' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioners are Constables in Punjab Police and are working under the control of respondents Nos.1 to 3. The Federal Government Promulgated Police Order, 2002 and replaced the Police Act, 1861. Article 7 of Police Order, 2002 provides the constitution of Police establishment. According to Article 7 of Police Order, 2002 a clear bifurcation by direct recruitment and through promotion is provided. The respondents have invited applications for departmental promotion as Assistant Sub-Inspector from in-service graduate Constables and Head Constables of clean service record, three years service and age from 18 to 35 yeaRs, The petitioners assert that the departmental promotion do not attract the fix age limit. Respondent No,1 vide Notification dated 12-8-2011 made rules under Article 112 of Police Order, 2002 which is against the mandatory provision of Police Order, 2002 and as such the same is liable to be declared ultra vires to the statute and is liable to be set-aside. The petitioners have prayed as under:--- "It is, therefore, most humbly prayed that this writ petition may kindly be accepted and fixation of upper age limit of 35 years vide Rules called The Assistant Sub-Inspector (Appointment, Promotion and Condition of Service) Rules, 2011 framed by respondent No,1 for departmental promotion of in- service graduate Constables and Head Constables under second proviso to Article 7(3) of the Police Order, 2002 and the same being ultra vires of the main statute and without lawful authority may be set aside and the petitioners may kindly be declared eligible for the said examination without restriction of upper age limit.
2. Notices were issued to respondents, they filed report and parawise comments and submitted that respondent No,1 has framed rules under Article 112 of the Police Order, 2002 which was notified on 12-8-2011 and upper age limit of the applicants has been fixed as 35 years in-service candidates to compete against the post of Assistant Sub-Inspector as per quota fixed under Article 7(3) of Police Order, 2002 and as such Notification under challenge is perfectly in accordance with law. Under Article 112 of Police Order, 2002 the competent authority has the powers to frame rules.
3. Learned Counsel for petitioners submits that under second proviso of Article 7(3) of Police Order, 2002 25% quota is allocated for in-service Constables or Head Constables of clean service record possessing graduation or higher educational degrees to compete the departmental promotions on accelerated basis against the seats allocated to departmental promotions. Learned counsel further submits that reasons for allocation of 25% quota is that normally departmental promotions are made on the basis of seniority-cum-fitness which is long process. The second proviso of Article 7(3) of Police Order, 2002 provides encouragement to Constables and Head Constables who improves their educational qualification and other activities i,e, official conduct. Hence the second proviso of Article 7(3) of Police Order, 2002 is not meant for initial recruitment but it is meant for departmental promotion. Learned counsel for petitioners submits that under Article 7(3) of Police Order, 2002 upper age limit is not provided and as such the provision of upper age limit in the rules under challenge are ultra vires to the statute.
4. Learned counsel for petitioners further submits that there is no wisdom against, the fixation of upper age limit specially when a Constable or Head Constable after attaining the age of 35 years is healthy and fit and can perform duty of law enforcing, crime control and facing the criminals, how he become incompetent/ineligible due to the crossing of fixed age of 35 yeaRs, Learned counsel for petitioners has relied on Syed Nusrat Jamal and another v. Inspector General of Police, Punjab Police, Complex, Lahore and 2 others (2007 PLC (C.S.) 208) and Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1495).
5. Learned Additional Advocate General,. Punjab submits that selection in the rank of Assistant Sub- Inspector, from the in-, service graduate Constables and Head Constables through direct recruitment and is not a regular promotion. No provision exists in rules or statute to promote the Constable directly to Assistant Sub-Inspector. The direct recruitment to the post of Assistant Sub- Inspectors could be made from the in-service candidates through competitive examination through Punjab Public Service Commission. Learned Additional Advocate-General, Punjab further submits that 25% quota is available for direct recruitment in Police Department up to the age of 25 years, however for in-service candidates relaxation of 10 years has been granted under Assistant Sub-Inspector (Appointment, Promotion and Conditions of Service) Rules, 2011. This is a special concession provided to the in-service candidates to compete the posts of Assistant Sub-Inspector through Punjab Public Service Commission. Learned Additional Advocate General, Punjab further submits that under second proviso of Article 7 of Police Order, 2002 25% quota for departmental promotion to the rank of Assistant Sub-Inspector has to be filled subject to rules through selection by the Punjab Public Service Commission from the graduate Constables and Head Constables of clean service record. Further submits that 25% quota is the part of 75% quota available to in- service candidates 50% quota is available to in-service candidates by way of promotion and remaining 25% quota is available to graduate Constables and Head Constables of clean service record through Punjab Public Service Commission. Learned Additional Advocate-General, Punjab submits that Notification dated 12-8-2011 has been issued under Article 112 of the Police Order, 2002 which empowered the Provincial Police Officer with the approval of Government to frame rules.
