' TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to these appeals, by leave of the Court, briefly stated are that vide advertisement dated 22-2-2011 (published in Dailies Jang and the Nation), 728 posts of Assistant Sub-Inspectors
(ASIs) were announced in BS-09 in the Punjab Police Department on District/Regionwise basis. One of the conditions laid down therein related to the age limit i,e, between 18 to 25 years on 14-3-2011. Serial No, 2 of the said advertisement carried a specific note as under:-- "No relaxation in age, physical standards or educational qualifications is allowed, notwithstanding any provision in the general purpose Application Form of the Commission."
2. All the appellants are serving employees of the Police Department. According to them, they fulfill all the remaining conditions for the posts of ASI to compete in the selection process for the ASIs before the Punjab Public Service Commission but were hit by the afore-referred condition of upper age limit of 25 years. They challenged the afore-referred condition and based their claim on the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 [hereinafter referred to as the "Upper Age Limit Rules"]. In Rule 3(v) of those Rules, it is provided that the period of continuous government service of a candidate is to be excluded from the upper age limit prescribed for the post. The precise contention rose before the High Court was that notwithstanding anything provided in the Police Order 2002, the afore-referred General Rules would apply to all government servants. The Constitutional Petitions were, however, dismissed vide the impugned judgment as the learned Court relying on a judgment of this Court in I.G.P. v. Mushtaq Ahmad Warraich (PLD 1985 SC 159), inter alia, held that the said judgment of this Court is based on the maxim generalia specialibus non derogant that the Special Law which in the context of these cases is Police Order, 2002 and the Rules framed pursuant thereto would apply and the appellants are not entitled to receive the benefit of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976.
3. Leave was granted by this Court in terms of order dated 10-117-2011 which reads as follows:- "It is, inter alia, contended that the petitioners have been denied the benefit of the Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, on the ground that the same. Is not applicable on .The Police force whereas the petitioners who were already in the service of the Police under Rule 3(5) of the said rules were entitled for the relaxation of the upper age limit and Police department cannot be treated differently. Leave to appeal is granted. As short point is involved the office is directed to prepare the appeals on the same record with liberty to the parties to file additional documents if need be. Appeals be fixed within one month."
' Learned counsel for the appellants contended that the facts in the judgment of this Court in I.G.P. v. Mushtaq Ahmad Warraich (supra) are distinguishable as the issue raised in that case was that of seniority and therefore the law laid down therein would not be applicable to the cases in hand. He argued that the issue raised in these appeals relates to enforcement of fundamental rights guaranteed in Article 25 of the Constitution; that if the upper age relaxation is given to other civil servants, the members of the police service should not be discriminated against; that a close reading of Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit)
Rules, 1976 would indicate that it is applicable to all posts or services; that letter dated 6-2-1983 issued by the Inspector General of Police to all DIGs, Commandant Police College, Sihala and Commandant Reserve Police Choorkhana indicates that Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 is applicable in the police department. In support of the submissions made, learned counsel relied on Ahmed Ali v.. D.I.G. Of Police Lahore (2004 PLC (C.S.) 730), Ehsan Ullah v. Inspector-General of Police (2006 PLC (C.S.) 964) and Ghulam Mustafa v. Punjab Public Service Commission Lahore (2008 PLC (C.S.) 1117).
5. Assailing the observation of the learned High Court that the Police Order, 2002 and the Rules framed thereunder being special law, the General Rules (the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976) would not apply, learned counsel contended that the learned Court fell in error in not construing the full import of non-obstante clause in Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit)
Rules, 1976. He referred to 'Understanding Statutes' by S.M. Zafar (page 840) and contended that non obstante clause beginning with "notwithstanding" creates an exception and the legislative intent has to be given effect in letter and spirit. In support of this contention, he relied on Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. (PLD 1979 Lahore 603) and Sh. Azhar Salam and Haji Muhammad Saifullah v. Federation of Pakistan (PLD 1988 Lah. 725).
6. Learned Additional Advocate-General opposed the appeals as according to him several petitions (C.Ps. Nos. 1853 to 1855-L of 2011, 1865, 1899, 2079 and 2080-L of 2011) impugning the judgment which has been challenged in these appeals were dismissed by this Court on 28-3-2012 and the Court having already expressed its views on the issues raised, there is no merit in these appeals which merit dismissal. He further submitted that the law laid down by this Court in I.G.P. v. Mushtaq Ahmad Warraich (Supra) was reiterated in Ahmed Ali v. Deputy Inspector-General of Police Lahore (2004 PLC (C.S.) 730).
7. Heard.
8. To appreciate the issues raised a reference to the relevant law and rules would be in order. Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rifles, 1976 on which appellants' learned counsel has laid much stress reads as follows:--
3. Notwithstanding anything to the contrary contained in any rules applicable to any past or service:---
(v) in the' case of a candidate already working as a Government servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age. (Emphasis is supplied).
