2023 P L C (C.S.) 170
[Balochistan High Court]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
SAJJAD HAIDER TAREEN, PDSP, QUETTA and 10 others
Versus
The PROVINCIAL POLICE OFFICER, BALOCHISTAN QUETTA and 12 others
C.Ps. Nos.246 of 2008 and 334 of 2019, decided on 31st January, 2020.
Balochistan Civil Servants Act (IX of 1974) ---
----S.8 ---Balochistan Deputy Superintendents of Police Service Rules, 1978, Rr. 2(b) & 10---
Seniority ---Scope ---Petitioners assailed exclusion of Deputy Superintendents of Police
(DSPs) of prosecution branch from the Joint Seniority List ---Contention of department was
that there was no specific provision in the Balochistan Deputy Superintendents of Police
Service Rules, 1978, for maintaining Joint Seniority List of DSPs ( General Cadre) and DSPs
of the prosecution branch---Validity ---Sub -Inspectors and Inspectors of the Prosecution
Branch of Police Department could not travel horizontally by transfer to the other branches of the Police Department but after promotion of the Inspectors of the prosecution branch of the Police Department as DSPs, there was no such restriction on the DSPs of prosecution
branch ---DSPs of the prosecution branch could be appointed in other branches of the
Service---Rule 10 of the Balochistan Deputy Superintendents of Police Service Rules, 1978,
dealing with the inter se seniority of the DSPs of the Service, did not provide for preparation of separate Seniority List of DSPs of different branches of the service ---Rule 2(b) of
Balochistan Deputy Superin tendents of Police Service Rules, 1978, although provided that
all the branches of the service had been organized as separate and self -contained unit of the
Police Department but all the branches (including the prosecution branch) of the service had not be en sanctioned as a separate unit to fall within the definition of a "separate cadre"
warranting preparation of separate seniority lists of the DSPs of different branches of the service under S.8(1) of the Balochistan Civil Servants Act, 1974---Constitution al petitions
were accepted and the department was directed to issue joint seniority list of DSPs.
Adnan Basharat for Petitioners (in C.P. No.246 of 2008).
Abdul Latif Kakar, Additional Advocate General for Respondent No.1 (in C.P.
No.246 of 2008).
Aman ullah Kanrani, Nadir Ali Chalgari, Naseer Ahmed Bungulzai and Bilal Mohsin
for Respondents Nos.2 to 12 (in C.P. No.246 of 2008).
Khalilullah Kakar, DSP in person for Respondent No.13 (in C.P. No.246 of 2008).
Adnan Basharat for Petitioners (in C.P. No.33 4 of 2019).
Abdul Latif Kakar, Additional Advocate General for Respondent No.1 (in C.P.
No.334 of 2019).
Amanullah Kanrani, Nadir Ali Chalgari, Naseer Ahmed Bungulzai and Bilal Mohsin
for Respondents Nos.3 to 8 (in C.P. No.334 of 2019).
Khalilullah Kaka r, DSP in person for Respondent No.2 (in C.P. No.334 of 2019).
Date of hearing: 18th December, 2019.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ----This common judgment disposes of C.P.
No.246/2008 and C.P. No.334/2019.
2. Relevant facts are that in the Police Department of Balochistan, Joint Seniority List of
Deputy Superintendents of Police (DSsP) of different branches of Balochistan Deputy
Superintendent of Police Service (hereinafter "the Service") including DSsP of prosecution branch was maintained till year 2000 on the basis whereof few DSsP of prosecution branch of Service were promoted as Superintendents of Police (SsP).
In the Joint Seniority List of DSsP issued in 2001, the names of DSsP of prosecution
branch of the Service were removed but no separate Sen iority List of DSsP of the
prosecution branch was issued by the Police Department.
After excluding the names of DSsP of the prosecution branch from the Joint Seniority
List, the DSsP of the other branches of the Service junior in seniority to DSsP of prosecution branch were promoted as SsP or were granted shoulder promotion as SsP.
3. In this background, C.P. No.246/2008 was filed by eleven DSsP of the prosecution
branch of the Service on 29th May 2008 claiming the following relief:
"It is therefore, humbly prayed that this Hon'ble Court may be pleased to accept the petition in the following terms.
A. Declaring that the act on the part of respondent in deleting and not incorporating the names of the petitioners from the seniority list of Deputy Superin tendent of Police
(DSPs) is totally illegal, improper, in excess and mis -exercise of the authority and
jurisdiction vested in him and is based with mala fide intention.
