue Joint Seniority List of DSsP of all the branches of the Service.
11. Before decision of competent authority on the objections/ representation, sixteen DSsP of the prosecution branch including eleven DSsP of the prosecution branch who had already filed C.P.
No.246/2008, filed C.P. No.334/2019 before this Court on 2nd April 2019 claiming the following relief: "It is therefore, humbly prayed that this Hon'ble Court may please to accept the petition in the following terms. a) Declaring that the two separate seniority lists for the General Branch and Legal Branch issued by the respondent No. 1 on 0603-2019 be declared as illegal, improper and in excess and misuse of authority. b) On having declared so, the joint seniority list of 11-12-2017 be declared as the final seniority list amongst all the DSPs of police as a whole. c) Further it may kindly be declared that any promotions in future will be made according to the inter-se seniority held by the respective police officials in the joint seniority list dated 11.12.2017. d) That the respondent be further directed to follow the joint seniority list dated 11.12.2017 for the promotion to the higher rank of Superintendent of Police in the future. e) Any other relief which may deem fit and appropriate in the circumstances of the case, may also be awarded in the favor of petitioners in the interest of justice and equity."
12. In C.P. No.334/2019 respondent No.1 has filed para wise comments with the contention that there is no specific provision in the Balochistan Deputy Superintendents of Police Service Rules, 1978 (hereinafter "the DSP Rules") for maintaining Joint Seniority List of DSsP (General Cadre) and DSsP of the prosecution branch; that prior to 2009, seniority list of DSsP (General Cadre) and DsSP of prosecution branch were maintained separately and the reason of issuing Joint Seniority List dated 26th September 2009 was the judgment dated 25th April 2009 passed by this Court in CP No.246/2008 which was recalled by this Court on 20th June 2017; that due to recalling of the order about Joint Seniority List of DSsP of the prosecution branch by this Court, separate Seniority Lists of DSsP (General Cadre) and DSsP of the prosecution branch were issued on 6th March 2019 to fill-in the vacant posts of SsP.
It was also contended by respondent No.1 in the para wise comments that there is no specific provision in the DSP Rules, Police Rules, 1934 (hereinafter "the Police Rules") and Police Act, 2011 (hereinafter "the Act of 2011") for preparing/maintaining Joint Seniority List of DSsP (General Cadre) and DSsP of the prosecution branch; that nature of work of DSsP of the prosecution branch is quite different from DSsP of General Cadre of Police Department.
13. The objections raised/representation made by DSsP of the prosecution branch on issuance of separate Seniority Lists dated 6th March 2019 was rejected on 20th May 2019 by the Committee chaired by Additional Inspector General of Police, Administration Balochistan with Deputy Inspector General of Police, Headquarter/CPO Quetta, Deputy Inspector General of Police, Special Branch Quetta, Assistant Inspector General of Police, Police Establishment/CPO and Assistant Inspector General of Police (Legal/CPO) as Members on the ground that the matter is subjudice before the High Court.
14. Record also reveals of a Summary dated 28th July 2016 moved by the Police Department Government of Balochistan to the Chief Minister Balochistan for revamping the Prosecution Branch/ Legal Wing of Balochistan Police with its proposed Organization and Administrative Service Structure with job description/duty which has been approved by the Chief Minister Balochistan but till date the requisite notification has not been issued.
15. After hearing learned counsel for the parties, learned AAG and respondent No.13 (Mr. Khalilullah Kakar DSP) in person, we have perused the available record and have gone through the relevant enactments.
The objection raised by the contesting DSsP about maintainability of the constitution petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan is overruled as presently the Balochistan Service Tribunal is non functional due to expiry of term of its Chairman and due to non-appointment of its Chairman and in the circumstances, the petitioners are left with no other remedy except invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan.
16. In the Province of Balochistan, the Act of 2011 was promulgated on 24th August 2011. Section 46 of the Act of 2011 repeals the applicability of Police Order, 2002 to the extent of Province of Balochistan with saving clauses for not affecting the validity, invalidity, effect or consequence of anything duly done or suffered under the Police Order, 2002. Section 42 (3) of the Act of 2011 adopts the Police Rules by deeming the same to have been made under the Act of 2011.
17.The relevant provisions of DSP Rules regulating/governing the service are reproduced herein below: "PART I GENERAL 1....
(2) ....
2.....
(a)....
(b) "Branch " means a branch of the Department organized as a separate and self-contained unit 'such as General Branch, Prosecuting Branch, Tele Communications Branch, Special Branch, Motor Transport Branch, Finger Print Branch and Anti-Corruption Branch; (c)....
(d)....
(e)....
(f)....
(g)....
(h)....
(i)....
(j) "Service" means the Balochistan Deputy Superintendent of Police Service.
