Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Ansar Ahmed Gorar VS Respondent: Province of Sindh and 02 others
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Adnan-ul-Karim Memon Title: Ansar Ahmed Gorar vs Province of Sindh and 02 others Case No.: C.P. No. D-2805, 2833, 2898, 2995, 3013, 3024 of 2022 Date of Judgment:2022-05-30 Reported As: 2022 SHC 226 Result: Petition Dismissed
JUDGMENT
JUDGMENT Through the captioned petitions, the petitioners have assailed the vires of common office order dated 26.04.2022, issued by the Inspector General of Sindh Police (IGP), whereby they have been repatriated to their respective parent departments, i.e. Islamabad Capital Territory (ICT), Baluchistan Police, and Pakistan Railways Police, in compliance with the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of Criminal Original Petition No.89/201 1, 2013 SCMR 1752 and Ali Azhar Khan Baloch v. Province of Sindh and others, 2015 SCMR 456, therefore, all the Petitions are taken up together and are being disposed of vide this Single Judgment, as common questions of law and facts are involved therein. An excerpt of the impu gned order dated 26.04.2022 is reproduced as under: "The following Police Personnel were appointed in Islamabad Police / Railway Police & Baluchistan Police in different ranks, and were subsequently absorbed in Sindh Police on various dates as mentioned against each: Sr. #Name of of ficers Date of Absorption in Sindh PoliceRank at the time of absorptionName of Parent Department 1 Inspector Muhammad Sharif Kolachi 31.12.1996 S.I Islamabad Police 2 Inspector Qaimuddin Soomro 20.04.1994 ASI Islamabad Police 3 Inspector Naimatullah Jatoi 27.07.1995 ASI Islamabad Police 4 Inspector Ali Asghar Solangi 06.04.1995 ASI Islamabad Police 5 Inspector Akram Ali Soomro 14.04.1995 ASI Islamabad Police 6 Inspector Mukhtiar Ali Bughti 25.05.1995 ASI Islamabad Police
---
## Page 2
7 Inspector Saith Ali Abro 26.03.1995 ASI Islamabad Police 8 Inspector Fida Hussain Sangi 13.04.1995 ASI Islamabad Police 9 Inspector Muhammad Ibrahim Junejo25.03.1995 ASI Islamabad Police 10 Inspector Muhammad Yasin Taggar 25.03.1995 ASI Islamabad Police 11 Inspector Ghulam Hussain Chandio 06.12.1995 ASI Islamabad Police 12 Inspector Imamuddin Brohi 03.03.1995 ASI Islamabad Police 13 Inspector Khan Muhammad Hisbani 16.03.1995 ASI Islamabad Police 14 Inspector Zulfiqar Ali Abbasi 05.01.1995 ASI Islamabad Police 15 Inspector Imtiaz Ali Mirani 12.02.1995 ASI Islamabad Police 16 Inspector Muhammad Bux Kubar 28.08.1991 ASI Islamabad Police 17 Inspector Nazar Muhammad Panhwar07.09.1994 ASI Islamabad Police 18 Inspector Malik Dilawar Khan 04.11.1994 ASI Islamabad Police 19 Inspector Asadullah Mangi 21.02.1995 ASI Islamabad Police 20 Inspector Shamsuddin Dhoki 10.12.1995 ASI Islamabad Police 21 Inspector Ansar Ahmed Gorar 14.07.1998 ASI Islamabad Police 22 Inspector Noor Mustafa Magsi - Inspector Balochistan Police 23 ASI Noor Muhammad Bhayo 21.04.201 1 ASI Pakistan Railways 24 ASI Momin Khan 04.02.2010 ASI Pakistan Railways 25 ASI Sohail Shahzad 24.12.2009 ASI Pakistan Railways 26 ASI Muhammad Afzal 08.08.2006 ASI Pakistan Railways 2- Later on, judgment was passed by Honorable Supreme Court of Pakistan in Criminal Original Petition No. 89/201 1 and its judgment reported in 2013 SCMR 1752 Civil Review Petition No. 193/2003 reported in 2015 SCMR 456 through which absorption was declare d illegal and further order was passed about their seniority on repatriation to parent Department as follows: "The officers / officials who have been repatriated to their parent department shall be entitled to salaries and other benefits from the date they were relieved to join their parent departments. Their seniority shall be maintained in their parent departments with their batchmates as if they were never relieved from their parent departments. Expiry of period lien shall not come in the way of the officers to deprive them from joining the parent department" 3. Besides, in presence of the judgment passed by the Hon'able Sindh Service Tribunal in Service Appeals Nos. 724, 792 & 832/2019 and as per observation of the Advocate General Sindh vide letter No. AG-425 of 2017 dated 24.01.2017 and legal opinion given by the Government of Sindh Law Department in case of DSP Nooruddin Sanjrani (now retired from service) and DSP Muhammad Yaseen Kalwar vide letter No. U.O No. OP- 5(50/2015)/891 dated 05.07.2017 too should have been repatriated to their parent office. 4. Therefore, in compliance of Apex Court's order and in presence of legal opinion given by the Law Department, there is no need for further guidance. 5- Moreover , this is creating ill-discipline in ranks of Police and resulting in endless litigation in Honorable Courts. 6- Hence, in compliance of order of Honorable Supreme Court of Pakistan , the reference already made to Home Department vide letter No. 2181-82/E-1 1/ Insp., dated 25-03-2021 stands withdrawn / cancelled immediately and they are hereby repatriated to their parent province/ units for protection of their original seniority / promotion benefits which are their vested right according to the spirit of the decision of Honorable Supreme Court of Pakistan. 7. In compliance of the order of Honorable Supreme Court of Pakistan mentioned in para-2 above, all seniority / promotional service benefits (except salaries) which they got in Sindh Police are treated withdrawn / cancelled. 8- On cancellation of their absorption in Sindh Police their names are struck-of f from the strength of Sindh Police Department."
