1. MUHKHTAR AHMED JUNEJO, J.--- This order proposes to dispose of following Constitution Petitions in which common questions of law and fact arises;--
(i) C.P. No.D-64 of 1991 filed by Irfan Ahmed Bhatti
(ii) C.P. No.D-65 of 1991 filed by Soofi Khaskheli
(iii) C.P. No.D-66 of 1991 filed by Nooruddin Brohi
(iv) C.P. No.D-67 of 1991 filed by Rasool Bux
(v) C.P. No.D-68 of 1991 filed by Ghulam Muhammad Zardari
(vi) C.P. No.D-69 of 1991 filed by Dayanand
(vii) C.P. No.D-70 of 1991 filed by Gul Muhammad Unar
(viii) C.P. No.D-71 of 1991 filed by Muhammad Rahim
(ix) C.P. No.D-72 of 1991 filed by Allah Dino Shaikh
(x) C.P. No.D-73 of 1991 filed by Wazir Ali Sher
(xi) C.P. No.D-74 of 1991 filed by Amir Azam Shah
(xii) C.P. No.D-75 of 1991 filed by Muhammad Nawaz Baloch
(xiii) C.P. No.D-76 of 1991 filed by Moula Bux
(xiv) C.P. No.D-77 of 1991 filed by Ghulam Nabi Shah
(xv) C.P. No.D-90 of 1991 filed by Qurban Ali Mirbahar
(xvi) C.P. No.D-121 of 1991 filed by Ibrahim Shah Bukhari
(xvii) C.P. No.D-139 of 1991 filed by Ghulam Parwar Mirani All the petitioners have invoked Constitutional jurisdiction of this Court against their discharge from the posts of Assistant Sub-Inspectors (A.S.I.) ordered by the Inspector-General of Police, Sindh (hereinafter mentioned as L-G.P.).
2. Admittedly police department, Government of Sindh invited applications for appointment of A.S.Is.
3. In Police Department through a publication which appeared inter alia in Daily `Jang', dated 17-2- 1989. Present petitioners applied for said posts and they appeared for physical test and were declared successful. Subsequently they were permitted to appear in the written test. The petitioners were also called for viva voce before the Central Selection Board. The petitioners were, however, appointed as ASI's. As per a letter, dated 25-2-1991 from I: G.P. To the D.I.-G. Hyderabad some 48 A.S.Is. Including the petitioners were discharged from service with immediate effect. Subsequently the petitioners were given to understand that a Committee had been formed to sort out the names of certain innocent A.S.Is. And that such Committee was competent to recommend for reinstatement of discharged A.S.Is. Found to have been illegally discharged. The petitioners awaited proceedings by the Committee but ultimately they filed the petitions.
4. Comments were called from the I.-G.P., who has sent identical comments. In the comments it has been admitted that applications were invited for the posts of A.S.Is. And that the petitioners had applied for such posts. It is also admitted in the comments that the petitioners appeared for physical test and were declared successful. It is further admitted that the petitioners were called for final interview. It was denied if the petitioners qualified in the written test or in the final interview before the Central Selection Board. It was mentioned in the comments that merit lists of successful candidates were prepared by the different D.I: Gs. And a good number of candidates were referred by the Government of Sindh for the posts of A.S.Is. And those candidates were interviewed by the D.I: G. Headquarters and by the Principal P.T.S./Baldia and the result was conveyed to the Government of Sindh. It was added that Government of Sindh offered appointments to those candidates who were found fit and suitable. The I: G.P. In his comments did not deny the fact that he announced list of candidates finally selected for appointment as A.S.Is. And under his order, dated 26-2-1990 directed D.I.-G. Hyderabad to issue the appointment orders. The I.-G.P. In his comments did not deny the fact that under his subsequent order, dated 12-3-1990 he selected and appointed 14 more candidates as A.S.Is. And under his another order, dated 26-5-1990 he selected and appointed four more candidates as A.S.Is. The I: G.P. Did not deny the fact that some of the private respondents (respondents Nos.5 to 34 in C.P. No.D-64 of 1991) did not move any application for the post of A.S.I. Within the specified time and did not appear for any test or interview and some other respondents (for example respondents Nos.35 to 51 in C.P. No.D-64 of 1991) having applied for said posts, failed in the written test and yet they were given the posts of A.S.Is. It was not denied that in the selection letter, dated 26-2-1990 the selectees shown at serial Nos.4, 82, 102, 104 to 106, 109, 110, 112, 114, 116, 124, 125, 134, 136, 139 and 140 never appeared in the written test or in the interview but they were selected and so also the selectee at serial No.2 of selection letter, dated 12-3-1990 who was selected without undergoing written test and interview. Said candidates were, however said to have been interviewed by the D.I.-G. Headquarters and Principal P.T.S./Baldia, having been referred by the Government of Sindh. The I.-G.P. Controverted rest of the grounds which were alleged to be baseless and unfounded. It was added in the comments that selection/appointment of A.S.Is. Was made strictly according to the rules and on merits and even the candidates referred by the Government of Sindh were selected on merit. It was added that the petitioners were not entitled to any remedy, as the selection of A.S.Is. Was made strictly on merits and according to rules, against the available vacancies.