Learned Additional Advocate General, Punjab further submits that rules framed under Article 112 of Police Order, 2002, on 12-8-2011 will prevail upon against the rules framed in 1934. The rules framed under the Police Act, 1861 (V of 1861) are saved under Article 185 of Police Order, 2002 till the fresh rules are not framed. As the rules have been framed under Article 112 of the Police Order, 2002 on 12-8-2011 with the approval of Government and as such under Rule 2(e) the Provincial Police Officer is empowered to frame rules and as such rules under challenge are not ultra vires to the statute but these are intra vires to the statute.
6. Heard. Record perused.
7.After the promulgation of Police Order, 2002 under second proviso of Article 7(3) 25% quota for departmental promotin. To the rank of Assistant Sub-Inspector has to be filled subject to rules, through selection by the appropriate Public Service Commission from graduate Constables or head Constables of clean record. Argument of learned counsel for petitioners is that no age limit is provided in Article 7(3) second proviso, of Police Order, 2002 and as such the respondents while framing the rules vide Notification No,8984/SE-11/VI on 12-8-2011 have fixed the upper age limit as 35 years which is in direct conflict with provision of statute. Admittedly under Article 7(3) second proviso, no age limit is provided for departmental promotion in 25% quota to the rank of Assistant Sub-Inspector but the said departmental promotion is subject to rules and through selection by the appropriate Public Service Commission from graduate Constables or Head Constables having clean service record.
8. Section 7(3) of Police Order, 2002 is read as under;--- "The recruitment in the police other than ministerial and specialist cadres shall be in the rank of Constable, Assistant Sub-Inspector and Assistant Superintendent of Police: ' Provided that selection for direct recruitment in the rank of Assistant Sub-Inspector shall be through the appropriate Public Service Commission and shall not exceed twenty-five percent of total posts in that rank: ' Provided further that 25% of the quota for departmental promotions to the rank of Assistant Sub- Inspector shall be filled subject to rules, through selection by the appropriate Public Service Commission from graduate constables or Head Constables of clean record."
9. Under Article 112 of Police Order, 2002, the Provincial Police Officer with the approval of the Government may by notification in the official gazette, make rules for carrying into effect the provisions of Order. Meaning thereby the Provincial Police Officer is enjoying the authority for making rules for proper and smooth implementation of provision of Article 7(3) of Police Order, 2002. The petitioners are not denying that Notification dated 12-8-2011 ibid has been issued without the approval of Government but the argument of learned counsel for petitioners is that principal statute did not provide the upper age limit of the departmental promotion under Article 7(3) of Police Order, 2002. In these circumstances it has to be seen whether the respondent has framed the rules as per section 7(3) of the Police Order, 2002 or not?
10. The bare reading of Article 112 of the Police Order, 2002 shows that Provincial Police Officer has the powers to frame rules with the approval of Government may by notification in the official , Gazette, meaning thereby the approval and publication in official gazette is mandatory.
11. Learned Additional Advocate-General, Punjab was asked to confirm whether the impugned rules have been gazetted or not? Learned Additional Advocate-General, Punjab after obtaining instructions confirms that rules have not been gazetted. Learned counsel for petitioner has rightly relied on Chairman, State Life Insurance Corporation and others v. Hamayun Wan and 2 others (2010 SCMR 1495) as admittedly impugned rules have not been gazetted, the same could not be deemed to be valid and enforceable rules. The petition thus bound to succeed.
12. In view of above, the petition is allowed and the impugned rules dated 12-8-2011 are declared without lawful authority. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.