Nazar Muhammad Qureshi etc VS Federation of Pakistan etc

JUDGMENT SHEET

ISLAMABAD HIGH COURT

ISLAMABAD

W,t.Nqe765/2011 Nozor Muhommod Qureshi etc.

Vs.

Federolion of Pokiston through Sgcrelorv. Minislrv of !nterior t{..[* No,29_01/201'!

Ghulom Akbor Ch.

Vs.

Federotion of Pokiston through Secretqrv. Ministrv of lnterior etc.

tt{-.I. N-*IS8?-LEQI1 KhuCo Bokhsh Khon etc.

Vs.

Federolion of Pokislon lhrough Secrelorv. Minislrv of lnlerior etc.

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Qoiser AliSheikh Vs.

Federqtion of Pqkiston throuqh Secretorv. Minlstrv of lnterlor etc. ----- (s)----- l,]J".*Nslgg$ltp-il.

Aoho Sved Shoms Azhor. lnspeclor etc.

Vs.

Federqlion of Pokislon through Secretorv. Mlnistry of lnterior elc.

W..f. No,?840/2011 Muhommod Khqlid Homeed etc.

Vs.

Federotion of Pokiston throuoh Secretorv. Mjnistrv of lnterior etc.

W-,P. .N.qr"284?./.39 I1 Kholid Rosheed etc.

Vs.

Federolion of Pokislon lhrouqh Secrelorv, Minislrv of Inlerlor elc.

HJ.l{pJ$5&e0ll lmron Fqzol lPlPSO etc.

Vs.

Federqlion of Pokiston throuoh Secretorv. Ministry of !nterior etc. ----- (e)----- YJ.f. No.285?/2011 lobol Hussoin. lnspector etc.

Vs.

Federolion of Pokislon throuoh secretorv.Ministrv of lnterior etc.

W,t, t{s.3.$60/e8U Shohzod Soleem Koyoni. !nspegtor etc.

Vs, Federolion of Pokiston lhrouqh Secrelorv Minislrv of lnlerior elc. ----- (l t)----- Wf. t'lcJ$I-f/2ol-L Monsoor Ahmed. lnspeclor etc.

Vs, Federotion of Pqkislon lhrough Secretorv. Ministrv of lnterior elc.

Y/_"_r,*U-+JIiZi/3gl"l- Tonyeer Ahmod Molik. DSp Vs.

Federotion of Pqkislon through secretory, Ministrv of rnterior erc.

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----- ('t3)----- fl"|' Nq.-287"S&.Q]t Pervoiz Ahmed Khon Vs.

Federotion of Pokiston throuoh Secrelorv. Ministrv of !nterior etc. ----- ('t4)----- ffi- t'is,AgzglSg]l- Shohzodo Koukob Forooq Vs.

Federolion of Pokiston throuqh Secrelorv, Minislrv of !nlerior etc.

S*t*H.p"J.826&81L Kholid Mehmood Anwor Vs.

Federolion of Pokiston lhrouoh Secrelorv. Mlnislry of lnterior elc.

W.P. NpJ87g/eq.l-I- Noilo Rozoq, S.l. etc.

Vs.

Federotion of Pokiston lhrouqh Secrelorv. Minislrv of lnterior elc.

H.l*lgr.IZZSlSgU Mirzo Qomor-uz-Zqmon DSP etc.

Vs.

Federotion of Pokislon throuoh Secretorv. Minislry of !nlerior etc.

lv.f., N"o",*62$1201 | Muhommod Azeem Minhos Vs.

Federotion of Pokiston throuqh Secretorv. Ministrv of lnterior elc. ----- (le)----- Yrf*P_" N o,2 Z-?-g/20 I I

Joved Hosson. lnspector etc.

Vs.

Federotion of Pokiston throuqh Secretofv. Ministrv of lnterior etc.

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Muhommod Ashrof Awon. DSP elc.

Vs.

Federotion of Pokistqn lhrough Secretorv. Minislry of lnterior etc.

HJ.-SsJ$gqffi-i-I Yosir Arofol Vs.

