Abdul Hanan Vs Govt. of KPK

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

W.P No. 321-B of 2013

JUDGMENT

Date of hearing 21.05.2014 .

Appellant-Petitioner Abdul Khanan Sub Inspector .

By Dil Khan advocate. .

Respondent By Saifur Rehman Khattak, Addl: A.G. .

MUAHMMAD DAUD KHAN, J. By means of this writ petition instituted under Article 199 of the Constitution of the Islamic Republic of Pakistan, Abdul Khanan, a police official (petitioner) has challenged the reversal of his out of turn promotion (also called demotion). His demotion was directed by the Regional Police Officer, Bannu, under an Order # 2052-56/EC, dated 06 September 2013. The effect of the order was that the petitioner was reverted to “substantive/Offg: rank of HC/OASI”. The demotion order was based on the decision of the august Supreme Court of Pakistan, passed in CRL original petition # 89/2011,

declaring out of turn promotion as illegal, against the constitution and the relevant law and regulations. The sole question for determination by this Court is that whether the petitioner’s promotion is hit by the principle the Supreme Court has laid down in petition # 89/2011. Before answering this question, it is necessary to narrate the brief facts of the case.

2.The petitioner joined police department in 1987, as a Constable. He was regularly promoted to the rank of a Head Constable (HC) in light of the recommendation by a Promotion Committee. When the petitioner entered the promotion list “D” of the Police Rules, he was promoted as Officiating Assistant Sub- Inspector, vide an order # 247-50/EC, dated16 Feb 2009.

3.On 04 June 2008, the Provincial Police Officer, Khyber Pakhtunkhwa (respondent # 3) passed a Standing Order # 6, authorizing out of turn promotion of those officers who demonstrate exceptional performance, gallantry and devotion. The order provided that out of turn

promotions were to be carried out in light of recommendations by a Committee comprising of senior police officers of a region. It was directed that the Committee was to avoid routine cases.

4.An enquiry Committee comprising the District Police Officer, DSP Rural-I, DSP Headquarter and Inspector Legal Branch, Bannu, considered the case of the petitioner. On the strength some empirical evidence, the Committee observed:

Committee.... has strongly recommended the name of SI Abdul Khanan SHO/ Mandan for confirmation in the rank of Sub: Inspector for the arrest of 2 Nos. Terrorist/ Miscreants with deadly/ sophisticated weapons & Hand grenades....hit the vehicle, which was moving towards Bannu city the destination to destroy Bannu City/ unknown targets, just the suicide bomber exploded the vehicle in front of PS Mandan. The credit of saving of Bannu city/ unknown targets from destruction as well as causalities in thousands goes to SI Abdul Khanan SHO/ Mandan, who himself also

sustained serious injuries in the suicide attack and is under proper treatment at DHQ

Hospital Bannu”

In the final paragraph of its report, the Committee strongly recommended the case of the petitioner for confirmation as Sub-Inspector as a special case. Vide order #5352/GC dated 28 September 2009, the petitioner was confirmed in the rank of Sub: inspector as a special case with immediate effect.

5.Quite astoundingly, on 06 September 2013, vide order #2052-56/ EC, respondent # 4 demoted the petitioner to post of Offg: rank of HC/OASI. The order reflects that the demotion was carried out in compliance with instructions issued by respondent # 3 vide a memo # 2359-65/Legal, dated 06 August 2013. The instructions were based on a judgment of the august Supreme Court of Pakistan in CRL original petition # 89/2011. In that judgment the hon’ble Court has declared out of turn promotion as contrary to the Constitution, illegal and against law and rules.

