Mr. Justice Amir Hani Muslim in his judgment has decided the issue regarding out of turn promotions of Punjab Police through judgments of Tribunals, High Courts and Supreme Court in Civil Misc. Application No. 687 of 2017 etc.
1. These matters emanate out of two reported judgments of this Court, i.e. Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of Sindh (2015 SCMR 456), whereby this Court declared that the concept of out of turn promotions was unconstitutional and against the Fundamental Rights enshrined in the Constitution. The copies of these judgments were ordered to be sent amongst others to the Chief Secretaries of all the Provinces and the Secretary, Establishment Division, Government of Pakistan who were directed to streamline the service structure in the line with the directives contained in these judgments.
2. On 26.01.2016, Civil Appeal No.184-L of 2013, came up for hearing before this Court, when this Court passed the following order:
“3. …We expect that all out of turn promotions granted either to the police personnel on gallantry award or otherwise shall be undone within four weeks from today and their seniority be refixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from constable to any gazetted officer shall be streamlined in terms of the aforesaid two judgments. On completion of the exercise, the I.G Police Punjab, Home Secretary, Punjab and Chief Secretary, Punjab, shall submit compliance report with the Assistant Registrar of the Court for our perusal in chambers. This order shall be communicated to the I.G, Punjab, Home, Secretary, Punjab and Chief Secretary, Punjab, for their information and compliance and non-compliance of this judgment shall expose the concerned officials to contempt proceedings.”
The aforesaid order was challenged through Civil Review Petition No.49 of 2016, etc. by police officers who claimed that they had earned their out of turn promotions on the basis of acts of bravery during their duty or otherwise. The said Review Petitions along-with other applications were dismissed, by the judgment dated 30.12.2016, reported as Shahid Pervaiz v. Ejaz Ahmed (2017 SCMR 206) (hereinafter the “Shahid Pervaiz case”).
3. On 20.03.2017, the Home Department, Govt. of Punjab, and the Inspector General of Police, Punjab (“IG”), submitted their separate reports. The IG issued notices to all the police officers and after providing them with an opportunity of a hearing, prepared a comprehensive and voluminous report which dealt with the case of each police officer separately. The Additional Secretary (Police) of the Home Department vide letter dated 16.03.2017 objected to the report of the IG only to the extent that a few of the out of turn promotion cases were “judicially protected”. It appears that these officers were granted out of turn promotion by judicial fora. The learned Advocate General, Punjab supports this letter of the Home Department, and both he and the counsel representing these officers contend that such promotions were also specifically saved by paragraphs 111 and 143 of the judgment in Shahid Pervaiz case.
4. For convenience, the referred to paragraphs 111 and 143 from the judgment of the Shahid Pervaiz case are reproduced hereunder:
“111. Yet another anomalous consequence of this argument is that while two identical provincial laws are enacted and acted upon and one province repeals the law while the other continues with its operations. Subsequently, the vires of the law that continues on the statute books is examined by the Court and its provisions have found to be inconsistent with the Constitution or Fundamental Rights with the result that the benefits conferred or availed thereunder, unless protected by the category of past and closed transaction, have to be reversed and its deleterious effects undone. This category, quite obviously, consists of the cases wherein ‘out of turn promotion’ was granted to individuals, pursuant to the judgments of the High Court, Service Tribunal and the Supreme Court. They shall remain intact unless reviewed. Even otherwise, it does not appeal to logic that in such a situation, while those benefitting from a law which continued to be on the statute book and eventually found to be ultra vires the Constitution would stand deprived of such illegal benefits, those continuing to enjoy the same under the omitted/repealed law in other Province would stand protected. If an illegal benefit was accrued or conferred under a statute, whether repealed (omitted) or continuing, and its benefits continue to flow in favour of beneficiaries of such an unconstitutional Act, and it is declared ultra vires, the benefits so conferred would have to be reversed irrespective of the fact that the conferring Act was still on the statute book or not. Where such an anomalous situation surfaces – i.e. where one province continues to countenance the benefits of an unconstitutional (though repealed/omitted) Act, while the other Provincial statute has been struck down on the same touchstone, and thereby determined whether those enjoying benefits pursuant to the repealed law are entitled to continue to do so, such reversal of benefits is imperative.”
“143. For the aforesaid reasons, all the listed Review Petitions and the Applications are dismissed. The I.G.P, Punjab, the Home Secretary, Punjab, and the Secretary, Establishment Division, are directed to comply with the judgment, by fixing the seniority of all the Police Officers who were given out of turn promotion alongwith their batch-mates, as if they were never given out of turn promotion. However, the orders of withdrawal of out of turn promotion passed by the Department/Competent Authority shall be recalled against the Police Officers who had earned out of turn promotions, pursuant to the judgments of superior Courts/Service Tribunals, as discussed in paragraph 111 of this judgment. For the purpose of compliance of this judgment, necessary D.P.C/Board, as the case may be, shall be immediately held without further loss of time and a compliance report be submitted to the Registrar of this Court for our perusal in Chambers. This exercise shall be completed within a period of one month. The Advocate General, Punjab, and the learned Attorney General for Pakistan shall communicate the directives of this Court to the relevant authorities.”
5. The Advocate General Punjab (“the AG”) states that there was a conflict between the opinion of the Home Department and that of the Inspector General of Police on the point, whether the out of turn promotions given to some of the police officers were protected by the afore-quoted paragraphs of the judgment in the Shahid Pervaiz case.
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