P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

Muhammad Zaman, an employee of the Police Department, has brought the present petition under Article 170 of the Constitution of the Islamic Republic of Pakistan for the issue of an appropriate writ, order or direction to the effect that the order dated the 16th August 1955, passed by the Deputy Inspector‑General of Police, Rawalpindi Range, whereby the petitioner was reduced in rank and the order of that date, whereby his name was removed from the promotion list 'D', are illegal and void and that the petitioner is entitled to be treated as an Assistant Sub‑Inspector of Police. The respondents to this petition are the Government of West Pakistan and the Deputy Inspector‑General of Police, Rawalpindi Range; Rawalpindi.

2. Some of the material facts, which I take from the written statement put in by the respondents and from the documents on the record, are these. The petitioner was appointed is a, Head Constable in the Punjab Police in 1941 and was promoted to the rank of an officiating Assistant Sub‑Inspector of Police in 1948. He was working as an Assistant Sub‑inspector of Police on the 28th of January 1955, when a report was made against him that he had committed an unnatural offence with a boy who was a student of the Government High School, Kharian. As a result of this report, the petitioner was suspended from service on the 6th of, February. 1955 and a departmental inquiry was started against him by the Superintendent of Police, Gujrat. By his order dated the 19th May 1955, the Superintendent of Police held that the charge had not been proved against the petitioner and, finding him not guilty, directed that the petitioner was re‑instated from the date of suspension from service and will be permitted to draw his full pay with the usual allowances for the period he remained under suspension. On the 16th of August 1955, Mr. Najaf Khan. who was then the Deputy Inspector‑General of Police, Rawalpindi Range, passed an order reverting the petitioner to the rank of a Head Constable and on that day directed that the name of the petitioner was to be removed from list 'D' a promotion list mentioned in Rule 13'9 of the Punjab Police Rules, which contains names of Head Constables eligible to be appointed Assistant Sub‑Inspectors, as he was not a fit person to be retained on that', list. Though no rule was cited, it appears that the order reverting the petitioner to a Head Constable was passed under. Rule 16'28 of the Punjab Police Rules, Volume II, 1934 Edition, as corrected to date, and the order with regard to the removal of the name of the petitioner from list 'D' was passed under Rule 16'33 of the above‑mentioned Rules. These two Rules read as follows:-- "16'28. (1) The Inspector‑General, a Deputy Inspector General, and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify, or annul the same, or make further investigation or direct such to be made before passing orders. (2) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not. (3) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced. "16'

33. Removal of a name from a promotion list may follow from the award of punishment for a specific offence, or be ordered on general grounds. In neither case shall a formal charge be framed nor evidence recorded, but an order shall be recorded in writing and given effect to through an entry in the Order Book. The original order of the authority ordering removal shall be read out to the officer concerned. but a copy thereof shall not be given to him and no appeal shall lie against it".

3. I will presently detail the circumstances in which Mr. Najaf Khan, the then D.

1. G., Rawalpindi Range, came to pass the two above‑mentioned impugned orders. As I intend to deal with the case on the basis of facts mentioned or admitted in the written statement and of official documents produced in Court, I need not consider the question whether or not the allegation of the petitioner that Mr. Najaf Khan passed the impugned orders because he had been asked by Mr. Tariq Ismail, who used to be the Additional District Magistrate at Gujrat, to pass it. The petitioner applied for the copy of the order of the D. I. G. but his request was turned down by saying that as according to the Punjab Police Rules reversion from a higher officiating rank to a sub stantive rank and removal of a name from a promotion list were not punishments, no copy of the punishment order or of the order removing his name from 'D' list could be supplied to him. The petitioner appealed to the Inspector General of Police without success and it was after he remained unsuccessful in getting from his Department what he believed himself to be entitled to that he sought relief from this Court.

