2018 PLP (C (PLC(CS)N)

MUHAMMAD SHERAZ KIANI, J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 following relief is explored by the petitioners:- "It is therefore, very humbly prayed on behalf of the petitioners that this Hon'ble Court may very graciously be pleased:- i. to direct the respondents to implement Chapter XIII Rule 13.7 of the Police Rules, 1934. ii. may kindly be directed respondents Nos.2 and 3 also to nominate the petitioners on the basis of seniority, for lower School Course in accordance with previous/examples, while the petitioners have already been enlisted in List B/1. iii, Any other relief which this Hon'ble Court deems fit in the circumstances of the case, may also be granted.

2. Precise stated facts of the instant writ petition are that petitioners are serving as Selection Grade Constables in Reserve Police of Azad Jammu and Kashmir, who were inducted as constables on different dates vide final seniority list dated 18.07.2013. It is further stated that with the passage of time petitioners improved their qualification and through initial training course, firstly they have been enrolled in List A and then enlisted in List B-1 by the approval of Deputy Inspector-General of Police/Rangers on 07.09.2010. It is averred that Inspector General Police is the competent authority for issuing any standing order regarding the special training courses and examinations, who issued a standing order dated 25.01.2010 in which he declared Lower School Course equal to Selection Commander Course, which is contrary to Rule 13.7 of Police Rules, 1934, because both courses are totally different in nature, i.e. Selection Commander Course is essential for illiterate employees and Lower School Course is necessary for educated/qualified police employees. The precise stand of the petitioners is that this Court may direct the respondents to implement Chapter XIII Rules 13.7 of the Police Rules, 1934 and also direct Respondents No.2 and 3 to nominate the petitioners in accordance with rules, previous practice and procedure i.e. list B/1.

3. Writ petition was admitted for regular hearing on 09.12.2015, and respondents were directed to file written statement. Needful was not done despite availing several opportunities, therefore, they were proceeded ex parte vide order dated 30.03.2017 and thereafter ex parte arguments were heard on 26.05.2017. 4 Mr. Maqsood Ahmed Sulehira, the learned counsel appearing on behalf of the petitioners reiterated the grounds taken in the writ petition and argued that petitioners are permanent employees in Reserve Police of Azad Jammu and Kashmir. The learned counsel contended that Inspector General Police issued a standing order 25.01.2010 contrary to Police Rules, 1934, in which he declared lower school course equal to section commander course. He argued that both the courses are entirely different and they are recommended for different purposes in the police department. The learned counsel zealously contended that in past the Department of Reserve Police, nominated various police employees for Lower School Course in accordance with seniority without any discrimination, but now the Reserve Police Department is not nominating the petitioners for Lower School Course without any legal justification which is against the fundamental rights of the petitioners. He contended that respondent No.3 adopted dual yardstick who is not nominating the petitioners for lower school course in-spite of fact that they all are eligible for the same. Finally, the learned counsel prayed for acceptance of writ petition and sought direction to the respondents to implement the Chapter XIII Rule 13.7 of the Police Rules and also sought direction to respondents Nos.2 and 3 to nominate the petitioners on the basis of seniority, for Lower School Course in accordance with pervious procedure.

5. I have heard the respective ex parte arguments advanced by the learned counsel for the petitioner and gone through the record of the case with utmost care.

6. From perusal of record, it shows that the petitioners are permanent employees of Police Department who are performing their duties as Selection Grade Constables in Reserve Police, Azad Jammu and Kashmir whereas their claim is that previously the Department of Reserve Police nominated numerous employees for Lower School Course as per seniority and now in the standing order No.01/2010 dated 25.01.2010, respondent No.2 declared Lower School Course Section Commander Course, which is contrary to Rule 13.7 of Police Rules, 1934 and is liable to be set-aside while directing the respondents to nominate the petitioners for Lower School Course as per seniority.

7. It is pertinent to mention here that vide Standing Order No.01/2010, the previous standing orders issued for promotion of Reserve/Ranger Police were cancelled, hence, following standard has been laid down:- Whereas, under Rule 13.7 of the Police Rules, 1934, the following procedure has been defined:- "13.7. List. B. Selection of candidates for admission to courses at the Police Training College:- List B (in Form 13.7) shall also be maintained by each Superintendent of Police and shall be divided into two parties:

