Zulfiqar Ali Shah etc Vs Government of KP through Chief Secretary, Peshawar etc.

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

JUDICIAL DEPARTMENT.

JUDGMENT

Writ Petition No.2732-P/2023.

Date of hearing: 20.01.2026.

Zulfiqar Ali Shah etc Vs Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar, etc.

Petitioner (s) by: M/s Khaled Rahman, Barrister Ahmad Shah Afridi, Fazal Shah Mohmand, Malik Faheem Ullah Jan, Nasir Naeem Umarkhaili, Khushdil Khan, Muhammad Haroon Yousafzai, Ziarat Gul, Syed Ghufran Ullah Shah Advocates.

Respondent(s) by: Mr. Bilal Khan AAG alongwith Aftab Jehan, Inspector (legal), Mansoor Khan, Legal Advisor, Rizwan Assistant, CPO, Peshawar.

WIQAR AHMAD, J:- This single judgment shall dispose of instant writ petition (Writ Petition No.2732- P/2023) alongwith connected Writ Petition No.2865- P/2023 (Sajjad Ahmad etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.2941-P/2023 (Muhammad Amjad etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.2932- P/2023 (Waheed Ullah etc Vs Government of Khyber

Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.4957-P/2025 (Syed Nasir Ali Shah etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.850- M/2025 (Safi Ullah etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.4396-P/2022 (Asfandyar Khan etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.156- M/2023 (Muhammad Kashan etc Vs Government of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.787-P/2023 (Muhammad Rahim Vs Government of Khyber Pakhtunkhwa through Secretary, Home & Tribal Affairs Department, Peshawar, etc), Writ Petition No.804-P/2023 (Tanveer Ahmad etc, Vs Provincial Police Officer, Peshawar etc), Writ Petition No.1154- P/2023 (Raheel Ahmad Vs Govt: of Khyber Pakhtukhwa through Chief Secretary, Peshawar, etc), Writ Petition No.974-P/2024 (Azhar Hayat etc Vs Provincial Police Officer, Peshawar, etc) and Writ Petition No.7361-P/2025 (Falak Naz Khan Vs Govt: of Khyber Pakhtukhwa through Chief Secretary, WP No.2732-P/2023.

Peshawar, etc). All the petitions have been arising out of a common factual background and involve identical legal questions concerning re-designation and upgradation of petitioners. Facts of each case are however briefly given separately as under:

Writ Petition No.2732-P/2023.

Brief facts of instant case are that a Computer Cell was initially established at the office of Capital City Police Officer, Peshawar, in the year 1989, for which computers were procured, requisite software was developed and candidates having requisite qualification were recruited as Constable Computer Operators. Later on, the Computer Cell was inaugurated in Crime Branch of Department by then Inspector General of Police on 10.01.1993.

Subsequently, vide order dated 30.01.1993, twenty- eight (28) vacancies, comprising Constables, Assistant Sub-Inspectors, Sub-Inspectors and one post of Deputy Superintendent of Police, were shifted from various units to the newly established Computer Cell. It was asserted that certain posts were thereafter advertised separatey, tests and interviews were conducted and accordingly, Constable Computer Operators were WP No.2732-P/2023.

appointed. It was added that earlier Constable Computer Operators of CPO office were also transferred to new Computer Cell through order dated 27.07.1993. That during period spanning from 1993 to 2007, promotions to the posts of Head Constables, Assistant Sub-Inspectors and Sub-Inspectors were also effected from amongst said cadre. Petitioners maintain that in the year 2013, case for promotion of Zulfiqar Ali Shah (Petitioner No.1 in WP 2732-P/2023), from the post of Inspector to that of Deputy Superintendent of Police, was dropped on the premise that service structure was under process and that upon its finalization, the matter would be processed accordingly. Petitioners pleaded that I.T. Cadre within Police Department was formally notified on 28.03.2014 and meanwhile, regular Computer Operators were also appointed against sanctioned posts. Some of petitioners performing duties on computers since long, approached this Court by filing Writ Petition No.3102/2014, seeking their induction into I.T. Cadre subsequent to its creation. Meanwhile, an appeal was also submitted to the then Inspector General of Police, Khyber Pakhtunkhwa, on WP No.2732-P/2023.

30.03.2016, requesting such induction, which was duly processed. Consequently, a meeting was held in Police Department on 30.03.2016, wherein issue of induction into I.T. Cadre was deliberated and absorption of petitioners in said cadre was approved. On 15.11.2016 an inter-departmental committee meeting was held, wherein it was decided that case of petitioners be placed before Upgradation Committee. In its meeting convened on 06.08.2018, the Upgradation Committee approved the upgradation and induction of petitioners into I.T. Cadre, whereafter assent of Chief Secretary being competent authority was also obtained in the matter. Subsequently, on 11.10.2018 formal notification was issued, whereby petitioners were inducted into I.T. Cadre, by placing them at the bottom of seniority list of Computer Operators. In view of aforesaid development, the writ petition earlier filed by some of petitioners was disposed of by this Court vide judgment dated 05.03.2019. Thereafter, on 24.01.2023, Hon’ble Supreme Court of Pakistan, while allowing an appeal filed by similarly placed four Computer Operators for re-designation and upgradation, set aside judgment of Bannu Bench of this Court dated WP No.2732-P/2023.

16.12.2019 and remanded the matter to Provincial Government for decision. Besides, certain writ petitions had already been allowed by this Court and in contempt proceedings, strict directions were issued to ensure compliance. However, under the pretext of aforesaid judgment of apex Court dated 24.01.2023, and certain other pronouncements relating to out-of- turn promotions, the respondents proceeded to reopen the settled case of petitioners. In this regard, approval of Chief Secretary was sought through letter dated 22.05.2023 and Chief Secretary thereafter authorized the Inspector General of Police through letter dated 05.06.2023 and eventually, vide impugned orders dated 23.06.2023 and 12.07.2023, respondents withdrew the induction and upgradation of petitioners, as well as other similarly placed officials. Aggrieved from impugned order, petitioners have filed this writ petition.

Writ Petition No.2865-P/2023.

Petitioners of this writ petition are

employees of Police Department, serving under Regional Police Officer, Malakand Region, Swat, and had been working as Constable Computer Operators WP No.2732-P/2023.

(BPS-07). On 10.01.1993, Computer Cell was inaugurated and subsequently operationalized by transferring vacancies/posts from various units of the Department to Computer Cell through order dated 30.01.1993. New posts of Computer Operators were advertised by police department and after conducting test & interview successful candidates were appointed.

The existing Computer Operators working in CPO were also shifted to newly established Computer Cell through order dated 27.07.1993. It was asserted by petitioners that throughout their service, they remained attached to computer-related work and never served on executive policing posts, thus establishing their distinct functional identity within the Department. It was asserted that after creation and notification of I.T./L.T.

Cadre in Police Department, petitioners and other similarly placed officials sought their induction in said cadre. Vide notification dated 11.10.2018 issued by respondents, eighty-three (83) employees including petitioners were upgraded and re-designated as Computer Operators (BPS-16), without grant of back benefit or arrears. However, after lapse of almost five years, respondents vide impugned order dated WP No.2732-P/2023.