6.The petitioner has raised seven grounds in this writ petition. Key grounds are summed up as under:

• The principle laid down by the Supreme Court is not applicable to the case of the petitioner;

• The judgment of the Supreme Court is confined to the Sind Civil Servants Act, 1973, as it struck down certain amendments in that law;

• The petitioner was promoted in accordance with a recommendation of departmental promotion committee;

• Other colleagues of the petitioner have not challenged the promotion of the petitioner;

• The petitioner was condemned unheard as his demotion order was passed without any prior notice to him;

• The petitioner, having been promoted on the basis of his excellent performance, he and his other colleagues (police officials) would now feel demoralized and discouraged, particularly in the current fight against terrorism; and

• The demotion order violates several constitutional provisions, such as, articles 2-A, 4, 25, 27 and 28.

7.The respondents submitted their para-wise comments. Their principle plea is that the judgment of the Supreme Court affects the case of the petitioner. The following two comments are of utmost importance:

d. [...] the petitioner’s case subject to the provisions of Police Rules 13-18, but to

regularize his promotion, deviation from the said rules was made. Hence, his case falls within the purview of out of turn promotion which has already been declared as illegal by the Honouable Supreme Court of Pakistan.

i. [...] the principle of [laid down by]

the...Supreme Court...applied to those cases where deviation [from] the Police Rules was made and which fall within the ambit of out of turn promotion.

8.Mr. Khush Dil Khan, learned counsel for the petitioner argued the case, referring to the grounds set up in the writ petition. He argued that the principle developed by the Supreme Court is not attracted in the instant case.

The word “demotion” has no link with the terms and conditions of service. He stated that the impugned order has attained finality under the doctrine of locus poenitentiae. He also argued that the petitioner was not promoted out of turn, rather, the petitioner’s case was considered by the Promotion Committee. He was also of the view that Standing # 06, passed by respondent # 3, is still intact. He stated that the petitioner was not heard before passing the impugned demotion order. He said that the comments make no specific defence are evasive.

9.Mr. Saif-ur-Rehman Khattak, Additional Advocate General, challenged the jurisdiction of this Court. He said the petitioner was promoted out of turn, which is covered by the principle laid down by the Supreme Court. He also said that the police department has no ill intention against the petitioner as many other police officials have been demoted in light of the above mentioned principle.

10.We have heard the arguments of both counsel and considered their respective contentions. We have also perused the material available on the record.

11.As the question of jurisdiction is raised, we deem it appropriate to answer it at the very outset. Article 212 of the Constitution bars the jurisdiction of this Court in matters relating to the terms and conditions of civil servants. But the question involved in this case is one of out of turn promotion, which has no link with the terms and conditions of civil service. Such a promotion is not a regular promotion, but is a tool of reward in cases of exceptional circumstances. Moreover, in the view of the fact the hon’ble apex Court has declared out of turn promotion as illegal and un-Islamic, it is not a kind of regular promotion (CRL original petition # 89/2011).

Furthermore, out of turn promotion involves fundamental rights, such as, equality of citizens before law and entitlement to equal protection of law (Article 25). Thus,

we are of the view that this Court has got jurisdiction in the instant matter.

12.Now we come to the question put in paragraph # 1, above. For the sake of convenience, the question is reproduced below:

Whether the petitioner’s promotion is hit by the principle the Supreme Court has laid down in petition # 89/2011?

13.The record reveals that respondent # 3 issued a Standing Order # 6/2008. The order prescribed a procedure for out of turn promotions. In the text of the order, the following three points are germane to the question before this Court:

• The proposed out of accelerated/turn promotion was “to encourage officers who demonstrate exceptional performance, gallantry and devotion, beyond the call of duty.”

• A three-member Committee has to consider a case such promotion.

• The Committee shall consider only cases of exceptional performance and not the routine ones.

14.The District Police Officer, Bannu, constituted an Enquiry Committee. The Committee comprised of two DSPs and one Inspector Legal. It recommended the case of petitioner on the basis of his extraordinary performance. It is clear from the report of the Committee that the promotion of the petitioner was recommended in light of the Standing Order. Counsel for petitioner himself submitted that the petitioner has demonstrated exceptional performance—a criterion set out in the Standing Order # 6 of respondent # 3. In other words, the recommendation was that of out of turn promotion. The police department fulfilled other legal formalities by confirming the promotion of the petitioner (orders #5352 GC dated 28 September 2009), from Offg: Sub Inspector to confirmed in the rank of Sub Inspector, as a special case.