5. We have heard Mr. Imam Ali Memon, Advocate for Ghulam Parwar petitioner in C.P. No.D-139 of 1991 and Mr. Shuaib Shibly Advocate for rest of the petitioners. We have also heard Mr. Abdul Latif Memon, A.A.-G. For the official respondents.
6. The first point which arises in a case of this nature is about jurisdiction of this Court under Article 199 of the Constitution of Pakistan, in presence of the barring provisions contained in Article 212 of the Constitution of Pakistan. There is no doubt that the petitioners were working as A.S.Is. When the impugned orders were passed about their discharge. In the case of Inspector---General of Police, Punjab, Lahore and others v. Mushtaq Ahmed Warraich and others PLD 1985 SC 159, the Supreme Court of Pakistan observed that the police force is one of the services of the province and the police officers of the subordinate ranks are members of the service who satisfy the definition of "Civil Servant" yet the distinction nonetheless remains that they belong to a disciplined force to which Police Act, 1861 and the Punjab Police Rules, 1934 were applied from time immemorial. In this respect it was further observed that Civil Servants Act is an Act of general application and it has no Constitutional status and it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. It was also observed that it should not be forgotten that the Police Act and the Rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose. In spite of such distinction having been pointed out, it was held -that there cannot be any possibility of any collision between the special law containing provisions of disciplinary character enacted with the object to fulfil the requirements of a disciplined force, and the general law whose provisions cannot fulfil requirements of a disciplined force. The question about bar of jurisdiction of this Court due to existence of Article 212(2) of the Constitution of Pakistan, arose in the case of Abdul Bari v.
7. Government of Pakistan and others PLD 1981 Kar. 290 where Zafar Hussain Mirza, J. (as he then was) observed that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service and that the words, "in respect of any matter to which the jurisdiction of such administrative Court of Tribunal extends" appearing in clause (2) of Article 212 of the Constitution of Pakistan, clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. It was also observed that once it is shown that an appeal is competent before the Service Tribunal, the matter will lie outside the pale of the jurisdiction of High Court. In the present case applying touchstone of the case of Abdul Bari, it would appear that this Court can be held to be having jurisdiction only if the petitioners cannot challenge their orders of discharge before the Sindh Service Tribunal. Petitioner Ghulam Parwar Mirani and some others discharged under the impugned order invoked jurisdiction of Sindh Service Tribunal (hereafter mentioned as the Tribunal) against said order. Learned Tribunal under an order dated 31-10-1991 dismissed in limine the appeals filed by Ghulam Parwar and others. While dismissing the appeals under the order dated 31-10-1991 the Tribunal noted that services of petitioner Ghulam Parwar and others were terminated under Rule 12.8 of Police Rules which says that inter alia the Assistant Sub-Inspectors appointed directly are considered to be on probation for a period of three years from the date of their appointment and that the appellants in said appeals were still on probation when their services were terminated. The Tribunal took view that one of the grounds for invoking Rule 12.8 of the Police Rules is that the persons on probation are deemed for sufficient reasons to be unsuitable for service and hence it is for the higher police authorities to take decision about the existence of said ground and say if the concerned persons were unsuitable for service. After taking such view the Tribunal proceeded to refer to proviso (b) below section 4 of said Service Tribunals Act, 1973 and arrived at the conclusion that its jurisdiction was barred from interfering with the question of fitness of any person for appointment or promotion. The Tribunal was of the view that the appellants in said appeals have obviously been discharged on the ground of their unsuitability for the posts of A.S.Is. And since the highest authority viz. The I.-G.P. Had expressed the opinion that the appellants in said appeals are not likely to be good officers, it (Tribunal) has no jurisdiction to substitute its own views in respect of fitness of appellants in said appeals for holding the posts of A.S.Is. The view taken by Sindh Services Tribunal in aforesaid Appeal No.48 of 1991 under the order, dated 31-10-1991 was not challenged either by learned counsel for the petitioners or by learned AA.-G. In the circumstance it cannot be said that this Court has no jurisdiction, because in the cases where a Service Tribunal has no jurisdiction, Article 212 remains inoperative so far as jurisdiction of the High Courts under Article 199 of the Constitution of Pakistan is concerned. This would be in terms of the view taken in the case of Abdul Bari PLD 1981 Kar. 290.