23.06.2023, withdrew the upgradation granted to petitioners, therefore, petitioners have filed the writ petition.

Writ Petition No.2941-P/2023.

Facts, as borne out from this case are that petitioners while working as Constables Computer Operators (BPS-05) in Police Department, Khyber Pakhtunkhwa, were inducted/appointed from different dates and have remained attached to computer-related duties since their entry in service. It was asserted that Police Department framed the IT Group service structure and “Khyber Pakhtunkhwa Police Department (Information Technology Group) Service Rules, 2014” were notified. It was further stated that with emergence of a formal I.T. Cadre, petitioners and their colleagues moved applications for induction/absorption in the newly established IT Cadre, and departmental committees/meetings were held. After completion of codal formalities, 83 executive computer staff were re-designated/upgraded to BPS-16 on 11.10.2018. However, after five years of their upgradation, respondents issued impugned order dated 23.06.2023 followed by withdrawal order dated WP No.2732-P/2023.

12.07.2023, resulting into down gradation of petitioners. Aggrieved from above, petitioners have filed this writ petition.

Writ Petition No.2932-P/2023.

Petitioners have been serving as

Constable/Computer Operators and were appointed from their respective dates of appointment in Police Department. It was stated that after creation and notification of I.T./L.T. Cadre in Police Department, some of petitioners in Writ Petitions referred above, sought their induction in said cadre. Vide notification dated 11.10.2018 issued by respondents, eighty-three

(83)employees were upgraded and re-designated as Computer Operators (BPS-16) without grant of back benefit or arrears. Petitioner further asserted that being similarly placed, they approached the respondents for their upgradation but same was kept pending therefore, they filed Writ Petition No.2697-P/2019 which was disposed of by this Court vide judgment dated 19.11.2019 with direction to respondents to decide case of petitioners within a reasonable time and petitioners were left at liberty to approach the proper forum thereafter. Aggrieved from non-considering WP No.2732-P/2023.

their case by respondents, petitioners again filed Writ Petition No.1007-M/2018 as well as Writ Petition No.4749-P/2020, which were allowed by this Court vide judgments dated 17.09.2019 and 31.03.2022 respectively. In pursuance whereof, matter was placed before competent authority, and another notification dated 08.12.2022 was issued whereby 76 employees including petitioners were re-designated as Computer Operators against sanctioned posts and upgraded to BPS-16 with immediate effect. Subsequently, respondents vide impugned order dated 23.06.2023 as well as order dated 12.07.2023, withdrew notifications dated 11.10.2018 and 08.12.2022 therefore, petitioners approached this Court through filing the writ petition.

Writ Petition No.4957-P/2025.

Petitioners of present writ petition have been serving in Police Department, Khyber Pakhtunkhwa, who were initially appointed as Constables/Head Constables, but were absorbed as Constable Computer Operators in different districts/units on account of their computer qualifications and technical skills. After issuance of notification dated 11.10.2018 regarding re-designation WP No.2732-P/2023.

of 83 posts of Constable Computer Operators and upgradation to BPS-16, they also approached competent authority in the Police Department for their re-designation and upgradation to the post of Computer Operator (BPS-16). On account of non-consideration of their cases, petitioners knocked the door of this Court by filing certain writ petitions (which have been discussed in facts of writ petition No.2732-P/2023). On acceptance of above writ petitions, 76 employees of police department including petitioners were re- designated as Computer Operators vide order 08.12.2022. Subsequently, vide impugned order dated 23.06.2023 and order dated 12.07.2023, respondents withdrew notification dated 08.12.2022, compelling the petitioners to file the writ petition.

Writ Petition No.850.

As per contents of instant petition, after notifying of IT/L.T Cadre in Police Department, petitioners while serving as Constable Computer Operator, sought their placement/absorption as Computer Operator and upgradation to BPS-16, which was considered at different tiers of competent forums, including departmental and inter-departmental WP No.2732-P/2023.

deliberations, and ultimately, by issuance of notification, petitioners were inducted in relevant cadre and were accordingly adjusted vide notification 18.11.2021. Subsequently, orders dated 23.06.2023 and dated 12.07.2023 came to be passed whereby earlier up-gradation/induction was withdrawn, and petitioners were reverted back in previous position.

Petitioners feeling aggrieved from impugned withdrawal order as well as their downgrading to previous posts, have filed instant writ petition.

Writ Petition No.4396-P/2022.

Factual matrix emerging from instant

petition are that petitioners while serving as police officials, have been assigned and retained on computer-related duties at different times, either through absorption/attachment or by being posted against relevant computer posts. Grievance of petitioners is that similarly placed employees had been re-designated as Constable Computer Operators and upgraded to BPS-16 by respondents vide notifications dated 11.10.2018, 18.11.2021 and 8.12.2022 and petitioners being similarly placed, had also approached the respondents on account of their long-standing WP No.2732-P/2023.

deployment and continued performance of identical duties but they were either excluded from the benefit of such upgradation/re-designation or their claims were blocked through selective consideration, delay or by application of disputed instructions which had the practical effect of depriving them of equal treatment.

They stated that similarly placed officials in other districts were also extended same benefit, and matter was treated as concluded and in many cases the writ petitions stood disposed of owing to implementation. It was further contended that litigation arose regarding certain similarly placed officials and matter reached Hon’ble Supreme Court of Pakistan against judgments of Bannu Bench of this Court, where Hon’ble Supreme Court of Pakistan remanded the issue to Chief Secretary, Government of Khyber Pakhtunkhwa, for decision after hearing the parties and examining the relevant legal questions. In wake of above orders passed by Hon’ble Supreme Court of Pakistan, in related matters, respondents re-opened the issue and, vide report dated 23.06.2023, recommended withdrawal of upgradation granted earlier, and thereafter impugned order dated 12.07.2023 was issued WP No.2732-P/2023.

whereby notification dated 08.12.2022 and the earlier notification dated 11.10.2018 were withdrawn.

Petitioners feeling aggrieved from impugned notifications of respondents as well as seeking their upgradation, have filed instant writ petition.

Writ Petition No.156-M/2023.

Brief facts of instant case are that though petitioner was appointed in Police Department as Constable, but he has continuously been utilized as a Computer Operator/KPO/Computer-related staff and has been discharging technical duties in the Police set- up in that capacity. It is stance of petitioner that Police Department, through a formal notification, re- designated and upgraded a defined number of posts of Constable Computer Operators/Computer staff to the status of Computer Operator in BPS-16 across the Province, thereby acknowledging nature of work performed by such officials and necessity of rationalizing their service structure. He pleads that despite being fully eligible, duly qualified, and continuously working in same capacity, he was unlawfully ignored while extending said benefit to other similarly placed officials. Petitioner further WP No.2732-P/2023.

pleads that he approached the competent authorities time and again for redressal of his grievance, but respondents, without assigning any lawful justification, failed to accord him same treatment as was accorded to his colleagues. It is also pleaded that in respect of the same controversy, writ petitions of similarly placed officials have already been adjudicated by this Court, wherein claim of exclusion/discrimination was considered, and appropriate relief was granted. He further asserted that subsequently vide order dated 23.06.2023, respondents recommended withdrawal of upgradation granted earlier, and thereafter impugned order dated 12.07.2023 was issued, whereby notification dated 08.12.2022 and earlier notification dated 11.10.2018 were withdrawn. Aggrieved from above and seeking his re-designation and upgradation to BPS-16 being similarly placed, petitioner has filed instant writ petition.