Federqtion ol Pokislon throuqh Secretorv. Ministrv of lnterior etc.

tt/.I" N.o,.?323/20 I .L

Forhqt-un-Niso. ASI etc.

Vs.

Federotion of Pokiston lhrouqh Secrelorv, Minislry of Inlerior etc.

Petitioners by: - r-h i /' rl-'amma A chrnf 1ar riiar A Arrnaata /\A/ D hln ?71(/2Ol I 290112011 ,2840t20111 h/rrlik Nr{r rhnmmnr.l (ir,lr{inr r Ararnn Ar,lrrnr^rrta /W P No.2BB7l201 I . W,P. No.285B/201 l) Mr. Qoiser Ali Sheikh. Petitioner in person (W.P. No.2B9l /201 I I htr A-Jil A-i- A rlrraan{a I\A/ D hla OaOQ I I aQC2.trn-1 1 oQco/onr I oo AA l'.\l 1 aaTa tail 1 a10a t.A I I )TAA t1nl 1 L,{r A.^,'J la Qir{r{inr ri A Arraaa}a ,\4, D irla CQ7?/OAl l 287 4t201 1, 287 5 t20t 1, 287 6 t201 t) Dr. Umoir ul Hosson, Advocole on beholf of leorned counselfor petitioner (W.P. No,284.2/201 1)

W-t .No.276512011 3

Molik Amirdod Awon. Advocote (W.P. No.2870l201 l.

279312O111

Petitioners Mizo Qomor-uz-Zomon, DSP. Rono Muhommod Anwor Khon, DSP ond Shehzodo Soleem, DSP in oerson (W.P. 277s120r) Respondenls by: Shofi Muhommod Chondio, D.A.G. AliAkbqr, S.P. Legol, NH&MP Jovoid lqbol. DSP, Legol, Rowolpindi on beholf of IGP Punjob. Lohore.

Jovoid lqbol Khottok, S.P. Leool. Abdul Rouf. lnsoector Legol. lslomobod.

Dote of Decision: 18-10-201 r

Rioz Ahmod Khqn J: This single judgment is directed to disposed of all the above titled writ petitions, as common questions of law and facts are involved in these writ petitions

2.Facts constituting the background of all the above mentioned writ petitions are that United Nations, Department of Peacekeeping Operations, required police officers from different States for their Peacekeeping Missions. Pakistan is also included in the States, wherefrom the police officers are selected for this purpose. The United Nations Selection Team visits Pakistan to conduct tests in order to select capable officers. This practice is in vogue since 1996. For the purpose of selection, United Nations has prepared a Policy for the selection of officers, which is as follows: -

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44.Member States shall not deploy police and other law enforcement personnel who are less than 25 years of age. The maximum age limit for service with the United Nations is sixty two (62) years; however, it is strongly recommended that the deployment of said personnel be under fifty five (55) years of age.

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f,.o Professional Status

45.The United Nations is open to considering contributions from all police contributing countries regarding their nomination of personnel assigned to their national police and other law enforcement agencies for deployment to United Nations peacekeeping operations. United Nations Police Officers should have served in a national police or other law enforcement agency for a minimum of five (5) years, excluding training. Retired personnel can be deployed if they have retired within the past five (5) years.

Assionment of United Nations Police Officers 46. The Head of the Police Component has the right to assign United Nations Police Officers, considering their background and experience, to appropriate duties, responsibilities and/or positions within the Police Component's structure as he/she deems appropriate. The assignment of all contracted posts, if any, will be processed by the police division in consultation with the mission capabilities, special skills, national and regional diversity, ranking and gender balance will be taken into account for the assignments of United Nations Police Officers. Lanouage(s)

47.It is indispensable to speak fluently, read and write clearly in the official !anguage(s) of the mission.

48.Police and other law enforcement personnel nominated for service as United Nations Police Officers should preferably have passed the mandatory language assessments as set out in the United Nations Selection Assistance Team Guidelines prior to leaving their home countries. Officers that have passed such assessments shal! not be subjected to any other language tests in the mission upon arrival.

