' TANVIR BASHIR ANSARI, J.---In pursuance of advertisement dated 17-6-2003, issued by EDO(R)
Sheikhupura, for appointment to two posts of Patwaris BS-5, respondent No.1 namely, Ghazanfar Ali made an application on 18-6-2003 before the DDO(R) for such appointment. The date of birth of the respondent is 6-1-1966. He was already in the service of Pak PWD Central Civil Circle Lahore as UDC since 27-11-1989.
2. The appellant Amanat Ali Zahid and respondent No.4 Akhtar Saeed were also applicants for the same posts amongst others. All the three applicants secured 65 marks each on the basis of their qualifications. The applicants for the said posts including Ghazanfar Ali were called for interview.
Both the appellant and respondent No.4 were awarded 17 marks each in the interview. Vide minutes of meeting of the District Recruitment Committee of Revenue Department for recruitment of Patwaris dated 25-9-2003, both appellant Amanat Ali Zahid and respondent No.4 Akhtar Saeed were recommended for appointment while the case of Ghazanfar Ali respondent No.1 was rejected on account of his being overage.
3. Aggrieved of the rejection of his application, respondent No.1 preferred W.P. No.14271 of 2003 mainly on the grounds that the impugned recommendation has been made in violation of the provisions of Rule 3(v) of the Punjab Civil Servants (Relaxation of Upper Age Limit) Rules 1976. Bias and prejudice along with mala fides were also alleged.
4. The Writ Petition was decided by a learned Judge in Chambers vide judgment dated 1-6-2004 which has been impugned in the instant ICA. The learned Single Judge examined rule 3(v) of the aforementioned Relaxation of Age Rules and came to the conclusion that the relaxation on the upper age limit provided in the aforesaid rule applied to the case of Ghazanfar Ali as he was a "Government Servant" and the period of his continuous service as such, shall for the purpose of upper age limit prescribed shall be excluded for being counted towards his age. It was also found that the term "Government Servant". Not having been defined either in the Punjab Civil Servants Act 1974 or the Rules framed thereunder shall be construed in its ordinary literal sense and shall therefore include servants of the Punjab Government as well as of the Federal Government. It was also found that respondent No.1 was admitted in the report and parawise comments submitted by DDO (R) to have stood first in the merit list of the applicants. Resultantly the Writ Petition of respondent No.1 was allowed, the rejection of his candidature as Patwari was declared as without lawful authority and it was directed that respondent No.1 be appointed against one of the two posts of Patwaris. As to which one of the two selectees, appellant or respondent No.4, was to vacate the post for respondent No.1, the question was left to the decision of the competent authorities.
5. Syed Kaleem Ahmed Khurshid, Advocate has assailed the impugned judgment of the learned Single Judge on the ground that the provisions of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules 1976 have not been construed in accordance with law; that the said rules have been promulgated in exercise of the powers conferred by section 23 of the Punjab Civil Servants Act, 1974 and have made by the Governor of the Punjab; that the said rules are -relevant only for the purpose of relaxation of the upper age limit applicable to posts under the Provincial Government and could not exclude any period which an applicant for a Punjab post has spent with the Federal Government. It is also submitted that it was. Not borne out from the record if respondent No.1 had indeed obtained the highest marks on merit. It is submitted that even if this be assumed so, yet no benefit could be extended to respondent No.1 as he had not fulfilled the criteria of the upper age limit. It is emphasized that in the recruitment policy notified by the Government of Punjab on 26-5-2003, para. 3 (ix), ibid provided that the general relaxation of 5 years in the upper age limit was allowed to all the candidates and even if the said concession was extended to respondent No.1 he was still beyond the maximum prescribed age of 35 years. According to him, application of the. Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 had been held in abeyance and that respondent No.1 was not entitled to any further relaxation in the upper age limit.
6. On the other hand, the learned counsel for respondent No.1 submits that the rejection of the condidature of the appellant solely on the ground that he was beyond the prescribed age limit was contrary to the rule 3(v) of the Purijab Civil Servant Recruitment Relaxation of Upper Age Limit)
Rules, 1976 as respondent No.1 was in continuous Government service of Pak PWD since 27-11-1989.
It is urged that the aforesaid period was liable to be excluded while computing the upper age limit.