---
## Page 3
2. At the outset, we have asked the learned counsel for the petitioner in CP No.D-2805/2022, the principle governing the law which envisages appointment of Assistant Sub Inspector (ASI), through the mode either of direct recruitment or by promotion, and in such a situation, whether a person can be appointed and inducted in another Provincial Police Service by way of absorption and/or transfer . 3. Malik Naeem Iqbal, learned counsel for the petitioner , simply replied to the query with the assertion that the petitioner had been selected by the competent authority after assessing his fitness, eligibility , and suitability and as such the absorption and/ or transfer of the petitioner from ICT to Sindh Police could not be canceled/withdrawn by the IGP Sindh. He further contended that IGP Sindh is not authorized to issue any Standing Order (SO) under section 12 of the Police Act, 1861 without the approval of the Provincial Government, and even with the approval of the Provincial Government, no orders can be issued by IGP about the terms and conditions of service of the members of the Police Force in different branches/establishment and cadre, as such powers could only be exercised by Provincial Government under section 12 of Police Act, 1861. Learned counsel heavily relied upon the decision of the Honourable Supreme Court in the case of Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others, 2016 SCMR 1254 , and contended that there is no provision in law for repatriation of Police Inspectors from the Province of Sindh to ICT, Baluchistan Police and Pakistan Railways Police, therefore, the impugned common order issued by IGP Sindh violates the law and dicta laid down by the Hon'ble Supreme Court in the aforesaid decision. He next contended that although under section 2 of the Police Act 1861, and the Police Rules 1934, the Police Establishment is one Police Force, thus their repatriation to the parent police establishment is illegal after the lapse of a considerable period; that even otherwise, the IGP cann ot alter the terms and conditions of service of persons in the Police Force on the touchstone of Article 240(b) of the Constitution, the same was/is within the sole competence and exclusive domain of the provincial legislature. He next contended that under the Police Rules, the entry point of all the Police personnel in the Executive Police cadre is common; that they have a common recruitment process, police training, and practical training as prescribed under the Police Rules and once these training after their appointments are completed, they are transferred to the different establishments under the Rules; that the posting and transfer to an establishment of a member of Police Force is permissible under Police Rule 1.5 would not change the Cadre of police personnel. Rule 1.5 allows the police personnel to progress vertically by the rules prescribed and could be transferred to any of the police establishments in the country; there is no restriction placed on a police officer for transfer from one police establishment to another . Learned counsel submitted that a cherry-picking has been made in the case of repatriation of Police personnel and relied upon the statement dated 23.05.2022 coupled with the office order dated 26.04.2022 issued by IGP whereby two Deputy Superintendent of Police (DSP) have been retained, which is discriminatory attitude on the part of respondent IGP Sindh; that Rule 1.5 is a clear clause that remained to govern the status of the petitioner transferred to Sindh Police, which is to the effect that petitioner transferred under Rule 1.5 shall continue to be employee of the Sindh Police and could not be transferred back to the ICT Police as he was permanently absorbed by consent in service of the Sindh Police; that the petitioner had been transferred in the Sindh Police with the consent of the ICT Police and Sindh Government as envisaged under Rule 1.5; that the terms and conditions of civil servants could only be altered by an Act of the Parliament enacted in the exercise of powers under Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973 and not otherwise. The learned counsel further submitted that the IGP Sindh has failed to understand the ratio of the judgment passed by the Hon'ble Supreme Court discussed supra; that the petitioners had a legitimate expectation to be absorbed in Sindh Police