' UMAR ATA BANDIAL, J.--- This order shall decide the Writ Petitions Nos. 21080, 20085, 20127, 20361, 18096, 18968, 20009. 20222, 20461, 20736, 20985, 20850, 12221, 5972, 5449, 6242, 6205, 5880, 5772, 5758, 5729, 5593 18343, 18471, 18453, 18497, 18842 19219 and 19867 of 2011 involving common question of law.
2. By an advertisement dated 20-2-2011 published in the daily "Jang" and "The Nation", the Punjab Public Service Commission ("PPSC") announced 728 posts of Assistant Sub-Inspectors ("ASI") BS-09 in the Punjab Police Department on District/Region wise basis. The conditions of eligibility of candidates are set out in the advertisement but for our present purposes, the advertisement provides for all candidates to meet the "age limit: 18 to 25 years on 14-3-2011". Also in this respect, the Note given in the advertisement at Serial No,2 states:--- "No relaxation in age, physical standards or educational qualifications is allowed, notwithstanding any provision in the general purpose Application Form of the Commission."
3. The petitioners before this Court in the instant petition as well as connected petitions are all serving employees of the Punjab Police Department. Except for meeting the age limit fixed for candidates for the posts of ASI, they satisfy all the other criteria of eligibility to compete in the selection for ASIs before the PPSC. To satisfy the condition of age limit fixed for candidates, the petitioners seek its relaxation under the provisions of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 ("Upper Age Limit Rules"). Under Rule 3(v) of the said rules for recruitment to another post, the period of continuous government service of a candidate is to be excluded from the upper age limit prescribed for the post. It is urged that said rules apply to all 'government' servants. Further submits that in respect of an identical recruitment to the post of ASI undertaken by the Provincial Government in the year 2002, this Court in Muhammad Qasim and others v. Home Department (2004 PLC (C.S.) 69) held that serving police personnel could claim benefit of Rule 3(v) ibid to seek relaxation of the upper age limit fixed for recruitment to the posts of ASI. That precedent has been followed by this Court in Ehsan Ullah and 3 others v. IGP (2006 PLC (C.S.) 964) and in Ghulam Mustafa v. PPSC (2008 PLC (C.S.) 1117). Consequently, it is urged that the respondents PPSC, Punjab Police Department and the Home Department have wrongly declined relaxation of upper age limit to the petitioners thereby denying their eligibility to participate in the different stages of competition for selection to the post of ASI.
4. The learned Additional Advocate-General has, on the other hand, contended that the Police Order, 2002 ("Police Order") is a special law which, by provisions of Article 185 thereof, saves the Police Rules, 1934 ("Police Rules"). Rule 12.6 of the Police Rules fixes the recruitment age for the posts of ASI to be 18 years to 25 years, as also demanded in the above noted advertisement. The said age limit has been reiterated in the Assistant Sub-Inspectors (Appointment, Promotion and Conditions of Service) Rules, 2011("ASI Rules") that were notified by the Provincial Police Officer on 12-8-2011 in exercise of power under Article 112 of the Police Order. It is explained that Article 7(3) of the Police Order visualizes three modes of recruitment to the posts of ASI. Firstly, by direct recruitment through the PPSC by public competition to the extent of 25% of total posts in that rank; secondly, by PPSC , selection from graduate constables and head constables of clean record and for 25 % seats of the quota reserved for departmental promotion. Thirdly, by appointment on promotion for the remaining seats of the promotion quota. Each of these modes of selection for appointment are distinct. The present case falls within the ambit of the mode of direct recruitment by the PPSC to 25% of total ASI posts through competition open to the general public. The age limit for candidates in this category is consistent with the limit prescribed in the Police Rules and the recently promulgated ASI Rules at 18 years to 25 years. Relaxation of age limit is not envisaged by the present law in this category of recruitment; but the ASI Rules allow 35 years as the upper age limit for departmental candidates vying for promotion through PPSC competition. Accordingly, he submits that the petitioners do not have any case for relief.
5. Turning firstly to the precedents relied by the learned counsel for the petitioners, it is noted that Ehsan Ullah's case ibid pertains to appointment of ASIs by departmental promotion of graduate constables and head constables competing for selection through the PPSC under the second mode of appointment given in. Article 7(3) of Police Order noted above. That mode of selection is not open to the general public as in the present case. It is the case of the respondents that age relaxation granted to departmental candidates in the said judgment stands incorporated in and is now assured to such candidates by the terms of the ASI Rules. On the other hand, the judgments given in Muhammad Qasim's case ibid and Ghulam Mustafa's case ibid hold that Upper Age Limit Rules are also applicable to departmental candidates in direct recruitment of ASIs from the public through competitive PPSC selection. The first of these judgments lays down the above rule whilst the second reiterates the same. It is useful to study the reasoning given in Muhammad Qasim's case to understand the basis of the finding recorded therein. Para 8 of the judgment is accordingly re-produced below:--- "In the memorandum dated 6-2-1983 of the I.G. Police Punjab Lahore, the applicability of the aforesaid rule 3(V) for recruitment, inter alia, to the post of A.S.I. Was reiterated. The S&GAD of the Government of Punjab, in the circular letter dated 2-2-2000 also reiterated the aforesaid rule.
