LAL JAN KHATTAK, J. Through this judgment, we shall decide the connected W.P. No.587-M of 2020 titled "Badshah Hazrat and others, v. Government of Khyber Pakhtunkhwa and others" and W.P.No.4949-P of 2020 titled "Raham Hussain and others v. Government of Khyber Pakhtunkhwa and others" as common question of law and fact is involved in all the three petitions wherein the petitioners have questioned the legality of decisions/orders dated 15.04.2021, 21.04.2020 and 06.10.2020 as well as minutes of the 56th Police Policy Board meeting held on 08.10.2020, whereby office of the Inspector General of Police Khyber Paktunkwa has directed all the Regional Police Officers of the Province to implement the judgments of the Supreme Court of Pakistan reported in 2013 SCMR 1752, 2017 SCMR 206 and other judgments in letter and spirit pertaining to the out of turn promotions given to the police officials/officers performing their duties in the Province.
2. In a nutshell, it is the petitioners' case that the accelerated positions held by them in the police department on no canon of law could be equated with the out of turn promotions subject matter of the judgments of the Hon'ble Supreme Court cited above and as such the impugned orders and decisions of the respondents intended to deprive them of their such positions in the Police Force are unwarranted and sans any lawful authority.
3. While presenting the petitioners' case, their learned counsel argued before the court that the fast track positions held by the petitioners in the Police Department of Khyber Pakhtunkhwa have come to them due to their hard work, getting top positions in the recruitment centers, successful teaching in the training institutions, securing "A" grade reports from their seniors in line with their duties, pursuant to the provisions of Standing Order No. 11 of 1987, No.7 of 2003, relevant Police Rules, 1934 the Khyber Pakhtunkhwa Validation of Standing Order Act, 2005 (Act No. IV of 2005) and per provisions of The Khyber Pakhtunkhwa Police Act, 2017, therefore, they cannot be deprived of their such gains on the ground of giving effect to the ibid judgments of the apex court which, per learned counsel for the petitioners, were delivered in some different background and circumstances.
4. As against the above, the learned Advocate General argued that the positions earned by the petitioners are analogous to the out of turn promotions given to the police officials and officers posted in the Police Departments of the Provinces of Sindh or Punjab which have been declared illegal and unconstitutional by the apex court in its numerous judgments with directions to the concerned Provincial Governments to re-fix their seniority positions with initial batch mates in line with the principles laid down in the judgments, therefore, per Article 89 of the Constitution of Pakistan, 1973, the impugned orders passed and decisions taken are well within the competence of the respondents in order to implement the judgments of the apex court.
5. We have heard learned counsel for the petitioners, the learned Advocate General and also gone through the available record with their valuable assistance.
6. In the elaborated judgments of the Hon'ble Supreme Court of Pakistan reported in 2013 SCMR 1752, 2017 SCMR 206 and others, no doubt the apex court has declared the out of turn promotions as illegal and unconstitutional but admittedly the issue raised and dealt with in the referred judgments pertains to the out of turn promotions of the police officials/officers of the Provinces of Sindh and Punjab which were given to the promotees in their individual capacity under Section 9-A of the Sindh Civil Servants Act, 1973 and Section 8-A of Punjab Civil Servants Act, 1974 which are reproduced hereinbelow:- "9-A of Sindh Civil Servants Act, 1973.
Notwithstanding anything contained in this Act or any other law for the time being in force or any judgment of any Court, a civil servant who provenly exhibits, the act of gallantry while performing his duties or very exceptional performance beyond the call of duty, may be granted out of turn promotion or award or reward in such manner as may be prescribed.
8-A of Punjab Civil Servants Act, 1974.
Notwithstanding anything contained in this Act or any other law for the time being in force or in any contract, or rights claimed or acquired under any judgment of any Court of Tribunal, a civil servant who provenly exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out of turn promotion or award or reward in such manner as may be prescribed".
7. In exercise of the powers under the ibid laws, out of turn promotions were given by the relevant authorities to the police officials/officers of the. two Provinces mentioned above on the basis of their individual gallantry performance and bravery through separate orders whereas the accelerated positions got by the petitioners herein are because of their getting top positions in the Training Institutions of the Province, their successfully performing instructional duties in the police recruitment centers for prescribed period, their getting "A" reports from their superiors pursuant to the Standing Order 11 of 1987, Standing Order 7 of 2003, Khyber Pakhtunkwa Validation of Standing Order Act, 2005, rule 13.6(1) of the Police Rules, 1934 and in accordance with the provisions of the Khyber Paktunkwa Police Act, 2017. For better understanding of the issue, Standing Order No.11, which was later on validated through Khyber Pakhtunkhwa Standing Order Act, 2005, is reproduced hereinbelow:- BACKGROUND Personnel posted as Instructors at Police Training Schools serve with extreme reluctance.