Writ Petition No.787-P/2023.

Facts, as emerge from pleadings and

record placed before this Court, are that petitioner has been serving as Constable Computer Operator in WP No.2732-P/2023.

Police Department. He asserts that he possesses the requisite educational and technical qualification for post, and that he has been discharging duties in Police Department in a computer-related capacity. Petitioner has maintained that Provincial Government, through Notification dated 29.07.2016, upgraded the post of Computer Operator from BPS-12 to BPS-16 and also upgraded the post of Data Processing Supervisor from BPS-14 to BPS-16, thereby recognizing technical nature of such positions across departments. He further asserted that subsequently, petitioners similarly placed in Police Department approached the competent fora, and pursuant to deliberations and decisions at the departmental level, their cases were processed and ultimately sanctioned through a Notification dated 11.10.2018, whereby a number of posts of Constable Computer Operators were re-designated as Computer Operators (BPS-16). He stated that despite being similarly situated, his case was not approved, and on the contrary, his claim was refused through impugned order dated 28.09.2020. He has filed instant writ petition seeking his re-designation as well as upgradation to BPS-16 as Computer Operator.

WP No.2732-P/2023.

Writ Petition No.804-P/2023.

As per contents of instant writ petition, petitioners have been serving officials of Khyber Pakhtunkhwa Police, who were inducted/absorbed as Constable Computer Operators and have been performing computer-related duties in various police stations, offices and formations, including at Central Police Office, district offices and specialized branches.

After re-designation and upgradation of similarly placed persons by respondents vide notification dated 11.10.2018, present petitioners had also approached the respondents by stating that though such benefit was granted to a substantial number of Constable Computer Operators, but cases of present petitioners and certain others were not processed at that time. It is alleged that despite the already implemented decision in favour of similarly placed officials, the respondents, through subsequent departmental meeting held on 22.09.2020, did not recommend the case of petitioners and declined to extend same benefit, thereby creating an unjustified classification within same category of employees.

Aggrieved from non-consideration of petitioners by respondents, instant writ petition has been filed by WP No.2732-P/2023.

petitioners.

Writ Petition No.1154-P/2023.

Facts of present case are that

Government/Police Department re-designated and upgraded seventy-six (76) posts of Constable Computer Operators as Computer Operators and upgraded them to BPS-16, through notification dated 08.12.2022, which was issued in implementation of policy of Provincial Government and pursuant to judicial directions. Petitioner asserted that though he has been serving as Constable Computer Operator but even then his name was unlawfully omitted from said notification, thereby depriving him of benefit which was extended to his colleagues, despite his identical job description and service in same stream. Therefore, petitioner has approached this Court by filing instant writ petition.

Writ Petition No.974-P/2024.

Petitioners of this writ petition asserted that earlier similarly placed employees of Police Department, including those working as Head Constables/Computer Operators, ASIs/Computer Operators, SIs/Computer Operators and WP No.2732-P/2023.

Inspectors/Computer Operators, had agitated their cause for up-gradation to BPS-16 in light of said Notification, upon which matter was placed before Up- gradation Committee, which, in its meeting held on 06- 08-2018, approved the up-gradation/re-designation, whereafter the requisite notification dated 11-10-2018 was issued and implemented. Petitioners contend that despite performing identical duties and falling within same class, their cases were not processed and they were deprived of same benefit. Their grievance is that respondents, instead of implementing the uniform policy and extending same benefit, have acted inconsistently by selectively granting the benefit to some while withholding it from others similarly placed persons, thereby creating hostile discrimination within same category of officials. Petitioner stated that earlier litigation on same subject has already remained pending before this Court and relief had been granted to similarly placed persons. They specifically pleaded that earlier writ petition (Writ Petition No.4749- P/2020), was filed by similar placed petitioners, which was allowed and respondents were directed to place the matter before Up-gradation Committee and to WP No.2732-P/2023.

consider case for re-designation and up-gradation to BPS-16. It is further pleaded that petitioners also approached this Court by filing Writ Petition No.2234- P/2022, which was disposed of with directions to decide petitioners’ case in terms of earlier writ petition, and accordingly the order dated 25.01.2023 was passed by this Court. It was contended by petitioners that instead of implementing the judgment dated 25.01.2023, the respondents are stated to have processed the matter in a manner which resulted in withdrawal of earlier benefit granted to other similarly placed officials and, on that basis, proceeded to deny relief to present petitioners as well. It was also pleaded that respondent No.1 recommended withdrawal of notification dated 11-10-2018, the competent authority withdrew said notification through order dated 23.06.2023, and later an order dated 12.07.2023 followed, while finally impugned Letter/Order dated 18.01.2024 was issued, thereby depriving petitioners of the benefit and declining to implement the judgment of this Court. Therefore, present writ petition has been filed by petitioners.

WP No.2732-P/2023.

Writ Petition No.7361-P/2025.

Petitioner, namely Falak Naz Khan, has been serving as Head Constable Computer Operator in the Bomb Disposal Unit, Special Branch, Head Quarter Peshawar, possessing qualification of B.A along with DIT. He contends that Provincial Government, through its notification dated 29.07.2016, upgraded posts of Computer Operator and Data Processing Supervisor to BPS-16. Petitioner asserted that on 11.10.2018, a notification was issued, whereby 83 posts of such officials were re-designated and upgraded to BPS-16.

Grievance of petitioner is that, despite falling within same class and despite being reflected in departmental absorption lists, his case was not processed and he was excluded without lawful justification. He stated that earlier writ petitions on same subject were filed and adjudicated and he has relied upon the outcome of litigation wherein similarly placed officials were granted relief, and on the basis of such developments, petitioner pursued the matter. He contended that thereafter a committee was constituted which, through letter dated 31.08.2020, inserted impugned instructions in paragraph 3(a) and 3(b), particularly to the effect WP No.2732-P/2023.

that Constable Computer Operators would not be upgraded and that the matter would be dealt with differently, while suggesting that the executive constables working as computer operators be directed to perform executive duties. Petitioner further asserted that the Departmental Committee meeting held on 22.09.2020 decided to reject request of petitioner for upgradation. He contended that subsequently, similar matters were again adjudicated and pursuant to a judgment dated 31.03.2022, another notification dated 03.12.2022 was issued, whereby posts of 76 officials were re-designated as Computer Operators and upgraded to BPS-16 with immediate effect, yet petitioner was again excluded. He states that he approached the respondents and also invoked contempt jurisdiction for implementation of court orders, but no remedial action was taken in his favour. Petitioner further pleads that meanwhile, after judgment of Honourable Supreme Court of Pakistan dated 24.01.2023, which remanded similar controversies to competent authority for decision, the respondents attempted to reopen past and concluded transactions and issued orders dated 23.06.2023 and 12.07.2023, WP No.2732-P/2023.

whereby earlier upgradation granted to other officials was withdrawn, and petitioner apprehends that his case has been unlawfully sacrificed under the garb of such subsequent developments. Hence, present writ petition has been filed by petitioner, seeking re-designation and upgradation to BPS-16.

