MUDASSIR KHALID ABBASI, J.---Through the instant constitutional petition, challenge has been thrown to regulations Nos,33 and 34 of the Punjab Public Service Commission Regulations, 2016 with reference to appointment through promotional quota for Sub-Inspector of Police Department amongst Head Constables and Assistant Sub-Inspectors.
2. Precisely the facts of the case are that the petitioners are serving as Assistant Sub-Inspectors in the Police Department since 2009, 2010 and 2011. In the year 2013 an amendment was brought in Police Order 2002 whereby in terms of Section 7 Sub-Clause 3(c)(a), 25% quota was reserved for Departmental Promotion through selection on merits for Sub-Inspector by Punjab Public Service Commission amongst Head constables and Assistant Sub-Inspectors holding Bechlor's Degrees.
Respondent department had been advertising the said posts of Sub-Inspectors in Police to be filled up through competitive examination in promotional quota from time to time whereas the petitioners, earlier had participated thrice in the process. On 28.07.2017, respondent No,2 again advertised and invited applications for departmental promotion in all regions of Punjab. This time petitioners have also tried to participate in the process, however, it could not be materialized because they had already availed three chances and in terms of regulations 33 and 34 of Punjab Public Service Commission Regulations, 2016, a candidate could not avail more than three chances. Petitioners have sought a declaration to the effect that the afore-referred regulations are ultra vires to the fundamental rights enshrined in Constitution being illegal, unjust, unfair and against the principles of natural justice.
3. Learned counsel for the petitioners argued that section 7 (3c)(a) of the Police Order, 2002 has laid down the procedure for promotion through 25% quota amongst the serving Assistant Sub- Inspectors/ constables and no such restriction with regard to the availing of number of chances is provided in the said clause. This, according to the counsel for the petitioners, clearly indicates the intention of the legislation that the employees could avail more than three chances. Further contends that promotion is a vested and fundamental right of an employee to avail the opportunities for promotion whereas, the respondents have imposed the said restriction which is against the mandate of rights envisaged in the Constitution. Moreover, Punjab Public Service Commission Regulations, 2016 do not prevail upon the Police Order, 2002 which have been validly enacted by the legislation. Learned counsel for the petitioners also argued that Rule 3 .of Punjab Public Service Commission Functions Rules, 1978 empowers the Commission to regulate/conduct the appointments for BS-16 and above. Whereas, the examination, the subject matter of this petition relates to promotion from BS-11 to 14 as Sub-Inspector. Finally that most of the Head Constables and ASIs have been deprived from the departmental promotion examination which itself is arbitrary and unreasonable.
4. On the other hand, in response to notice under Order 27-A of C.P.C. to the Advocate General Punjab, learned Assistant Advocate General vehemently opposed the arguments of petitioners on the grounds that all the examinations are conducted by the Punjab Public Service Commission under the rules and regulations, which have validly been enacted. All the examinations are held in line with the said regulations. Contends that the petitioners have failed to point out that their fundamental rights have been infringed through the said legislation. Moreover, petitioners cannot claim their promotion as vested right and it has to be governed through some legislation.
Furthermore; that the intention of the legislature was to give an opportunity to other employees who are. working in the department. Finally, it has been prayed that the petition being not maintainable is liable to be dismissed.
5. Arguments heard. Record perused.
6. Critically important features which are required to be addressed by this Court while examining the vires of regulations Nos,33 and 34 of Punjab Public Service Commission Regulations, 2016 (herein called as "regulation") are as under:-
(1) As to whether the said regulations have been enacted at the strength of some statutory backing.
(2) As to whether Article 7(3c) (a) of Police Order, 2002 is in conflict with the regulations having overriding effect.
(3) As to whether the restriction of availing of more than three chances is violative of fundamentals rights of the petitioners envisaged in the Constitution at the touch stone of principles laid down by the superior courts for the purposes of declaring any law as ultra vires.
(4) Whether the petitioners could claim their promotion as a vested right through promotional quota.
7. Before adverting to the afore-referred propositions of law, it would be appropriate to reproduce the regulations which have been brought under challenge:--
33. All candidates appearing in "Written Examination" to be held by the Commission shall be allowed to avail three chances only for each particular Written Examination irrespective of the type or categories of posts grouped in that Examination, unless otherwise prescribed by the Government.
34. For all other posts to be filled through written test followed by interview, or interview alone for which no formal Written Test has been prescribed, the number of chances shall also be restricted to three with the exception for the post of Lecturers in Education Department a candidate who is applicant for more than one subject, he/she shall have three chances in each subject for which he/she is a candidate.
