SARMAD JALAL OSMANY, J. --- This Appeal, by leave of the Court, impugns the judgment of the learned Lahore High Court (Lahore) in Writ Petition No. 8156 of 2012 filed by the Respondents whereby same was allowed.
2. Briefly stated the facts of the matter are that the Respondents who are police constables serving with the Punjab Police Department had applied for the post of Assistant Sub-Inspector wherein the maximum age limit was prescribed as upto 35 years for graduate in-service candidates. As the Respondents had exceeded such limit they were not considered and hence they filed the aforementioned Writ Petition before the learned Lahore High Court with the prayer that since Article 112 of the Police Order, 2002 does not prescribe such age limit therefore the Respondents should be accommodated. An additional prayer was that the Notification dated 12.08.2011 issued under Article 112 (Ibid) prescribing rules for such recruitment whereby the mandatory upper age limit was fixed at 35 years for graduate in service candidates be declared null and void as it was ultra vires of the main statute.
3. As stated above the relief was accorded to the Respondents and hence this Petition.
4. Ch. Muhammad Iqbal, learned Additional Advocate General, Punjab has submitted that the only controversy before the learned Lahore High Court was that whether or not the Rules prescribed under the Notification issued Article 112 of the Police Order, 2002, dated 12.08.2011 was notified in the official Gazette. According to him the learned Lahore High Court came to the conclusion that as the rules were not gazetted therefore they do not have the force of law and hence could not override Article 7 of the Police Order, 2002 which does not provide any upper age limit for recruitment of in service constables to the higher rank. In this regard. Learned Additional Advocate General has submitted that per settled law once the rules had been notified with the approval of the Federal Government they come into effect immediately and publication in the official Gazette is not a sine qua non for such rules to attain the status as such. For this proposition he has relied upon Muhammad Siddique v. The Market Committee, Tandlianwala (1983 SCM R 785), Commissioner of Income Tax and others v. Messrs Media Network and others (PLD 2006 SC 787), Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others (1991 SCM R 2180) and, Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261).
5. On the other hand Mian Ghulam Rasool, learned ASC appearing for the Respondents has submitted that per Article 7(3) of the Police Order, 2002 provisions have been made for recruitment of Constables, ASI's and ASP's into the police service but it does not provide any age limit for promotion to ASI for serving constables. His second submission is that although Article 112 of the Police Order, 2002 does give the power to the Provincial Police Officer to make rules to carry into effect the provisions of the Order but the same have to be gazetted in order to be of a binding nature. Hence learned ASC submitted that as the rules were never gazetted the same could not override the provisions of the main law which is Article 7 whereby no age limit has been prescribed for the selection of any serving constables as ASI's for which 25% quote has been reserved through the Federal Public Service Commission. Learned ASC has further submitted that in the impugned rules for non-graduate constables no age limit has been fixed but for graduate constables it has been fixed as upto 35 years which itself is discriminatory and hence liable to be struck down on that score alone. In support of this submission he has relied upon Chairman, State Life Insurance Corporation and others v. Hamayun Irfan and 2 others (2010 SCMR 1459).
6. We have heard both the learned Additional Advocate General as well as learned ASC and perused the record alongwith their assistance.
7. It would be seen that the second proviso to sub-Article (3) of Article 7 of the Police Order, 2002 clearly states that 25% quota for departmental promotions to the rank of Assistant Sub-Inspectors shall be filled, subject to rules, through selection by the appropriate Public Service Commission from graduate Constables or Head Constables of clean record. Accordingly such rules were notified under Article 112 of the Police Order whereby the upper age limit for in-service graduate constables has been prescribed as 35 years and no age limit has been prescribed for non- graduate in service constables. The Notification in question was made under Article 112 of the Police Order, 2002 which gives a general power to the Provincial Police Officer to make rules for carrying into effect all the provisions of the Police Order with the approval of the Government. No specific stipulation has been given in such Article for the publication of the rules and hence in our opinion the said rules cannot be held to be without any legal sanctity merely because of non-publication in the official Gazette. The cases cited at the bar by the learned Additional Advocate General are ample authority for this legal position.
8. As to the case of Chairman, State Life Insurance Corporation and others (Supra) relied upon by Mian Ghulam Rasool, in our opinion the facts of the case are distinguishable as the relevant provisions of law i.e. Article 49 of the State Life Insurance (Nationalization) Order, 1972 mandated that the rules in question after the approval of the Government were to be published in the official Gazette. Finally as to learned ASC's submission that under the Rules no age limit has been fixed for non-graduate constables whereas 35 years upper age limit has been prescribed for graduate constables, suffice it to say that we do not find the same to be discriminatory as 25% quota has been reserved for graduate constables and 25% for fresh graduate entrants whereas 50% quota has been reserved for in-service non-graduate constables. Even otherwise upper age limit for fresh entrants has been prescribed as 25 years. In our opinion this is a reasonable classification as in- service graduate constables have to compete with fresh graduates and hence some upper age limit has to be prescribed. Consequently this is not violative of Article 25 of the Constitution.
9. For the foregoing reasons we allow this Appeal. The impugned Judgment is set aside.