1. Muhammad Zafar Ali and ten others, the petitioners, seek the Constitutional jurisdiction of this Court praying:
“In view of the above it is prayed that the Hon’ble High Court may be pleased to allow this writ petition by directing the Provincial Government to take urgent steps to ensure the due and rightful promotions of Provincial Police Officers (BPS-18 to BPS-21) in view of Khyber Pakhtunkhwa Civil Servants Act, 1973, read with relevant provisions (Article 240 (b) and 142 (b) set out in Constitution of Pakistan and as in practice in all other departments of Khyber Pakhtunkhwa and,
The application of PSP Rules to the Provincial Police Service Officers of Khyber Pakhtunkhwa Province, for the purposes of their promotion to BS-18 and above by the Federal Government may be declared unconstitutional, null and void and without any lawful authority,
The Provincial Government of Khyber Pakhtunkhwa may be directed to induct Deputy Superintendents of Police in BS-17 directly against 30% BS-17 posts as is the practice in all other provincial civil service departments. Any other relief deemed appropriate may also be granted.”
2. Brief and essential facts, asserted by the petitioners in the present writ petition are that, the petitioners No.1 to 10 being qualified and eligible, were selected and appointed as DSP (BPS-17), on the recommendations of Public Service Commission, Khyber Pakhtunkhwa, Peshawar, in 1988, 1990 and 2001; that their appointment orders expressly stated that their services would be governed under the Khyber Pakhtunkhwa Civil Services Act, 1973; that the officers of the batches of 1988 and 1990 were due for promotion in the year 1995-96, but were locked into litigation with promotee DSPs, which lasted for five years, and finally they were given their due right by the Provincial Services Tribunal. Consequently, fourteen officers were promoted after a delay of more than ten years, while six of these officers were promoted after nineteen years of service, which was blatantly against the law; that though all the officer cadre seats from BS-17 to BS-22 are created by the Khyber Pakhtunkhwa Province from its ownresources and budget, yet there is no service structure of Provincial Police Officers beyond BS-18 at provincial level and are being forced to be appointed (en-cadred) in the (“PSP”) Police Service of Pakistan cadre as per rule 11, (2) (c) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 (“Rules”); that fourteen Provincial Police Officers of Khyber Pakhtunkhwa were en-cadred, vide Notification No.F.No.7/4/2007-E3 (Police) dated 11th December, 2007, in PSP; that the other PSP cadre officers, challenged the said Notification, which resulted in its cancellation, depriving them from their already availed seniority, the officers were again dragged into litigation for their seniority, resulting in wasting of another six years of their service; that as is done in the case of all other sister provincial departments, the Province has the authority to exercise its powers regarding promotions of its own officers against BS-18 and above, created in the Province from its own budget and resources and secure them from victimization and personal vendettas of PSP officers; that the Police Department has always been maintained out of provincial resources, for which the Government of Khyber Pakhtunkhwa spendsmore than Rs.26 billion per annum; that the Police is a provincial subject, and thus the promotions of the Provincial Police Officers by the Federal Government is illegal and unlawful; that the Police Order, 2002 has not been properly adopted by the Khyber Pakhtunkhwa Province in accordance with the provisions contained in Article 142 and Article 270 A A (6) of the Constitution; and finally the petitioners made several representations to the government, but in vain. Hence, the present writ petition.
3. During the proceedings of the present petition, notices were issued to the Provincial and the Federal Government. They filed their separate comments in response to the assertion made by the present petitioners raising preliminary objections regarding the maintainability of the present petition and the jurisdiction of this Court to entertain the same, and also controverted the factual aspect raised by the petitioners. In conclusion both Provincial and Federal Governments prayed for the dismissal of the present petition.
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