1996 PLP (C (PLC(CS))

8. The case of the petitioner is dependant entirely upon the order, dated the 28th of November, 1992, which reads as follows:‑‑ "SELECTION GRADE: ‑‑In pursuance of the notification issued by Government of Punjab, Finance Department vide their No. FD‑PC 14‑3/87, dated 22‑5‑1990 and circulated over I: G.P.'s Memo. No.6720‑6820/F‑Il, dated 23‑5‑1990, the following senior most Assistant Sub‑Inspectors of Lahore Range are granted Selection Grade in Basic Pay Scale No. 11 (1275‑86‑2565) with effect from 8‑11‑1992:‑‑

The above A.S.Is. are also allowed to hold the rank of Sub‑Inspector (Honorary) in their own pay Scale (i.e. BPS No. 11) till further order'

9. Admittedly, there is no provision for the rank of Sub‑Inspector (Honorary) either in the Police Act of 1861 or in the Police Rules of 1934. This is conceded by the learned counsel for the petitioner and rightly so.

10. There is a trichotomy in paragraph 2 of the abovementioned order. First, the petitioner continued to be an Assistant Sub‑Inspector because the paragraph begins by saying "the above Assistant Sub‑Inspector. Secondly, the petitioner was allowed to hold the rank of Sub‑Inspector (honorary) in his '0 pay Scale (i.e. BPS No. 11)" and thirdly, this was "till further orders".

11. An indepth examination of paragraph 2 of the order, dated the 28th of November, 1992, clearly reveals that the petitioner continued to be an Assistant Sub‑Inspector of Police; and was not promoted to the next rank of Sub‑Inspector of Police because he continued to serve in his own pay scale and that the rank of Sub‑Inspector was being bestowed on an Honorary basis but without a corresponding raise in the pay scale and that also only till further orders. The impugned order, dated the 26th of February, 1995, is the "further order" mentioned in paragraph 2 of the earlier order, dated the 28th of November, 1992. Thus, the impugned order, dated the 26th of February, 1995, is actually in continuation of the earlier order, dated the 28th of November, 1992.

12. The earlier order dated the 28th of November, 1992, was not an order of promotion and the subsequent order, dated the 26th of February, 1995, is not an order of reversion or reduction in rank. All that has happened is that an ad hoc arrangement for which there is admittedly no provision either in the Police Act, 1861 or in the Police Rules of 1934 has been rightly brought to an end.

13. The first requirement for assuming jurisdiction under Article 199(1) of the Constitution of the Islamic Republic of Pakistan of 1973 is that this Court has to be satisfied that no other adequate remedy is provided by law, followed by the next requirement under clause (a) of Sub‑Article (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan that the person coming to this Court must be an aggrieved party. Only then will this Court assume jurisdiction and only then may this Court make an order giving a direction in the nature mentioned in sub‑clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan, or make a declaration of the kind mentioned in sub‑clause (ii) of clause (a) of sub‑Article (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan. There is a dichotomy in Article 199, sub‑Article (1), clause (a) and clause (b). Under clause (b) this Court may assume jurisdiction "on the application of any person" and make an order under sub‑clause (i) in the nature of habeas corpus or under sub‑clause (ii) in the nature of quo warranto.

14. In the present case the petitioner is seeking a declaration within the meaning of sub‑clause (ii) of clause (a) of sub‑Article (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan to the effect that the impugned order is "without lawful authority and is of no legal effect". Therefore, first and foremost he has to satisfy this Court that he is an "aggrieved party". A mere sense of deprivation imagined by a person will not make him into an "aggrieved party" within the meaning of clause (a) of sub-Article (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan. An aggrieved party will have to be a person whose vested legal right has been frustrated or defeated by illegal means. In the instant case the order, dated the 28th of November, 1992, did not create any legal right whatsoever because there was no promotion either in rank or in salary. Thus, no legal right has been either frustrated or defeated by the subsequent order, dated the 26th of February, 1995, which is actually only a continuation of the first order. This Constitutional petition, therefore, merits dismissal on this ground alone.

15. The principle of locus poenitentiae, that is the power of receding till a decisive step is taken, is always subject to the pre‑requisites that the order itself must be a legal order and further it must have attained finality by having taken legal effect whereby a definite legal right has been created in favour of an individual. It is only thereafter that no locus poenitentiae, that is the power of recalling, is left.

16. In the case of Shahbaz v. The Crown reported in PLD 1956 (Federal Court) page 46 it was held by their Lordships of Federal Court that locus poenitentiae, that is power of receding till a decisive step is taken, is left with the Government if the unconditional order has not been carried into effect. Till then, there is no reason to restrict the power to modify or cancel such an order. In the instant case the order, dated the 28th of November, 1992, was not an unconditional order. It was a conditional order, the condition being that the petitioner was allowed to hold the rank of Honorary Sub‑Inspector, till further orders. In the case of Khondkar Ali Afzal v. Pakistan and another (PLD 1959 (W.P.) Karachi 105, it Was held by their Lordships that the order of Mr. H.S. Suhrawardy the then Prime Minister of Pakistan, extending the term of service of Mr. Khondkar Ali Afzal was a legal order which had taken legal effect and had, therefore, attained finality. To borrow the words of their Lordships "the extension of the petitioner's term of service is a contract, an assurance and a commitment which has been made by the Government. The expectations created by it must be respected" It was only thereafter that their Lordship were pleased to hold that no locus Poenitentiae was left. In the instant case there was no assurance, no commitment, because the order, dated the 28th of November, 1992, itself says that it is subject to further orders. The view taken by their Lordships in the case of Khondkar Ali Afzal was upheld by their Lordships of the Supreme Court of Pakistan in the same case reported in PLD 1960 Supreme Court page 1.

