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Petitioner: Muhammad Jibran Nasir & others VS Respondent: Federation of Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Agha Faisal Title: Muhammad Jibran Nasir & others vs Federation of Pakistan & others Case No.: C.P. No.D-6382 of 2019 Date of Judgment:2019-01-29 Reported As: 2020 SHC 88 Result: Application disposed off
Judgment Muhammad Ali Mazhar , J. Quintessentially , the petitioners have entreated for declaration inter alia that the consultation with the Inspector General of Police under Article 13 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 for posting of Additional Inspector General of Police and Deputy Inspector General of Police is binding on the Government of Sindh. The respondent No.6 (IG) should act in accordance with the Judgment passed in C.P. No.D-7097/2016 and C.P.No.D-131/ 2017 vis--vis the appointments of Additional Inspectors General of Police and Deputy Inspectors General of Police . A request has also been made for the declaration inter alia that proviso attached to Article 15(1) and (3) of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 is unconstitutional and also sought for implementation of some other provisions. 2. Notice on main constitution petition and interlocutory application moved (to restrain in general all transfer posting in police department during pendency of petition) was issued to the respondents. Since vires of some provisions of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 are also under challenge therefore a notice was also issued to the Advocate General Sindh under Order 27-A CPC. During pendency second injunction application (CMA No.35721/2019) was also moved to stay transfer notifications of two police officials, therefore separate notice was also issued with ad-interim order s. The learned A.A.G filed the counter affidavit and shown some urgency hence putting aside the main petitio n awhile, the second injunction application was heard extensively so that its fate may be decided first. 3. The learned counsel for the petitioners argued that Khadim Hussain Rind, DIG was relieved and his services were surrendered to the Federal Governm ent, however after suspension of the impugned Notification by this Court through Order dated 16.12.2019, he resumed his charge whereas Dr. Muhamma d Rizwan Ahmed, SP was also relieved from his post and his services were also surrendered to the Federal Government but after suspension of his Notification, he has also assumed his charge.
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4. It was further averred that impugned notifications were issued in violation of Articles 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019. The entire subject matter is the interpretation of the new Police Act, 2019 in accordance with the judgment reported as PLD 2018 Sindh 8, especially in relation to matters of appointment and removal of police officers. In the earlier judgment reported as PLD 2018 Sindh 8, numerous notifications related to multiple officers of the Sindh Police were set aside by this Court on the ground of the absence of the consent of the IG, even though, none of those officers were a party to the petition and even then the illegal notification transferring those non-pa rties were set aside. Reading of Rule 8 (i), Entry 10 of Schedule VI, Sindh Government Rules of Business, 1986, shows that Entry No.10 has nothing to do with the power of the Chief Minister to relieve or surrender Federal Officers but is strictly limited to only three categories: (i) conditions of service, (ii) promotion and (iii) disciplinary action of federal officers. If the interpretation of the Government of Sindh is accepted that relieving of service or surrender of service is not removal or transfer , then the entire powers and autonomy of the IG regarding transfer and posting can be subverted and sabotaged by simply the removal of police officers appointed with consent of the IG by camouflaged such removals as relieving of service or surrender of service. The new Police Act, 2019, guarantees total autonomy of IG in operational, administrative and financial matters and such a meaning of surrender of services as given by the Sindh Government will destroy such autonomy completely . In the earlier Petition reported as PLD 2018 Sindh 8, this Court has also dealt with the surrendering of services to the Federal Government in relation to the removal of the IG. The aforementioned Judgment makes no distinction between surrendering of services and removal/transfer . 5. It was further avowed that two letters dated 02.11.2018 and 26.11.2018 available at page 1235-1237 of the court file relied upon by the Government of Sindh are irrelevant for the reasons that these letters were issued much before the coming into force of the New Police Act, 2019. It was further contended that under Article 17(3) of the New Police Act, 2019, the removal of SP on the ground of misconduct is the sole power of the IG as compared to the removal of the DIG of a range and SSP of a district under Article 15(3) which requires the consent of the Government of Sindh. It is not denied by the Sindh Government that there was no consent of the IG to remove Mr. Rizwan. There is no provision in law which simply allows the removal of a PSP officer by the Government of Sindh on the request of another province. Even otherwise, no document has been placed to show that the Establishment Division, Federal Government has made any request for repatriation of DIG. 6. The learned Advocate General Sindh argued that so far as the main petition is concerned, he has no objection to the maintainability but according to him application for interim relief seeking suspension of the transfer orders i.e. annexure A and annexure A-1 attached to CMA No.35721/2019 is not maintainable. He further argued that the application is supported by the affidavit of petitioner No.1 who has no right and authority to move such an application. He further argued that Article 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 are only related to interprovincial trans fer of PSP. The present case is not related to interprovincial transfer but relates to surrendering the services of DIG and SP to the Establishment Division. 