Daily Times

ISLAMABAD: Upholding its earlier judgment of 2013, the Supreme Court of Pakistan has dismissed all review petitions regarding out-of-turn promotions in Punjab Police.

In 2013, the apex court had declared out-of-turn promotions to be a violation of the constitution and ruled that no police personnel or civil servant was entitled to out-of-turn promotion on account of gallantry award or otherwise.

In pursuance of top court’s 2013 order regarding services and promotions, the above 8,500 police officials of Punjab province were demoted, including 20 Superintendents of Police above ranked officers. A five judge larger bench headed by Chief Justice Anwar Zaheer Jamali had reserved its judgment on December 14 on more than 18 review petitions.

“With a majority of four to one, (Anwar Zaheer Jamali, Chief Justice, dissenting), these review petitions, along with all other miscellaneous applications are dismissed,” the order stated. The other members of the five-judge larger bench were Justice Amir Hani Muslim, Justice Ejaz Afzal khan, Justice Mushir Alam and Justice Ijazul Ahsan.

Most of the review petitioners had contended before the larger bench that they were promoted under the Section 8(a) of Police Rules and they did not fall under the judgment of 2013. The 87-page detailed judgment authored by Justice Amir Hani Muslim ruled that the out-of-turn promotions are inherently destructive of the rights of other officers who, though senior and entitled to be considered for promotion before the beneficiaries of out of turn promotions, are bypassed as a result of such promotions.

Regarding the formulations of law, the top court observed that every law enacted may not necessarily be tenable on the touchstone of the Constitution and it is the sole jurisdiction of the court to look into the fairness and constitutionality of an enactment. “Thus, legislative competence is not enough to make a valid law; a law must also pass the test at the touchstone of constitutionality to be enforceable, failing which it becomes invalid and unenforceable,” the top court in its detailed judgment observed.

“Normally the courts make utmost efforts to save a piece of legislation from becoming invalid. But in certain cases, the courts also apply, inter alia, the doctrine of severance to remove a piece of legislation that distorts the scheme of a parent law, or deviates from the provisions of the Constitution,” it further observed.

The judgment of the top court further emphasised that when an existing or repealed statute is found to be ultra vires of the constitution, the court is mandated to undo the same provided that the benefit or state of affairs in question is not a past and closed transaction.

Over the applicability of Article 27(1), the court held that the said Article protects the citizens from discrimination based on race, religion, caste, sex, residence and place of birth in matter of appointment to service of Pakistan and not in other forms of discrimination or nepotism under the garb of some rules that are patently unconstitutional and against the very scheme of the civil services.

“Moreover, the ambit of Article 27 (1) is confined only to the initial appointments and not the appointments by way of promotion; therefore, to stretch it any further would contort or destroy the very spirit of this important constitutional provision,” the judgment said.

The apex court believed that there is some justification for allowing out-of-turn promotions and that too up to the level of ASIs only, due to the fact that certain qualifications/courses/examinations have been prescribed in the Policy in order to be qualified for such promotions.

“In other words, there is no element of an arbitrary or selective choice of candidates for the accelerated promotions and they have to meet the bare minimum requirements of the Police Rules,” judgment stated. The top court viewed that the promotions in terms of Sub-clause (5) of Clause VI of the Sports Policy are in conflict with the provisions of Punjab Civil Servants Act, 1974, which itself is created pursuant to the provisions of Articles 240 and 242 of the Constitution.