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Petitioner: (1) Akhter Umar Hayat Lalayka (2) Manzoor Ahmed (3) Awais Malik and others VS Respondent: (1) Mushtaq Ahmed Sukhaira & others (2) Capt. (R) Zahid Saeed and others
Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Sajjad Ali Shah, Mian Saqib Nisar, Umar Ata Bandial, Sh.
Azmat Saeed Title:(1) Akhter Umar Hayat Lalayka (2) Manzoor Ahmed (3) Awais Malik and others vs (1) Mushtaq Ahmed Sukhaira & others (2) Capt. (R) Zahid Saeed and others Case No.:(1) INTRA COURT APPEALS NO.4, 6, 8, 9, 18, 19, 21 TO 23 OF 2017 AND 2 OF 2018 (2) CRIMINAL MISC. APPLICATIONS NO.43 TO 45 OF 2018 (3) CRL. REVIEW PETITIONS NO.42, 68 AND 523 OF 2017 (4) CIVIL MISC. APPLICATION NO.3347 OF 2017 IN CIVIL REVIEW PETITION NO.NIL OF 2017 IN CIVIL MISC. APPLICATION NO.687 OF 2017 (5) CRIMINAL ORIGINAL PETITIONS NO.138, 96, 121 TO 127, 132, 139, 167 AND 217 OF 2017, 4 OF 2018, 92 OF 2017, 152 OF 2016, 104 AND 214 OF 2017 Date of Judgment:2018-05-13 Reported As: 2018 PLC (C.S.) 1144, 2018 PSC 968, 2018 SCP 1215 Result: Petition dismissed Judgment Mian Saqib Nisar , CJ:- The titled cases, which we intend to decide through this consolidated judgment, pertain to the following three categories: i. Intra Court Appeals (ICAs) against the judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (2017 SCMR 868 ); ii. Criminal Original Petitions (Crl.O.Ps) for violation of the judgment dated 30.12.206 reported as Shahid Perviaz Vs. Ejaz Ahmad (2017 SCMR 206 ), and orders dated 08.12.2016 & 26.01.2016; and iii. Review Petitions (Crl.R.P/C.R.P) against judgment dated 29.03.2017 reported as Interim Report by AIG Legal for I.G, Punjab (2017 SCMR 868 ). 2. All these matters stem out of the judgments of this Court reported as Contempt Proceedings against Chief Secretary, Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456). Through the former judgment inter alia the practice/concept of out of turn promotions was declared unconstitutional, being against Fundamental Rights as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973. Through the latter judgment the Review Petitions filed by the aggrieved persons were
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dismissed by this Court. Copies of both these judgments were ordered to be sent to the Chief Secretaries of all the Provinces as well as the Secretary, Establishment Division, Islamabad with the direction to streamline the civil service structure in line with the principles enunciated in the aforesaid judgments. On 26.01.2016, while hearing Civil Appeal No. 184-L of 2013 (Regional Police Officer Gujranwala and another Vs. Ejaz Ahmad and others), wherein the issue of anti-dated seniority of a police official was involved, this Court observed that the directions issued by this Court through the above mentioned two judgments delivered in the year 2013 and 2015 were not being complied with, especially in the Punjab Police Department. Relevant para therefrom reads as under:- "3. The learned Additional Advocate General, Punjab, states that the Punjab Government has started implementing judgments of this Court reported as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456) and till date substantial portion of seniority of the Police personnel has been re-fixed. We must record our displeasure over the inaction on the part of the Punjab Government for the directions issued by this Court in 2013 and 2015. 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 re-fixed with their batch mates in terms of the directions contained in the aforesaid judgments. Out of turn promotions ranging from Constable to any gazetted officers 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 this Court for our perusal in Chambers. This order shall be communicated to the I.G, Punjab, Home Secretary, and Chief Secretary, Punjab, for their information and compliance and non compliance of this judgment shall expose the concerned officials to contempt proceedings." 3. The above mentioned order of this Court dated 26.01.2016 was challenged by the employees of the Punjab Police Department through Civil Review Petition No. 49 of 2016 etc. inter alia on the ground that their out of turn promotions were earned by the acts of gallantry/ bravery during the performance of duties and they were promoted under Section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. These Review Petitions were heard by a Bench of five Honourable judges of this Court and after giving opportunity of exhaustive hearing to all the petitioners therein, these Review Petitions alongwith other connected applications were dismissed vide judgment dated 30.12.2016 (By majority of 4 to 1), and is reported as Shahid Pervaiz Vs. Ejaz Ahmed (2017 SCMR 206). 