7. He further argued that the issue involve d in the second stay application purely relates to terms and conditions of PSP officers, jurisdiction of which, by virtue of the provisions of Article 212 of the Constitution of Pakistan, 1973, vests in the Federal Service Tribunal, therefore, the stay application is liable to be dismissed. The law with respect to practice and procedure of adjudication appears to be settled and it was held in PLD 2003 S.C. 979 that what is not permitted to be done directly cannot be achieved through circumvention of law by indirect means. He further argued that any decision rendered on the stay application would affect CP No.D-8099/2019 pending in this Court where relief sought is identical to the relief sought in the stay application which was adjourned with the directions to the advocate to assist on the maintainability of the petition as the petitioner is not aggrieved person. 8. It was further averred that that right from the commencement of surrendering proceedings of said PSP officers, the I.G was duly apprised of all the development and every step taken was in the knowledge of I.G. It is inconceivable to allege that surrendering of services were sudden and unplann ed or that I.G came to know it through media reports. The power to surrender PSP officers serving in the Province of Sindh, pursuant to Rule 8 read with item 10 of Schedule VI of the Sindh Government Rules of Business, 1986, vests in the Chief Minister of
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Sindh. The whole proceedings were carried out in accordance with the Sindh Government Rules of Business, 1986. The learned Advocate General Sindh made much emphasis that even under the extended doctrine of locus standi under the public interest litigation, a stranger cannot challenge the validity of Government orders. He further argued that constitutional jurisdiction of this court is required to be exercised carefully to promote public interest and not to entertain speculative or malicious attacks to block or suspend the performance of executive functions by the Government. The petitioners have failed to show that they are litigating in public interest and for public good and for welfare of general public. He further argued that to invoke constitutional jurisdiction of this court, a person is required to first qualify test of being aggrieved person and then to show that his case fell in any of the categories so defined by Article 199 of the Constitution that there was no alternate legal remedy except the petition. The learned Advocate General Sindh referred to case of Balochistan Medical Association vs. Government of Balochistan and others (2017 CLC 1195), Javed Ibrahim Paracha vs. Federation of Pakistan and others (PLD 2004 S.C. 482), Premier Battery Industries Private Limited vs. Karachi Water and Sewerage Board and others (2018 SCMR 365 ), and Kasani Narayana vs. Government of A.P. and others (AIR 1989 Andhra Pradesh 51). 9. Heard the arguments. The bone of contention is an act of relieving and surrende ring the services of DIG and SP to the Establishment Division, Government of Pakistan vide Annexure A and A-1. The petitioners have also attached a letter dated 10.12.2019 which was communicated by the Inspector General of Police, Sindh to the Chief Secretary for raising objections that the services of said officers were surrendered without his consultation. I.G in his letter further stated that DIG was supervising extremely important matters of police establishment including recruitment against vacant positions, promotions in upper subordinate ranks and implementation of career and rotation plans in Sindh Police, whereas, SP, Shikarpur was leading some operation against dacoits. He was also working on some clues related to incident of killings of police officers by notorio us dacoits in remote areas. He protested that sudden and unplanned transfers came as a surprise to him through media which will not only affect working of police department but also create an environment of uncertainty amongst police officers. I.G in his letter also reminded the judgment of this court that the Inspector General must have independent control over postings and transfers. He also referred to the provisions of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 requiring consultation of I.G in transfer and posting matters of police of ficers. 10. For the purpose of deciding this interlocutory application, Article 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 are quite relevant which are reproduced as under:- 13. Posting of Additional Inspectors General of Police or Deputy Inspec tor General of Police. - The Government may post such number of Additional Inspectors General of Police and Deputy Inspectors General of Police to assist the, Inspector General of Police and Additional Inspector General of Police, as the case may be, in the efficient performance of duties as it may deem fit, in consultation with the Inspector General of Police or Additional Inspector General of Police, as the case may be. 17. Posting of Superintendent, Assistant Superintendent, Deputy Superintendent.- (1) The Inspector General shall post Superintendent of Police and Assistant or Deputy Superintendent of Police. (2) The term of office of Superintendent of Police and Assistant or Deputy Superintendent of Police shall be as may be prescribed. (3) Under exceptional circumstances , due to exigency of service or on grounds of misconduct and inefficiency which warrant major penalty under the relevant rules, the Superintendent and Assistant or Deputy Superintendent may be transferred before completion of the term of office. 11. Though Article 15 of the Sindh (Repea l of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 is also related to the posting of Deputy Inspector General of Police and Senior Superintendent of Police however , by means of this petition, a proviso attached to sub-Article(1) and sub-Article(3) are also under challenge. The proviso put together sub-Article(1) set forth that in case the Chief Minister and Inspector General, after a process of meaningful consultation do not reach any consensus, the Inspector General shall propose three names to the Chief Minister who shall approve one of them for posting as Deputy Inspect or General of Police of a Range or Senior Superintendent of Police of a District, as the case may be. The next sub-Article(3) which is also under