B. On having declared so, the respondent may be directed to include/incorporate the names of the petitioners in the seniority lists of DSPs as per their seniorities strictly in
accordance with the Rules and Laws.
C. Any other relief deemed fit and appropriate in the circumstances of the case, may also be awarded in favor of the petitioners a long with the cost of petition, in the interest of
justice, fair play and equity."
4. While submitting reply dated 19th August 2008 in C.P. No.246/2008 it was contended
by respondent No.1 that Seniority List of DSsP of the service was maintained jointly ti ll
1997 whereafter it was separated as maintained in the other provinces; that the matter with
regard to maintenance of Joint Seniority Lists of DSsP and PDSsP and simultaneously of Prosecuting Inspectors and Inspectors of various branches of Police Depart ment is under
consideration in the office of respondent No.1 which will be considered in due course of time.
5. Constitutional Petition No.246/2008 was accepted by this Court vide judgment dated
23rd April 2009 whereafter Joint Seniority List of DSsP including DSsP of prosecution branch was issued by the Police Department on 16th August 2009 and onwards.
6. The judgment dated 23rd April 2009 passed by this Court in C.P. No.246/2008 was
challenged by filing C.M.A. No.1470/2012 dated 9th June 2012 under secti on 12(2), C.P.C.
before this Court by ten DSsP of other branches of the Service, some of whom were already posted as SP, Acting SP, Additional DIG or Assistant Director FIA.
The above application was contested by the petitioners (DSsP of the prosecution
branch) by filing rejoinder.
7. Civil Miscellaneous Appeal No.1470/2012 filed under section 12(2), C.P.C. by DSsP
of the other branches of the Service was accepted by this Court vide order dated 20th June 2017 and while recalling the order dated 23rd April 2009 passed in C.P. No.246/2008, the petitioners were directed by this Court to amend C.P. No.246/2008 by impleading the
contesting DSsP of the other branches of the Service as respondents.
The order dated 20th June 2017 passed by this Court was challenge d by DSsP of the
prosecution branch before Hon'ble Supreme Court by filing Civil Petition No.5196/2017 and Civil Misc. Application No.4520/2018 which were dismissed by the Hon'ble Supreme Court vide order dated 11th June 2018.
8. During pendency of C.P. No.246/2008, on 31st August 2017, Joint Provisional
Seniority List of DSsP including DSsP of the prosecution branch of the Service was issued by the Police Department as it stood on 29th August 2017 and objections were invited for the same.
9. After receivin g objections and deciding the same, Joint Final Seniority List of DSsP
including DSsP of the prosecution branch of the Service was issued by the Police Department vide notification dated 11th December 2017.
10. During pendency of C.P. No.246/2008, vide impugned notifications dated 6th March
2019, Police Department issued separate Provisional Seniority List of twenty- six DsSP of the
prosecution branch by mentioning them as DSsP Legal (BPS -17) and also separately issued
Seniority List of twenty -eight DSsP of other branches of the Service The DSsP of the
prosecution branch filed objections/ made representation on issuance of separate Provisional
Seniority Lists and prayed to issue Joint Seniority List of DSsP of all the branches of the Service.
11. Before decis ion of competent authority on the objections/ representation, sixteen
DSsP of the prosecution branch including eleven DSsP of the prosecution branch who had already filed C.P. No.246/2008, filed C.P. No.334/2019 before this Court on 2nd April 2019 claiming the following relief:
"It is therefore, humbly prayed that this Hon'ble Court may please to accept the petition in the following terms.
a) Declaring that the two separate seniority lists for the General Branch and Legal Branch issued by the respondent No. 1 on 06- 03-2019 be declared as illegal, improper
and in excess and misuse of authority.
b) On having declared so, the joint seniority list of 11- 12-2017 be declared as the final
seniority list amongst all the DSPs of police as a whole.
c) Further it may kindly be declared that any promotions in future will be made
according to the inter -se seniority held by the respective police officials in the joint
seniority list dated 11.12.2017.
d) That the respondent be further directed to follow the jo int seniority list dated
11.12.2017 for the promotion to the higher rank of Superintendent of Police in the future.
e) Any other relief which may deem fit and appropriate in the circumstances of the case,
may also be awarded in the favor of petitioners in the interest of justice and equity."
