2021 PLP (C (PLC(CS)N)

MALIK HAQ NAWAZ, J.

The petitioner Abdul Rahim, who was serving as SP(BPS-18) and posted as SP Crime Branch was reverted to F.C. vide Notification No. SO(S)-1-1(10)/2018 dated 19.04.2018 and another Notification No. IGP-1(41)/5277- 5301/2018 dated 19.04.2018 respectively. The petitioner has challenged both the notifications, with the prayer that both these notifications have been issued by the respondents in colourful exercise of their authorities, which were not vested with them. The prayer portion of the writ is reproduced as under:- 1) The impugned Notifications No. SO(S)-1-1(10)/2018 dated 19.04.2018 and No. IGP-1(41)15277-5301/2018 dated 19.04.2018 may kindly be set aside being un heard declaring against the fundamental rights of the petitioner. 2) That the respondents may kindly be directed to implement the judgment of Hon'ble Supreme Appellate Court G.B. in its letter and spirit by giving the opportunity of being heard and considering all the material facts of the case. 3) Any other relief may be granted which this Hon'ble Court deems fit and proper to meet the ends of justice.

2. To resolve the controversy it is pertinent to give a brief back ground of the case, which will help us to reach at a just and fair conclusion.

3. As per the record annexed with the instant writ petition, the petitioner was initially appointed as F.C. and was promoted to H.C. on 1-8-1976. On 30.04.1985, the petitioner was promoted to the rank of ASI and on 31.5.1995 the petitioner was promoted from ASI to SIP and said promotion was out of turn as mentioned in the above referred notification. The said promotion of the petitioner was challenged by his colleagues namely Ehsan Ali, Muhammad Aslam Khan and Murad Khan by filing three different Appeals bearing Nos. 461/462/463(R)/1995 before Federal Service Tribunal, which were dismissed, vide judgment/order dated 27.2.1996. The judgments/orders of Federal Service Tribunal were not challenged before Hon'ble Supreme Court of Pakistan.

4. Vide Notification No. IGP-1(60)/6880-84/2004 dated 24.6.2004, the petitioner was again blessed without of turn promotion from S.I. to the rank of Inspector (BPS-16). The petitioner was promoted as DSP (BPS-17) vide Notification No.SO(S)-1-1-(10)-10/2010 dated 31.08.2010 and on 16.12.2014 vide Notification No. SO(5)-1-1(35)/2014 dated 16.12.2014, the petitioner was promoted as SP (BPS-18), and for actualization of his promotion from (BPS-17) to (BPS-18) he was posted from key point to SP SIU (BPS-18) Crime Branch Gilgit.

5. The above narration of facts suggest that the petitioner was like a starwort, but his stars turned to static and then crumbled down in the wake of a judgment of the Hon'ble Supreme Appellate Court G.B.in a Suo Motu case No. 10/2017, whereby all the out of turn promotions were set aside and the persons so promoted were directed to be reverted to their original ranks and the Home Secretary and IGP were directed to submit compliance report within two months. The short order dated 05.04.2018 passed by the Hon'ble Supreme Appellate Court is reproduced as under:- IN THE SUPREME APPELLATE COURT GILGIT- BALTISTAN GILGIT SMC.No.10/2017 Shoulder/out of turn promotion in Gilgit-Baltistan Police PRESENT:-

1. The Advocate General Gilgit-Baltistan.

2. Mr. Jawad Akram, Home Secretary Gilgit-Baltistan.

3. Mr. Gohar Nafees, DIG Gilgit. ORDER DATED:- 05.04.2018. We have heard the learned Advocate General Gilgit-Baltistan, the Home Secretary Gilgit-Baltistan, the DIG Gilgit and perused the record of out of turn promotions cases of Police officials as mentioned I the letter No. SO(P)-1(23)/2018 (Inquiry) dated 31.01.2018 along with summary and annexure A to E thereto.

2. For the reasons to be recorded later on, all the out of turn promotions made till date are set aside and they be reverted back to their original ranks. The learned Home Secretary and the Inspector General of Police Gilgit-Baltistan are directed to submit compliance report within two (02) weeks positively.