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challenge elucidates that under exceptional circumstances, due to exigency of service or on grounds of misconduct and inefficiency which warrant major penalty under the relevant rules, the Deputy Inspector General of Police and Senior Superintendent of Police may be transferred, with the approval of the Government, before completion of the term of of fice. 12. At the dictates of this order , obviously , we cannot come to a decision of main petition which was not argued but in view of urgency pleaded by the learned AG, both learned counsel elected to argue second injunction application only, therefore, we have to be confined within the prescient and equilibrium of injunction application alone. It is well settled exposition of law that even for deciding the application in the writ jurisdiction, the elementary principle for making out a prima facie case cannot be ignored or ruled out. The Act of 2019 was promulgated to repeal Police Act, 1861 and Revival of Police Order , 2002 with the intellect and prudence that the police has an obligation and duty to function according to the Constitution, law and democratic aspiration of the people; the functioning of police requires it to be professional, service-oriented and accountable to the people so it was found expedient to redefine the police role, its duties and responsibilities and to reconstruct the police service for efficient prevention and detection of crime and maintenance of public order . Under the definition clause of Article 2 (vii-a), the term "ex- officio secretary" has been depicted as under:- "(vii-a) "ex-officio Secretary" means Inspector General of Police who shall exercise administrative and financial powers of the Secretary to the Provincial Government with operational, administrative and financial autonomy in matters pertaining to Police subject to the policy , oversight and guidance given by the Chief Minister through the Chief Secretary and the Provincial Home Department." Whereas in clause (xxvi-a), the term "superintendence" has been defined which is reproduced as under:- "(xxvi-a) superintendence' means supervision of Police by the Chief Ministe r through the Chief Secretary and Home Department while ensuring total autonomy of the Inspector Gener al of Police in operational and financial matters." In unison, Article 9 represents and incarnates that Superintendence of Police shall vest in the Government which shall be exercised as to ensure that police performs its duties efficiently and strictly in accordance with law whereas Article 10 pertains to the administration of police in which police area shall vest in the Inspector General of Police, Additional Inspector General of Police, Deputy Inspector General of Police and Senior Superintendent of Police as the case may be. According to sub-Article(4), it is the responsibility of the Inspector General of Police to prepare a provincial annual policing plan for review by the Provincial Public Safety and Police Complaints Commission which shall include objectives of policing; financial resources likely to be available during the year; targets; mechanism for achieving these targets and key performance indicators and performance measurement criteria. 13. The learned Advocate General Sindh enthusiastically argued that this is not a case of transfer but surrendering the services to the Establishment Division, Government of Pakistan. He also quoted Rule 8 of the Sindh Government Rules of Business, 1986 amended up to 11.11.2019 which emphasizes and draws attention that the cases enumerated in Schedule-VI shall be submitted for approval of the Chief Minister and at one fell swoop, he also pointed out entry No.10 in the Schedule VI crafted pursuant to Rule 8, the gist or nucleus of this entry exemplifies the instances of matters related to the conditions of service, promotion or disciplinary action against members of Federal Services or holders of appointment normally held by them and before making reference to the Federal Government, this should be show n to the Chief Minister before final orders are issued. In our considered view, this rule has no direct application with regard to the plea of surrendering of service by the Sindh Government of the aforesaid officers to the Establishment Division, Government of Pakistan as these powers are confined vis-- vis the reference to the Federal Government with the concurrence of Chief Minister for something else and not for surrendering services of PSP officers. On one hand, learned Advocate General argued that there is no need of any consultation with the Inspector General while surrendering the services as this cannot be construed interprovincial transfer or posting but quite the reverse, he vigorously argued that while deciding to surrender the services, the Inspector General was consulted and taken on board. He further relied on the inquiry report in Crime No. 24/2019 P.S. Sultankot, district Shikarpur that the SP district Shikarpur was involved in registering false cases and inquiry report is revealing the recommendation for initiation of departmental proceedings against SHO P.S. Sultankot for
