' MUHAMMAD QASIM KHAN, J.--- By this single judgment, I, propose to decide the following connected matters i,e,
(i) W.P.No,5984/2015 "Hamad Yasir etc. v. Provincial Police Officer etc."
(ii) W.P.No,5694/2015 "Muhammad Shahbaz Shahzad v. Provincial Police Officer, etc."
(iii) W.P .No,3402/2010 "Muhammad Tahir Naqash, etc. v. Provincial Police Officer, etc."
(iv) W.P.No,5855/2015 "Mudassir Ahmad v. Provincial Police Officer, etc."
(v) W P No .3250/2015 "Ghulam Akbar etc. v. Inspector General of Police, Punjab etc."
(vi) W P. No .5720/2015 "Muhammad Shafiq Bhatti v. Government of Punjab etc."
(vii) W.P.No,6580/2015 "Muhammad Abbas Khan v. Province of Punjab, etc." and (viii)W.P .No,6451/2015 "Sajjad Azam v. Secretary Interior, etc."
(ix) W.P.No,7310/2015 "Irfan Ali etc. v. Provincial Police Officer, Lahore, etc."
(x) W. P. No .7633/2015 "Muhammad Shahbaz Shahzad v. Punjab Public Service Commission etc."
2. Briefly the facts are that present petitioners who are employed with police department and are now working as Assistant Sub-Inspectors and Head Constables claim themselves to be eligible and qualified for their further promotion to the rank of Sub-Inspectors. Through these writ petitions they have thrown a challenge to the advertisement No,03/2015 published in daily newspapers on behalf of Punjab Public Service Commission, Lahore, whereby, at Serial No,21 (for recruitment to 200 posts of Sub-Inspectors) on open merit age limit of 20 to 25 years has been specified and at Serial No,22 (for recruitment to 115 posts of Sub-Inspectors) from in-service employees, age limit of 23 to 35 (Serial No,22-in service promotion) has been imposed.
3. The learned counsel representing the petitioners argued that Article 7 (3) of Police Order, 2002 relates to recruitment of Constable and Assistant Sub-Inspectors; etc. In police service, but it does not provide any age limit for promotion to ASI from serving Head Constables and Assistant Sub- Inspectors and also for Sub-Inspectors. Further argued that the rules made under Article 112 of the Police Order, 2002 could not redundant the provisions of main statute and when no age limits has been prescribed in the Statute (Police Order, 2002), no such condition can be imposed through subservient legislation i,e, rules.
4. It has further been argued on behalf of the petitioners that under Rule 3(c)(a) the only requirement is bachelor degree and no age limit has been prescribed therein, therefore, the age limit imposed in the schedule has made rule '3(c)(a) ineffective. Lastly argued that promotion rules have been changed during service of the petitioners, as such, rights of the petitioners have been infringed.
5. The learned counsel further argued that insertion of clause "relaxation in underage/upper age, qualification and physical s ands shall not be granted in any case" as mentioned in the advertisement is alien to law, as Rule 3(v) of Punjab Civil Servants (Relaxation of Upper Age Limit)
Rules, 1976 provide relaxation of upper age limit to in-service government employees and said Rule is applicable to all the Civil Servants, as such, the relaxation provided by this Rule cannot be curtailed to the extent of the petitioners by any authority or subsequent rules. Added that by fixing age limit for in-service quota the petitioners have been discriminated as compared to the applicants who applied against the posts through direct/open candidatures. In support of their assertions, learned counsel representing the petitioners placed reliance on an unreported judgment of the Hon'ble Supreme Court of Pakistan dated 18.11.2008 passed in Civil Appeals Nos.772 and 773 of 2008 "The Inspector General of Police, Punjab and others v. Syed Nusrat Jamal and another", "Ghulam Mustafa v. Punjab Public Service Commission, Lahore etc." (2008 PLC (C.S.) 1117) and two unreported judgments of this Court, one dated 03.06.2010 passed in W.P.No,3393/2010 "M.
Ali, etc. v. Provincial Police Officer, Punjab, etc." and the other dated 07.03.2011 passed in W.P.
No,23000/2010 "Mudassar Ejaz v. Provincial Police Officer, etc.", as well as judgment dated 27.09.2012 passed in W.P.No,8156/2012 "Mudassar Khan etc. v. The Inspector General of Police Punjab, etc." and "Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others" (2004 PLC (C.S.) 69). The learned counsel representing the petitioner in Writ Petition No,7633/2015 "Muhammad Shahbaz Shahzad v. Punjab Public Service Commission, etc." argued that vide Notification No, SOR (S&GAD) 9-36/61 dated 21st May, 2012, age relaxation of five years, across the board has been granted by the Government and this relief cannot be withheld from the petitioners.