4. As mentioned in paragraph 2 of this order, a depart mental inquiry was held against the petitioner by the Superintendent of Police, Gujrat. That officer was competent to hold the inquiry because of Rule 16'1 occurring in Chapter XVI of Volume II of the Punjab Police Rules, 1934 Edition. One of the Rules, which applies to departmental inquiries against subordinate ranks of the police, is Rule 16'24, the ninth clause of which, as amended by Correction Slip 580 dated the 28th May 1945, and Correction Slip 612 dated the 6th of September 1946, was in the following terms at the time when the Superintendent of Police and the D. I. G. passed the relevant orders :‑ "No order of dismissal or reduction in rank shall be passed by an officer empowered to dismiss a police officer or reduce him in rank until that officer has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him provided that this shall not apply :‑ (a) where a police officer is dismissed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge ; or (b) where the officer empowered to dismiss him or reduce him in rank is satisfied that for some reason, to be recorded by that officer in writing, it is not reasonably practicable to give that police officer an opportunity of Showing cause. Before an order of dismissal or reduction in rank is passed, the officer to be punished shall be produced before the officer empowered to punish him and shall be informed of the charges proved against him, and called upon to show cause why an order of dismissal or reduction in rank should not be passed. Any representation that he may make shall be recorded, shall form part of the record of the case, and shall be taken into consideration by the officer empowered to punish him before the final order is passed . Provided that if, owing to the complicated nature of the case or other sufficient reason to be recorded, the officer empowered to impose the punishment considers this procedure inappropriate, he may inform the officer to be punished in writing of the charges proved against him, and call upon him to show cause in writing why an order of dismissal or reduction in rank should not be passed. Any written representation received shall be placed on the record of the case and taken into consideration before the final ‑order is passed".

5. I might now, on the basis of the entries in the relevant file of the office of the Deputy Inspector‑General of Police, Rawalpindi Range, which was produced in Court as the result of an order passed by this Court on the 25th April 1957, in Civil Miscellaneous No. 515 of 1957, detail the manner in which the impugned orders came to be passed. On the 30th of July 1955, Raja Muhammad Arshad. the then Superintendent of Police, Gujrat. who had passed the order holding that the petitioner was not proved guilty of the charge levelled against him, sent a memorandum to the Inspector‑General of Police, Punjab, in which he detailed the circumstances of the case and the reasons why he had held the charge not proved. It appears that this memorandum came to be written during the course of correspondence to seek permission to produce the file of the departmental inquiry in the Court of the Magistrate who was hearing a criminal case against the petitioner arising out of the offence of which he had been held by the Superintendent of Police to be not proved to be guilty. A copy of the memorandum of the Superintendent of Police to the Inspector‑General of Police was sent to the D. I. G., Rawalpindi Range, Rawalpindi, by means of endorsement No. 648/D dated the 30th July .1955. On the 12th of August 1955, Mr. Najaf Khan wrote the following note on the memorandum received by him :‑ "A very shameful act. Put up his personal file and speak". The person who had been directed by the D. I. G. to speak to him was his Head Clerk and on the 16th of August 1955, Mr. Najaf Khan wrote the following order on the above' copy of the memorandum of the Superintendent of Police, Gujrat, just above his note dated the 12th August 1955, which has been reproduced above:-- "Reverted from today," That very day a clerk in the office of the D. I. G. recorded the following note :‑ "The D. I. G. has passed the orders regarding reversion of officiating A. S. I. Muhammad Zaman of the Gujrat District. Orders are solicited whether his name is to be removed from the list `D' after reversion", This nose was sent to the D. I. G. through the Head Clerk and on the same day Mr. Najaf Khan passed the following order :‑ "I do not think he is fit to be retained on list 'D'. His name to be removed".