8. So far as the enactment of regulations at the strength of some statutory backing is concerned, for the facility of reference section 10 of the Punjab Public Service Commission Ordinance, 1978 is reproduced as under:
10. Rules and Regulations.- (1) The Government may, by notification in the official Gazette, make rules for carrying out the purpose of this Ordinance.
(2) Subject to the provisions of this Ordinance and the rules the Commission may make regulations for carrying out the purposes of this Ordinance and the rules.
9. Plain reading of the afore-cited pro-vision makes it abundantly clear that the regulations have been framed at the statutory strength of section 10 of the Punjab Public Service Commission Ordinance, 1978 which clearly empowers the Government to make such regulations. Much emphasis has been laid down by the learned counsel for the petitioners that regulations are in conflict with Article 7(3c)(a) of Police Order, 2002 and the said Order has overriding effect over the regulations. Article 7 (3c)(a) of Police Order, 2002 reads as under:- "(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 be 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."
10. Afore-referred provisions cannot be read in isolation and in order to resolve the controversy, functions of the Punjab Public Service Commission are also to be kept in mind which have been envisaged in Section-7 of the Punjab Public Service. Commission Ordinance, 1978, which is reproduced as under:-
7. Functions of Commission. --The functions of the Commission shall be-
(a) to conduct tests and examination for recruitment to-
(i) such Provincial services and posts connected with the affairs of the Province, as may be prescribed; and
(ii) such posts in or under a Corporation or other body or organization set up by Government under any law, as may be prescribed;
(b) to advise the Government on such matters as may be prescribed, relating to the terms and conditions of service of persons who are members of a Provincial service or hold posts in connection with the affairs of the Province; and
(c) such other functions as may be prescribed.
11. Controversy, subject matter of this constitutional petition relates to the examination relating to the promotional quota of the petitioners, therefore, at the first instance, it would be convenient to comprehend that in terms of Appointment and Conditions Service Rules, 1974, there are three modes of appointment/recruitment which are by promotion, transfer and through initial recruitment, therefore, 25% promotional quota amongst head constables and Assistant Sub- Inspectors for all intents and purposes is an appointment through examination.
12. By now, it is well settled law that principle of harmonization is to be followed while interpreting a statute. The law should be saved rather than to be destroyed and the courts must lean in favour of upholding the constitutionality of law keeping in view the rule of interpretation of statute that there is a presumption in favour of harmony and constitutionality of the legislative enactment, unless ex- facie, it is violative of the constitutional provision. Reliance is placed on "Syed Aizad Hussain and others v. Motor Registration Authority and others" (PLD '2010 Supreme Court 983), "Dr. Muhammad Aslam Khakhi v. The State and others" (PLD 2010 Federal Shariat Court 1), "Mian Asif Islam v. Mian Muhammad Asif and others" (PLD 2001 Supreme Court 499), "Arif Ghafoor v. Managing Director, H.M.C., Texila" (PLD 2002 Supreme Court 13), "Superintendent of Police, D.I. Khan and others v.
Ihsanullah" (2007 SCMR 562), "Muhammad 'Oa' v. District Officer, Sahiwal and another" (2011 SCMR 534) and "Government of Pakistan through Secretary M/o Finance and others v. Asif Ali and others"
13.While examining the vires of law, principle of "reading in" or "reading down" have been elaborated in the case, cited as "Province of Sindh through Chief Secretary and others v. M.Q.M. through Deputy Convener and others" (PLD 2014 Supreme Court 531) wherein the principle of "reading in" or. "reading down" has been elaborated in the following terms.
"Reading in" or "reading down" of a statute---Object and principles--At the time of "reading down" of a statute two principles had to be kept in view; first that the object of 'reading down' was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, could the statute remain functional; second, would the legislature have enacted the law, if that issue had been brought to its notice which was being agitated before the court.
14. Keeping in view the language and the object of these two enactments, I find the regulations, under challenge in addition and not in derogation to the Article 7(3c) (a) of Police Order, 2002. It is being substantiated by the language of 7(3c) (a) wherein it has been explicitly provided that 25% departmental promotion to the rank of Sub-Inspector shall be filled through selection on merit by Punjab Public Service Commission.