based on mutual transfer under the relevant law; and that the respondent IGP was estopped from issuing the impugned repatriation order , after spending more than 24 years' service in Sindh Police. Learned counsel further submitted that the petitioner 's service was mutually transferred to Sindh Police, thereafter petitioner continued to serve in Sindh Police and got a promot ion and seniority up to the level of Inspector . Learned counsel further contended that all police officers appointe d or enrolled in General Police constitute one police force and are liable to, and legally empowered for police duty anywhere in the country/within the Province and that is why the concurrence was given for the transfer of the service of the petitioner from ICT Police to the Sindh Police, thus no illegality was committed in the appointment of the petitioner by way of transfer in the Sindh Police, which is in
---
## Page 4
consonance of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Gul Hassan Jatoi and others supra. Learned counsel further submitted that the principle of locus poenitentiae appears to be in favor of the petitioner as he has been condem ned unheard before impugned action which violates Article 10-A of the Constitution. Learned counsel referred to Section 190 of Sindh (Repealed) of Police Act, 1861 and revival of Police Order 2002 (Amendment) Act, 2019, and submitted that IGP is not empowered to make correspondence with the Federal Government, save under law as provided under Section 12 of the Police Act. In support of his contentions, he heavily relied upon the case of IGP Lahore and others v. Mushtaq Ahmed Waraich, PLD 1985 SC 159, and submitted that the Civil Servants Act and rules framed thereunder are not ipso facto applicable to the case of police personnel. He next submitted that transfe r of the petitioner was made on compassionate grounds, thus unilateral action on the part of IGP Sindh without the concurrence of the Home Secretary Government of Sindh and the ICT/Federal Government is illegal and violates Section 12 of the Police Act and Section 24-A of the General Clauses Act, as well as the same, is in contravention of Article 10-A of the Constitution. Learned counsel submitted that under the terms of Police Service of Pakistan (Composition, Cadre, and Seniority) Rules, 1985 inter se transfer and posting of police cadre of ficers is permissible. 4. At this stage, we confronted him that no posting of a provincial cadre police officer on a post specified in the schedule of Police Service of Pakistan (Composition, Cadre, and Seniority), Rules, 1985, could be made without first being appointed in PSP cadre under Rule 7 thereof. He agreed and added that the same analogy could be applied in the cases of Police Inspectors. He further submitted that those police officers who have served in the ICT could be transferred to the Federal Government or other Provincial Police Establishments, as the case may be, in the public interest. He next argued that under the wedlock policy police officers can be posted closest to their places of posting. He lastly prayed for allowing the instant petitions. 5. Mr. Manzoor Hameed Arain, learned counsel for the petitioners in CP No.D 2833/2022, has adopted the arguments put forward by Malik Naeem Iqbal, learned counsel for the petitioner in CP No.D-2805/2022, however , he added that the mutual transfer of the petitioners was made by the Committee constituted by the Provincial Government as such IGP, Sindh was/ is not empowered to take a unilateral decision without the concurrence of the two governments/Pakistan Railways Police Establishment involved in the matter . He further argued that petitioners were inducted into Pakistan Railways in 2003; and were transferred from Pakistan Railways Police Establishment to Sindh Police on a mutual basis and their seniority was assigned at the bottom, on the date of their arrival in the year 2006. Per learned counsel, they appeared in the final examination of the Upper School Course and passed accordingly and their result was announced in compliance with the order dated 30.04.2012 passed by this Court. Learned counsel argued that during service in Sindh Police, petitioners earned promotion and seniority up to the level of Inspector and they have been working in Sindh Police since they arrived from Pakistan Railways Police. Learned counsel referred to the complian ce report dated 14.04.2016 regarding the implementation of the decision of the Hon'ble Supreme Court and the implementation committee decided to retain their services on the premise that there was/is the provision of initial recruitment in the rank of ASI as per recruitment rules of Sindh Police, besides that training and experience of both the Police Establishments, are similar. The learned counsel has, however , further argued that the petition ers had been selected by the competent authority after assessing their fitness eligibility , and suitability , and as such the absorption and/or transfer of the petitioners could not be canceled/withdrawn by the IGP Sindh all alone. He prayed for allowing the petitions. 