4. In Para 111 of Shahid Pervaiz' s case (supra), it was inter alia observed that 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, "shall remain intact unless reviewed". The relevant portion of the said Para No. 111 reads as under:- "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." 5. Moreover , while dismissing the said Review Petitions/Applications, compliance report was also directed to be submitted by the concerned authorities, within one month for perusal in Chambers. This exercise was directed to be completed within a period of one month. Para 143 of Shahid Pervaiz' s case (supra), wherein these observations were made is also being reproduced hereunder for ease of the reference:- "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 along with their
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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 compli ance 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." 6. In pursuance of the above directions, compliance report was submitted by the Inspector General of Police, Punjab (IGP) wherein, the IGP looked into each case of out of turn promotion after issuance of notices to all concerned and decided each case individually . The out of turn promotions given through the judgments of Court/ Tribunal were also withdrawn and de-notified. However , the Home Department, Government of Punjab took a contrary view and objected to it (this actio n by the IGP) on the premise that under Para 111 read with Para 143 of Shahid Pervaiz' s case (supra), there was an absolute protection afforded to such employees and their out of turn promotions could not be withdrawn. Against this withdrawal of out of turn promotion(s) various police employees again approached this Court by filing Criminal Original Petitions (Contempt Petitions) and various C.M.As, claiming, inter alia, that the IGP could not review their cases of out of turn promotions, which were already protected by this Court through the judgment in Shahid Pervaiz' s case (supra) in Para 111 whereby this Court had observed that the out of turn promotions granted to individuals pursuant to the judgments of High Court, Service Tribunal and the Supreme Court shall remain intact unless reviewed . These Criminal Original Petitions alongwith applications were disposed of vide judgment dated 29.03.2017 in the terms that the view point of the Inspector General of Police, Punjab was correct and the officers should be de-notified in terms of the speaking orders passed by the Inspector General of Police, Punjab. This judgmen t dated 29.03.2017 is reported as Interim Report by AIG Legal for I.G. Punjab, Home Department, Govt. of Punjab and Inspector General of Polic e, Punjab respectively (2017 SCMR 868 ). 7. After the judgments dated 30.12.2016 in the case of Shahid Pervaiz (Supra) and 29.03.2017 Interim Report by AIG Legal for I.G, Punjab (Supra), certain aggrieved persons have now again approached this Court by filing Intra Court Appeals, Review Petitions, Civil Review Petition and Criminal Original Petitions. Moreover, some other applications for impleadment as party have also been filed, which will follow the fate of the main cases in which they are filed. Some other petitioners have also invoked the contempt jurisdiction for violation of orders dated 26.01.2016 and 08.12.2016 passed by this Court which we will discuss in the later part of this judgment. The police officials/of ficers from the Province of Balochistan have also invoked the contempt jurisdiction (Crl.O.P .No.167 and 214/2017) for non-implementation of orders dated 26.01.2016 and 30.12.2016 passed by this Court in the Province of Balochistan. 8. The brief facts and relevant service profiles of the appellants/petitioners, who have claimed that the withdrawal of their out of turn promotions was against the judgments of this Court referred to above, are as under . I.C.A 4/2017 in Crl.O.P 33/2017 (Akhtar Umer Hayat Lalayka Vs. Mushtaq Ahmed Sukhaira & others) 9. It was pleaded before us that Umer Hayat Lalayka was serving as Inspector in the Punjab Police and when he was posted at Police Station Piplan, Mianwali he displayed exemplary courag e in an encounter with highly desperate elements including Ahmed Nawaz Barbari, who was killed by the appellant by putting his own life at risk. For this act of gallantry , he was recomme nded for out of turn promotion as Deputy Superintendent