Writ Petition No.1419-M/2022.

Facts, in brief, as borne out from instant petition are that petitioner was initially appointed in Police Department as Foot Constable in BPS-05, and thereafter he was appointed/posted as Constable Computer Operator (BPS-07) vide order dated 24.02.2016, as he was suitably qualified and possessing Diploma in Information Technology. It is case of petitioner that competent authority, through sanction/notification dated 11.10.2018, re-designated and upgraded 83 posts of constable computer operators/key punch operators to the posts of Computer Operator (BPS-16) throughout the Province of Khyber Pakhtunkhwa. He asserted that despite being meritorious, eligible and similarly placed, he has been ignored and has not been accorded the benefit of said re-designation/upgradation. Petitioner stated that WP No.2732-P/2023.

time and again he approached the respondents for extension of similar treatment, yet no lawful decision has been made upon his request. He has placed reliance upon earlier judgments of this Court wherein similarly placed employees were granted relief, including Writ Petition No.1007-M of 2018 and Writ Petition No.4749-P of 2020 decided in favour of petitioners therein, as well as another writ petition No.791-M of 2019 titled “Murad Ahmad Vs. Govt of KPK etc.” Petitioner has therefore, filed instant writ petition seeking direction to respondents for re- designating and upgrading the post of petitioner from Constable Computer Operator (BPS-07) to Computer Operator (BPS-16) with effect from 11.10.2018, along with all consequential service benefits and back benefits.

3.Respondents submitted their parawise comments in some of the above writ petitions and stated that the matter pertains to terms of service, which falls within the domain of Service Tribunal and petitioners has not availed said remedy. They have also relied upon internal communications/instructions, contending that certain constables working on WP No.2732-P/2023.

computers should be repatriated to field duties or required to furnish affidavits that they would not claim the post and benefits of Computer Operator, thereby seeking to foreclose their claims altogether. They have further taken the defense that petitioners were recruited as Constables, were assigned computer duties as a stop-gap arrangement and were not qualified/eligible to be treated as Computer Operators under relevant service rules and merit regime. It is also asserted that recommending such petitioners for upgradation to BS- 16 would be contrary to merit, zonal allocation and the statutory scheme of recruitment through Khyber Pakhtunkhwa Public Service Commission, and that earlier absorption/upgradation of certain officials was done under “compulsory circumstances” and cannot be treated as a precedent to extend further benefits.

Respondents have also relied upon the position that the IT cadre/recruitment rules prescribe particular qualifications and that the petitioners did not meet the laid down criteria for appointment as Computer Operator. They further refer to the instructions contained in the impugned letter dated 31.08.2020, inter alia, requiring repatriation of Constables WP No.2732-P/2023.

performing computer duties to executive field duties or requiring affidavits from them that they would not claim the post of Computer Operator and allied benefits. They also asserted that petitioners belong to an executive cadre and are governed by special law/rules applicable to Police personnel; that no horizontal movement/absorption is permissible and that impugned actions were taken in accordance with law and in pursuance of authoritative judicial pronouncements.

4.Arguments heard and available record perused.

5.Perusal of record reveals that controversy involved in instant writ petitions cannot be resolved without referring to history of past developments surroundings the earlier upgradation of those petitioners, who had earlier been absorbed in the I.T.

cadre. For said purpose background of the controversy involved in writ petitions is briefly given here:- “A Computer Cell was initially established at the office of the Capital City Police Officer, Peshawar, in the year 1989.

Pursuant thereto, computers were procured, requisite software was developed, and a limited number of personnel possessing qualifications of F.A/F.Sc, coupled with proficiency in computer skills, WP No.2732-P/2023.

were recruited as Constable Computer Operators. Petitioner No.1 is presently the sole surviving employee from the said original batch. In the year 1992, a departmental meeting was convened, wherein it was resolved that the Police Department would submit a Statement of New Expenditure (SNE) to the Finance Department for the formal creation of posts for the said Computer Cell. The request, however, was declined by the Finance Department on 27.02.1993.

Notwithstanding the refusal, the Computer Cell was inaugurated in the Crime Branch of the Department by the then Inspector General of Police on 10.01.1993, as evidenced from the relevant press-clipping placed on record. Subsequently, vide order dated 30.01.1993, twenty-eight (28) vacancies, comprising Constables, Assistant Sub-Inspectors, Sub-Inspectors and one post of Deputy Superintendent of Police, were shifted from various units to the newly established Computer Cell. The posts were thereafter advertised locally; tests and interviews were conducted; and accordingly, Constable Computer Operators were appointed. The earlier Constable Computer Operators of the CPO office were also transferred to the new Computer Cell through order dated 27.07.1993. During the period spanning from 1993 to 2007, promotions to the posts of Head Constables, Assistant Sub- Inspectors and Sub-Inspectors were also effected from amongst the said cadre. Thereafter, the I.T. Cadre within Police Department was formally notified on 28.03.2014. It is further evident from the seniority record that during the period from 2010 to 2014, regular Computer Operators were also appointed against sanctioned posts. Some of petitioners approached this Court by filing W.P. No. 3102/2014, seeking their induction into the I.T. Cadre subsequent to its creation. In the WP No.2732-P/2023.

meanwhile, an appeal was also submitted to the then Local Government Department, Khyber Pakhtunkhwa, on 30.03.2016, requesting such induction, which was duly processed. Consequently, a meeting was held in the Police Department on 30.03.2016, wherein issue of induction into the I.T. Cadre was deliberated and absorption of petitioners in said cadre was approved. Thereafter, vide letter dated 25.08.2017, a detailed working paper, recommending absorption and upgradation of the petitioners, was forwarded to the Government for necessary approval and action. Subsequently, an inter- departmental committee meeting was held on 15.11.2016, wherein it was decided that the case should be placed before the Upgradation Committee. The Upgradation Committee was thereafter convened on 06.08.2018, which approved the upgradation and induction of the petitioners into the I.T. Cadre. Since the Chief Secretary was the competent authority for approval in the matter, his assent was obtained, and accordingly, a formal notification was issued on 11.10.2018. In pursuance of said notification, petitioners were inducted into the I.T. Cadre and were placed at the bottom of seniority list of Computer Operators. In view of the aforesaid developments, the writ petition earlier filed by some of petitioners was disposed of on 05.03.2019. Thereafter, on 24.01.2023, Honourable Supreme Court of Pakistan, while allowing an appeal filed by similarly placed Computer Operators, set aside judgment of High Court and remanded the matter to Provincial Government for decision. It is also important to be noted that other writ petitions had also been allowed by this Court in the meanwhile. However, under the pretext of compliance of the judgment of Hon’ble Supreme Court of Pakistan and certain other WP No.2732-P/2023.

pronouncements relating to out-of-turn promotions, the respondents proceeded to reopened the entire matter. In this regard, approval of the Chief Secretary was sought through letter dated 22.05.2023; the Chief Secretary thereafter authorized Inspector General of Police through letter dated 05.06.2023; and eventually, vide impugned order dated 23.06.2023, respondents withdrew induction and upgradation of petitioners, as well as other similarly placed officials.”