"PART II RECRUITMENT
3. Constitution and composition of service.----(1) The Service shall consist of the various branches of the Police Department.
(2) Each branch of the service shall comprise the posts, of Deputy Superintendents of Police and such other equivalent posts in the Department as may be specified by Government from time to time.
(3) Members of telecommunication branch and M.T. branch shall not be eligible, for appointment to a post borne on any other branch of the service.
4. Appointing authority. .---Appointments of the Service shall be "made by the Government.
5."Selection Authority"---Means a Selection Committee consisting of Chief Secretary as its Chairman, Home Secretary and Inspector-General as its members, on the recommendations of or in consultation with which the Government may make appointment of the Deputy Superintendents of Police in Balochistan against the vacancies specified in sub-rule (b) of Rule 6(1).
6. Method of recruitment.----(1) Recruitment to the service shall be made in the following manner--
(a) 50% of the vacancies in the service shall be filled by initial recruitment on the recommendation of the Commission.
(b) 50% of the vacancies in the service shall be filled by promotion from among Inspectors of Police, on the recommendation of the Selection authority.
(2) The Inspector-General of Police shall maintain a Select List in Form I appended to these rules of Inspectors who are considered fit for promotion to the Service in the respective Branch. The Select List shall be in parts; and each part shall appertain to a separate branch.
(3) Recruitment to the Service by promotion shall be made from among Inspectors whose names appear in the Select List maintained in accordance with the provision of sub-rule (2) for the branch in which the vacancies occur.
(4) No entry shall be made in the Select List to be maintained under the provisions of this rule, nor shall an entry appearing therein be removed or the order in which the names appear in it be altered without the previous approval of the Selection Authority.
(5) When an appointment is to be made from among persons whose names appear in the Select List, the order in which the names appear in the Select List shall, as far as possible be followed.
PART III CONDITIONS OF SERVICE.
9...
10. Seniority.----(1) The seniority inter se of the members of the Service in the various branches thereof shall be determined.--
(a) in the case of officers appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Authority; provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) in the case of officers appointed otherwise, with reference to the dates of their continuous appointment therein provided that if the date of continuous appointment in respect of two or more officers is the same, the older officer, if no Junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers.
Explanation 1.--If a Junior officer in a lower grade is promoted to a higher grade temporarily in the public interest; even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade.
Explanation II. --If a Junior Officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
(2) The seniority of the members of the service appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined--
(a) in case both the officers appointed by initial recruitment and those appointed otherwise have been appointed against substantive vacancies, with reference to the date of appointment to such vacancy in the case of an officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of an officer appointed otherwise provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by Initial recruitment;
(b) in case the officer appointed by initial recruitment, has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed by initial recruitment 'shall rank senior to the officer appointed otherwise; and
(c) in case the officer appointed otherwise is appointed against a substantive vacancy and the officer appointed by initial recruitment is appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment ".
18. Section 8(1) of the Balochistan Civil Servant Act, 1974 (hereinafter "the Act of 1974"), being relevant is reproduced herein below: "8. Seniority.
(1) For proper administration of a service, cadre or [post] the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or [post] to be prepared, but nothing therein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or [post], as the case may be"
19. While deciding the matter in respect of transfer, posting and seniority of Constables, Head Constables, ASIs, Sub-Inspectors and Inspectors of Sindh Police and Sindh Reserve Police governed by the Police Rules, in the case of Gul Hassan Jatoi v. Faqir Muhammad Jatoi, 2016 SCMR 1254, it has been held as follows by the Hon'ble Supreme Court: "66......... Though the term 'Cadre ', has been used in Police Rules 12.6(3)(e). Even in the Sindh Civil Servants Act, 1973 or the rules framed thereunder, the cadre has not been defined. However, the term 'Cadre' has been defined in Rule 9(4) of the Fundamental Rules, 1992. The said Rule defines "Cadre" means the strength of a service or a part of a service sanctioned as a separate unit. "
69. The learned Tribunal has erred in treating the different establishments created under the Police Rules, 1.4 as various Cadres classified on functional basis; whereas the overall scheme of Police Act, 1861 and the Rules, 1934 envisage the police forces one indivisible body possessing various establishments performing the assigned functions such as District Police, Police Training Center, Crime Branch, Special Branch, Reserve Police and so on. Each of these establishments are in fact integral parts of the police force, and under no rules of construction they can be construed as separate or independent Cadres.
70. Therefore, the directions of the learned Tribunal to the government to create Cadres in substitution of the establishments is neither warranted by the Act nor by the Rules and will lead to anomalies as has happened in the case in hand, where the DIGs of different establishments started exercising the administrative powers of the Range DIGs.