of Police (DSP) by the Superintendent of Police (SP), Mianwali to the Deputy Inspector General (DIG) on 27.07.1993. But he was denied the out of turn promotion by the Inspector General of Police (IGP), whereafter he approached Lahore High Court by filing Writ Petition No. 2445/1995, which was accepted on 03.12.1996. CPLA No.656/1995 was filed by the Government of Punjab before this Court against the said order , which was dism issed as being barred by time, however , the compatriots of the appellant filed CPLA No.1446-L/1997, which was dismissed on 18.04.1998 holding that the appellant was entitled to the out of turn promotion due to his act of gallantry . The Review Petition against this order was also dismissed by this Court on 08.07.1998. It is further pleaded that vide Notification dated
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17.10.1997, appellant was promoted from the post of Inspector to DSP and now whilst he was serving as D.I.G Police, his out of turn promotion from the post of Inspector to DSP has been withdrawn vide Notification dated 17.02.2016, in pursuance of the judgments of this Court in the cases of Contempt proceedings against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch Vs. Province of Sindh (2015 SCMR 456). I.C.A 6/2017 in Crl.O.P 33/2017 (Manzoor Ahmed Vs. Mushtaq Ahmed Sukhaira and others) 10. It was pleaded before us that the appellant in ICA No.6/2017 namely , Manzoor Ahmed was appointed as Constable in the Punjab Police Department on 17.01.1987. He was granted out of turn promotion as Head Constable w.e.f 30.04.1990 in recognition of his performance in arresting five notorious criminals in Chiniot. Then he was granted out of turn promotion as Assistant Sub-Inspector (ASI) w.e.f 18.10.1993. Thereafter , he was granted out of turn promotion as (Sub-Inspector) SI w.e.f 05.01.2001. He filed departmental representation requesting ante dated promotion to the rank of SI w.e.f 22.12.1996 citing and relying upon the case of out of turn promotion of one Hussain Haider , S.I. His departmental representation was rejected on the ground that the benefit extended to Hussain Haider , SI had also been withdrawn by the IGP, therefore appellant' s claim had become infructuous. He filed Service Appeal No. 908/2005 before the Punjab Service Tribunal (PST), which was disposed of with the direction to the departmental authorities to consider his case on merits. But his case was considered and rejected by the department. He again filed CMA No.789/2012 in Appeal No. 908/2005, which was rejected by the PST and decision of the department was upheld. On 30.04.2007, he was grant ed regular promotion to the rank of Inspector . Now his promotions to the ranks of Head Constable and then ASI, SI and Inspector have been withdrawn and after re-fixation of his seniority his status is now ASI w .e.f 12.08.2004. I.C.A 8 and 9/2017 in Crl.O.P 33/2017 (A wais Malik and others Vs. Mushtaq Ahmad Sukhera and others) 11. There are eight appellants in these ICAs. It was pleaded before us that Appellant No. 1 namely, Awais Malik joined the Punjab Police Department as ASI on 22.06.1982 and thereafter, he was promoted as SI on 22.08.1987 and subsequently promoted as Inspector on 27.08.1995. On 18.01.1997, he suffered injuries in a bomb blast, which took place in the premises of the Sessions Court, in which the Chief of a banned outfit and fifteen officers lost their lives. It was pleaded that in view of his excellent performance, the appellant was recommended for out of turn promotion as DSP, by the then IGP, Punjab, under section 8-A of the Punjab Civil Servants Act, 1974, read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which recommendation was not executed, therefore, the Petitioner filed Writ Petition before the Lahore High Court. The learned High Court disposed of the Writ Petition of the Petitioner with the direction to issue formal notification of promotion of the Petitioner as DSP. Thereafter, the Department approached this Court through CPLA Nos.443 and 584-L of 2001, which were dismissed on the ground of limitation. After dismissal of the Petitions of the Department by this Court, the Petitioner made a representation to the Home Secretary, Punjab, and eventually he was given out of turn promotion as DSP w.e.f. 18.01.1997 i.e. the date of incident and in due course he has been promoted as SP. 12. It was next pleaded that Appellant No. 2 namely, Ijaz Shafi, joined the Punjab Police Department as ASI in the year 1982 and he was promoted as SI on 09.09.1986. Due to his exceptional courage and