8. On merits, learned counsel for the petitioners argued that the impugned order was passed in violation of the principles of natural justice, inasmuch as, the petitioners were not given any show- cause notice and they were not heard. It was also argued that I.-G.P. Had no jurisdiction to terminate services of the A.S.Is. Because such power was given to the D.I.-Gs. Under Rule 12.8 of the Police Rules and that the order of discharge was even otherwise beyond the scope of Rule 12.8 of the Police Rules.
9. Mr. Abdul Latif Memon, learned AA.-G. Defended the impugned orders of discharge and contended that since the petitioners were on probation, their services could be terminated for any of the reasons given in Rule 12.8 of the Police Rules and that one of such grounds was of somebody being unsuitable for service in the police.
10. Rule 12.8 of Police Rules reads as below:-- "Inspectors, Sergeants, Sub-Inspectors and Assistant Sub-Inspectors who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time within the period of their probation if they fail to pass the prescribed examinations, including the riding test, or are guilty of grave misconduct or are deemed for sufficient reason, to be unsuitable for service in the police. A probationary inspector shall be discharged by the Inspector-General, and all other Upper Subordinates by Range Deputy Inspector-General, Assistant Inspector-General, Government Railway Police and Assistant Inspector-General, Provincial Additional Police (designated as Commandant, Provincial Additional Police). No appeal ties against an order of discharge:"
11. As per Rule 12.8, Inspectors, Sub-Inspectors and Assistant Sub-Inspectors are liable to be discharged at any time within the period of their probation on any of the following grounds viz. (i) if they fail to pass the prescribed examinations (ii) they are guilty of grave misconduct, (iii) they are deemed for sufficient reason to be unsuitable for service in the Police. In the instant case ground
(iii) appears to have been invoked. While passing the impugned order on the basis of said ground, the departmental authorities appear to have overlooked the words "are deemed for sufficient reason", appearing in Rule 12.8. In case the departmental authorities found the petitioners to be unsuitable for service in --the police, sufficient reason was to be given for the, same. On this ground alone, the impugned order of discharge appears to have been passed in contravention of the provisions contained in Rule 12.8 of the Police Rules. There is force in the contention that the order of discharge should have been passed by the Range Deputy Inspector-General. As against this the order of discharge is passed by the I.-G.P. There is also force in the contention that while discharging the petitioners, the principles of natural justice have not been followed: The comments filed by the I.-G.P. Show that certain persons who never applied for the posts of A.S.Is. In response to the advertisement inviting applications for said posts, or who applied but failed in the written test, were' considered for appointment because their names came from the Government of Sindh. Rule 12.7 of Police Rules says that a list of accepted candidates for direct appointment to the rank of Assistant Sub-Inspector shall be maintained in the office of each D.I.-G. And appointments shall be made by selection from this list. This rule does not empower the Provincial Government of Sindh to recommend or send name of some body for appointment as A.S.I. Direct to the I.-G.P. Presumably Rule 12.7 of Police Rules was not relaxed by the Government of Sindh, while referring a good number of candidates for the posts of A.S.Is. For consideration of their selection on merits, as mentioned in para.9 of the comments filed by the I.-G.P. The I.-G.P. Was not supposed to deviate from the law and the Police Rules, while accepting the candidates referred to him by the Government of Sindh.
12. Such practice deserves to be deprecated and raises an impression that discharge of the petitioners was tainted with mala fides.
13. For the foregoing reasons we declare the impugned orders of discharge of the petitioners to have been passed without lawful authority and to be of no legal effect. This would not stand in way of the competent authority to discharge in accordance with law, all or any of the petitioners from service, on any of the grounds mentioned in Rule, 12.8 of Police Rules 1934, after issuing proper notice to each of the concerned officials and after giving him right of hearing and by passing proper orders in terms of said rule. The aforesaid Constitution petitions are disposed of accordingly with no orders as to costs. Such short orders were passed on 3-8-1993 and these are reasons for the same.