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poor and unprofessional handling of situation and registration of defective FIR and SSP was advised to closely monitor such incidents and supervise investigations to prevent such injustice in future. 14. In contrast, the learned counsel for the petitioner had drawn our attention to the letters dated 02.11.2018 and 26.11.2018. The learned counsel argued that "The Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019" was notified on 26.06.2019 and both aforesaid letters were written prior to the promulgation of Act when no provision for IG consultation was prevailing but it was incorporated in the 2019 Act. However , the I.G, vide letter dated 29.10.2019 communicated to the Chief Secretary , Sindh that there is already shortage of BS-20 PSP officers in Sindh Police and Khadim Hussain Rind, DIG is working on certain important initiatives and on-going tasks, therefore, his services are required to the Sindh Police and he made a request for cancellation of letter . Again vide letter dated 10.12.2019, I.G. Sindh shown his concern to the Chief Secretary that he came to know the sudden surrender of services of DIG to the Establishment Division through media. The line of argument progressed by the learned Advocate General seems to be mutually destructive that for surrendering the services no consultation is required but in juxtaposition he argued that the services were surrendered with the consultation of I.G. which assertion was denied by I.G in his letter. He further argued that one more C.P. No.D-8099 of 2019 has been filed by some other persons against the transfer of the same persons and another learned Division Bench of this court raised the question of maintainability that how petitioner is an aggrieved person. To fight back, the learned counsel for the petitioner responded that the present petitioners have nothing to do with the said petition. The petitioners in the course of instant petition have challenged the vires and also sought the effective implementation of 2019 Act and if any other petitioner has challenged the transfer it does not create any impediment or embargo against the present petitioners. 15. The Judgment rendered by the learned Division Bench of this court in the case of Karamat Ali vs. Federation of Pakistan (PLD 2018 Sindh 8) depicts that the petitions were filed in the public interest and the judgment is deciphering straightforward articulations that High Court has plenary powers to positively enforce fundamental rights. The proper policing and an efficient and effective police force have a connection with many and perhaps most fundamental rights. The fundamental rights are best enjoyed in an environment where the rule of law is respected and properly enforced and the rule of law is in essential part dependent on the law and order situation which in turn depends on effective policing. The most basic of fundamental rights that of life and liberty enshrined in Article 9 is dependent on proper and effective policing for its proper enjoyment. It is, therefore, clear that in appropriate circumstances it may be necessary to make orders and give direction s in respect of policing and the police force in terms of Article 199, and in particular under clause (1)(c) to ensure the proper enforcement of fundamental rights. The police force must have autonomy of command and indep endence of operation. The court further held that autonomy and independence will bring stability and balance to the organizational structure of the police force by curbing and reducing and ideally eliminating the farcical frequency of turnover , transfers and postings that now plague the system. The police hierarchy , acting through the Inspector General, must have control over its own affairs especially insofar as postings and transfers are concerned. The judgment of this court was challenged by the Government of Sindh in the Supreme Court and vide Judgment dated 22.03.2018 Civil Appeals No.148 to 150 of 2018 were dismissed. The relevant portion of the Judgment is reproduced as under:- "9. On the foregoing analysis, we affirm the impugned judgment by the leaned High Court in particular with reference to the autonomy of command and independence of operation of the Police Force governed by the Police Act, 1861. We also uphold a tenure to be attached to PSP senior cadre posts in the Province of Sindh, of which the IGP is a principal officer . Transfers and postings on all senior cadre posts shall be made by order of the IGP pursuant to transparent rules framed under Article 12 of the Police Act, 1861 framed in consultation with the Provincial Government. It is also declared that "Police" is concurrently subject to the legislative and executive competence of the Federation and the Provinces in the relation to the matters covered by Article 142(b) and Article 240 of the Constitu tion. For securing integrity , competence, diligence in and accountability for Police performance, the Federation may consider framing a law setting out uniform criteria of appointment on senior cadre posts, their independence of operation, security of tenure, performance assessment and accountability for incompetence, negligence or
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dishonesty . Meanwhile, it is necessary that the Federal Government and Provincial Government to collaborate in the matter of appointments, transfers of police personnel on senior cadre posts and in any event with respect to crime prevention , detection and investigation as well as prosecution and punishment of criminal offenders in the Province." 16. In our good judgment, if the niceties and nitty-gritties of Article 13 & 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order , 2002) (Amendment) Act, 2019 are merely considered or meant for interprovincial transfers or postings alone and precondition of consultation with I.G. is narrowed down or deemed to be confined in this limited sense then the independence and autonomy of the I.G. office cannot be maintained which would also in negation and renunciation of the judgme nt passed by this court supra which was affirmed by the apex court in particular with reference to the autonomy of command and independence of operation of the police force governed and also upheld the tenure attached to PSP senior cadre posts in the Province of Sindh of which the IGP is a principal officer. It was further held that the transfers and postings on all senior cadre posts shall be made by order of the IGP pursuant to transparent rules. 17. If the Government will exercise powers under the assumption or guesswork that for surrendering services to the Establishment Division, Government of Pakistan, the consultation with IG is not required then this would amount to circumvention and sidestepping the unequivocal provisions of the Sindh (Repe al of the…
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