6. Mr. Ali Asadullah Bullo learned counsel for the petitioners in CP No.D 3013 of 2022 has submitted that the petitioners had been selected by the competent authority/committee after assessing their fitness, eligibility , and suitability , and as such the absorption and/ or transfer of the petitioners from Baluchistan Police and Pakistan Railways Police to Sindh Police could not be canceled/withdrawn by the IGP Sindh under section 12 of the Police Act, 1861 without the approval of the Provincial Government. Learned counsel relied upon the case of Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others, 2016 SCMR 1254 , and contended that there is no provision in law for repatriation of Police Inspectors from the Province of Sindh to Baluchistan Police and Pakistan Railways Police, therefore, the impugned orders dated 26.04.2022 and 27.04.2022 issued by IGP Sindh violate the law and dicta laid down by the Hon'ble Supreme Court in the aforesaid decision. He next contended that under the
---
## Page 5
Police Rules 1934, the entry point of all the Police personnel in the Executive Police cadre is common; that they have a common recruitment process, police training, and practical training as prescribed under the Police Rules, 1934 and once these training after their appointments are completed, they are transferred to the different establishments under the Police Rules; that the posting and transfer to an establishment of a member of Police Force is permissible; that there is no restriction placed on a police officer for transfe r from one police establishment to another; that the petitioners had been transferred in the Sindh Police with the consent of the Baluchistan Police and Pakistan Railways Police and Sindh Government. Learned counsel further submitted that the petitioners had a legitimate expectation to be absorbed in Sindh Police based on mutual transfer under the relevant law. Learned counsel further submitted that the petition ers have been serving in Sindh Police and got a promotion and seniority up to the level of Inspector . Learned counsel further contended that all police officers appointed or enrolled in General Police constitute one police force and are liable to, and legally empowered for police duty anywhere in the country/within the Province and that is why the concurrence was given for the transfer of the service of the petitioners from Baluchistan Police and Pakistan Railways Police to the Sindh Police, thus no illegality was committed in the appointment of the petitioners by way of transfer in the Sindh Police, which is in consonance of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Gul Hassan Jatoi and others supra. Learned counsel further submitted that the petitioners have been condemned unheard before impugned action which violates Article 10-A of the Constitution. Learned counsel next submitted that transfer of the petitioners was made on compassionate grounds, thus unilateral action on the part of IGP Sindh without the concurrence of the Home Secretary Government of Sindh and the Provincial/Federal Government is illegal and violates Section 24-A of the General Clauses Act, as well as the same, is in contravention of Article 10-A of the Constitution. He next argued that under the wedlock policy police officers can be posted closest to their places of posting. He also emphasized appointment by transfer to Sindh Police is permissible under the law. He lastly prayed for allowing the instant petition. 7. Mr. Abdul Qudoos Jatoi, learned counsel for the petitioner in CP No.D 2898/2022, and Mr. Irfan Yaqoob Arfani, learned counsel for the petitioners in CP No.D-3024/2022 have adopted the arguments of Malik Naeem Iqbal, learned counsel for the petitioner in CP No.D-2805/2022. 8. Mr. Ali Safdar Depar learned AAG has opposed these petitions, inter-alia on the ground that the petitioners are employees of the ICT, Railways Police, and Baluchistan Police, who were transferred to Sindh Police at different times. Learned AAG further submitted that the Honorable Supreme Court in the Criminal Original Petition No. 89/201 1 and review petition had declared all the inductions of government employees to other departments other than their parent departments including police establishments as illegal and unconstitutional and had directed all the Federal and Provincial Governments to repatriate the employees to their parent departments at original positions, thus their transfers are alien to the prevailing laws and rules, hence void ab-initio. And the impugned order is an intimation of withdrawal of an illegal and irregular arrangement made in the past. He further submitted that petitioners also received promotions during their tenure in the Sindh Police and have been now repatriated to their parent police departments and units at the same ranks at which they had joined the Sindh Police. He added that this was done in light of the orders of the Honorable Supreme Court, thus no illegality has been committed by the IGP Sindh. He agreed to the extent that the petitioners would be able to claim their seniority from their parent departments. He prayed for the dismissal of the instant petitions. 