71.... We are clear in our mind that there should be common seniority of Police Personnel serving in all the establishments to be maintained by District Police, the Range DIG and Central Police Office (C. P.O.) strictly as provided by the Rules in Chapter XIII, as discussed in Para 56 supra. Therefore, the Sindh Government and the competent authority under the police Rules shall prepare the common seniority list of the Police Personnel serving in different establishments within three (03) months of the date of this judgment in terms of Police. Rules and report compliance. "
20. Under the Police Rules, the Sub-Inspectors and Inspectors of the Prosecution Branch of Police Department cannot travel horizontally by transfer to the other branches of the Police Department but after promotion of the Inspectors of the prosecution branch of the Police Department as DSsP, there is no such restriction on the DSsP of the prosecution branch of the Service under the DSP Rules.
According to Rule 3(3) of the DSP Rules, only the DSsP of Telecommunication Branch and M. T Branch of the Service are not eligible for appointment as DSsP in any other branch of the Service, but there is no such bar for DSsP of the prosecution branch of the Service meaning thereby that the DSsP of the prosecution branch of the Service can be appointed in other branches of the Service.
21. Despite restriction on transfer of the Sub-Inspectors and Inspectors of the Prosecution Branch to the other branches of the Police Department, the Police Rules do not provide for preparation of separate Seniority Lists of Sub-Inspectors and Inspectors of different branches of the Police Department.
22. Similarly Rule 3(2) of the DSP Rules which mentions that each branch of the Service (including the prosecution branch) shall comprise the posts of DSsP and Rule 10 of the DSP Rules which deals with the inter se seniority of the DSsP of the Service, do not provide for preparation of separate Seniority Lists of DSsP of different branches of the Service.
23. The term "Cadre" has not been used or defined in the DSP Rules. According to Rule 9(4) of the Fundamental Rules, 1992 "Cadre" has been defined as the strength of a service or a part of a service sanctioned as a separate unit.
Note: Underlining has, been made by us to lay emphasis.
24. Though according to Rule 2(b) of the DSP Rules, all the branches of the Service have been organized as a separate and self-contained unit of the Police Department but all the branches (including the prosecution branch) of the Service have not been sanctioned as a separate unit to fall within the definition of a "Separate Cadre" warranting preparation of separate Seniority Lists of the DSsP of different branches of the Service under section 8(1) of the Act of 1974.
25. Since the prosecution branch of the Service has not been sanctioned as a separate unit, therefore, the DSsP of prosecution branch of the Service cannot be considered as a "Separate Cadre" for preparing separate Seniority List.
The DSsP of the other branches of the Service have not been jointly categorized and sanctioned as a "General Cadre".
26. The different branches of the Service as mentioned in rule 2(b) of the DSP Rules, classified on functional basis, are integral parts of the police force which cannot be construed as separate or independent cadres for preparing separate Seniority Lists.
27. Even in the Summary dated 28th July 2016 approved by the Chief Minister Balochistan for revamping the prosecution branch/legal wing of the Police Department of Balochistan like the Police Department of Punjab, in respect whereof requisite notification has not yet been issued, does not provide for preparing separate Seniority Lists of DSsP of the prosecution and other branches of the Service.
28. In view of all the above, it is concluded that there was no occasion for the Police Department to exclude the names of DSsP of the prosecution branch of the Service from the Joint Seniority List of DSsP nor there was any occasion for the Police Department to issue separate Provisional Seniority Lists dated 6th March 2019 for the DSsP of the prosecution branch and DSsP of the other branches of the Service in pursuance of section 8(1) of the Act of 1974.
For the above reasons, the Constitution Petition Nos.246/2008 and 334/2019 are accepted. The exclusion of the names of DSsP of the prosecution branch from the Joint Seniority List of the DSsP of the Service and issuance of separate Provisional Seniority Lists dated 6th March 2019 of DSsP of the prosecution branch and DSsP of the other branches of the Service are declared null, void and of no legal effect.
The final Joint Seniority List of DSsP of different branches of the Service which includes the names of DSsP of the prosecution branch issued by the Police Department vide notification dated 11th December 2017 is held lawful and valid for all intents and purposes.
The earlier interim order dated 27th June 2019 passed by this Court restraining the Inspector General of Police Balochistan from convening meeting of Departmental Promotion Committee
(DPC) for promotion of senior most DSsP to the rank of SsP is hereby recalled.
The Inspector General of Police Balochistan is directed to convene the long awaited meeting of DPC at the earliest for promotion of deserving senior DSsP as SsP on the basis of Joint Final Seniority List dated 11th December 2017 of D$sP of the Service whereafter the Inspector General of Police Balochistan shall issue a fresh Joint Provisional Seniority List of DSsP of the Service for the year 2020, shall invite objections to the same and after deciding the objections, to notify the Final Joint Seniority List of DSsP of the Service for the year 2020.
Copy of the judgment passed today be sent to Inspector General of Police Balochistan for compliance.