12. In C.P. No.334/2019 respondent No.1 has filed para wise comments with the
contention that there is no specific provision in the Balochistan Deputy Superintendents of Police Service Rules, 1978 (hereinafter "the DSP Rules") for maintaining Joint Seniority List of DSsP (General Cadre) and DSsP of the prosecution branch; that prior to 2009, seniority list of DSsP (General Cadre) and DsSP of prosecution branch were maintained separately and the reason of issuing Joint Se niority List dated 26th September 2009 was the judgment
dated 25th April 2009 passed by this Court in CP No.246/2008 which was recalled by this Court on 20th June 2017; that due to recalling of the order about Joint Seniority List of DSsP of the prosecution branch by this Court, separate Seniority Lists of DSsP (General Cadre) and DSsP of the prosecution branch were issued on 6th March 2019 to fill -in the vacant posts
of SsP.
It was also contended by respondent No.1 in the para wise comments that there is no
specific provision in the DSP Rules, Police Rules, 1934 (hereinafter "the Police Rules") and Police Act, 2011 (hereinafter "the Act of 2011") for preparing/maintaining Joint Seniority List of DSsP (General Cadre) and DSsP of the prosecution branch; that nature of work of
DSsP of the prosecution branch is quite different from DSsP of General Cadre of Police Department.
13. The objections raised/representation made by DSsP of the prosecution branch on
issuance of separate Seniority Lists dated 6th March 20 19 was rejected on 20th May 2019 by
the Committee chaired by Additional Inspector General of Police, Administration
Balochistan with Deputy Inspector General of Police, Headquarter/CPO Quetta, Deputy Inspector General of Police, Special Branch Quetta, Assi stant Inspector General of Police,
Police Establishment/CPO and Assistant Inspector General of Police (Legal/CPO) as
Members on the ground that the matter is subjudice before the High Court.
14. Record also reveals of a Summary dated 28th July 2016 moved b y the Police
Department Government of Balochistan to the Chief Minister Balochistan for revamping the
Prosecution Branch/ Legal Wing of Balochistan Police with its proposed Organization and Administrative Service Structure with job description/duty which has been approved by the Chief Minister Balochistan but till date the requisite notification has not been issued.
15. After hearing learned counsel for the parties, learned AAG and respondent No.13
(Mr. Khalilullah Kakar DSP) in person, we have perused the available record and have gone through the relevant enactments.
The objection raised by the contesting DSsP about maintainability of the constitution
petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan is overruled as presently the Balochistan Service Tribunal is non functional due to
expiry of term of its Chairman and due to non- appointment of its Chairman and in the
circumstances, the petitioners are left with no other remedy except invoking the consti tutional jurisdiction of this Court under Article 199 of the Constitution of Islamic
Republic of Pakistan.
16. In the Province of Balochistan, the Act of 2011 was promulgated on 24th August
2011. Section 46 of the Act of 2011 repeals the applicability of P olice Order, 2002 to the
extent of Province of Balochistan with saving clauses for not affecting the validity, invalidity, effect or consequence of anything duly done or suffered under the Police Order, 2002. Section 42 (3) of the Act of 2011 adopts the Po lice Rules by deeming the same to have
been made under the Act of 2011.
17. The relevant provisions of DSP Rules regulating/governing the service are reproduced
herein below:
"PART I
GENERAL
1……….
(2) ......
2... .....
(a) ......
(b) "Branch " means a branch of the Department organized as a separate and self -
contained unit such as General Branch, Prosecuting Branch, Tele Communications
Branch, Special Branch, Motor Transport Branch, Finger Print Branch and Anti -
Corruption Branch;
(c) ... ... ....
(d) ...... ....
(e) ... ... ....
(f) ...... ....
(g) ...... ...
(h) ...... ...
(i) ...... ....
(j) "Service" means the Balochistan Deputy Superintendent of Police Service.
"PART II
RECRUITMENT
3. Constitution and composition of service.----(1 ) The Service shall consist of the
various branches of the Police Department.
(2) Each branch of the service shall comprise the posts of Deputy Superintendents of
Police and such other equivalent posts in the Department as may be specified by Government f rom time to time.
(3) Members of telecommunication branch and M.T. branch shall not be eligible, for
appointment to a post borne on any other branch of the service.
4. Appointing authority. ---Appointments of the Service shall be made by the
Government.
5. "Selection Authority" ---Means a Selection Committee consisting of Chief Secretary
as its Chairman, Home Secretary and Inspector -General as its members, on the
recommendations of or in consultation with which the Government may make appointme nt of the Deputy Superintendents of Police in Balochistan against the
vacancies specified in sub -rule (b) of Rule 6(1).
6. Method of recruitment. ----(1) Recruitment to the service shall be made in the
following manner ---
(a) 50% of the vacancies in the ser vice shall be filled by initial recruitment on the
recommendation of the Commission.
(b) 50% of the vacancies in the service shall be filled by promotion from among Inspectors of Police, on the recommendation of the Selection authority.
