MUJAHID MUST AQEEM AHMED, J.----By filing instant writ petition, the petitioner has made following supplication:- ... the impugned order dated 01.09.2016 passed by respondent No.1 may kindly be declared not only against law laid down by the superior Courts but also in violation of the direction vide order dated 25.04.2016 Annex-E, made by this Hon'ble Court and cannot be sustained and quashed with the direction to the respondents Nos.1 to 3 to accommodate/appoint the appellant/petitioner as SSE by calculating the age of the petitioner accordingly ."
2. The concise facts of the case highlighted in this writ petition and during arguments are that the petitioner was working as E.S.E. on contract basis in Education Department District Vehari since 15.02.2002 and in response to the advertisement in newspaper dated 28.09.2008, the petitioner applied for the post of S.S.E. for school specific (detailed in para No.2 of the petition). On the cut-date of submission of application, the petitioner was thirty five years and five months of age, but he was not extended benefit of Rule 3(V) of The Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (the Rules, 1976) and his candidature was excluded from the recruitment process. The petitioner approached this Court by filing Writ Petition No.3122 of 2009 and vide order dated 25.04.2016 copy of the petition was remitted to the Secretary Education School, Punjab Lahore to treat it as representation of the petitioner and ensure its fair decision, but the request of the petitioner for age relaxation under the above Rules, 1976 was declined vide order dated 01.09.2016 while observing as under:- "4. AND WHEREAS , it revealed from perusal of the record that petitioner being contractual employee applied against the post of SSE in four different schools. Being over age, his application for appointment against the post of SSE was not considered. His contention for relaxation in upper age limit under Rule 3(V) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 is not justified as the petitioner being a contractual employee in the year 2008-09 was not admissible for the relief. As regard counting of contract service towards age relaxation for contract employees, vide circular dated 19.01.2012 issued by Govt. of the Punjab S&GAD, it can not be implemented retrospectively . Further all the 04 posts advertised under Recruitment Policy 2008-09 have already been filled through candidates on merit.
5. NOW THEREFORE, I, Secretary School Education hereby reject the representation of the petitione r, being devoid of merit and against the rules/policy ."
3. The petitioner has approached this Court with the prayer of striking down the above impugned order with the direction to the competent authority to appoint the petitioner as S.S.E.
4. Requisite reply to this writ petition has not been submitted by the respondents.
5. Arguments heard. Record perused.
6. The only moot point before this Court is that the petitioner being contract empl oyee is entitled to the benefit of The Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (the Rules, 1976) or not. For ready reference relevant Rule 3(V) of the Rules, 1976, as added by the Governor of Punjab on 14.06.1982, is reproduced as under:- "In the case of a candidate already workin g 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."
7. Bare perusal of the above rule indicates that benefit of age relaxation under the Rules, 1976 has been extended to the "government servant" for exclusio n of his period of continuous service for the purpose of upper age limit prescribed under any service rules of the post, for which he is candidate.
8. The version of learned Law Officer is that the petitioner does not fall within the definition of civil servant as defined in Section 2(b) of The Punjab Civil Servants Act, 1974 (the Act, 1974) and as such the petitioner is not entitled for any benefit of age relaxation under the Rules, 1976 framed under Section 23 of the Act ibid. To my view this contention of learned Law Officer does not hold field and is not fair and proper interpretation of the Rules, 1976. In Rule 3(V) of the Rules, 1976 the term "Government Servant" and not "Civil Servant " has been used with reference to the benefit of continuous service for age relaxation purpose. The learned Division Bench of this Court in case Punjab Government and others v. Saleem-ur-Rehman and others (1985 PLC (C.S.) 112) while interpreting the above statutory rule has held as under:- "11 ....It is to be noticed that the expression "Civil Servant " as defined in the Punjab Civil Servants Act does not include all employees of the Provincial Government as it excludes from its ambit persons employed on contract or paid out of contingency or those who are 'workers' or 'workermen' within the meaning of the Factories Act or the Workmen's Compensation Act. Had the expression "Civil Servant" been used in the new clause the persons so excluded would not have been able to take advantage of a benefit which the Provincial Government intended to confer upon all its employees. There was thus a definite advantage in drafting the new clause in the manner as it at present stands worded.................................................................."