3. As submitted by the learned DIG Gilgit, certain necessary Shoulder promotions given to certain police officials purely on temporary basis in their own pay and scale are requested to be maintained, if so required, with the permission of learned Inspector General of Police Gilgit-Baltistan. The request is allowed accordingly. Sd/xxx Chief Judge Sd/xx Judge

6. Respondent No. 4 in compliance of judgment/order of Hon'ble Supreme Appellate Court issued the impugned notifications, which though are of same date but in Notification No. SO(S)-1-1(10)/2018 dated 19.04.2018, the present petitioner and 20 others were reverted to their original ranks and in the subsequent notification No. IGP-1(41)/5277-5301/2018 dated 19.04.2018 only the petitioner was reverted from SIP to IP, from ASI to SIP from ASI to HC and from HC to FC.

7. The learned counsel Messrs Malik Shafqat Wali, Advocate and Mr. Basharat Ali Advocate submitted at bar that the respondents mis-interpreted the judgment/order of Hon'ble Supreme Appellate Court, without giving an opportunity of hearing to the petitioner in clear violation of Gilgit-Baltistan Civil Servant Act, 2011, which has been adopted in Gilgit-Baltistan as Gilgit-Baltistan Civil Servants Act, 2011 and is in line with the Civil Servants Act, 1973. The impugned notifications have been issued in a slip shod manner and without, lawful authority and opportunity of hearing was not provided to the petitioner before taking extreme and drastic steps, the example of which is not available in the Police or any other department. The learned counsel lastly prayed that the petitioner is due for retirement in the coming August, 2019 and he may be reinstated at his previous position to redeem his honour and to remove the stigma of humiliation. The learned counsel relied on PLD 2005 SC 400, 2009 SCMR 175, 2001 SCMR 1220, 2014 PLC (C.S.) 476, 2004 SCMR 1864, 2008 PLJ (SC) 87 in support of their contentions.

8. On the other hand the learned Dy. Advocate General defended the impugned notifications and submitted that the petitioner has the alternate remedy to approach to Service Tribunal and by virtue of Article 212 of Constitution of Pakistan, 1973, this Court lacks the jurisdiction to entertain such matters which falls within the exclusive domain of Service Tribunals.

9. As discussed supra and gathered from the record the petitioner was promoted from F.C. to Head Constable (BPS-05) and from H.C. to ASIP 30.04.1985 and ASI to SIP on 31.5.1995 and he was posted in Gilgit, against a vacant post, which ensued due to promotion of one Gulzar and was allowed to continue his work in CPO. The out of turn promotion of the petitioner as SIP was challenged in Federal Service Tribunal by some of his colleagues by filing three (03) different appeals, which were decided on 01.02.1995 and the Service appeals of his colleagues were dismissed. The appellants did not file any appeal before the Hon'ble Supreme Court of Pakistan and the judgment passed by the Federal Service Tribunal attained finality. The record made available and placed with the instant writ petition reveals that the petitioner was not spared to attend the lower and intermediate course by the authorities sitting at the helm of the affairs, vide Office Order No.IGP/5931/2003 dated 15.08.2003.

10. After 15.8.2003, it seems that brakes were never applied and the petitioner was allowed to avail the promotions up to SP(BPS-18) without any check with regard to his requisite qualification, which we despite our weeks long deliberations could not be reconciled. The fact which stick to our mind, that whether the authorities were bound by virtue of their responsibilities to discharge their duties in accordance with law, were to be blamed or the petitioner, who is the beneficiary of all the acts of his superiors? The answer is obviously the only one that the authorities, who ordered promotions of the petitioner, were responsible and if they were responsible and if they extended illegal and un-due favour to the petitioner, could it has been nullified with one stroke of a pin by the authorities, when the promotions were ordered by a higher and ultimate authority and that too without fulfilling the rule of locus poenitentiae. The judgment reported in 2017 SCMR 868 is relevant to resolve the point in issue, which is reproduced as under:- Civil Servants Act (LXXI of 1973)

S. 9

Constitution of Pakistan, Art. 199

Constitutional petition before High Court filed by police officials claiming "out of turn promotion" on account of gallantry/bravery

Maintainability

Withdrawal of "out of turn promotions"

High Court had no jurisdiction to entertain such a petition under Art.199 of the Constitution

Concept of "out of turn promotions" was unconstitutional

Police was a disciplined force and officials/officers employed in the police should not have embarked upon unnecessary litigation of claiming "out of turn promotions"; if, however, any police official had a genuine grievance he should have taken the same before the forums that the law provided instead of initiating proceedings before the High Court under Art.199 of the Constitution