9. The afore-quoted Rule 3(v) was circulated by the Inspector-General of Police in terms of its letter dated 6-2-1983 with the stipulation that, "the cases of relaxation of Upper Age Limit of in service candidates in connection with recruitment of A.S.1./P.S.I. May please be dealt with in the light of the aforesaid amendment." A circular issued by the head of department in derogation to the relevant rules and law declared cannot override the mandate of legislative intent. The said intent is reflected in the special law to regulate the service of police employees i,e, the Police Order, 2002 and the Rules framed pursuant thereto. This Court considered the question as to whether the General Law i,e, the Civil Servants Act and the Rules framed thereunder would govern the service of members of the police force or the Special Law enacted through Police Act, 1861 (which stands repealed by Article 185 of the Police Order, 2002) and the Rules framed thereunder would be applicable in I.G.P. v. Mushtaq Ahmad Warraich (Supra) and held as follows:-- "This test though merely of academic value cannot be lost sight of as at the time when the Constitution was enacted it laid the foundation for the continued application of the Police Act and the rules framed thereunder to the Police force. Their application cannot be whittled down as it would infract the maintenance of discipline. It is for this reason that this Court while interpreting the "rules" (Indian Police Regulation of Seniority Rules, 1936) relating to the seniority of Police Officers in Bashir Ahmad Khan v. Mahmud Ali Khan PLD 1960 SC 195, said: "They are statutory rules of the highest validity, and as has been said above, they have the quality of settling the important matter of seniority as among officers of a service whose duties are directly connected with the maintenance of law and order, and are therefore, intimately bound up with a very important aspect of the public interest."
' Equally these observations would be applicable to the validity of the 1934 Rules governing the seniority of the Police officers of the subordinate ranks. Such being the case the special law assumes a great significance.
' 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 rules. In this view of the natter, 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 rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose."
10. The question of applicability of General and Special Laws was also considered by the Privy Council in Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 PC 252) wherein it was laid down as follows:-- "When the legislature had given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms."
11. The afore-referred view was reiterated in Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue)
Multan (PLD 1968 Lah. 344) and it was held as under:-- "The principle that the general law would not prevail over a specific enactment is now well-settled and one may refer in this behalf to AIR 1921 Lah. 280; AIR 1941 Lah. 364; AIR 1936 All. 222; AIR 1932 PC 252; AIR 1950 Mad. 711; AIR 1934 Sind 89; AIR 1934 Born. 16 and AIR 1936 Nag.
180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision excludes the operation of a general provision in the general law."
12. The argument of appellants' learned counsel that since the judgment in I.G.P. v. Mushtaq Ahmad Warraich (Supra) pertained to the question of seniority and therefore not applicable misses the point that facts in any two cases are mostly not alike and it is the principle and the law laid down in a case which is relevant and becomes a precedent.
13. This brings us to the argument raised regarding the non obstante clause raised by appellants' learned counsel.
One of the foundational principles governing the interpretation of non obstante clause is that it has to be read in the context of what the legislature intended in the enacting part of the provision. In `Interpretation of Statutes' by NS Bindra, the author with reference to specific precedent case-law precisely addresses this issue and comments as follows:--- "It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is Ito be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non -obstante clause where both cannot be read harmoniously, for "even apart from such clause a later law 'abrogates earlier laws clearly inconsistent with it.
' The proper way to construe a non-obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non-obstante clause. A non- obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non-obstante clause. In case there is any inconsistency between the non-obstante clause and another provision one of the objects of such a clause is to indicate that it is the non- obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying nonobstante clause may be invoked only in the case of 'irreconcilable conflict'.
14. The effect of non obstante clause in Rule 3(v) beginning with the word "notwithstanding" being construed by appellants' learned counsel is not tenable because a full reading of the said clause would itself defeat this argument as the expression "notwithstanding anything to the contrary contained in any rules applicable to any post or service" refer to the Rules which are applicable to the post or service in question and not to Rules which' may not be applicable to the said post or service by legislative enactment. For the, purposes of application of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, the relevant Rules would be the Rules framed under the Punjab Civil Servants Act, 1974 and not those framed under the Special Law i,e, the Police Order, 2002 and the Rules framed thereunder. Both the laws are relatable to a different class of civil servants. The law laid down in Sh. Azhar Salam and Haji Muhammad Saifullah v. Federation of Pakistan (PLD 1988 Lah. 725) would not be relevant for instant cases as in the said case, the opinion expressed was with reference to non-obstante clause appearing in Article 48(2) of the Constitution of Islamic Republic of Pakistan and the said clause specifically refers to clause (1) of the said Article to which an exception was being created, in terms of clause (2) which stipulates that, "Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so land the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever]."
15. Similarly the law lay down in Arif Hussain Shah v. Operative Director, Administration, Electric Equipment Manufacturing Co. Ltd. (PLD 1979 Lahore 603) is distinguishable and would not be relevant in the facts and circumstances of this case as in the said case, the issue raised was with regard to two conflicting provisions in two Labour Law enactments governing the same class of employees and the Court held as follows:-- "While interpreting 'non obstante cause, it should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning as a 'non obstante' clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent in the new enactment. The enacting part of the Statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously for, even apart from such clause a later law abrogates an earlier law clearly inconsistent with it."