Therefore, the petitioners in the first 13 writ petitions were entitled to the concession available under rule 3(V) of 1976 Rules which applied to all the posts under the Punjab Government. Even if rule 12.6 of the Police Rules, does not specifically provide for extended age bracket for the post of A.S.I., the aforesaid rule 3(V) was clearly applicable. It is beneficial dispensation and has to be interpreted in a manner so as to advance the remedy rather than, to suppress it. Even the Police Chief has rightly so affirmed applicability of rule 3(V) in the Memo. Dated 6-2-1983 for recruitment to the post of A.S.I. Rule 12.6, as amended on 15-5-2000 has also been examined by me. Apparently while extending age bracket has been provided for recruitment to the posts of Inspectors and S.Is, the said concession has not been provided for recruitment to the post of A.S.I. I could not see any rational behind the aforesaid classification. Apparently, it is discriminatory. However, the aforesaid 1976 rules shall be deemed to be part of all the recruitment rules and, therefore, the candidature of the petitioner in first 13 writ petitions was required to be examined in the light of the aforesaid Rules."
6. It is noted that the ruling is based on two government memoranda dated 6-2-1983 and 2-2- 2000 by the respondents granting age limit relaxation to departmental candidates for selection as ASIs in public competition. On an interpretation of the respondents intention gathered from the said memoranda and in the light of the beneficial object of the Upper Age Limit Rules the learned Court has held the said rules to be applicable to the candidacy of departmental candidates as ASIs in public selection through the PPSC. The reasoning treats subordinate police officers who are otherwise qualified for competing for selection as ASIs to be civil servants. By doing so, the Upper Age Limit Rules are held applicable to departmental candidates. Prima facie, the view has merit because police officers of the said rank fall within the meaning of 'civil servant', as defined in the Punjab Civil Servants Act, 1974.
7. However, the learned Addl: A.-G. Has relied on the judgment of the Hon'ble Supreme Court in I.G.P. v. Musthaq Ahmad Warraich (PLD 1985 SC 159) which casts a different light on the point of classification of subordinate police officers dealt with in the Muhammad Qasim's case. In Mushtaq Ahmad Warriach's case ibid the Hon'ble Supreme Court has, with reference to the Police Act, 1861 (that is succeeded by the Police Order, 2002) and the Police Rules, 1934 given specific and crucial findings that directly bear on the matter of classification presently under consideration. These findings appearing at p.173 of the report are re-produced below with reference to the relevant content thereof:--- "The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the [Police] rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the [Police] rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose.
' The principle of interpretation stems from the legal maxim generalia specialibus non derogant".
"... In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeal of the earlier special Act by the later general Act without particular intention of implied repeal merely by the use of general words. As held earlier there is not an express repeal of the Police Act and the [Police] rules by the Provincial Assembly while enacting Civil Servants Act, 1974, nor there is any constitutional exclusion of the Police Act and the [Police] rules from their application to the officers of the subordinate ranks of the police force. The substances of the provisions of the Civil Servants Act which are of general application also do not give any indication to the contrary by the force of the general words used."
' I have not been able to discover any particular strong intention from the generality of the provisions in the Civil Servants Act, of 1974 for the avoidance of the Police Act, 1861, or the rules framed thereunder even though it was enacted to apply to the services of the Province of the Punjab and the members of the civil service or a person who holds a civil post in connection with the affairs of the Province. Though it cannot be denied that the police force is one of the services of the Province and the police officers of the subordinate ranks are members of the service who satisfy the definition of "civil servant" yet distinction nonetheless remains that they belong to a disciplined force to which the particular Act and the rules were applied from time immemorial. The added distinction is that when the Constitution was enacted in 1973, the police force being a disciplined force was treated differently as they were excepted from the application of Article 8(1) and (2), now in abeyance, with the result that the Police Act and the rules framed thereunder could not be challenged on the basis that they infringed the constitutional rights nor was there any constitutional limitation on the power of the Parliament or the Provincial Assembly to legislate in contravention of clause (1) of Article 8."
8. For our present purposes, the foregoing observations by the Hon'ble Supreme Court lead to the following conclusions. The Police Order and Police Rules are special laws governing the conditions of service in the subordinate ranks of the police force whereas the Civil Servants Act, 1974 and correspondingly, the rules framed thereunder, including the Upper Age Limit Rules, are of general application which stand excluded in the matter, of terms and conditions of service of such officers of the police force. The constitutional touchstone for the above classification is provided in Article 8(1) and (2) of the Constitution. The Police Order and the Police Rules are special laws because these pertain to a force "charged with the maintenance of public order." Accordingly, fundamental rights under the Constitution are not available to members of the police force "for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them".
9. As a result of the said findings, the relaxation of Upper Age Limit Rules stand excluded by the special provisions of Rule 12.6 of the Police Rules that prescribe an age limit of 18 to 25 years for recruitment of candidates to the post of ASIs through PPSC in open competition. Such exclusion has been held by the Hon'ble Supreme Court in its aforenoted authority to be based on the principle of the maxim general specialist's none derogate.
10. The upshot of the discussion is that the petitioners who are departmental candidates in the selection to the post of ASI through PPSC in open competition are not entitled to receive the benefit of the Upper Age Limit Rules.
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