6.The first batch of 83 police officials had been upgraded and re-designated as Computer Operators by the police department themselves. The subsequent batch of 76 police constable had been upgraded by them in pursuance to an earlier judgment of this Court, mentioned above. But thereafter a spiraling effect of earlier upgradation was being faced by the Police Department. Other police constables who happened to have ever served in the I.T. wing of department started filing Writ Petitions before this Court. Some of subsequent writ petitions have also been allowed while others rejected. In such series four writ petitions i.e, WP No.1109-B/2018, WP No.546-B of 2018, WP No.786-B/2019 and 210-B of 2019 had been filed by four different Police Constables at Hon’ble Bannu Bench of this Court, which were dismissed by Hon’ble Bannu Bench of this Court vide WP No.2732-P/2023.

judgment dated 16.12.2019. Petitioners of those writ petitions challenged above judgment through filing four Civil Petition for leave to appeal bearing Nos.

481, 482, 89-P & 622/2020, before Hon’ble Supreme Court of Pakistan. Said petitions were disposed of by Hon’ble Supreme Court of Pakistan vide its order dated 24.01.2023 with the following observations:

“3 After examining the submissions made by the learned counsel for the parties, several questions arise which have gone unanswered: whether the petitioners being constables have been wrongly deprived of the up- gradation to post of Computer Operator, whether similarly placed constables have been up-graded to the post of Computer Operator, what constitutes Executive Computer Staff and whether petitioners fall within this category, are Constables and Constable Computer Operators two separate cadres, the Notification and the official record (pay slips) describes the constables mentioned in the Notification to be holding different designations. These questions need to be answered convincingly. We therefore, find it appropriate that the matter be placed before the Chief Secretary, Khyber Pakhtunkhwa, who may decide the matter himself or refer it to the appropriate authority to review the whole matter, address the above questions and decide the issue by passing a speaking order. In this background, the impugned judgment cannot be sustained, it is therefore set aside, the matter is placed before WP No.2732-P/2023.

the Chief Secretary, Khyber Pakhtunkhwa in the above terms to decide the same within a period of three months after granting a hearing to the concerned parties and after examining the law on the subject. These petitions are converted into appeals and allowed.”

7.It is important to note at the very outset that Hon’ble Supreme Court of Pakistan was seized with the cases of four petitioners, whose writ petitions had been dismissed by Bannu Bench of this Court.

While remanding the matter to the worthy Chief Secretary, Hon’ble Supreme Court of Pakistan was referring to the cases of those petitioners specifically, which is evident from the above reproduced concluding para of the judgment. While remitting the matter for consideration of the Chief Secretary, the following questions had been framed by the Hon’ble Supreme Court;

i. whether petitioners being constables have been wrongly deprived of the upgradation to the post of Computer Operator.

ii. whether similarly placed constables have been upgraded to the post of Computer Operator. iii. whether petitioners fall within this category. iv. whether constables and Computer Operators were two separate cadres.

8.All these questions had arisen from competing arguments of learned counsel for petitioners WP No.2732-P/2023.

and learned Law Officer, representing the Provincial Government and Police Department, in the context of controversy of four police constables, who had been petitioners before Hon’ble Supreme Court of Pakistan, in the four separately filed Civil Petitions for leave to appeal. The matter of only those police personnel had been ordered by Hon’ble Supreme Court of Pakistan to be placed before the Chief Secretary, Government of Khyber Pakhtunkhwa, who was supposed to have mainly checked, whether those four petitioners had wrongly been deprived of upgradation to posts of Computer Operators. The other questions have also been framed in the context of same controversy with the aim and object of ensuring a just resolution of controversy (in respect of four police personnel) at departmental end. What was done in resolving controversy of four police constables was however, out of the bounds of controversy, much larger in scale and sweeping in nature, to say the least. The order of upgradation and absorption of 83 constables as Computer Operators in the I.T, Wing of police department, earlier made on 11.10.2018 by Police Department themselves, was withdrawn and those WP No.2732-P/2023.

persons were declared to have been belonging to executive cadre of police and their services were placed at the disposal of officers of executive cadres.

Similarly, the other 76 Computer Operators, absorbed in pursuance to earlier order of this Court, dated 31.03.2022 rendered in Writ Petition No.4749/2020 (attained finality) were also withdrawn and claims of all those persons, who were pleading to have been similarly placed were also declined through impugned order dated 23.06.2023 of Inspector General of Police, Khyber Pakhtunkhwa, which order was also placed before Chief Secretary, Khyber Pakhtunkhwa, who too endorsed the order.

9.It was colorable exercise of authority by worthy Inspector General of Police. He was not possessing this lawful authority at the time of passing impugned order but he purportedly acquired the justification under pretext of the order of Hon’ble Supreme Court of Pakistan dated 24.01.2023, where cases of only four police constables had been ordered to be placed before worthy Chief Secretary for discerning same on the touchstone incorporated in Para 3 of the judgment of Hon’ble Supreme Court of WP No.2732-P/2023.

Pakistan, reproduced above. Competency of Inspector General of police was otherwise available and visible but the competent authority could only have exercised its powers under the Efficiency and Disciplinary laws (wherever so provided) or for restructuring of the department if so allowed by law. It was not a case where the Inspector General of police has been reverting the Computer Operators under the disciplinary laws nor was there a pending case of restricting the department under any laws. Under the color or pretext of order of Hon’ble Supreme Court of Pakistan, the whole exercise was taken, which was no doubt a colorable exercise of authority at his end. In the context of executive and administrative law, “Colourable Exercise of Power” occurs when a public authority uses a power ostensibly conferred by a statute to achieve a collateral purpose that is not authorized by that statute. The courts have vigorously treated such actions as void because no legislature grants power to be used for unauthorized, alien, or ulterior motives. Even if the action appears procedurally correct on the surface, it will be struck down if the underlying intent was to achieve a result WP No.2732-P/2023.

forbidden by law or outside the scope of the authority's mandate. Hon’ble Supreme Court in “Federation of Pakistan v. Saeed Ahmed reported (PLD 1974 SC 151)” elaborated the notion colourable exercise of power as below:

“Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law are also mala fide, the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law.”

Further reliance may be placed on the judgment of Hon’ble Supreme Court of Pakistan, rendered in case of “Zahur Illahi M.N.A v. The State reported as PLD 1977 SC 273”, the Supreme Court held as:

“There can be no doubt that the Court can satisfy itself that the action taken is not a mere colourable exercise of power or a fraud upon the statute but it has, throughout without any exception whatsoever, been always consistently held that a mala fide action is not action in accordance with law The real question, in . every case of mala fides is: Did the authority or officer concerned reasonably believe that his duty as such officer required him to act as he did ? A person acting in pursuance of a statute cannot be said to be acing bona fide if he has no reasonable ground for believing that the statute justifies hire in what he WP No.2732-P/2023.

does. If the case, therefore, is one where there are no grounds or the grounds are such that no reasonable person would have acted on the supposition that he was acting under the authority of the statute then that is a case in which the Courts would in exercise of the power under Article 98 of the Constitution declare the act to have been done in an unlawful manner.”