6. The learned Additional Advocate General opposed these writ petitions and argued that Sub- Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 were amended through gazette Notification dated 01.01.2014 and these rules are statutory rules and were made per force of Article 112 of the Police Order, 2002 by the Provincial Police Officer with the approval of the Provincial Government and these rules are special law, therefore, in the presence of these rules, Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 are not applicable to the case of the petitioners. Further argued that these rules are also not inconsistent with the main statute as the advertisement was got published in consonance with these rules, therefore, no discrimination has been meted out to the present petitioners. The learned Additional Advocate General in support of his averments, placed reliance on an unreported judgment dated 20.03.2013 passed by Hon'ble Supreme Court of Pakistan in Civil Appeal No,276-L of 2013, the case "Ehsan Ullah and 3 others v.
Inspector-General of Police, Punjab, Lahore and 4 others" (2006 PLC (C.S.) 964) and "Ghulam Mustafa v. PPSC" 2008 PLC (C.S.) 1117. The learned counsel representing Punjab Public Service Commission, however, argued that they published the advertisement according to the policy and instructions imparted to them by the concerned department.
7. I have heard the arguments of learned counsel for the parties at considerable length and perused the entire relevant material and the law on the point in issue.
8. For facility of reference, Article 7 of Police Order, 2002 , Rules 3 and 13 of Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 as well as the. Schedule relating to the recruitment of Sub-Inspectors attached to above referred Rules, 2013 are tagged with this judgment as "FLAG-A, B and C", respectively.
9. There is no cavil to the proposition that Punjab Civil Servants (Relaxation of Upper Age Limit)
Rules, 1976 were formulated under the Punjab Civil Servants Act, 1974 and is a general law applicable to all the civil servants, but it is settled position of law that when there is a special law then general law will not apply. In this case the matter pertains to police service and it is governed by Police Order, 2002 as well as the rules framed thereunder i,e, Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013. These are specific rules meant A for specific purposes; therefore, general rule would not apply. This Court after detailed analysis on this very aspect, had opportunity of going through the judgment of Hon'ble Supreme Court of Pakistan in "1.G.P. v. Mushtaq Ahmad Warraich (PLD 1985 SC 159) and by the said judgment it is deduced that the Civil Servants Act is an act of general application, has no constitutional status and 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. It must 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. Furthermore, 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 treatee 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 or 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. Earlier as well this Court in the case "Farrukh Riaz, etc. v. Government of Punjab, etc." (2012 PLC (C.S.) 941), with reference to the above judgment of the apex Court, observed that:- "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 matters 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 maxim generalia specialibus non derogant. "
10. It may be clarified here that the Provincial Police Officer with the approval of the Provincial Government and by official gazette has made the above rules i,e, Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 and under Article 112 of the Police Order, 2002 he was fully empowered to make such rules for carrying into effect the provisions of Police Order, 2002. These rules which are duly notified with the approval of the Provincial Government as required by the main statute are meant to carry out the business under the said statute and details are incorporated in these rules not in the basic statute. To answer the question whether these rules are applicable, we have to examine Punjab Civil Servants Act, 1974, Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 with Police Order, 2002 as well as Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013. By bare perusal of Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 it is very much clear that these rules are applicable to all the civil servants under the Government of Punjab.
Number of organizations, bodies under the control of Provincial Government formulated their service rules and they are governed by these rules. The police force has not been established under Punjab Civil Servants Act, 1974. Earlier it was established under Police Act, 1861 and Punjab Police Rules, 1934 and then Police Order, 2002 was promulgated and Police Act, 1861 was repealed.
Later on, Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 were made for carrying into effect the provisions of Police Order, 2002. The police law is special law only applicable to police department and when special law is available for any territory, class of employees or for any department then general law will not be applicable. As in this case the matter pertains to the officers of the subordinate ranks of the police force having specific law and rules, therefore, general law i,e, Punjab Civil Servants Act and Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 will not apply.In this respect reliance is placed on the case "Tahira Haq v. A.H Khan Niazi and others" (PLD 1968 Lahore 344), wherein, it was held that "Special provision in special statute excludes operation of general provision in general law." Coming to the argument of learned counsel in Writ Petition No,7633/2015 relating to a Notification dated 21st of May, 2012, a careful perusal of said Notification would show that it was issued in exercise of powers conferred upon the authority under Section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974) and this Notification has been issued under general law, therefore, the same could not affect the qualification including age limitation prescribed in special law, as such, has no applicability to the case of the present petitioners.
11. As regards the argument of discrimination, the Hon'ble Supreme Court of Pakistan in the order dated 20.03.2013 passed in Civil Appeal No,276-L of 2013 in clear terms validated reasonable classification. Relevant paragraph of the said order is reproduced hereunder:- "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 complete with fresh graduates and hence some upper age limit has to be prescribed.