49.United Nations Police Officers arriving in the mission area without the United Nations Selection Assistance Team clearance must take the mandatory language test in the mission as administered by the designated unit. The concerned candidate who fails this test wi!! be repatriated and the travel costs shal! be borne by the Member State.

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1o Firearms

50.The United Nations Police Officers assigned to the missions are only authorized to carry and use firearms in accordance with the relevant issuances of DPKO if and when so authorized by the United Nations. They should preferably receive a United Nations Selection Assistance Team clearance on the use of firearms prior to their deployment. Driving

51.Police and other law enforcement personnel nominated for service as United Nations Police Officers must have at least one (1) year of recent driving experience, and must be in possession of a valid national or international driving licence for at least one (1) year. In addition, they may be submitted to a driving test by the United Nations Selection Assistance Team. United Nations Police Officers must bring their valid national driving licences or international driving licences to the mission area, which should be valid during their service.

Computer Skills

52.Basic computer knowledge is an essential skill in the mission. Member States are strongly encouraged to incorporate lectures on this topic into their pre-deployment training.

Complementary Skills

53.The following additional criteria are desirable; previous experience in United Nations peacekeeping operations; proficiency in map reading, land navigation and use of global positioning systems; knowledge of the basic negotiation, mediation and conflict resolution, interviewing techniques and basic first aid.

3.The grievance of the petitioners is that the Government has changed the Policy given by the United Nations and prepared its own Policy, based on discrimination and nepotism and further to provide opportunity to the officers of their own choice. In this respect, the Government of Pakistan, Ministry of Interior issued letter No.9/20/2011-

W"fl . N o. 276s/I_8""1".1 6

Poll.I(3), dated 28th of April, }OLL In the said letter, the age limit in violation of United Nations' Policy, was changed and it was provided that the Officers should be more than 30 years and less than 50 years and that the Police Officers should have active service for at least B years. Similarly, 50o/o quota was reserved for repeaters and 50% quota was reserved for fresh candidates. Repeaters have to serve at least 2 years before being eligible for their new deployment in the UN Mission. It was further provided that police personnel, who served in UN Mission for more than two times, may not be considered. Feeling aggrieved of the said letter, the present writ petitions were filed, with the prayer that all police officers, eligible under the criteria given by the United Nations, ffidy be permitted to sit in the exam, to be conducted by the U.N. Mission and if they qualify, they may be permitted to be sent to United Nations' Peacekeeping Mission. Accordingly, it was prayed that the impugned letter dated 28th April , 2O!1 be declared as illegal, unlawful, arbitrary and it may further be declared that the respondent No.1 has no authority to give guidelines regarding criteria provided by the United Nations.

4.Learned counsel for the petitioners contended that prior to 1996, police personnel were deployed on the basis of recommendation by their respective I.G.Ps. or Home Department, but due to their unsatisfactory performance, the United Nations decided to send its team to select Officers in accordance with the Rules and criteria. In the

YV",fl" No.f;.I"S_U?011 7

4r0 year L997, the Interior Ministry imposed a ban on repeaters and the result was that fresh incumbents could not prove themselves up to the mark and the number of officers dropped to a large extent. In the year 1999, a Committee was constituted, which decided that 25olo of nominees may be selected from amongst repeaters, which now has been increased to 50o/o. Learned counsel contended that in the year 2000, 107 Punjab Police Officers participated and only 5 of them qualified. Similarly, in the year 2002, 64 officers from Baluchistan appeared in the test, all were fresh nominees and only one could qualify. Whereas, in the year 200L, when Interior Ministry allowed repeaters, 30 officers appeared and 9 qualified. All these facts were mentioned by the respective I.G.Ps. Learned counsel further contended that only prayer of the petitioners is that they want to sit in the exam, which by itself would not qualify them for appointment. Their only prayer is that they should not be discriminated against other police officers. It was further contended that if a ban is imposed upon the repeaters, then the result would be that due to poor standard of education prevailing in Pakistan as well as poor quality training, most of the fresh candidates would not be able to quarify for test and consequently, loss would cause to the Government Exchequer. Learned counsel also contended that the Government does not follow even their own policy and recently, one officer by the name of Muhammad Maqbool arrived on 26-03-2011 and was again sent back on 26-e7- 2011. Again, another letter was issued by virtue of which, it

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lo' O was provided that the above said Policy would not be applied to the P.S.P. officers. Learned counsel contended that in such a woy, the Policy of the Government is discriminatory, not based on any Law or Rule and the object of the same is to extend favour of their favourite ones.