Likewise, in case of “Messrs Al-Imdad General Trading Co. v. Pakistan through Secretary reported as 2015 PTD 734 Peshawar”, this Court observed:

“29. In order to maintain the balance in the 'trichotomy of power' of a State, 'legislature' through legislation vests authority in the 'executive' and while exercising its vested jurisdiction it has to proceed in a lawful, 'bona fide' and fair manner. Never is the 'executive' given authority under any statute to exercise its jurisdiction in a 'colourable' manner excessively on 'mala fide'. Any action or order passed by even a competent authority, without the essential attributes of fairness or 'bona fide ', would render the said action justiciable and can be struck down by the 'judiciary' (constitutional Court) in judicial review. There is no dearth of judicial precedent in this regard. The leading cases include Abdul Rauf's case (PLD 1965 SC 671), Begum Agha Shoraish Kashmiri's case (PLD 1965 SC 623), Ziaur Rehman's case (PLD 1973 SC WP No.2732-P/2023.

49)and Saeed Ahmad's case (PLD

1973 SC 151).”

Regarding colourable exercise of authority, Hon’ble Lahore High Court has also held while rendering its judgment in the case of “Riaz Hussain v. province of Punjab reported as 2021 PLC(CS) 1 Lahore” as below:

“16. At times the courts use the idiom "colourable exercise of power" to denounce an act of an administrative authority. Colourable exercise means that under the "colour" or "guise" of power conferred for one purpose, the authority is seeking to achieve something else which it is not authorized to do under the law in question. It is also known as fraudulent exercise of power. According to C.K. Thakker, a power can be said to have been exercised colourably if its repository intends to achieve an object not warranted by law. When an action is taken on irrelevant or extraneous considerations or is otherwise unreasonable, it would be bad and can be set aside by a competent court. In such cases, the power is exercised for an "alien" purpose, i.e. other than the one for which it is conferred by a statute and ought to have been exercised.

17.Legally speaking, there are several forms of discretion. The authority might have acted mala fide or unreasonably, or on irrelevant considerations or for collateral purpose or it might have passed an WP No.2732-P/2023.

order or taken an action in colourable exercise of power. Many a time these forms overlap which makes it difficult to draw lines among them. According to Thakker, the "only thing which can be said is that mala fide of power is a stronger form of abuse of power than colourable exercise of power by the authority." In The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151) the Hon'ble Supreme Court of Pakistan held that "action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide." This view was reaffirmed in Qazi Hussain Ahmad, Ameer Jamaat-e- Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 SC 853) and Khawaja Ahmad Hassaan v. Government of Punjab and others

(PLD 2004 SC 694).”

10.Here in case in hand also, it was apparent that earlier upgradation of 83 constables to the post of Computer Operators had been approved by Upgradation Committee of Finance Department as well as the competent authorities under the rules and Inspector General of police, could not have rescinded same in such a sweeping manner. It is true that under Section 21 of General Clauses Act 1897, the authority WP No.2732-P/2023.

may vary or rescind an order, but there were certain limitations on powers of the competent authority in the case in hand. He was not possessing the locus poenitentiae for recalling the order. The order had taken the effect approximately five years before same was recalled. 83 Police constables had been upgraded on 11.10.2018. They had assumed charged of their official duties after their absorption in the upgraded cadre. They have been performing their duties on same posts and receiving salaries thereof. They had become part and parcel of I.T wing of police department, serving in BPS-16. They were not only having the legitimate expectation of completing their service but also vested rights under the relevant police laws that they could not have been reverted except the mode and manner authorized under the Efficiency and Disciplinary legal regime applicable to them. In absence of imposition of any penalty of reversion under the relevant laws, their omnibus down gradation to BPS-7 was not warranted under any law and Inspector General of Police was not possessing any lawful authority for passing such orders of downgrading. It was not a case of respondents that WP No.2732-P/2023.

petitioner had either obtained order by playing fraud or through illegal means. Regarding principle of locus poenitentiae and estoppel Hon’ble Supreme Court of Pakistan while giving its judgment in case of “Shams ur Rehman Vs Military Accountant General, Rawalpindi and another” reported as 2020 SCMR 188 has held:

“For almost 9 years the petitioner has served in selection grade BPS-15 and has received the emoluments and benefits of such post. It is not in dispute that the selection grade BPS- 15 was granted to the petitioner by the department itself and the petitioner apparently had no role in obtaining the post of selection grade BPS-15 for that no such allegation whatsoever is made against him. The respondents have merely pleaded mistake, as only 25% of posts from BPS-11 were required to be filled in the selection grade BPS-15 and it was subsequently realized by the department itself that the petitioner did not fall within the 25% quota and thus was recalled from the post of selection grade BPS-15 and reverted him back to the post of BPS-11. For 9 years the petitioner performed the work of a higher post of selection grade BPS-15 and thus on the principle of locus poenitentiae the benefits paid to him, could not be recovered from him for that such principle would not apply. Further, in our view the principle of estoppel will also be applicable as against the department from recovering the emoluments and benefits of BPS-15 WP No.2732-P/2023.

from the petitioner. In the case cited by the learned counsel for the petitioner, this Court has observed as follows:

"Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field."

In the case of “Mst. Sajida Javed v. Director of Secondary Education, Lahore Division and others (2007 PLC (C.S.) 364)”, it had also been held:

"Appointment of the petitioner to the post of Senior School Teacher in BS- 16 vide office order dated 11.03.1996 is not disputed. It is also not disputed that she actually served against this post in different Girls Middle Schools wherever posted. The fact that the department realized its mistake after about four years would show that petitioner herself was not at fault in procuring the appointment or her posting in different schools in Sheikhupura District by unfair means. By accepting the offer validly WP No.2732-P/2023.

made to her by the Department on the basis of her qualification and training in the relevant field, a valuable right had accrued to the petitioner and she could not be made to suffer for the mistake or error of the officials of respondent- Department. Indeed, the offer had been accepted and actually acted upon for almost four years. The case would, thus, be governed by the principle of locus poenitentiae and, in our view, the Department cannot retrace the steps already taken and lawfully acted upon by the petitioner."

Similarly, in the case of “Mst. Basharat Jehan Versus Director General, Federal Government Education FGEI, (C/Q) Rawalpindi and others” reported as 2015 SCMR 1418 Hon’ble Supreme Court of Pakistan has also held in this respect:

“20. Once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence (One may refer to Director, Social Welfare NWFP Peshawar V. Sadullah Khan (1996

SCMR 1350).

WP No.2732-P/2023.

In case in hand it was apparent that vested rights had been created in favour of earlier regularized and upgraded petitioners, the competent authority was not possessing his locus poenitentia to have rescinded the orders of upgradation and absorption of more than 100 employees in such omnibus manner.