As referred in impugned order , vide Notification No.DS(O&M) 5-3/2004/CONTRACT(MF) dated 19.01.2012 on the subject of "Contract Appointment Policy , 2004 (Age Relaxation in Upper Age Limit), the competent authority has extended benefit of age relaxation allowed in The Puniab Civil Servant Recruitment (Relaxation of Upper Age Limit)
Rules, 1976 (the Rules, 1976) and the Punjab Delegation of Powers (Relaxati on of Age) Rules, 1961 to the contract employment. Thus under the above amendment in contract employment policy , 2004, the petitioner is entitled for age relaxation under the Rules, 1976. No doubt the notification was issued in the year 2012, but being beneficial to contract employees, its benefit should be given to the all contract employees and they should not be discriminated. By issuance of above notification the Govt. of Punjab has extended benefit of the above beneficial Rules to the contract employees as well. Whereas the liberal interpretation of term "Government Servant" referred in Rule 3(V) of the Rules, 1976 already includes the contract employee. Had the Rules making authority intended to extend benefit of this Rule to "Civil Servants" only, it could have used these words in explicit terms in the said Rule. The term "Govt. Servant" connotes all Govt. Servants including "Civil Servants" and not vice versa.
9. In case "Shahid Akhtar and another v. Secretary , School Education Department, Government of Punjab, Lahore and 2 others " (2012 PLC (C.S.) 851 ), this Court has held as under:- "5. Having already re-coursed to the Hon'ble Provincial Ombudsman, the petitioners are not disentitled to invoke the constitutional jurisdiction of this Court. The Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit)
Rules, 1976, referred by the petitioners manifestly clarify that in a case of government servant applying for a post, the period of his continuous service, for the purpose of computation of upper age limit, shall be excluded. The petitioners being already in government service are entitled to this exclusion. This right of a government employee can press into service seeking any further employment either on contractual or permanent basis. The policy letter dated 23- 8-2008 referred by the learned A.A.-G, has no significance as in hierar chy of law, the rules referred by the learned counsel sit at a higher pedestal as compared to the Policy Letter referred by learned A.A.-G. The petitioners are held to be entitled for the relaxation in their upper age limit. The period of their continuous service for the purpose of computation of upper age limit be excluded..."
In another case "Saghir Ahmad Naqi v. Government of the Punjab through Secretary Hom e (Prisons)
Department, Lahore and another" (2005 PLC (C. S.) 1409), it has been held as under:- "4. The submissions made have been considered. Not only the 1976 Rules referred to above stand protected even by the Recruitment Policy aforesaid but also that a statutory rule could not be abrogated by an executive instruction. The question was considered by me in the case of Muhammad Qasim and 6 others (supra) and the view taken was that the benefit of rule 3(V) was available to a candidate in Government service. It was also held that the aforesaid rule was a beneficial dispensation and is to be interpreted in a manner so as to advance the remedy . It may also be observed that rule 3(V) contemplates computation of upper age limit and not relaxation of upper age limit.
5. Accordingly , the rejection of petitioner's candidature is declared as without lawful authority and the Punjab Public Service Commission is directed to consid er the candidature of the petitioner by computing the upper age limit in accordance with Rule 3(V) of the aforesaid 1976 Rules, of course, after satisfying itself as to the claim of the petitioner for continuous Government service from 7-1 1-2000."
Similar view has been taken by this Court in case "Sajid Aziz v. Secretary Schools and others" (2014 PLC (C.
S.) 464) 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 ).
10. Moreover , it is well settled that policy or notification could not override statutory rules framed by the government under the statue and the executive instructions and policies could not amend statutory rule. Reliance is placed on case "Arif Hussain Dar v. Board of Revenue through Secretary , Muzaf farabad and 5 others" (PLD 2002 Azad J&K 14) and " Saphire Energy Limited and 10 others v . Pakistan and others (2001 PTD 2234 )"
11. The resume of above discussion is that the petitioner being government employee, under the Rules, 1976 is entitled for age relaxation and refusal of such right on the part of the selection committee/competent authority is against law/rules and as such the petitioner has been discriminated.
Consequently the instant writ petition is allowed and the impugned order dated 01.09.2016 passed by respondent No.1 is set aside with the direction to respondents Nos.2 to 4 to extend benefit of Rule 3(V) of The Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 to the petitioner towards age computation for the above post and if he succeeds on merits, he be issued appointment letter against the above post within thirty days from the date of receipt of order , of this Court, without disturbing the appointment and seniority rights of candidates already appointed against the said post.