Provincial Inspector General of Police had considered the judgments of the Supreme Court with regard to the "out of turn promotions" cases and issued notices to all concerned officials and gave them opportunity of hearing, where after he passed separate detailed orders in respect of each police official

Supreme Court directed that the report of the Provincial Inspector General should be acted upon and notifications with regard to withdrawing the "out of turn promotions" be immediately issued

Order accordingly." (Underlined for the purpose of emphasis)

11. Paras 17 and 18 of judgment of Hon'ble Supreme Appellate Court are relevant, which are reproduced for the purpose of convenience and ready reference:- 17. "It is shocking to note that how and in what manners they were promoted Out of Turn by violating the Mandatory Requisite Training and Courses. It is settled principle that violation of any mandatory provisions is not condonable under any law which vitiates the whole process of such illegal and unconstitutional Out of Turn Promotions. Such promotions are inherently destructive to the rights of the officers who though senior and entitled to be considered for promotions before the above beneficiaries of Out of Turn Promotions were bypassed and there were deprived from well deserved promotion on merits. The aforementioned case laws and parameters laid down by the Hon'ble apex Court of Pakistan are fully applicable and enforceable in this case as well. We have also gone through the provisions of Articles 61 and 95 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 and Article 184(3) of the Constitution of Islamic Republic of Pakistan 1973. The perusal of the aforementioned statues, case laws, and the Police Service Rules, transpires that admittedly the Officers/Officials of the Police Department Gilgit-Baltistan have been granted Undue/Out of Turn Promotions, Promotions without fulfilling the Codal/Formalities i.e. without obtaining the pre-requisite trainings and or promotions without lawful authority. Due to granting of the aforesaid Promotions, the batch-mates/colleagues of the beneficiaries have been deprived from their due promotions/seniority rights and they have been discriminated which could not be encouraged by this Court. The Gilgit-Baltistan Police is a disciplined force which has the pivotal role in maintaining the "law and Order situation" in the entire region. They should always have been appreciated by providing them each and every due rights in terms of their promotions etc, so as, their moral may always be boost up/beefed up. In our considered view, the notion of "out of turn promotion" is unconstitutional, illegal, unlawful, illegitimate and against the fundamental rights conferred under Chapter-I of Part-II in the Constitution of the Islamic Republic of Pakistan, 1973 as well as enshrined in the Articles 03 to 19 Part-II of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, therefore, such Out of Turn Promotions are not tenable in the eyes of law. The Promotion of the Civil Servants could only be granted on the basis of their seniority-cum-fitness after completing certain legal codal formalities by the competent authorities as prescribed by the Civil Servants Rules as well as Police Rules. Out of Turn Promotions causes injustice to other colleagues/batch-mates which certainly creates frustration, disappointment and disturbance to those who are/were deprived and suppressed in circumstances. The Officers/Officials of Gilgit-Baltistan Police who performs bravery, gallantry and diligent services must be awarded/rewarded with due appreciation but they cannot be granted/given "Out of Turn Promotions" and /or promotions without completing the requisite mandatory courses and without fulfilling the codal formalities of the prescribed Services/Police Rules by creating an environment of frustration, annoyance and sense of depravity amongst all officers/officials of Police on the basis of glaring favoritism, nepotism, partiality, political motives and malafidy, which is, of course, is considered to be illegal unconstitutional, ab-initio void and without lawful authority.

18. Both the Constitution of Pakistan and the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009, provides security of person to their life and liberty. The term "life and liberty" is significant as it covers all the facets of human existence. The inhabitation against its deprivation extends to all those limbs and faculties by which life is enjoyed. The term "life" includes "reputation" "status" and all other ancillary privileges which the law confers upon the citizen. The Civil Servants are fully protected under Article 9 of the Constitution as well as under Article 3 (Part-II of the Fundamental Rights of the Order, 2009, who cannot be deprived from their right of reputation, status and opportunity of the promotions in next grades/scales by discriminating them and depriving them from their due rights. The granting of "Out of Turn Promotion, unlawful and undue promotions to the beneficiaries would not only be unconstitutional without undertaking competitive and transparent process but would also deprive the seniority and progression of the carrier of other meritorious Police personnel. The out of turn promotions given by the then authorities of Gilgit-Baltistan Police does not creates a perpetual right to the beneficiaries gained on the basis of illegal order(s) which can be set aside at any time."

