2025 PLP (C (PLC(CS))

ALI BAQAR NAJAFI, J.

This order shall also dispose of W.P.No.2157-2019 titled "Nazia Mumtaz v. IG Police Punjab and others" in which Nazia Mumtaz/petitioner sought a direction to the respondent/IG to transfer Nasir Abbas/respondent No.5 as Inspector from Executive Cadre to Prosecution (Legal Branch).

2. Through this constitutional petition (W.P.No.218443-2018) under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the order dated 01.06.2018 passed by Additional Inspector General of Police/Establishment Punjab whereby the restoration order dated 25.09.2008 regarding induction of the petitioner in General Executive Branch/Cadre w.e.f. 05.05.2005 was withdrawn under rule 12.6(3) (e) of Police Rules, 1934.

3. Brief facts giving rise to the filing of this writ petition (W.P.No.218443-2018) are that the petitioner was appointed as Inspector (Legal) on the basis of recommendation made by the Punjab Public Service Commission (PPSC) dated 28.11.2002 whereafter he was transferred to the Executive Cadre on 05.05.2005 after following the formalities and in accordance with the rules and regulations. He also completed one year training courses, in the category of A, B, C and D under Rule 19.25 of Police Rules, 1934. But then surprisingly the said transfer order from Legal Branch to General Executive Branch was recalled abruptly on 05.08.2005 which was challenged by the petitioner in W.P. No.15740/2005 which was disposed of on 15.08.2006 and a direction was issued with the observation that "the respondent No.1 shall hear the petitioner on such aspects, his grievance to consider his entitlement to any relief that may be available strictly in accordance with law". On its non-compliance the petitioner preferred C.P. No.2375-L/2006 titled "Nasir Abbas versus Inspector General of Police, etc." before the Hon'ble Supreme Court in which on 20.08.2008, the Inspector General of Police was directed to decide the matter either way within a period of ten days of course in accordance with law. Consequently, his Executive Cadre was restored on 25.09.2008 w.e.f. 05.05.2005. However, on 01.06.2018 i.e. after about ten years the induction of the petitioner in Executive Branch/Cadre w.e.f. 05.05.2005 was recalled/withdrawn being violative of law which has been impugned in the present writ petition.

4. Learned counsel for the petitioner contends that under Article 8(2) of Police Order, 2002, the petitioner was entitled to be transferred Section Executive Cadre as he was appointed after the promulgation of Court Police Order, 2002 and, therefore, he was to be governed under the said Rules. Submits that judgment titled "Gul Hassan Jatoi and others v. Faqir Muhammad Jatoi and others" (2016 SCMR 1254) was misapplied to the case of the petitioner while passing the impugned order since it relates to Province of Sindh where Police Order, 2002 was totally 'repealed while restoring Police Rules, 1934. Also submits that in I.C.A. No.224400 of 2018 titled "Muhammad Iqbal Najam v. Government of the Punjab and others" decided on 26.06.2019, the letter of appointment was also not considered. Also contends that despite completion of the said requisite courses, the petitioner will not get any benefit in the Investigation Cadre if he is sent back to the post of Inspector (Legal) as the course was not meant for the legal job. Also contends that under Article 185, the Police Order, 2002 have a dominating effect and that under Article 187 of the said Police Order, 2002 will be applied to the case of the petitioner. Further contends that the petitioner is at the verge of his promotion and his right to be considered for it is being denied by the respondents as his case was not placed in the DPC.

5. Conversely, the learned Law Officer submits that the case of the petitioner directly hit by the judgments of the Apex Court, therefore, the impugned order was rightly passed. Adds that the petitioner has completed the course prescribed under Police Rules, 1934, therefore, they cannot approbate and reprobate by saying that the said rules were no more applicable to him. She submits that the Petitioner may avail his right of promotion as per his previous cadre, so made out.