16. In the instant appeals, on the contrary, we are seized of the import and effect of special law vis-a-vis a general law and the argument being raised by appellants' learned counsel is that the general law would override the special law in terms of Rule 3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976.
This interpretation of non-obstante clause appearing in a general law is not only against the legislative intent reflected in the said provision but is also against the law declared. In R.S. Raghunath v. State of Karnataka (AIR 1992 SC at 81 at page 89), the Court was seized of a similar issue and held as follows:-- "A special enactment or rule cannot be held to be overridden by a later general enactment or simply because the latter opens up with a non-obstante clause. There should be a clear inconsistency between the two before giving an overriding effect to the non-obstante clause."
17. The principle of law reiterated in the precedent case-law is that special statute overtakes the operation of general statute. Thus recruitment to various posts in the police service is to be made under the special law which after the repeal of Police Act 1861 is the Police Order, 2002 and Article 7 of the said Order lays down the procedure to be followed. Article 7(3) of the Police Order, inter alia, relates to the recruitment of various ranks (other than ministerial and specialist cadres) including Assistant Sub-Inspector which reads as follows:-- 7(1) ...........................................................................................................................
(2) ..........................................................................................................................
(3) 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."
18. Article 112 of the Police Order spells out the rule making power of various authorities in the police establishment and lays down as follows:-- "112. Rulemaking by Provincial Police Officer or Islamabad Capital City Police Officer.--- Provincial Police Officer, or Islamabad Capital City Police Officer, as the case may be, with the approval of the Government, may by notification in the official Gazette, make rules for carrying into effect The provisions of this Order."
19. By virtue of the powers conferred under the afore-mentioned Article 112 of the Police Order, 2002, the Provincial Police Officer Punjab issued notification bearing No, 8984/SE-11/VI dated 12-8-2011, Rule 7 of which stipulates, "the method of appointment, qualifications, age limit and other ancillary matters for the post of the Assistant Sub- Inspectors shall be governed under the Schedule." The said Schedule reads as follows:-- {{TABLE}} Name of the Depart- mentFunctional UnitName of the Post with GradeAppointing AuthorityMinimum Qualification for appointment byMethod of RecruitmentAge for Initial RecruitmentExamination, Training and other conditions required for confirmation Initial RecruitmentPro-motion Min Max 1 2 3 4 5 6 7 8 9 10 Home Depart- mentPunjab PoliceAssistant Sub- Inspector (BS-9)Head of District PoliceEducation Qualification: F.A. or equivalent or higher qualification from recognized Institution.
Physical Standard: (i)
Height:- For male 5'-7" and for Female 5'-2".
(ii) Chest:- 33"-34-1/4"
(for male only) (iii)
Visual Stan- dard: "Distant vision 6/9 in each eye with or without glasses.
Near vision no less than J-1".(i) 25% of total posts through initial recruitment on the recommen- dation of the Punjab Public Service Commission.18 25(i)
Intermediate Probationer Class Course. (ii)
Practical training of A, B, C & D Courses.
Home Depart- mentPunjab PoliceAssistant Sub- Inspector (BS-9)
(from amongst in- service graduate Head Constables and Constables).Head of District Police1)
Educational Qualification: Graduation or equivalent or higher degree from a recognized University/ institution. 2)
Service as Constable/ Head Constable in the Punjab Police Department for at least three years with clean service record.25% of the quota for departmental promotions through selection on the recommen- dations of the Punjab Public Service Commission18 35(i)
Intermediate Probationer Class Course (ii)
Practical training of A, B, C & D Courses.
Home Depart- mentPunjab PoliceAssistant Sub- InspectorHead of District Police50% by promotion from(i)
Intermediate probationer (BS-9)
(from amongst in- service Head Constables).amongst the qualified intermediate class course.
Head Constables.Class Course. (ii)
Practical training of A, B, C & D Courses. {{TABLE}}
20. A combined reading of Article 7(3), Article 112 of the Police Order (rule making power) and the Schedule issued by the Provincial Police Officer, Punjab dated 12-8-2011 would reflect that there are three modes of recruitment to the post of Assistant Sub-Inspector; those are:---
(i) Direct recruitment through Punjab Public Service Commission by competition to the extent of 25% of the total posts in that rank;
(ii) Selection by Punjab Public Service Commission from graduate Constables and Head Constables of clean record and a quota of 25% seats reserved for departmental promotion; and
(iii) 50% by promotion from amongst the qualified intermediate class course Head Constables.
21. Admittedly the appellants were candidates for the posts which were to be filled through mode No, (i), referred to above, i,e, initial recruitment on the recommendations of the Punjab Public Service Commission for which the upper age limit prescribed in terms of the Schedule referred to above is 25 years. However, they are seeking relaxation of the upper age limit and prayed that the upper age limit for them should be the same i,e, 35 years as prescribed for 25% of the quota reserved for departmental promotions through selection on the recommendation of the Punjab Public Service Commission. This prayer under the law is not tenable and they were rightly refused the relief sought.
22. For what has been discussed above, the impugned judgment is Unexceptionable. Finding no merit, these appeals are dismissed, with no order as to costs.