12. Despite of our repeated queries from the learned Dy. Advocate General and the learned DSP (legal) of Police Department, they were unable to show that if at all the petitioner was illegally promoted, whether a show-cause notice was issued to him and opportunity of hearing was provided to him before taking such a drastic step against him. There is no allegation of mis-representation/fraud or deception on the part of the petitioner that he got the promotion by using any undue influence. His promotion cases as the record reveals were properly initiated and after due process of law, were approved by the competent authority. If he was not spared for any course due to exigencies of service as reflected in various letters, he alone is not responsible and cannot be penalized. Most of the promotions of the petitioner were approved by the then Chief Secretaries after the recommendations of Departmental Selection Committee. The petitioner was condemned unheard and before passing reversion order no inquiry was held. As discussed supra if the then authorities made/ordered illegal promotion of the petitioner, the petitioner could not be held responsible for the same. The wisdom is drawn from 2001 SCMR 934 citation (d):- (d) Master and Servant.... ..... Maxim "audi alterm partem" Applicability Employer, who itself had framed Rules as well as Regulations for its domestic purpose, was bound to strictly follow/adhere to the same

Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i.e. no one is to be condemned unheard

Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action.

13. As discussed supra, the petitioner was not spared for the requisite courses for promotion due to exigencies of service, as evident from the correspondence available and made part of the instant writ petition. Under Police Rules, 1934 (Chapter 13, Rule 13.21) empowers Inspector General of Police to relax any of the provisions, with regard to any class or category of the persons for the purpose of promotion. Rule 13.21 of Police Rules 1934 is reproduced as under:- [13.21. Power of relaxation.

Where the Inspector General of Police is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of this Chapter with respect of any class or category of persons.]

14. The comments were submitted by the respondents on 22.04.2019. The copy of the same was provided to the learned counsel for the petitioner and the case was fixed for arguments on 03.06.2019, which were heard at considerable length.

15. The Assistant Advocate General and the rep. of Police Department, were also directed to assist the Court in the light of the judgment/order passed by a Division Bench of this Court (one of us Mr. Justice Ali Baig) was part of the bench where reversion of two SPs namely Tahira Yasub and Muhammad Ayaz was restored in Civil Misc. No. 98/2019 and likewise the six (6) other DSPs, who were reverted, their reversion was set aside on the plea that advance course was never a condition for promotion to the rank of DSP (BPS-17) and only 3 years service in BPS-16 and one year training was a pre-requisite. The promotion of the petitioner up to the rank of SI was protected by the FST vide judgment dated 27.2.1996, though the petitioner was lacking pre-requisite, which now cannot be called in question. Being past and closed transactions the wisdom is drawn from the following judgments of Hon'ble Supreme Court of Pakistan:- a. 2004 SCMR 1864. (d) Locus Poinitentiae, principle of-- Object, scope and applicability

Rule of locus poenitentiae is that the power of rescinding is available to Government or relevant authorities to retrace and undo the wrong order till a decisive step is taken

Authority which had power to make an order had taken effect and certain rights had been created in favour of an individual, such an order could not be rescinded or withdrawn to the detriment of the such individual

Such is not an unfettered power to be used at any stage in any manner for undoing an order which having already taken effect, has created vested rights

Spirit of rule of locus poenitentiae is that once an order is given effect to and in consequence thereof certain rights are created in favour, of a person, such rights cannot be subsequently taken away. b. 2009 SCMR

775. Civil Servants Act (LXXI of 1973)

Ss. 8 & 9

General Clauses Act (X of 1897), S.21

Promotion and seniority

Locus poenitentiae, principle of

Past and closed transaction, principle of

Applicability

Appellant was employee of Provincial Government who was absorbed in Federal Government and was given seniority from the date when she was absorbed

Validity

Such absorption was confirmed and declared valid by superior Courts in past litigation thus matter had become past and closed transaction, not to be challenged and re-agitated

Government could not take benefit of its own illegalities and if competent authority was of the view that some higher authority had no jurisdiction, such authority should have shown courage to disobey the order

Once it was not done, the step so taken could not be subsequently retraced by Government if the incumbent otherwise was eligible for benefit so granted

Nobody could doubt eligibility of appellant keeping in view of her past service record and qualifications

Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by Division Bench of High Court and restored that of Single Judge of High Court whereby appellant was declared permanent employee of Federal Government