11.Besides, such exercise of authority was also highly unreasonable and irrational. Most of police officials had earlier been posted and hired for the purpose as serving as technical staff working on Computer. In most of the cases while hiring them a qualification of Diploma in Information Technology (DIT) was required in advertisement published in daily newspaper as is evident from a copy annexed with one of Writ Petition No.2932-P/2023 at page 137, which expressly requires DIT as essential condition with mentioning of nomenclature of Constable Computer Operator. Similarly, their appointment orders have also been mentioning the word “Computer Operator” (in some other cases) and similarly their salary slips were also bearing similar mentioning. The correspondents referred to while describing the factual background, was also bearing mentioning of connotation WP No.2732-P/2023.

“Constable Computer Operator”. They have all along been serving on computers. They are never trained for the use of firearms nor have they undergone physical fatigue, required for law enforcement force. So much so, the mandatory training has also not been undergone by most of the petitioners, particularly those Constable Computer Operators, who have all along been posted in offices and working in I.T. wing of Police department. Some of petitioners have been working on such posts since early 1990s and have such experience of computer operation for the last two or three decades.

Now pulling the planks from their feet, uprooting them from their offices and throwing them to law and order situation, was also found to be highly unreasonable and illogical. They did not have the required training and experience for dealing situations of law and order, confrontations with terrorist and with vagabonds. Such unreasonableness provides additional ground for judicial interference in the impugned orders of departmental authority. In famous case of “Associated Provincial Picture House Ltd Vs Wednesbury Corporation” [(1948) 1 KB 223] it was laid down in British jurisdiction that besides express illegality the WP No.2732-P/2023.

test of unreasonableness could also be adopted for testing vires of an order of an administrative authority.

It was held by Lord Green M.R in said case that if a decision maker had though not ostensibly breached the irrelevancy principle, but it had come to a conclusion which was so unreasonable that no reasonable authority could ever have come to it, then in such a case the Court might interfere on the ground of unreasonableness. Relevant para is also reproduced from said discussion, as follows:

“It may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could have ever come to it. In such a case, again, I think the Court can interfere.” Similarly, Lord Diploc in case of “G.C.H.Q [(1985) A/C 375], has also struck down impugned administrative action after finding it unreasonable by observing;

“if a decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person would have arrived at it after application of his mind, then such a decision will be struck down for being unreasonable. His lordship has also held that the question whether a decision falling within said category of cases, was a question which judges by their WP No.2732-P/2023.

training and experience should be well equipped to answer or else, there would be something badly wrong with their judicial system.”

The principle of striking down of administrative action on the ground of being utterly illogical and unreasonable, have also been followed in our jurisdiction consistently. For reference sake, judgment of Hon’ble Supreme Court of Pakistan rendered in case of “S.S Marinda Ltd. Versus The Chief Commissioner, Karachi and another” reported as PLD 1959 SC (Pak) 134, may be quoted, where it was held:

This, however, does not mean that the exercise of discretion by the Collector or Commissioner can be arbitrary and fanciful h and that if it be so Courts cannot interfere. The following observations of Lord Greene, M. R. in Associated Provincial Picture Houses Ltd., v. Wednesbury Corporation ((1948) 1 K B 223 at pp. 228, 229 and 233.) with which I with respect agree are instructive as to the scope of interference by Courts with the exercise by the executive of he discretion vested in them by the legislature: "When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the Courts in a strictly limited class of case. As I have said, it must always be remembered that the Court is not a Court of appeal. When discretion of this kind is granted the law recog?nizes certain WP No.2732-P/2023.

principles upon which that discretion must be the exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any Court of law. What then are those principles, they are well understood. They are principles which the Court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to .the matter in question, the authority must disregard those irrelevant collateral matters.

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the word `unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what lit has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting `unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L. J. in Short v. WP No.2732-P/2023.

Poole Corporation ((1926) Ch. 66, 90, 91), gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.”

Further reliance in this respect may be placed on the judgment of Hon’ble Lahore High Court, rendered in case of “The Montgomery Flour and General Mills Ltd, Montgomery Vs The Director Food, Purchases, West Pakistan and another” reported as PLD 1957 (W.P) Lahore 914, where it has been held:

“It should be remembered that no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly, and reasonably. Every officer who passes an order in a matter of discretion should ask himself the question: What is the order I should pass if I were acting justly, fairly and reasonably? If the order that he passes is not in accordance with the answer which lie would himself give to this question, he exceeds his jurisdiction and abuses his powers. The answer to the question must be his own for the discretion is his and not that of the Court but his action must correspond to his own answer to the question.

WP No.2732-P/2023.

Were we of the opinion that the Sugar and Sugar Products Control Order does grant an absolute and arbitrary discretion to the officer empowered to grant or withhold sugar as he pleases we would pronounce it void on account of its inconsistency with Article 11 of the Constitution of Pakistan, which confers on all citizens the right to acquire property and to dispose of property subject only to reason able restrictions in the public interest. An arbitrary discretion to withhold quota is not a reasonable restriction. But there is no reason why we should thus interpret this provision.”

12.Now this Court would like to explain the two pleas raised in the impugned order, one of which was related to law against change of cadre and another was a ground raised in impugned order that Constable Computer Operators have never been existing as a cadre in police hierarchy. So far as plea of change of cadre is concerned, it is important to refer back to the factual background. It was noted that when police department at that time had been refused the creation of new posts by the Finance Department, it had resorted to a methodology where-under they had dedicated certain seats from their own establishment for creation of an I.T. Wing. In this regard minutes of meetings annexed with Writ Petition No.2732-P/2023 as annexure ‘E’ requires special attention. Decision WP No.2732-P/2023.

taken in said meeting and reflected in the minutes are also reproduced hereunder for ready reference:

“COMPUTERIZATION IN POLICE

DEPARTMENT

A meeting was held on 25.01.1993 at 10 am in the Office of Inspector General of Police NWFP, attended by D.I.G/Crimes Branch and INcharge Computer Cell Inspector Mehbood ellahi. Various points proposals were deliberated and the following decision taken:- A computer Cell is to be established permanently in a separate building to be proposed and constructed alongwith the new F.S.L Building.

The Computer Cell will be under general supervision of the DIG/Crimes and under the specific supervision of a D.S.P to be transferred to it, who shall have one Sub- Inspector as his 2nd in command and 9 ASIs working in different Sub-Cells to be established as per proposed plan. One vacancy of Sub-Inspector, Nine vacancies of A.S.Is to be transferred the computer cell. Twenty Nine vacancies of Constables from various districts shall also be transferred to the computer cell, who shall be working throughout the Province as ‘Computer Operators’.

The Registrar and Budges Officer D.P.O to ensure that the vacancies are transferred immediately.

A computer will be installed in every distruct and every Range Office. The IGP’s office and DIG/Crimes office will also be installed with a computer which will give an upto date account of the Special Report cases as well as Narcotics and Arms Haul- ups.

All the computers except the one issued to Police Training college Hangu and Police Public School shall be closed to the Cell, for allotment to be made in near future.

WP No.2732-P/2023.