outstanding performance shown in elimination of Wazir Khshk, a notorious Sindhi Dacoit, and recovering the entire looted amount, his name was admitted in List "F" as Inspector on 14.05.1992. But he was denied his regular promotion. He approached PST and vide judgment dated 21.03.2000 he was given ante-dated confirmation as Inspector w.e.f 06.04.1993. Pursuant to his representation before the competent authority regarding his seniority, he was given promotion as Inspector w.e.f 07.10.1990 instead of 14.05.1992 vide order dated 29.01.2003. Thereafter, in another incident, owing to his daring and persistent efforts and team work, the entire network of Lashkar-e- Jhangvi, involved in various cases of sectarian terrorism, was broken and the Governor of Punjab on a visit to Vehari on 04.04.2002 appreciating the performance of the team was pleased to announce one step promotion to the members of the team and the appellant was to be promoted as DSP, but his promotion was deferred by the Provincial Selection Board in its meeting held on 08.01.2004. Thereafter, he filed Writ Petition No. 1257/2005 before the Lahore High Court which was disposed of on 14.07.2005 having borne fruit and he was promoted as DSP w.e.f 02.02.2007. Thereafter, due to his representation to the Home Department, Punjab his date of
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promotion was changed to 13.03.2002 instead of 02.02.2007. He was then promoted as SP on regular basis vide Notification dated 31.01.2012. 13. It was next pleaded that the Appellant No. 3 namely , Muhammad Umer Virk joined the Police Department as ASI on 31.03.1985 and thereafter , he was promoted to the rank of Sub-Inspector on 01.11.1990. Pursuant to his outstanding performance, he was promoted as Inspector . Thereafter , again on account of gallantry performance in an operation at Thokar Niaz Beg, Lahore he was recommended for promotion to the rank of DSP. However , these recommendations did not materialize and he filed Writ Petition No. 17232/1997 before the Lahore High Court which was allowed and he was directed to be treated at par with those who had participated in the operation. The Department assailed the said order before this Court by filing CPLA No. 1226-L/1998, which was dismissed being barred by time, vide order dated 09.09.1998. Thereafter , the appellant filed contempt petition before the High Court for implementation of its orders which was disposed of as he was promoted as DSP by the Department. Now the appellant is serving as SP w.e.f 30.12.2007. 14. Appellant No. 4, namely , Rana Shahid Pervaiz was appointed as ASI on 04.03.1984 in the Punjab Police; he was promoted as SI on 05.07.1987 and then as Inspector on 05.03.1990. In the year 1996, while he was posted as SHO Hanjarwal, he participated in an operation for the arrest of notorious outlaws Mujahid @ Musa and others, who were involved in the murder of deceased Mureed Abbas Yazdani. The accused were alleged to have started indiscriminate firing at the time of Fajar Prayer in Masjid Alkhair at Multan, which resulted in the murder of many people and injuries to others. It was pleaded that as a corollary of this gallant performance, he was recommended for promotion as DSP, but not promoted hence he approached the Lahore High Court, by filing Writ Petition No. 28879 of 1997, with the prayer that he may also be given out of turn promotion like the other members of the raiding party . This Writ Petition was clubbed with an identical Writ Petition No. 8147 of 1998, and both were allowed and the learned High Court directed the Respondent-Department to grant one step out of turn promotion to the appellant. However , the Department did not accept the decision of the High Court and approached this Court through Civil Appeal No. 259-L of 2000, which was dismissed on the ground of limitation. It was pleaded that on dismissal of Appeal of the Government by this Court on the ground of limitation, the relevant committee was formed under section 8 A of the Punjab Civil Servants Act, 1974 read with Rule 14-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which also recommended out of turn promotion of the appellant and thus he was granted one step out of turn promotion as DSP, vide Notification dated 24.05.2001, with a rider that he would be allowed to wear the rank of DSP subject to the condition that his substantive promotion would be allowed in due course after his seniors got promotion. It was further pleaded that against the above condition, the appellant filed another Writ Petition before the Lahore High