(2) The Inspector -General of Police shall maintain a Select List in Form I appended to
these rules of Inspectors who are considered fit for promotion to the Service in the respective Branch. The Select List shall be in parts; and each part shall appertain to a
separate branch.
(3) Recruitment to the Service by promotion shall be made from among Inspectors whose
names appear in the Select List maintained in accordance with the provision of sub -
rule (2) for the branch in which the vacancies occur.
(4) No entry shall be made in the Select List to be maintained under the provisions of this
rule, nor shall an entry appearing therein be removed or the order in which the names
appear in it be altered without the previous approval of the Selection Authority.
(5) When an appointment is to be made from among persons whose names appear in the
Select List, the order in which the names appear in the Select List shall, as far as possible be followed.
PART III
CONDITIONS OF SERVICE.
9... ... ....
10. Seniority.----(1) The seni ority inter se of the members of the Service in the
various branches thereof shall be determined.--
(a) in the case of officers appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Authority; provided that persons selected for the
Service in an earlier selection shall rank senior to the persons selected in a later
selection; and
(b) in the case of officers appointed otherwise, with reference to the dates of their continuous appointment therein provided that if the date of continuous appointment in respect of two or more officers is the same, the older officer, if no Junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers.
Explanation I.- If a Junior officer in a lower grade is promoted to a higher grade
temporarily in the public interest; even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in th e higher grade.
Explanation II. - If a Junior Officer in a lower grade is promoted to a higher grade by
superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
(2) The seniority of the members of the service appointed by initial recruitment vis -à-vis
those appointed otherwise shall be determined--
(a) in case both the officers appointed by initial recruitment and those appointed otherwise have been appointed against substantive vacancies, with reference to the date of appointment to such vacancy in the case of an officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of an officer appointed other wise provided that if the two dates are the same, the
officer appointed otherwise shall rank senior to the officer appointed by initial
recruitment;
(b) in case the officer appointed by initial recruitment, has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed by initial recruitment shall rank senior to the officer appointed otherwise; and
(c) in case the officer appointed otherwise is appointed against a su bstantive vacancy and
the officer appointed by initial recruitment is appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment ".
18. Section 8(1) of the Balochistan Civil Servant Act, 1974 (hereinafter "the Act of
1974"), being relevant is reproduced herein below:
"8. Seniority.
(1) For proper administration of a service, cadre or [post] the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or
[post] to be prepared, but nothing therein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or [post], as the case may be"
19. While deciding the matter in respect of transfer, posting and seniority of Constables,
Head Constables, ASIs, Sub- Inspectors and Inspectors of Sindh Police and Sindh Reserve
Police governed by the Police Rules, in the case of Gul Hassan Jatoi v. Faqir Muhammad
Jatoi, 2016 SCMR 1254, it has been held as f ollows by the Hon'ble Supreme Court:
"66……... Though the term 'Cadre ', has been used in Police Rules 12.6(3)(e). Even in the Sindh Civil Servants Act, 1973 or the rules framed thereunder, the cadre has not been defined. However, the term 'Cadre' has been defined in Rule 9(4) of the
Fundamental Rules, 1992. The said Rule defines "Cadre" means the strength of a service or a part of a service sanctioned as a separate unit. "
69. The learned Tribunal has erred in treating the different establishments created under the Police Rules, 1.4 as various Cadres classified on functional basis; whereas the overall scheme of Police Act, 1861 and the Rules, 1934 envisage the police forces one indivisible body possessing various establishments perfor ming the assigned
functions such as District Police, Police Training Center, Crime Branch, Special Branch, Reserve Police and so on. Each of these establishments are in fact integral parts of the police force, and under no rules of construction they can be construed as
separate or independent Cadres.
70. Therefore, the directions of the learned Tribunal to the government to create Cadres in substitution of the establishments is neither warranted by the Act nor by the Rules and will lead to anomalies as has happened in the case in hand, where the DIGs
of different establishments started exercising the administrative powers of the Range DIGs.
71. We are clear in our mind that there should be common seniority of Police
Personnel serving in all the establishme nts to be maintained by District Police, the
Range DIG and Central Police Office (C.P.O.) strictly as provided by the Rules in Chapter XIII, as discussed in Para 56 supra. Therefore, the Sindh Government and the competent authority under the police Rules s hall prepare the common seniority list of
the Police Personnel serving in different establishments within three (03) months of the date of this judgment in terms of Police Rules and report compliance. "
20. Under the Police Rules, the Sub -Inspectors and In spectors of the Prosecution Branch
of Police Department cannot travel horizontally by transfer to the other branches of the Police Department but after promotion of the Inspectors of the prosecution branch of the Police Department as DSsP, there is no such restriction on the DSsP of the prosecution
branch of the Service under the DSP Rules.