6. The learned counsel for the petitioner urged that the petitioner had not been given an opportunity by the D. I. G., who passed orders adverse to him, to show cause against the action proposed to be taken against him and, therefore, the impugned orders could not have been passed. To this, the learned counsel for the respondents replied, as was pleaded in the written statement, that the orders were passed under Rule 16'33 of the Punjab Police Rules and as no appeal is com petent against an order passed that under Rule, the question of exercise of the powers of this Court under Article 170 of the new Constitution did not arise. In taking up this position, the respondents and their learned counsel entirely over looked the order of reversion of the petitioner from the rank of an Assistant Sub‑Inspector of Police to that of a Head Constable, which order cannot be brought within Rule 16'33 of the Punjab Police Rules, however much one stretches its plain language. It was also contended by the learned counsel for the respondents that all that happened in the present case was at worst a breach of the Punjab Police Rules and as the petitioner could not have obtained the relief he seeks by this petition by bringing a suit, none should be granted to him by au order passed under Article 170 of the Constitution. For the purposes of the present case, it is not necessary to determine whether or not this Court can, under Article 170 of the new Constitution, grant a relief which could not have been granted if a suit were brought to obtain it, because I am of the view that if he could establish his assertions about breach of the Punjab Police Rules the petitioner has a good cause of action for bringing a suit to have the impugned orders of the D.

1. G. set aside. !t is true that because of section,, 243 of the Government of India Act, 1935, as adapted, which was in force at the time that Mr. Najaf Khan passed his impugned orders, the Punjab Police Rules were to govern the conditions of service of subordinate police officers in the Punjab notwithstanding the provisions contained in sections 240, 241 and 242 of the Government of India Act. 1935, but as laid down by our Supreme Court in Noorul Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) the fact that a police officer comes to Court to seek relief on the ground that the Police Rules have not been complied with does not disentitle him to get relief if the Rules are not repugnant to. Those provisions of the three sections preceding section 243, non‑compliance with which gives a cause of action to bring a civil suit. In the case the Supreme Court was dealing with, the question that arose was slightly different, but on principle the case decided by the Supreme Court and the one being dealt with now are not materially different. The provision in the Punjab Police Rules with regard to giving an opportunity to the person sought to be dismissed or reduced in rank is precisely the same as that contained in sub‑,q section (3) of section 240 of the Government of India Act, 1935, and, therefore, as laid down by the Supreme Court an aggrieved police officer can seek relief against breach of the Rules. In this view of the matter, there is no doubt that if the petitioner had sought relief by a suit and established ,that he had not been given an opportunity to show cause against the action taken against him, he would have got a declaration in his favour, and it is, therefore, obvious that he cannot be denied the relief he is entitled to get simply because he chose the course of getting speedier remedy by putting in a petition under Article 170 of the new Constitution g rather than resorting to suit, the decision of which, in addition to entailing a lot of expense, would have taken a very long time.