(1) Selection grade constables considered suitable as candidates for the Lower School course at the Police Training College. (2) Constables (selection or time scale) considered suitable for drill and other special courses at the Police Training College. Selection Shall be made from this list as vacancies occur for admission to the courses concerned at the Police Training College, provided that no constables shall be considered eligible for any such course until the entry of his name in list 'B' has been approved by the Deputy Inspector-General of the Range. Ordinary seniority in age shall be given prior consideration in making sub-selections, irrespective of the date of admission to the list, and care must be taken that a constable borne on the list is not allowed to become overage for admission to the college before being selected. The restrictions on admission to the lower school course and Inspectors courses at the Police Training College limit the conditions for admission to List B. No constable shall be admitted to that list whose age is such that he cannot in the normal case be sent to the Training College before he attains the age of 30 years. No constable, who has failed to qualify at the Training College, shall be readmitted to the list unless the Superintendent and the Principal of the College are in agreement that he is deserving of another chance of qualifying in the course; in the event of disagreement as to such a case the Deputy Inspector-General shall decide." Departmental Statutory Rules, quoted above, elucidate the matter that it is the Lower School Course, which is to be qualified by the eligible employees to be considered for further promotion and enhancing the capability of the Police. The rule does not mention anything about Selection Commander Course, so, to declare both the courses as equal and practically close the participation of the employees in the Lower School Course is neither justified nor in accordance with law. One cannot deny the importance and utility of the Commander Course in present Security environment, but it cannot be substituted for the other which has its own parameters, necessity and importance for police in discharging its duties. Previously, eligible employees of Reserve Police were being sent for Lower Class Course/Intermediate Course but for the last 04 years the employees of Reserve Police have not been deputed for Lower Class Course, which is crystal clear from perusal of letter (Annexure "H") dated 07.03.2012, written by Superintendent Police Reserve Muzaffarabad to D.I.G. Reserve/Rangers. As the Section Commander/Platoon Commander Courses do not involve any literary activities, which are being conducted and that courses may improve the striking duty of employees but not better for those who are performing their duties at Police Stations/Choki. A standing order cannot be issued against the rules. An order of the authority can be passed for the advancement and implementations of the rules not to make any such rule redundant or irrelevant. Departmental Statutory Rules support the claim of the petitioners, however, Section Commander Course/Platoon Commander Course may enhance the capabilities of the employees of Reserve/Rangers Police, which can be conducted additionally for making them more efficient and punctilious but cannot be a substitute of Lower School Course particularly when both are different in theory and practice as well having different syllabus and assignments. In such like state of affairs the standing order of I.G.P. dated 25.01.2010 to that extent is declared ultra-vires and against the rules.

8. It is not out of place to mention here that this Court can only issue direction if any policy matter/standing order is passed against Departmental Statutory Rules and Interim Constitution Act, hence, decision/policy matter/standing order has no statutory backing, which cannot be a substitute of existing rules prevailing in the field. It is apparent from the perusal of parawise comments filed on behalf of the respondents that the applications were filed by the petitioners before the concerned forum for nomination of Lower Class Course, which were turned down and consigned to record while declaring the same against standing order No.01/2010 dated 25.01.2010. It is further admitted that the petitioners have passed examinations of B-1 and most of them are qualified Selection Commander Course. So, in this guise, the standing order of the I.G.P. is not implementable to disallow the petitioners to conduct the Lower School Course because any standing order contrary to service rules issued by the authority who has no jurisdictional competence to make policy cannot be declared as a substitute of rules. My this view finds support from a case titled Muhammad Riaz Khan v. Inspector General of Police and 19 others [2010 SCR 131]. The relevant observation has been recorded at pages 152 and 153 of the judgment as under:-- "Any policy decision, instruction or standing order contrary to service rules, effecting the terms and conditions of the service of a civil servant issued by such authority which has no jurisdictional competence to frame the rules cannot have a force of rules. The Inspector General of Police is competent to make such orders from time to time as he deems expedient relating to organization, classification and distribution of Police force subject to approval of the Government. Any standing order adversely affecting the terms and conditions of service of a Police Officer, guaranteed by the rules, cannot be issued. The Service Tribunal has relied upon the standing order on the ground that it was issued in 1975 and since then it is holding the ground for a long time, no one has challenged it, therefore, it is a valid law. This enunciation of law is alien to the interpretation of statutes. After plain reading of section 12, we have no hesitation in holding that Inspector General of Police from time to time with the approval of the Government may issue such orders or frame rules he deems expedient relating to organization, classification and distribution of Police force for rendering the Police force efficient in discharge of duties, but he has no jurisdiction to issue such standing order which affects the terms and conditions of service of Police Officer."

9. By taking into account the above quoted law and peculiar circumstances of the case, while accepting the instant writ petition, standing order of I.G.P. dated 25.01.2010 to the extent of para 4(i) and (ii) at page 4 is declared against rules and the respondents are directed to nominate the petitioners on the basis of seniority and suitability for Lower School Course in accordance with law and rules within three months from the date of announcement of the judgment subject to availability of the seats in the concerned institution. ZC/38/HC(AJ&K) Petition allowed.