The learned Assistant Advocate-General as well as Chaudhry Mansoor Rabbani, EDO have been heard.
7. We have heard the arguments addressed by both the parties. And have perused the record.
8. The fate of the case hinges upon ,a correct interpretation of rule 3 (V) of 1976 rules with particular reference to the correct interpretation of the term "Government Servant" employed therein. It is not denied that respondent No.1 was in continuous service of the Pak PWD since 27-1-1989. He was thus, an employee of the Federal Government and not an employee of the Provincial Government. The moot point involved in this appeal shall be as to whether a person who applies for being recruited to a provincial post can validly claim relaxation of the upper age limit for the period that he has continuously served not as a Provincial Government servant but as a Federal Government employee. It is not denied that employment under the Pak PWD whin respondent No.1 held was under the Federal Government.
9. In exercise of the powers conferred by section 23 of the Punjab Civil Servants Act, 1974, the Governor of the Punjab promulgated the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules of 1976. These rules pertaining to the relaxation in the upper age limit relate to the appointment to a post in the Provincial Government. The rules have been framed for the purpose of furthering the purposes and objects of the Punjab Civil Sefvants Act 1974. A civil servant in the Act of 1974 is defined as a person holding a civil post in connection with the affairs of a Provincial Government. Making reference to the West A Pakistan Delegation of Powers (Relaxation of Age Rules, 1961) it would be pertinent to mention that these rules also apply in respect of all the services and posts under the Government of West Pakistan. When further placed in juxta-position with Rules 3 (III & IV) it becomes manifest that the period of continuous employment served by a person in the particular services mentioned in these sub-rules which are Federal Govt. Services is an exception to the general rule and that it is the previous service in a provincial post only which could be considered to be a ground for relaxation of age.
10. There is force in the submission made by the learned counsel for the appellant that through the Recruitment Policy No.R-III-2-15 of 2003 dated 26-5-2003, an across the board relaxation for a period of 5 years was given and even if this specific period is excluded, respondent No.1 would not qualify having crossed the age of 35 years at the relevant time. In identical circumstances in the case of Mohammad Ilyas v. Home Secretary 1999 PLC (C.S.) 106, the across the board 5 years.
Relaxation in the upper age limit was reiterated except in a case where it was not made applicable.
11. The submission made by the learned counsel for the respondent No.1 that in fact under rule 3 (V) of the Rules of 1976, the term "Government Servant", not having been defined in the rules or elsewhere in the relevant legislation, a beneficial construction be given to the same and it be held to apply to continuous service rendered even as a Federal Government servant has not impressed us. The entire subject-matter deals with the appointment to a provincial post. The relaxation of age rules is made by way of a provincial legislation for the furtherance of the objects of the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointment and Conditions of Service) Rules of 1974. It would certainly be reading too much in the term "Government Servant" in the present context to deem it to cover both Federal Government servants and provincial servants unless one is persuaded to ignore the objects and purpose of the provincial legislature. We are of the confirmed view that (he relaxation given to the particular categories of Federal civil servants as mentioned in rule 3 (III & IV) of the rules 1974 B would amply demonstrate that the relaxation does not apply to the entire gamut of the Federal Government Services which an applicant. To a provincial post may have to his credit.
12. Turning to the alleged merit of the case wherein respondent No.1 claims to have topped the merit list suffice it to say that in view of our findings that respondent No.1 could not avail of the Relaxation of the Upper Age Limit, this question pales into insignificance. Although it is stated by the learned counsel for respondent No.1 that he had topped the merit list and has also placed reliance upon the concession to this effect made in the comments filed by the DDO(R), it is not substantiated by any authentic document on the record. In fact Mr. Maqsood Rabbani EDO(R)/Chairman of the Selection Committee had stated that the interview of the respondent Ghazanfar Ali was conducted but no marks were given to him because it was realized by the Committee that he was overage and could thus, not be appointed. In view of the foregoing, we would not be too anxious to place any reliance upon the unsigned copy of the merit list produced by respondent No. 1.
13. Resultantly, we allow this appeal and set aside the impugned order of the learned Single Judge and consequently uphold the recommendation of the District Recruitment Committee in favour of the appellant and respondent No.4.