Consequently this is not violative of Article 25 of the Constitution."
12. The stance of learned counsel for the petitioners that under Article 7 of Police Order, 2002 no qualification and age limit has been prescribed and Rule 3(c)(a) has made Article 7, ibid, ineffective, I am afraid the same is not true inference. Article 7 of Police Order, 2002 clearly indicates that the recruitment criteria, pay and allowances and all other conditions of service of the police shall be such as the Government may from time to time determine and in this respect qualification for direct recruitment and promotion of Sub-Inspectors has been determined, through Sub- Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013. Similarly, the contention of learned counsel that Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 is opposed to Article 7 of Police Order, 2002 which contain age limit as prescribed in the Schedule, has also no weight, as Rule 13 of Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 specifically mentioned that method of recruitment, minimum qualifications, age limit and other incidental matters for the posts of Sub- Inspectors and Inspectors in the functional unit shall be such as given in the Schedule appended to these rules. Hence, by virtue of this section, the Schedule becomes part and parcel of the rules and is applicable to the terms and conditions of appointment and promotions.
13. So for as the case law referred by learned counsel for the petitioners' i,e, unreported judgment of the Hon'ble Supreme Court of Pakistan dated 18.11.2008 passed in Civil Appeals Nos.772 and 773 of 2008 "The Inspector General of Police, Punjab and others v. Syed Nusrat Jamal and another", "Ghulam Mustafa v. Punjab Public Service Commission, Lahore etc." (2008 PLC (CS) 1117) and two unreported judgments of this Court, one dated 03.06.2010 passed in W.P.No,3393/2010 "M. Ali etc. v.
Provincial Police Officer, Punjab, etc" and the other dated 07.03.2011 passed in W.P.No,23000/2010 "Mudassar Ejaz v. Provincial Police Officer, etc." as well as judgment dated 27.09.2012 passed in W.P.No,8156/2012 "Mudassar Khan etc. v. The Inspector General of Police Punjab, etc., is concerned, the former case (Civil Appeals Nos.772 and 773 of 2008) was in fact person specific and it is manifest from the order itself that special concession had been extended by the department itself to its employee and for this reason specifically it was incorporated that said concession would not be available to the future recruitment to the post of Assistant Sub-Inspectors of Police. In rest of the three judgments, perhaps proper assistance was not rendered to the courts on the point of applicability of special law. Furthermore, it is also to be observed here that Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 were promulgated on 2nd of January, 2014, therefore, those judgments could not consider the impact and consequences of the Rules which were framed afterwards. Whereas, the judgment dated 27.09.2012 passed by this Court in W.P.No,8156/2012 "Mudassar Khan etc. v. The Inspector General of Police Punjab, etc., was challenged before the Hon'ble Supreme Court of Pakistan and was set-aside by the apex Court vide judgment dated 20.03.2013 passed in Civil Appeal No,276-L of 2013, wherein, the question of discrimination as well as reasonable classification was conclusively settled. In this respect there is no cavil to the proposition of law that in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the judgment rendered by the apex Court shall be considered as precedent and would be binding on all other courts in Pakistan to the extent it decided a question of law or is based upon or enunciates a principle of law. In this respect reliance is placed on the case "Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another" (PLD 2010 SC 483) and "Commissioner of Income Tax v. Habib Bank Limited and ANZ Grindla s Bank PLC" (2014 SCMR 1557).
14. Coming to the argument of learned counsel for the petitioners with regard to change of promotion rules during subsistence of their service, in order to improve the working as well as to maintain good governance in its departments especially relating to law enforcing agencies, the Government can change the rules or qualification criteria considering the changing demands of the progressive era, however, where it is found that such change/alteration in the promotion rules is person specific tainted with some mala fides, then of course such change can be taken note by the courts. As such by change of promotion criteria/rules, no fundamental right of the petitioners can be said to have been infringed, as neither these rules have been changed or framed for any specific person nor any element of mala fide was argued on behalf of the petitioners. In this respect reliance is placed on the case "Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others" (2015 SCMR 269), wherein, it has been held as under:- "Government changing promotion criteria by prescribing higher educational qualification--- Effect---When talent, skill and capability was rewarded, it provided opportunity to ambitious employees, and if those amongst them who were better qualified received a differential focus it benefit the department and the people of the country, as all civil servants were there to serve the people.---Similarly, if the bar to aspire to higher positions (i,e, promotion) was raised, it encouraged and motivated employees to take ownership of their careers and personal development---Moreover, when higher educational qualification and talent was appreciated it made for a more transparent system of advancement and may also help to retain talented individuals in an organization."