Appeal was allowed. c. 2011 SCMR 1220. (a) Punjab Service Tribunals Act (IX of 1974)

S. 4

Rules of Business (Punjab), 1974, Sched. VII, Part-A, Sr. No.20

General Clauses Act (X of 1897), Ss.21 & 24

Constitution of Pakistan, Art.212(3)

Appeal

Assistant Sub-Inspector Police

Dismissal from service vide order dated 5-7-1994

Absence from duty, charge of

Rejection of appeal by Service Tribunal

Directive of Chief Minister issued after accepting mercy petition in June 2005 for reinstatement of appellant in service

Implementation of such directive subsequent entering his name into list "E" and promotion to post of Sub-Inspector

Issuance of show-cause notice by authority after two years alleging appellant's reinstatement to be illegal

Withdrawal of such show-cause notice by authority during pendency of constitutional petition filed there against by appellant and his subsequent promotion to rank of Inspector

Dismissal of appellant from service w.e.f. 5-7-1997 vide order dated 2-1-2002 on same ground

Acceptance of appellant's appeal by Service Tribunal

Validity

Termination from service could not be with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made there under

Rectification of wrong could not be made at any time as such practice would be dangerous for service structure

Action should have been initiated against those responsible for such wrong, which could not be rectified after a long period during which appellant had not only performed his duties diligently, but had also earned few promotions and risen to rank of Inspector

Such directive of Chief Minister was not liable to be implemented, but none had shown moral courage to resist same at relevant time

Appellant had been reinstated in year 2005, while he had been dismissed finally on 2-1-2010 with retrospective effect i.e. on 5-7-1994

Authority had already exercised powers under S.21 of General Clauses Act, 1897 by issuing show-cause notice, which had been withdrawn during proceedings pending in High Court

Such matter was closed once for all and could not be re-opened without any lawful justification

Order passed by a competent authority, if had taken effect and conferred a legal right, could not be rescinded subject to certain lawful exceptions

Supreme Court refused to grant leave to appeal, in circumstances. (b) Civil Service

Service could not be terminated with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made thereunder. (c) Locus poenitentiae, principle of

Power of authorities to pass orders to retrace wrong steps taken by them

Scope. There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

16. Article 86(2) of Self Empowerment and Governance Order, 2018, confers the powers and by virtue of Article-199 of Constitution of Pakistan, Chief Court is duty bound to take extra ordinary measures to protect life, liberty, honour and dignity of every citizen. In case the law or the statue is not sufficient to meet a situation to provide protection to the citizens, the said extra ordinary jurisdiction of Chief Court must come to the aid of citizens. The orders passed by the executive authorities are not immune from the judicial scrutiny. The orders for demotion of the petitioner have been passed in a very hasty and unwarranted manner. While doing so, the respondent No. 4 did not bother to see that the promotion of the petitioner as SI (BPS-14) was challenged before Federal Service Tribunal, which appeals were dismissed on 27.02.1996 and as discussed in para 3 supra no appeal was filed in Supreme Court of Pakistan, and the judgment of Federal Service Tribunal has gained finality and if respondent No. 4 was bent upon to demote the petitioner, how he was demoted to FC. It was the most drastic and unwarranted action, never warranted even under any decornian law. Further all the promotions of the petitioner were approved by the Departmental Selection Committees and some by Chief Secretaries. The petitioner wrongly or rightly was promoted by the competent authorities, who are also equally responsible for their illegal orders if any and the petitioner alone cannot be held responsible. Not a single sentence we could find in the written comments submitted by the respondents, as to why the petitioner was promoted to the rank of AIG after going through process and his promotions were approved by different IGPs/Chief Secretaries and how the promotions ordered by a Chief Secretary could not be withdrawn by respondent No. 4, who is holding a much lower position than the Chief Secretary. The Chief Secretary is the administrative head of the Provincial Government.

17. In view of above discussions, we are of the view that the Notifications No. SO(S)-1-(10)/2018 dated 19-04-2018 and No.IGP-1(41) / 5277-5301/2018 of even date are illegal, unwarranted and without lawful authority. The petitioner is reinstated to his original position, as he was enjoying before the issuance of the above two notifications with all the financial benefits admissible to him.

18. Writ petition is allowed and disposed of accordingly. ZC/79/GB Petition allowed.