Court, which was allowed and it was directed that as a civil servant is entitled to promotion from the date he performed his duties as recognized by section 8-A ibid, therefore, the condition incorporated in the Notification dated 24.05.2001 was in violation of section 8-A ibid. The Department filed CPLA before this Court, which was dismissed. After dismissal of the Petition of the Department by this Court, the appellant made a representation to the Government and accordingly he was given out of turn promotion vide Notification dated 16.08.2007, w.e.f 24.10.1996. Now he is working as SP. 15. It was next pleaded that Appellant No. 5 namely , Mr. Muhammad Usman Anwar joined the Punjab Police Department on 23.05.1988 as ASI and then was promoted as SI on adhoc basis w.e.f 29.05.1991. He filed departmental representation before IGP for his confirmation as ASI and promotion as SI on regular basis w.e.f 22.08.1990 instead of 29.05.1991. No decision was made on his representation, as such he filed Appeal No. 929/1995 before the PST, which was allowed and it was observed that the appellant should be confirmed as ASI and promoted as officiating Sub-Inspector w.e.f 22.08.1990 (instead of 29.05.1991) i.e. from the date of the act of gallantry performed by him and he should be confirmed as Sub-Inspector w.e.f 22.08.1990. Then due to change in the law, the judgment of the PST became ineffective and due to his seniority the appellant became eligible for further promotion. He submitted representation for his admission in List "F" and promotion as Inspector w.e.f 16.11.1995. His representation was rejected and he filed Appeal before the PST which was allowed on 15.04.2008 and he was directed to be confirmed as Inspector w.e.f 16.11.1995. Subsequently, a seniority list was
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issued, wherein his date of appointment as Inspector was not shown as 16.11.1995, therefore, he filed Writ Petition No. 9780/2014 before the Lahore High Court, which was allowed on 24.04.2014 and respondents were directed to show the seniority of the appellant w.e.f 16.11.1995 as already declared by the PST in its judgment dated 15.04.2008. Against this judgment CPLA No. 820-L/2014 was filed by the government before this Court, which was dismissed and thereafter, Review Petition No. 9/2015 was also dismissed by this Court. 16. It was further pleaded that the Appellant No. 6 namely , Naeem-ul-Hassan Babar joined the Police department on 10.03.1981 as ASI and thereafter , he was promoted as SI on 04.12.1985 and further promoted as Inspector on 08.04.1991. He was promoted as DSP vide Notification dated 29.04.1998 with immediate effect, in recognition of his extraordinary performance and exemplary courage in securing the arrest of hardcore sectarian terrorists of Lashkar-e-Jhangvi namely Nadeem alias Deemi and Muhammad Ali alias Ashfaqa. He filed representation with the Home Department, Government of Punjab for his promotion from the date of the act of gallantry i.e 04.08.1997. His representation was not decided by the department, so he filed Writ Petition No. 4816/2007 before the Lahore High Court, wherein on 13.05.2008 the Court directed that an appropriate order preferably before next date of hearing should be passed in his representation pending before the department. Thereafter, on 21.06.2008 the Writ Petition was disposed of by observing that the "Learned Additional Advocate General submits that representation filed by the petitioner has been accepted. Perhaps for the said reason, the petitioner is no more interested in following-up this petition. Disposed of accordingly." He was promoted as SP w.e.f 31.01.2012. 17. It was next pleaded that Appellant No. 7 namely Jamat Ali Bokhari, joined the Punjab Police Department as ASI on 08.03.1982 and was promoted to the rank of SI on 12.01.1985 and then prom oted as officiating Inspector on 15.11.1990. On 14.03.1998 he was granted out of turn promotion as DSP and allowed to wear the rank of DSP on the condition that his substantive promot ion would be allowed in due course after his seniors got promotion. He filed departmental representation which was not decided and he then approached Lahore High Court by filing Writ Petition No. 1848/2007, which was disposed of on 22.04.2008 as having borne fruit, because the department had promoted him. Thereafter , appellant was promoted as SP w.e.f 31.01.2012. 18. It was also pleaded that the Appellant No. 8 namely Karamat Ullah Malik, joine d the Punjab Police Department…
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