Details of the staffs and vacant posts shifted through order dated 30.01.1993 of Inspector General of Police, Khyber Pakhtunkhwa is also annexed with the writ petition as Annexure ‘F’. Call letters for appearing in test and for interviewing the persons in computer literacy have also been annexed as annexure ‘G’. All these documents have never been denied in the comments. Then in further correspondents, the terminology of Computer Constables has also been used consistently. These correspondents also included correspondence between police department and upgradation committee of the Finance Department where officials have been referred as “Constable Computer Operators”. It is true that separate rules have never been framed for such Constable Computer Operators and they have never been created as a distinct cadre in the police establishment prior to their absorption in the Information Technology Group of police department (by upgrading their posts to the post of Computer Operators) but it was equally true that most of the officials have been hired on the basis of qualification of DIT, which has never been requirement for recruiting other police constables. It is WP No.2732-P/2023.

also admitted that these persons hired as Constable Computer Operators, have all along been performing their duties in the I.T, wing of police department and they have never been deputed for duties of law and order. During long span of 2 to 3 decades, some of them have been promoted to higher ranks of ASI, SI but without undergoing the prescribed mandatory training for such promotion of other police officials, deputed for law and on order sides. It was a situation that Constable Police Officials have been distinct group in de facto but same has not been given the shape of a separate cadre de jure. This situation was tried to be regularized by police department themselves by deciding to absorb 83 number of such personnel, who had earlier been transferred from executive cadre to the I.T. Wing in early 1990s or subsequently appointed as Constable Computer Operators, into newly created Information Technology group. For said purpose, police department also sent their case to the Upgradation Committee of Finance Department and they also granted upgradation for enabling these officials to be absorbed in the newly created Information Technology Group. This group WP No.2732-P/2023.

was created in 2014 and separate rules were also framed by police department regulating their terms and conditions under Article 112 of Police Order 2002.

The schedule of posts provided in the appendix to the rules contained the post of Computer Operator in BPS- 12, which was subsequently upgraded to BPS-16 on the analogy of other department of Provincial Government. It was apparent that the I.T, Wing of police department had a defacto existence before creation of new I.T. Cadre. When the cadre was created, the competent authority in the police department had decided to absorb, regularize and re- organize the already existing I.T, Wing of Police department into the newly created Information Technology Group. It was felt necessity at that time, accordingly a decision was taken by police hierarchy and accordingly a decision was taken by said hierarchy and there was no illegality in said decision. It was not a case of change of cadre of a single police officer for favouring him nor there any element of nepotism. The whole group of employees were reorganized into a newly created group and it was a reasonable exercise by the then establishment of police department. In the WP No.2732-P/2023.

impugned order, said act has wrongly been dubbed as wrong and illegal and ratio of judgment of Hon’ble Supreme Court of Pakistan rendered in case of “Ali Azhar Khan Baloch & others Vs Province of Sindh and others” reported as 2015 SCMR 456, have wrongly been applied to the facts of case in hand.

Same was a distinguishable judgment, which was apparent from facts of said case. Peculiar circumstances of this case, was requiring re- organization at departmental level and same had been taken. A department cannot be deemed deprived of the powers to re-organize its various wings. With lapse of time, creation of a new I.T. Wing and establishment of earlier I.T. Wing, preceding promulgation of rules (by almost two decades) were all requiring the re- organization of I.T. Wing by allowing of absorbing the persons already posted there and such could not have been deemed a horizontal moment of certain police officials from one cadre to another. It was an omnibus absorption of officials within existing I.T. Wing of police department into newly created group of same department.

WP No.2732-P/2023.

13.So far as case of rest of 76 police officials are concerned, they have been regularized in pursuance to judgment of this Court where this Court had finally held as follows:

“16. In view of the above and while relying upon the judgment of this Court passed in W.P. No. 1007- M/2018 decided on 17.09.2019, we direct the respondents to place the case of the petitioners before the Upgradation Committee of the Provincial Government in terms of the Upgradation Policy and to consider their cases for redesignation and upgradation to BPS-16 in juxtaposition with their earlier decision unanimously passed in its meeting held on 06.08.2018.

17.This and the connected writ petitions are allowed in the above terms.”

They being similarly placed employees and also being regularized in pursuance to judgment of this Court, were also possessing vested rights of continuity in same basic scale and same I.T. cadre. Judgment of this Court could only have been set aside by Hon’ble Supreme Court of Pakistan and as a result thereof all those persons could have been removed from posts but not otherwise. Said judgment of this Court had attained finality and its effect could not be allowed to be withheld by an executive order and for said additional WP No.2732-P/2023.

reasons also, the impugned order have not been sustainable.

14.In light of what has been discussed above, Writ Petition No.2732-P/2023, Writ Petition No.2865- P/2023, Writ Petition No.2941-P/2023, Writ Petition No.2932-P/2023, Writ Petition No.4957-P/2025 and Writ Petition No.850-P/2025 are allowed to the effect that all those persons who had earlier been absorbed in the Information Technology Group of Khyber Pakhtunkhwa Police (and whose orders of absorption and upgradation have been withdrawn through impugned orders) are restored to their original posts, with all back benefits and their respective seniority, by setting aside all impugned orders. They shall be immediately restored to their original positions, which they were possessing before passing of impugned orders. They shall also be paid all their back benefits and their respective seniority shall be restored.

Rest of writ petitions have mostly been filed by those persons, who were claiming to have been similarly placed to those, who have been inducted in I.T. Cadre. Their cases i.e, Writ Petition No.1419- M/2022, Writ Petition No.4396-P/2022, Writ Petition WP No.2732-P/2023.

No.156-M/2023, Writ Petition No.787-P/2023, Writ Petition No.804-P/2023, Writ Petition No.1154- P/2023, Writ Petition No.974-P/2024, Writ Petition No.7361-P/2025, are disposed of with directions that police department shall reconsider cases of all these petitioners and similarly other claimants in the following manner:

“The available vacant posts in the I.T Wing shall be determined. If any vacant seat of Computer Operator has been existing in Information Technology Group, police department, then (according to available vacant seats) cases of all claimants shall be considered by a Committee to be constituted by Inspector General of Police, for this purpose. Those police constables who have been similarly placed to original 83 police personnel (upgraded as Computer Operators and absorbed in the I.T. Wing of Police Department) in terms of their induction, qualification and earlier service in the I.T. Wing of Police Department, their merit list shall be prepared. The merit order shall be determined in accordance with period of service undergone by competing candidates, who are found to have been similarly placed to original 83 persons, upgraded by Police Department, in a manner that a person having WP No.2732-P/2023.

more service in the I.T. Wing, shall rank senior to a person having lesser service. Only those similarly placed persons will have a right of upgradation to the post of BPS-16, who falls in such merit order. Upgradation shall be made on vacant seats, which have been available in existing Police Information Technology group. Rest of persons shall be dropped. This chapter shall be closed and matter finalized for all times to come. Subsequently, no claim of any police personnel shall be entertained for his induction and regularization in the I.T. cadre or upgradation as police constable. Earlier action of Police Officer regarding absorption of police personnel in the I.T, Cadre shall not be considered or accepted as a precedent. Similarly, earlier judgments of this Court or this judgment shall also not be quoted as precedent for claiming upgradation of Police Constable as Computer Operator in future, except as provided above.”

Announced.

--sd-- Senior Puisne Judge

--sd--

JUDGE

A.Qayum PS” DB) Hon’ble Mr. Justice Ijaz Anwar & Mr. Justice Wiqar Ahmad.

WP No.2732-P/2023.