7. Having held that the petitioner is not disentitled to the relief if he proves his allegation that he had not been given an opportunity to show cause against the order of reversion, I proceed to consider whether his allegation is correct. The manner in which the impugned orders were passed has been detailed above and it was for the reason that it would have been an untenable position that it was not pleaded in the written statement that the petitioner had been called upon by Mr. Najaf Khan to show cause against his reversion but it was contended by the learned counsel for the respondents that the action of Mr. Najaf Khan was warranted by Rule 16'28 of the Punjab Police Rules, which has been reproduced above. The learned counsel for the respondents relied on Rule 16'28 of the Punjab Police Rules only when he was confronted with the position that Rule 16'33, Punjab Police Rules, on which alone entire reliance has been placed in the written statement, did not authorise the passing of an order of reduction in rank but as there was nothing to prevent reliance on a Rule other than the one relied upon in the written statement, he was within his right to rely on any provision of law to defend the impugned orders. After con sidering the relevant provisions of the Punjab Police Rules, I have arrived at the conclusion that Rule 16'28 was not intended to apply to cases in which an order of acquittal was sought to be substituted by an order of an award of punishment but only to those cases in which punishment had been awarded at the departmental inquiry. But even if Rule 16 '281 applied to the impugned order of reversion, I do not see how the provision contained in Rule 16'2.4 of the Punjab Police Rules with regard to the necessity of an opportunity of showing cause against the order proposed being given to the officer intended to be dismissed or reduced in rank could have been dispensed with. If it were a case of enhancement of a punishment, which, in my opinion, it was not, then sub rule (3) of Rule 16'28, which enjoins on the officer enhancing the punishment the duty of giving the person whose punish ment it is intended to enhance an opportunity of showing cause against the action proposed to be taken against him, was not complied with. It will be noticed that the necessity of giving an opportunity to the police officer whose punish ment is to be enhanced, arises even if the punishment intended to be imposed is not of dismissal or reduction in rank. I am clear in my mind that clause (ix) of Rule 16'24 of the Punjab Police Rules applies to all orders of dismissal from service and reduction in rank passed for the first time, be such order passed by the officer who held the inquiry or by any of his superiors in the exercise of the power given by Rule 16.213 of the Punjab Police Rules unless the order of reduction is lighter than the original order. If, for example, a Superinten dent of Police passes an order of censure and the Deputy Inspector‑General or Inspector‑General of Police wants to pass an order of dismissal from service or reduction in rank, the Deputy Inspector‑General or the Inspector‑General as the case may be, must give the police officer, whose fate it is intended to seal, an opportunity to show cause why he should not be dismissed or reduced in rank. I am not taking this view on general principles but on the warding of clause (ix) of Rule 16'24 of the Punjab Police Rules which does not say that it is only the officer who held the inquiry who has to comply with its provisions. But even if it were held that clause (ix) of Rule 16'24 of the Punjab Police Rules did not apply to an order of dismissal from service or reduction in rank after an order of acquittal had been passed, the position will not alter, because even in the case of subordinate police officers the provisions of section 240 of the Government of India Act can be invoked if the Police Rules do not contain any provision with regard to a question that falls for determination. I am, therefore, of the view that Mr. Najaf Khan passed his order reverting the petitioner to the rank of a Head Constable without compliance with the law applicable to such cases.

8. It was contended by the learned counsel for the respondents that the order passed by Mr. Najaf Khan reducing the petitioner to the rank of Head Constable could not be deemed to be an order of reduction in rank because the petitioner was no more than an officiating Assistant Sub Inspector of Police and when an officer who holds an officiat ing appointment is reverted to .his substantive appointment, the reversion is not reduction in rank. To my mind, this contention has no force if the reversion was ordered as a punishment and not on account of the exigencies of service. The order of Mr. Najaf Khan makes it clear that the reversion of the petitioner to the rank of a Head Constable resulted because Mr. Najaf Khan was of the view that the petitioner had been guilty of a serious offence. The reversion was, therefore, ordered as a punishment and was, in my view nothing short of reduction in rank for the purposes of the Government of India Act, 1935, as well as the Punjab Police Rules, and the fact that the petitioner was holding only an officiating appointment as Assistant Sub‑Inspector does not alter the nature of tile order. I leave mentioned in paragraph 3 of this order that the petitioner was refused a copy of the order of Mr. Najaf Khan on the ground, inter alia, that an order reverting a person from an officiating appointment to his substantive post was not an order of reduction in rank under the Punjab Police Rules. No rule was cited which would justify this inference, but even if there were such a rule, it will make no difference because though the Punjab Police Rules could lay down the conditions of service of the subordinate ranks of police officers, they could not change the meanings of tile expressions which had been used in the Government of India Act except where those expressions are used in the rules and that too only for the purposes of the rules themselves. If, therefore, the order of reduction in rank passed in the present case amounted to one of reduction in rank for the purposes of the Government of India Act, which there is no doubt it did, but was not an order of that nature for the purposes of the Punjab Police Rules, the petitioner will be entitled to relief as the provisions of that Act with regard to affording an opportunity to show cause against the order proposed, to the officer to be affected by an order of reduction, had not been followed,

9. There is another way of looking at the order of reversion in the present case. It was mentioned in the petition that many persons junior to the petitioner were officiating as Assistant Sub‑Inspectors of Police and as this assertion was not controverted in the written statement, it is to be deemed to have been admitted. In these circumstances, can it be seriously urged that the order of reversion of tile petitioner to the rank of Head Constable was not reduction in rank ? It has been held in (1) Writ Petition No. 42 of 1955, (2) Writ Petition No. 328 of 1956 and (3) Writ Petition No. 109 of 1956 by Division Benches of this Court that if a person holding an officiating appointment is reverted to his substantive rank while persons junior to him continue to hold the superior rank, tile order is one of reduction and riot merely of reversion. I would, therefore, hold, that the petitioner is not disentitled to relief oil the ground that he has been deprived of an appointment which he was holding in a merely officiating capacity.