5.Mirza Qamar-uz-Zaman, one of the petitioners, submitted that according to Rule 15 of the Rules of Business, L973, in cases involving important policy or departure from important policy, approval of the Prime Minister was must, whereas, in present case, the impugned Policy was issued without the approval of the Prime Minister and the same is, therefore, nullity.

6.On the other hand, learned Deputy Attorney General submitted that the Government had issued the new Policy, only to provide an opportunity to the fresh officers to participate and so that they may also get an opportunity to go abroad. Similarly, the age limit was changed from the guidelines provided by the United Nations to enable the fresh police officers. It was further submitted that the policy decision of the Government cannot be challenged in writ jurisdiction.

7 . I have heard learned counsel for the parties and have also perused the record.

B. Admitted position in the present case is that the Policy of the Government dated 28th April zOLl, is in contradiction with the Policy of United Nations for selection of officers.

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Under the Policy of the Government, the minjmum age limit has been fixed as 30 years, whereas under the policy of the United Nations minimum age limit is 26 years, in such a way most of the officers have been deprived from participating in the competition. In the same manner, upper age limit has been declared as 50 years, whereas in the criteria given by the United Nations, the upper age limit is 62 years, preferably 55 years. Again, 5oo/o quota has been assigned to the repeaters. The Policy shows that an intentional effort has been made to deprive police officers from pafticipating in the competition. The policy, as such, is based on discrimination. No plausible expranation has been put forward, as to why all the police officers are not permitted to compete for posting in the u.N. Mission. There is no doubt that Policy making is the prerogative of the Government and the court in exercise of constitutional jurisdiction cannot make policy for the Government, however, if a Policy itself is not supported by any Law or Rule or is based on discrimination, then the court has the jurisdiction to examine the same. The discriminatory attitude of the respondents is arso clear from the fact that certain officers were sent in violation of their own policy, which fact has not been denied. The argument that this Policy has been framed only to provide an opportunity to the fresh officers, is not correct, because it is not the case of appointment, rather the object is to hold a fair competition for all, where everyone should have the opportunity to participate. The Government, no doubt, has the authority to

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refuse sending any officer for the U.N Peacekeeping Mission, however, if the Government has decided to send the Officers, then opportunity of fair competition cannot be denied, irrespective of the fact that the officer is a repeater or fresh candidate. This fact cannot be ignored too, that the U.N. Committee in the criteria has held that preference should be given to the repeaters.

9.Even if it is presumed that the object of Govt. in changing the Policy is to provide opportunity to fresh candidates, then they should improve the quality of education and the standard of training imparted to the police officers. Furthermore, opportunity cannot be provided by depriving others from participating in competifion. The Policy of the Govt. based on letter dated 28th April, ZOtl can neither be considered as fair nor just. It is neither based on reasons nor is supported by any Law or Rule. The contention that the Policy was not approved by the prime Minister, was denied by the learned Deputy Attorney Generar. However, the said Policy is in the form of a letter, which does not show that it was issued with the approval of the prime Minister.

10.In the above said circumstances, I hold that the letter/policy guidelines of the Government dated 28th Aprit, 20LL is illegal, void and all the above titled writ petitions are accordingly, accepted. All the petitioners/police officers, eligible to appear in the test in accordance with the criteria laid down by the United Nations Department of

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Peacekeeping operations, will have the right to participate in the competition.

(R!AZ AHMAD KHAN)

Judge

Approved for reporting.

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Uploaded By : Engr. Umer Rasheed Dar