17. In the case of Lt.‑Col. G.L. Battacharya v. The State and others reported in PLD 1964 SC page 503 which was a case of remission of sentence, it was held by my Lord Mr. Justice A.R. Cornelius, the then Chief Justice of Pakistan that:‑‑ "In my view, the governing consideration in a case of remission, where the question arises as to whether effect has been given to it in circumstances such as those of the present case and the case of Deshpande aforesaid, is to be found in the obligation imposed upon the prisoner by the sentence awarded to him, and the obligation of the officer upon whom the duty is placed by the law of executing the punishment, regarding it in the light of a penal servitude." It was further held by this Lordship that:‑‑ "The Jail Superintendent duly gave effect to this order by noting the remission of four years in the history ticket. The remission was not worded so as to take effect upon any future date. It was not a remission to be earned from day to day such as a good conduct remission. The order did not say that the prisoner should be released on a particular date. In these circumstances, in my opinion, the true effect of the remission was to waive the performance of the penal servitude imposed upon the prisoner by the sentence, to the extent of four years. The order was a clear direction to the Jail Superintendent to execute the original sentence as if, from the balance, four years bad been excused, and he acted accordingly. It still remained of course for the Jail Superintendent, while holding the prisoner in custody, to calculate the date of the prisoner's release, and this could only be in relation to any further remission by virtue of good conduct that he might earn from day to day under the rules. But it is clear that as from the date of the order of the Governor, which was expressed in proper form with due reference to the sentence awarded to the prisoner, and to the power under section 401, Cr.P.C., which was being exercised and which bore a valid official signature, the Jail Superintendent upon receipt of that order was obliged, as part of his duty under the Prisoners Act, immediately to give effect to it, so that the unexpired portion of the original sentence was immediately to be reduced by a period of four years." , Thus, clearly the ratio decidendi of the abovementioned case is not applicable to the facts of the present case.

18. In the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi reported in PLD 1969 SC 407, it was held by Mr. Justice Sajjad Ahmad Jan that an order cannot be withdrawn once it has taken legal effect and certain rights have been created in favour of an individual. But, the principle of locus Poenitentiae that is the power of receding till a decisive step a taken, is available to the Government or relevant authorities, who were competent to pass the order in the first instance and have the power to recall or undo it. Therefore, the principle of locus poenitentiae will come into play only when first of all there is a legal order, which has taken legal effect and created rights in favour of an individual. This view is founded on maxim Ubi jus ibi remedium, where there is a right there is a remedy. Conversely, where there is no right there is no remedy. In the present case, no right had been created in favour of the petitioner. In the case of The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin reported in PLD 1992 SC 207, their Lordships of the Supreme Court were pleased to hold that the principle of locus poenitentiae would not be applicable where the order in question was itself an incorrect order because if the order itself is illegal then perpetual rights cannot be gained on the basis of such an order.

19. In the case of Mrs. Anisa Rehman v. P.IA.C. and another reported in 1994 SCMR 2232 which was a case of reversion from a higher pay group to a lower pay group, it was held by their Lordships of the Supreme court that the maxim audi alteram partem would be applicable to judicial as well as non‑judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein. This decision does not advance the case of the petitioner because he has not been reverted from a higher pay scale to a lower pay scale and also because the petitioner was allowed to hold an honorary rank, in his own pay scale and that too till further order, therefore, he was already on notice.

20. Thus, in the case of the petitioner neither is the principle of locus poenitentiae applicable nor has there been a violation of the principle of audi alteram partem.

21. If indeed the petitioner had been promoted to a higher rank, which as a matter of fact he was not, then his Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan would not be maintainable because of the ouster of jurisdiction of this Court by virtue of Article 212 of the Constitution which provides that;‑‑ "212: ‑‑(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑‑ (a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters; (b) ............................................................................................................ (c) ............................................................................................................ (2) Notwithstanding any hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court) shall abate on such establishment)." Promotion necessarily relates to the terms and conditions of service and the Punjab Civil Servants Act, 1974, confers a right on a civil servant to be considered for promotion if he possesses the minimum qualification as may be prescribed for being eligible for promotion but does not create a vested right to be' promoted. This is the view expressed by their Lordships of the Supreme Court in the case of Muhammad Anis and others v. Abdul Haseeb and others reported in PLD 1994 Supreme Court page

539. However, in the case of the petitioner, the learned Advocate‑General of Punjab has already made a statement at the Bar on the basis of instructions and also the report/parawise comments submitted by the Deputy Inspector- General of Police, Lahore Range, Lahore (respondent No. 1) that the petitioner will get promotion on his turn on the principle of seniority‑cum- fitness coupled with efficiency and honesty which are the governing factor for promotion, as envisaged under Police Rules 13.1.

22. There is no merit in this petition which is dismissed. AA./M‑2533/L Petition dismissed.