15. Another argument advanced by the learned counsel for the petitioner is that in terms of Punjab Public Service Commission Functions Rules, 1978, the Commission shall conduct test and examination falling in Grade 16 to 22 whereas the case of the petitioners pertains to Grade 11 to 14, therefore, it falls out of purview of the Punjab Public Service Commission. This argument is nullified because petitioners themselves have relied on Article 7(3c)(a) of the Police Order, 2002 whereas said Article explicitly provides that the test for the promotional examination quota shall be conducted by the Punjab Public Service Commission and no one can be allowed to approbate and reprobate in the same breath. Reliance is placed on "M/s. Home Comforts v. Mirza Rashid Baig and others" (1992 SCMR 1290).
16. Moreover, notification issued by Secretary (Regulations) S&GAD, Government of Punjab , bearing No,SOR-III (S&GAD) 2-41/2009 dated 01.05.2016, reads as under:- "In supersession of this department's Notification bearing No,SOR-III(S&GAD)2-8/2009 dated 26.01.2010 and under the provisions of Rule-16 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with Rule-3 of the Punjab Public Service Commission (Functions) Rules, 1978, the Governor of the Punjab is pleased to direct that the initial recruitment to posts in BS-11 to BS-15 of the following departments/attached departments shall be made on the recommendations of the Punjab Public Service Commission.
1) Services and General Administration 2) Revenue 3) Finance 4) Police"
17. Yardstick which is predominant while examining the vires of a statute is that it must be in conformity with the constitutional provision with reference to the fundamental rights of a citizen.
Reliance is placed on the case reported "Dr. Mobashir Hassan and others v. Federation of Pakistan and others" (PLD 2010 Supreme Court 265). In case of "Younas Abbas and others v. Additional Sessions Judge, Chakwal and others" (PLD 2016 Supreme Court 581), the afore-referred principle was affirmed by the Larger Bench of the Apex Court wherein it has been reiterated that provision of law could be declared ultra vires if it was violative of the provisions of the Constitution.
18. Another aspect of the case is that according to Policy Decision No,16.6 of Punjab Public Service Commission Policy Decisions-2016, number of chances for written test/examination are as under:- "16.6 Number of Chances for written examinations.
Unless otherwise prescribed by the Government, a candidate appearing in Written Test/Examination/Interview shall be allowed to avail three chances only for each particular written test/examination/interview irrespective of the type or categories of posts grouped in the Examination."
19. This policy decision has been taken at the strength of Punjab Public Service Commission Regulation No,3 which read as under:- "The Commission may make policy decisions to specify detailed procedures for activities of the selection process and matters consequential, incidental and ancillary. Such decisions shall be incorporated in the Manual of Policy decisions."
20. It is a settled principle of law that policy decisions are not interfered by the Courts under the constitutional jurisdiction unless found arbitrary, unconstitutional and against the public interest.
Reliance is placed on "Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others" (PLD 2014 SC 1),"Messrs Al-Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others" (2011 SCMR 1621) and "Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others"
21. Nutshell of afore-referred dictums of the Superior Courts is that a law could be struck down as ultra vires, if it is repugnant to Constitutional provisions or some other statute, if it is in conflict with the parent act itself and if it is not reasonable and opposed to the public policy. Even otherwise, every legislation is subject to judicial review under the constitutional jurisdiction and can be struck down on the ground that the statutory procedure prescribed has not been followed. Petitioner has failed to point-out any of the afore-referred grounds on the basis of which the regulations under challenge could be declared as ultra vires.
22. Since the petitioners have thrown challenge to the regulations with particular reference to the promotional quota, therefore, at this stage it has to be examined that as to whether the petitioners could claim promotion as vested right, particularly, when they have already been allowed to avail three chances. The answer is in negative. Reliance is placed on the case of "Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others" (2015 SCMR 269) and "Finance Secretary, Government of Pakistan, Islamabad and 2 others v. Shahid Hussain and others" (1992 SCMR 77) wherein it has categorically been laid down that promotion cannot be claimed as a vested right. To be more precise, no candidate has a vested right to be governed by any particular set of rules. Reliance is placed on "Mumtaz Ali Bohio and 24 others v. Federal Public Service Commission through Chairman at Islamabad and another" (2002 SCMR 772).
23. The rationale and the legislative intent behind a restriction of availing not more than three chances amongst the serving Assistant Sub-Inspectors and Head Constables was to give an opportunity to other employees who are performing their duties in the department and also to avoid an endless exercises on the part of unsuccessful candidates.
In view of what has been discussed above, this Court is not persuaded to hold that the impugned regulations Nos,33 and 34 of Punjab Public Service Commission Regulations, 2016 are ultra-vires to the Constitution or any other law. Therefore, instant petition does not succeed and is dismissed. No order as to costs.