10. I will now deal with the order removing the name of the petitioner from list 'D'. The learned counsel for the respondents urged that as tile D. I. G. was competent to pass the order of removal of the name of the petitioner from list 'D', which is a promotion list, no occasion for issue of a writ, order or direction with regard to the order of removal of the name of the petitioner from the list arose. Rule 16'33 of the Punjab Police Rules authorises the removal of the name of a person from the promotion list either as a result of ail award of punishment for an offence or on general grounds The learned counsel for the respondents urged that the order of Mr. Najaf Khan in the present case could be deemed to have been passed on general grounds, but the facts established do not support this contention. The orders of Mr. Najaf Khan, which have been reproduced in paragraph 5 of this order, make it clear that the name of the petitioner was removed from list 'D' because of the award of punishment for the offence of which Mr. Najaf Khan deemed the petitioner to be guilty. As the order of the award of punishment was bad in law, I have no doubt in my mind that the order of removal of the name of the petitioner from the promotion list 'D' was equally invalid, because if the basis of the order of the removal of the name from the list goes, the order of removal cannot stand. It will be a strange state of affairs if an order of removal of a name from the promotion list, which is based on the award of a punishment, was to be unimpeachable in spite of the fact that the order awarding the punishment on which the order of the removal of the name was based, was illegal. I would, therefore, hold that from the fact that Rule 16'33 of the Punjab Police Rules says that no formal charge was to be framed, nor evidence to be recorded before removing the name of a subordinate police officer from a promotion list, it does not follow that if the order of removal of the name is invalid, it cannot be held to be so. I would, therefore, hold that the order of the removal of the name of the petitioner from the 'D' list, was, in the circum9tances of the present case, entirely invalid.

11. It is well settled that while exercising its power under Article 170 of the Constitution of the Islamic Republic of Pakistan, this Court is not to treat the matter as if it were a Court of further appeal. If an officer or authority has passed an order which he or it has jurisdiction to pass, it is very rarely that this Court will exercise its power under E Article 170, but if the order is without jurisdiction or has been passed in disregard of some binding rule or provision of law, this Court has not only the jurisdiction to give relief to the person aggrieved by the order but will ordinarily do so.

12. In view of what I have said above, I would accept the petition and issue a direction to the respondents not to treat the impugned orders of Mr. Najaf Khan as binding. The petitioner is, in the circumstances of the case, entitled to costs and he shall get them. At the conclusion of the hearing, it was announced that the costs shall be `borne by Mr. Najaf Khan personally and not by Government. This order making Mr. Najaf Khan personally liable was considered necessary be cause it was felt that the money of the tax‑payer should not be wasted in paying costs of litigations which have been brought upon the Government by illegal orders passed by officers who have not cared to look up the relevant provisions of law with regard to their own powers. At the time of the announce ment of the order it was believed that Mr. Najaf Khan was represented at the hearing by Mr. Kitchlew who represented both the respondents but on going through the record, I find that the D. I. G., Rawalpindi, who signed the written state ment, was not Mr. Najaf Khan but his successor. In view of the fact that he has not been heard, it would not be proper to direct that Mr. Najaf Khan pay the costs of the petitioner and I would direct that the costs will be borne by the West Pakistan Government, respondent No. 1, as the petition was vehemently resisted Counsel's fee Rs. 300, MASUD AHMAD, J.‑

I agree. A.H. Petition allowed.