According to Rule 3(3) of the DSP Rules, only the DSsP of Telecommunication
Branch and M. T Branch of the Service are not eligible for appointment as DSsP in any other branch of the Service, but there is no such bar for DSsP of the prosecution branch of the Service meaning thereby that the DSsP of the prosecution branch of the Service can be appointed in other branches of the Service.
21. Despite restriction on transfer of the Sub- Inspectors and Inspectors of the Prosecution
Branch to the other branches of the Police Department, the Police Rules do not provide for preparation of separate Seniority Lists of Sub- Inspectors and Inspectors of different branches
of the Police Department.
22. Similarly Rule 3(2) of the DSP Rules which mentions that each branch of the Service
(including the prosecution branch) shall comprise the posts of DSsP and Rule 10 of the DSP Rules which deals with the inter se seniority of the DSsP of the Service, do not provide for
preparation of separate Seniority Lists of DSsP of different branches of the Service.
23. The term "Cadre" has not been used or defined in the DSP Rules. According to Rule
9(4) of the Fundamental Rules, 1992 "Cadre" has been def ined as the strength of a service or
a part of a service sanctioned as a separate unit.
Note: Underlining has been made by us to lay emphasis.
24. Though according to Rule 2(b) of the DSP Rules, all the branches of the Service have
been organized as a sep arate and self -contained unit of the Police Department but all the
branches (including the prosecution branch) of the Service have not been sanctioned as a separate unit to fall within the definition of a "Separate Cadre" warranting preparation of separate Seniority Lists of the DSsP of different branches of the Service under section 8(1) of
the Act of 1974.
25. Since the prosecution branch of the Service has not been sanctioned as a separate unit,
therefore, the DSsP of prosecution branch of the Service ca nnot be considered as a "Separate
Cadre" for preparing separate Seniority List.
The DSsP of the other branches of the Service have not been jointly categorized and
sanctioned as a "General Cadre".
26. The different branches of the Service as mentioned in rule 2(b) of the DSP Rules,
classified on functional basis, are integral parts of the police force which cannot be construed
as separate or independent cadres for preparing separate Seniority Lists.
27. Even in the Summary dated 28th July 2016 approved by the Chief Minister
Balochistan for revamping the prosecution branch/legal wing of the Police Department of Balochistan like the Police Department of Punjab, in respect whereof requisite notification has not yet been issued, does not provide for preparing s eparate Seniority Lists of DSsP of
the prosecution and other branches of the Service.
28. In view of all the above, it is concluded that there was no occasion for the Police
Department to exclude the names of DSsP of the prosecution branch of the Service f rom the
Joint Seniority List of DSsP nor there was any occasion for the Police Department to issue separate Provisional Seniority Lists dated 6th March 2019 for the DSsP of the prosecution branch and DSsP of the other branches of the Service in pursuance of section 8(1) of the Act of 1974.
For the above reasons, the Constitution Petition Nos.246/2008 and 334/2019 are
accepted. The exclusion of the names of DSsP of the prosecution branch from the Joint Seniority List of the DSsP of the Service and issuance of separate Provisional Seniority Lists
dated 6th March 2019 of DSsP of the prosecution branch and DSsP of the other branches of the Service are declared null, void and of no legal effect.
The final Joint Seniority List of DSsP of different branc hes of the Service which
includes the names of DSsP of the prosecution branch issued by the Police Department vide notification dated 11th December 2017 is held lawful and valid for all intents and purposes.
The earlier interim order dated 27th June 2019 passed by this Court restraining the
Inspector General of Police Balochistan from convening meeting of Departmental Promotion Committee (DPC) for promotion of senior most DSsP to the rank of SsP is hereby recalled.
The Inspector General of Police Balochis tan is directed to convene the long awaited
meeting of DPC at the earliest for promotion of deserving senior DSsP as SsP on the basis of Joint Final Seniority List dated 11th December 2017 of DSsP of the Service whereafter the Inspector General of Police B alochistan shall issue a fresh Joint Provisional Seniority List of
DSsP of the Service for the year 2020, shall invite objections to the same and after deciding the objections, to notify the Final Joint Seniority List of DSsP of the Service for the year 2020.
Copy of the judgment passed today be sent to Inspector General of Police Balochistan
for compliance.
SA/46/Bal. Petitions accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.