15. Lastly, taking up the argument of learned counsel for the petitioners about clause with regard to three years' experience as required for Head Constable and Assistant Sub-Inspectors, I am afraid in column-5 of the schedule it sub-clause (ii), it is written as "Three years' service as Head Constable or Assistant Sub-Inspector in the functional unit" A bare reading of said clause would indicate that Head Constable and Assistant Sub-Inspector both are mentioned in one phrase and this single phrase would include Head Constable and Assistant Sub-Inspector (both) and not only Head Constable, otherwise, there was no need for legislatures to add the word "ASI" in clause-5 part-ii.
Moreover, it is known principle of interpretation of statute that the word "or" is normally disjunctive and the word "and" is normally conjunctive. But at times they are read as vice-versa to give effect to the manifest intent of the legislature as disclosed from the context. It is permissible to read G "or" as "and" and vice-versa if some other apart of the same stature, or the legislative intent clearly spelled out, require that to be done. (Statutory Interpretation by Justice G.P. Singh, 8th Edition, 2001, p.370-referred). On this aspect reliance is also placed on the case "Muhammad Aril and others v.
District and Sessions Judge, Sialkot and others" (2011 SCMR 1591). Applying the above principle of interpretation of justice, the use of word "or" in the Schedule appended with Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 in fact requires three years of service in functional unit, for both i,e, Head Constable as well as Assistant Sub-Inspector, as the intent of legislators shows the word "or" has been used as conjectural.
16. For what has been discussed above, it is held that Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 have no applicability to the case of the present petitioners as they being officers of the subordinate ranks of the police force, will be governed by special law; since reasonable classification is permissible under the law, therefore, no case for discrimination is made out and Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 are not in conflict with the main statute i,e, Police Order, 2002, hence, the condition of upper age limit imposed in the advertisement is right in consonance with law. All these writ petitions, therefore, are dismissed.
17. At close of this judgment it is clarified here that W.P.No,5984/2015, W.P.No,5694/2015, W.P.No,3402/2015, W.P.No,5720/2015 and 3250/2015 were heard by this Court on 05.03.2015, W.P.No,5855/2015 was heard on 06.03.2015, W.P.No,6451/2015, W.P.No,6580/2015 were heard by this Court on 10.03.2015, whereas, W.P.No,7633/2015 and W.P.No,7310/2015 were heard on 18.03.2015 and 19.03.2015 respectively.
FLAG-A.
Constitution of police.--- (1) The police establishment for each general police area shall consist of such numbers in the senior and junior ranks and have such organization as the Government may from time to time determine.
(2) The recruitment criteria, pay and allowances and all other conditions of service of the police shall be such as the Government may from time to time determine.
(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: (3a) The selection for direct recruitment in the rank of Constable shall be made on the basis of district of domicile.
(3b). The selection for direct recruitment in the rank of Sub-Inspector shall be made through Punjab Public Service Commission on the basis of police region in which district of domicile of the candidate is located and shall not exceed fifty percent of total posts in the rank of Sub-Inspector.
(3c) Subject to the rules-
(a) Twenty-five percent of the quota reserved for departmental promotion to the rank of Sub- Inspector shall be filled through selection-on-merit by Punjab Public Service Commission from amongst police officers holding bachelor's degree in the rank of Head Constable and Assistant Sub-Inspector; and
(b) Twenty-five percent departmental promotions to the rank of Assistant Sub-Inspector shall made through selection-on-merit by Punjab Public Service Commission from amongst police officers holding bachelor's degree in the rank of Constable and Head Constable.
(4) The recruitment in the rank of Assistant Superintendent of Police shall be through the Federal Public Service Commission on all Pakistan basis.
(5)..........................................................................................................................................................
(6) Every police officer while on police duty shall have all the powers and privileges of a police officer throughout Pakistan and be liable to serve at any time in any branch, division, bureau and section."
FLAG-B.
RULE 3 of Sub-Inspectors and Inspectors (Appointment and Conditions of Service) Rules, 2013 "3. Appointment of Sub-Inspectors.--- (1) Subject to the prior approval of the Provincial Police Officer, the appointing authority may, on the recommendation of the Commission, appoint a person as Sub-Inspector by initial recruitment or selection.
(2) Subject to the prior approval of the Regional Police Officer, the appointing authority may, on the recommendation of the departmental promotion committee, appoint an Assistant Sub-Inspector as Sub-Inspector by promotion."
FLAG-C RULE 13 of Sub-Inspectors and Inspectors (Appointment and Conditions of Service)
Rules, 2013 "13. Method of recruitment, appointment and eligibility.- The method of recruitment, minimum qualifications, age limit and other incidental matters for the posts of Sub-Inspectors and