6. Arguments heard. Record perused.

7. Admittedly the petitioner was appointed as Inspector (Legal) on 28.11.2002 whereafter he performed his duties to the best of his abilities having unblemished service record at his credit. In order to reconstruct various establishment the consent from the eligible inspectors were called for changing their cadres from Legal to Executive after adopting coda' formalities. The petitioner amongst many others similarly placed persons gave consent to the change of cadre. The respondent No.2/IG Police Punjab having authority under Police Order, 2002 permitted the change of cadre of the petitioner from Legal to Executive vide order dated 05.05.2005. The petitioner went on departmental training meant for Inspector (Executive) under Rule 19.25 of Police Rules, 1934. He cleared the said departmental examination. However, the said order dated 05.05.2005 was abruptly and unilaterally withdrawn and on 25.09.2008 the petitioner was declared as Inspector (Executive) from the date of appointment. The petitioner and other Inspectors (Executive) have been exempted from the departmental examination. He requested for the seniority of his service w.e.f. 28.11.2002 by making a representation on 20.02.2016. However, instead of giving seniority to the petitioner, the appointment of the petitioner to Inspector (Executive) was withdrawn vide impugned order dated 01.06.2018 which is subject matter of this writ petition.

8. The case of the petitioner is that applying the judgment titled "Gul Hassan jatoi and others v. Faqir Muhammad Jatoi and others" reported as 2016 SCMR 1254 to the case of the petitioner is misplaced since that judgment had been pronounced on the police employees in Sindh where Police Order, 2002 was not applicable. More so when the petitioner inderwent departmental training and was confirmed as Inspector (Executive), therefore, he had a legitimate expectations of retaining the said post and further promotion in the said cadre. It is also his case that the petitioner was not heard before passing the said impugned order. Learned counsel for the petitioner argues that the petitioner was appointed on 28.11.2002 whereas the Police Order, 2002 was promulgated on 14.08.2002 i.e. his appointment was during the operation of the said Police Order. His service was to be regulated under the said Police Order. Under Article 8(2) of the Police Order, 2002 there had been 18 branches/divisions/Bureaus for the organization of Punjab police and that the petitioner's transfer horizontally has been justified by the department itself. He also submits that under Article 187 of the Police Order, 2002, the order has dominating effect over the Police Rules and that the only legislation which can change the cadre. His transfer back from Executive to Legal cannot be challenged before the Service Tribunal on the strength of case titled "Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and others" reported as 2018 PLC (C.S.) 152, case titled "Mst. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi and others" reported as 2015 SCMR 1418 and case titled "National Database and Registration Authority (NADRA) through Chairman, Islamabad and others v. Jawad Khan and 2 others" reported as 2023 SCMR 1381. The stance of the department is very simple that because of the judicial intervention they had to change the cadre of the petitioner that too legal. A reference was given in the impugned order to Rule 12.6(3)(e) which reads as follows:- "(e) After recruitment no Inspector (Legal) shall be allowed change of codre from Inspector (Legal) to the Executive of any other Branch in the Police Department." However, this stand is the negation of the orders passed by the authority itself. The change of cadre was permitted and the petitioner was allowed to function as Inspector (Executive) during which he continued to perform at department office. Further stand of the department is that under paras 53 and 54 of the case titled "Gul Hassan Jatoi and others v. Faqir Muhammad Jatoi and others" reported as 2016 SCMR 1254, the relief sought for by the petitioner is not permissible. However, perusal of the said paragraphs reveal that it was intended for employees in the Sindh Police where Police Order, 2002 was not applicable or which learned counsel for the respondent has taken a stand that since the course was completed by the petitioner under Police Rules, 1934, therefore, the petitioner cannot change the stand. Suffice it to say that Police Rules, 1934 remained in field and to the extent its inconsistency with Police Order, 2002 it can be overlooked.

9. For the foregoing reasons, I am of the considered view that order dated 01.06.2018 passed by the respondent/IG is not in accordance with law. Resultantly, the instant writ petition (W.P.No. 218443-2018) is allowed and the impugned order is set aside and the petitioner shall remain as Inspector (Executive) by extending all benefits in his capacity as such including his further promotion without any fail in the next DPC. However, W.P.No.2157-2019 filed by Nazia Mumtaz is dismissed. SA/N-16/L ????