The time an officer is posted to an instructional assignment, he makes very conceivable effort, political, administrative, medical, compassionate etc. to have his posting orders cancelled.
The state of mind of such a person, who arrives at a Police Training Institution as an Instructor, can be clearly visualized. He feels that he has been discriminated against, he is disgruntled and in a pathetic frame of mind with this state of mind, those Instructors create an atmosphere of a panel institution in the Training Centre.
For many years, this Department has been cognizant of this problem. Some efforts have been made to find a solution. Various incentives have been offered to Instructors but none of them has had any impact. Posting at Police Training Centre still continues to be considered as a punishment posting.
Ideally Instructors in Training Schools would not only be willing to serve but must be amongst the finest officers in the Department. To believe this and personnel posted to Police Training Institutions as staff members, as being offered the following incentives, Instructors selected in pursuance of those incentives, will be categorized as CADET INSTRUCTORS: INCENTIVES
1. H.C. INSTRUCTORS Constables undergoing the Lower School Course, who pass amongst the first 5 in the Class, will be qualified to serve as H.C. Instructors provided they volunteer to serve in the Training Institute for 3 years.
Immediately at the end of 3 years, if they have earned "A" reports, they would be admitted to Intermediate School Course and their names would be placed on Promotion List 'D" as soon as they qualify the Intermediate School Course.
2. A.S.I. INSTRUCTORS.
Head Constables undergoing the Intermediate School Course, who qualify amongst the first 5 in the class, will be qualified to serve as Instructors provided they volunteer to work there for 3 years and earned category "A" reports. They would be confirmed in the rank of Assistant and Sub- Inspector and their names would be brought on Promotion List 'E'.
3. S.I. INSTRUCTORS Sub-Inspectors undergoing Upper Class Course, who qualify the first 5 in the Class, will be qualified to serve as Instructors SI(s) provided they volunteer to work there for 3 years and earn category "A" reports.
At the end of that period, they would be confirmed in the rank of S.I. and their names will be brought on Promotion List 'F'.
3. A. Alternatively if volunteers are not available to the offer contained in Para 3' above, Sub- Inspectors who volunteer to serve as Instructors and are selected by the Principal, PTS, Hangu, will be offered the same incentives, i.e. after a tenure of 3 years at P.T.S. Hangu with "A" reports, they will be confirmed as Sub-Inspectors and their names brought on List 'F'.
NOTE:-
1. These incentives will not apply to directly recruited A.S.I(s).
2. These incentives can be availed of only once in a person's career.
3. Officers who are selected as Instructors on the basis of Promotion Examinations passed before 1984, will have to serve in the Training Institution for 2 years instead of 3 years.
4. The instructional tenure at PTS Hangu will be reduced to half for those officers who have secured first, five positions in the promotion examinations but have alreads/served in the Training Institution for two years.
8. Perusal of the impugned decisions/orders would show that the respondents intend to implement the judgments of the Hon'ble Supreme Court without peeping into the background and without analyzing the situations in which the out of turn promotions were given to the police personnel of the two Provinces and the accelerated positions secured by the police officials/officers performing their duties in the Province of Khyber Pakhtunkhwa. Proceeding against the petitioners by the respondents through the impugned decisions and orders by looking at the case issue superficially instead of resolving the same with deep thoughts and in a probing manner and without having a look at the history and background of both the situations will not be a fair step as they are holding the accelerated positions since long which had come to them through a merit based laid down criteria and in a structured manner and not for any braveness. It would not be out of place to mention here that since 2013, the Hon'ble Supreme Court has repeatedly declared the out of turn promotions as illegal by directing the Provincial Governments to streamline policy relating to the grant of out of turn promotions but uptill now the Government of Khyber Pakhtunkhwa has not taken any step in that direction. Whether the Provincial Government wants to withdraw the incentives given to its police personnel through the Khyber Pakhtunkhwa Validation of Standing Order Act, 2005, Police Rules, 1934 and the Khyber Pakhtunkhwa Police Act, 2017 or it is eager to keep the same intact is a question which needs resolution in a befitting and probing manner.
Indecisiveness and the lethargic conduct of the Government to the ibid effect is very lamentable which has created chaos and caused unrest in the entire Police Force of the Province which situation cannot be countenanced.
9: For what has been discussed above, we dispose of these petitions in terms that the impugned decisions/orders are set aside and the petitioners' cases are sent to the Provincial Government of Khyber Pakhtunkhwa through the Chief Secretary first to clarify its position whether it wants to continue with the matter of awarding accelerated positions to members of its Police Force in line with the Khyber Pakhtunkhwa Validation of Standing Order Act, 2005, prevailing Police Rules and Khyber Pakhtunkhwa Police Act, 2017 or not and then decide the issue raised in the petitions accordingly but till such policy is streamlined, no adverse action shall be taken against the petitioners.