WAQAR AHMAD SETH, J:- Ziaullah, petitioner herein, through the instant constitutional petition, seeks issuance of an appropriate writ directing the respondent to appoint him on any post.
2. Brief facts of the case are that father of the petitioner was serving as Sub-Inspector in the respondents-department, who died during service and after his death, the petitioner applied to the respondent to appoint him on any post against deceased sons quota according to his qualification but till date, the same has not been considered although number of vacancies were available but despite of that, the petitioner has been ignored. Since this Court had already decided number of identical Writ Petitions and had attained finality, therefore, the petitioner seeks alike treatment. Hence, the instant Writ Petition.
3. Comments were called from the respondent which he accordingly furnished and denied the assertion of petitioner by stating that the appointment and promotion of police officers of junior rank was governed by Police Rules, 1934 and not by Civil Servant (Appointment, Promotion and Transfer) Rules, 1989. However, 10% quota has been provided to the sons of police officers and in order to ensure transparency and fairness in recruitment, police department has devised a strategy of recruitment through NTS and Public Service Commission, if the petitioner qualified the same, he will be considered as per policy. He further stated that no recruitment was made in Police Department without publishing advertisement. He also stated that neither the petitioner has been discriminated nor any article of the Constitution was violated nor anyone has been accommodated without qualifying the NTS test, hence, he prayed for dismissal of instant Writ Petition.
4. Arguments heard and record perused.
5. According to the Khyber Pakhtunkhwa, Civil Servants (Appointment, Promotion and Transfer)
Rules, 1989, rule-10 deals with appointment by initial recruitment and it reads as under:- "Appointment by initial recruitment.--
(1) Initial appointment to posts in various pay scales shall be made. a) If the post falls within the purview of the commission on the basis of examination or test to be conducted by the Commission; or b) If the post does not fall within the purview of the Commission, in the manner as may be determined by Government.
(2) Initial recruitment to posts which does not fall within the purview of the Commission shall be made on the recommendation of the Departmental Selection Committee, after vacancies have been advertised in newspapers.
Likewise, Sub-rule 4 of rule-10 says that:- "Notwithstanding the procedure prescribed in sub-rule2, the appointment authority may appoint one of the children of a deceased civil servants, who died during service, to a post in any of the Basic Pay scales No.1 to 15; provided that the child possesses the minimum qualification prescribed for appointment to the post. The appointment, as aforesaid, shall be subject to the availability of a vacancy and if two or more vacancies in different pay scales are available at a time and the child possesses the qualifications which makes him eligible for appointment to more than on post, he shall ordinarily be appointed to the post carrying higher pay scales".
6. The plain reading of the above referred rules clearly reflects that the post which fall in the purview of the Commission is to be filled by the Khyber Pakhtunkhwa, Public Service Commission and post which does not fall within the purview of commission that is to be filled in by the Department as per the procedure given in the said rules i.e on the recommendation of Departmental Selection Committee. In our humble view sub rule-4 of rule-10 of the Rules, ibid has an overriding effect because the same is inserted for a special category of employees / deceased employees by using the word "Notwithstanding".
7. The plea of the respondents in view of police order 2002 and recruitment policy of the government regarding the post of ASI, BPS-09, that the same would be filled in through Public Service Commission as per procedure given in section 7 of the police order 2002 is not appealing to us as there is no corresponding amendment in the Khyber Pakhtunkhwa Public Service Commission, Ordinance, 1978. To understand and clarify the position it's important to go through section 7 which prescribed function of the commission and reads as under:- Functions of the Commission.---(1) The functions of the Commission shall be---
(a) To conduct tests and examinations for recruitment of persons to--- i) The civil services of the Province and Civil posts in connection with the affairs of the Province in basic pay scales 16 and above or equivalent, and ii) Posts in basic pay scales 11 to 15 or equivalent specified in following Departments (except the District Cadre posts)
3. Police Department;
8. Admittedly, the post of Assistant Sub-Inspector Police (ASI) is in BPS-09, whereas, the Public Service Commission is authorized to conduct tests and examinations for recruitment in the basic pay scale 11 and above thus, unless and until the domain / power / functions of the Public Service Commission are not amended, they cannot conduct the test / interview merely on the basis of amendments in the Departmental Rules.
9. It is an admitted fact that father of the petitioner was serving as Sub-Inspector, who died during service and under Rule-10(4) of the NWFP Civil Servant (Appointment, Promotion and Transfer)
Rules, 1989 it has been clearly mentioned that "where a civil servant dies during service, then notwithstanding the procedure provided for in sub-rule(2), the appointing authority may appoint one of the children of such civil servant or if the child has not attained the age prescribed for appointment in Government service, the widow of such civil servant, to a post in any of the basic pay scales 1 to 15". The stance of the respondent in the comments that the appointment and promotion of police officers of junior rank was governed by Police Rules, 1934 and not by Civil Servant (Appointment, Promotion and Transfer) Rules, 1989 is misconceived because Rule 10(4) of the Rules (ibid) has overriding effect and it attains the status of special law, therefore, special law will prevail on the general law.
10. This writ petition is allowed and respondents are directed to appoint the petitioner against the post of Assistant sub-Inspector, if otherwise eligible for the post in accordance with the selection criteria, within one month from the receipt of this judgment.