15.Learned counsel for the petitioner that the judgment of the august Supreme Court in CRL Original petition # 89/2011 is not applicable in the present case.

The reason advance by him is that the judgment is

confined to Sind province. We believe this argument is patently misconceived. The hon’ble Court has directed that:

“A copy of [the] judgment be sent to the Chief Justice Sindh High Court and through

Registrar for circulating it amongst the learned Judges. A copy of this Judgment be also sent to all the Chief Secretaries of the Provinces as well as the Secretary,

Establishment Division, Government of

Pakistan, Islamabad, with the direction to streamline the service structure of civil servants in line with the principles laid down in this judgment. The Chief Secretary and Secretary, Services Sindh are further required to comply with this judgment in letter and spirit and repot compliance within three weeks.”

The judgment of the hon’ble apex Court is directive in nature and for the whole of Pakistan, as its copies have been circulated to all provinces. Respondent # 3 has issued

directions in order to demonstrate compliance with the judgment.

16.Similarly, the learned counsel for the petitioner has also misconceived that the doctrine of locus poenitentiae applies in the present case. Suffice it to say that the any act and order, which is contrary to the constitution and law, is not sustainable simply because it has allegedly attained finality and has become a past and closed transaction. In the CRL Original petition # 89/2011, the august apex Court has elaborated the doctrine in paragraph 174 of the judgment. The relevant portion is reproduced below:

“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

become irrevocable and past and closed

transaction. If the order is illegal then perpetual right cannot be gained in the basis of an illegal order. In the present case, the benefits extended to difference employees or civil servants through the impugned

legislations are not only violative of law but are also ultra vires of the Constitution referred hereinabove. In such like situation the principle of locus poenitentiae does no attract and in this regard this Court in the case of Muhammad Nadeem Arif and other Vs.

Inspector General of Police, Punjab, Lahore and other (2010 PLC (C.S) 924 and the Engineer Jalaludin (PLD 1992 SC 207) has held that principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law, which is violative of the provisions of the constitution.”

In Muhammad Nadeem Arif and other Vs. Inspector General of Police, Punjab, Lahore and other (2010 PLC (C.S) 924, hon’ble apex Court has held that out of turn promotion is against the constitution and injunctions of Islam. The hon’ble Court observed:

“Out of turn promotion, as envisaged in the impugned instruction, is not only against the constitution but also against the injunctions of Islam. Out of turn promotion in a public department generates frustration and thereby

diminishes the spirit of public service. It generates undue preference in a public

service. Element of reward and award is good to install the spirit of service to community but it should not be made the basis of accelerated promotion.”

17.We are also not convinced with this argument of the petitioner’s counsel that the petitioner has been condemned unheard. The police department has complied with the principle laid down by the apex Court in the CRL Original petition # 89/2011. It is established that the petitioner was promoted out of turn, which is duly hit by the relevant principle. The argument that the comments of the respondents are evasive, too, is untenable. Comments

(d)and (i) reproduced in paragraph 7, above, are clear, specific and articulate.

18.There could be no denying the fact that the Standing Order # 6 of respondent # 3 aimed at encouraging those police official whose performance was rated excellent and to prop up their morale. It is a settled view

that the promotion of officials for such purpose should not be in a manner that negatively impacts on the rights of other similarly placed officials. Perhaps some alternative ways may be explored for encouragement of those police officials who have performed excellently.

19.On the strength of our foregone discussion, we have reached to the conclusion that the promotion of the petitioner is hit by the principle laid down by august Supreme Court in the CRL Original petition # 89/2011.

Resultantly, this writ petition is dismissed.

Announced 21 May 2014

Sd/- Mr. Justice Muhammad Daud Khan.

Sd/- Mr. Justice Assadullah Khan Chammkanni.