9. We have heard the learned counsel for the parties at length on the issues raised in these petitions and have perused the material produced and/or placed on record and the case-law cited at the bar . 10. The main issues involved in the present proceedings are whether the impugned notification is, in conformity with the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of Crl. Org. Petition No.89/201 1, Ali Azhar Khan Baloch and Gul Hassan Jatoi ; and, whether IGP Sindh is competent to issue the impugned notification under Section 12 of the Police Act, 1861, or it is for the Government of Sindh to order the repatriation of the petitioners to the ICT Police, Baluchistan Police and Pakistan Railway s Police; and, whether police establishment is indivisible one force; and inter se transfer and subsequent absorption from the Federal Capital Police, Railways Police or Baluchistan Police to Sindh Police is permissible under Rule 1.5 of Police Rules, 1934;
---
## Page 6
and, whether the repatriation of the petitioners to ICT Police, Baluchistan Polic e, and Pakistan Railways after rendering service for a considerable perio d in Sindh Police, attracts the principle of locus poenitentia and the same are within the principles laid down by the Honible Supreme Court of Pakistan in the aforesaid cases. 11. Before, we answer the questions it is worthwhile to see what is the ratio of the judgment rendered by the Honible Supreme Court in the case of Ali Azhar Khan Baloch (supra), and what has been summed up therein is well illustrated in different paragraphs. Principally , the essence of the judgment of the Honible Supreme Court of Pakistan is that the appointments made on deputation, by absorption, or by transfer under the garb of exigencies of service in an outrageous disregard of merit impaired efficiency and paralyzed the good governance and that perpetuation of this phenomenon, even for a day would further deteriorate the efficiency and good governance within the police establishment. 12. In the present case, the petitioner in CP No.D-2805/2022 has questioned the notification, repatriating him to his parent department on the ground that he possessed the requisite qualification for being absorbed against the post of Inspector in BPS-16 in Sindh Police and he has not disturbed the seniority of others. It has not been disputed before us that the petitioner was appointed in ICT Police and was transferred and absorbed in which ex-facie has disturbed the seniority of the police officers of Sindh Police. The ICT Police is an independent police establishment having separate seniority , and promotion processes and it cannot be said that Islamabad police and Sindh police establishments which have separate seniority and promotion policies are governed by common law. In principle, no police officer from foot constable to DSP can be horizontally transferred and absorbed from ICT to any province or vice versa. The same is the position of the Pakistan Railways Police. Likewise and there is no provision permitting interprovincial transfer and absorption. 13. Paragraph 126 of the judgment rendered by the Honible Supreme Court in the case of Contempt proceedings against the Chief Secretary Sindh and others (supra) would cover the case of the petitioners from all corners. We, thus, do not feel persuaded to create an exception against all the accepted norms of law and justice for the reason that the Sindh Police is working under The Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019. IGP who heads the Sindh Police is the overall in charge of all the branches other than the field formations such as Regions, Ranges, Districts, Specialized Units, etc. Sindh Police is categorized into four regions i.e. Karachi, Hyderabad, Larkana, and Sukkur and the judgments of the Honorable Supreme Court referred to hereinabove, clearly direct repatriation of the petitioners. Primarily , the judgment of the Honorable Supreme Court was not time-bound and the IG Police, in law was under obligation to comply with its directions. 14. It is an admitted position that all the petitioners do not belong to Sindh Police rather some of the petitioners belong to the Province of Balochistan and their terms and conditions of service were/are governed under their own service rules and regulations, whereas some of the petitioners belong to Pakistan Railways Police and their terms and conditions of service are governed under Pakistan Railways Police Act 1977, thus the service of the petitioners is not governed under Sindh Civil Servants Act, 1973 or rules framed thereunder…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.