ABID AZIZ SHEIKH, J. Through this constitutional petition, the petitioner is seeking direction against the respondents to appoint the petitioner against the post of Sub-Inspector in Punjab Police against service quota of Sahiwal Region. The petitioner has also challenged the vires of the relevant rules and advertisement dated 30.07.2017, whereby three years' experience for promotion to post of Sub-Inspector has been prescribed.
2. Relevant facts are that on 30.07.2017, the posts of Sub Inspector (BS-14) in service quota were advertised in which closing date was 15.08.2017. The petitioner , who is Head Constable, cleared the written test, however , was not recommended for appointment against post of Sub-Inspector on the ground that the petitioner does not fulfill the required three years' service experience. The petitioner being aggrieved has filed this Constitutional petition.
3. Learned counsel for the petitioner submits that in the impugned advertisement dated 30.07.2017, for the post of Sub-Inspector (BS-14) three years' service experience as Head Constable or Assistant Sub-Inspector , in the functional unit has been prescribed, which condition is against the provisions of the Punjab Police Order (Amendment) Act, 2013 (Act) . He submits that under Section 2(3c)(a) of the Act, the promotion to the post of Sub- Inspector (BS-14) shall be made through selection-on-merit by Punjab Public Service Commission, from officers holding bachelor 's degree in the rank of Head Constable or Assistant Sub-Inspecto rs, however , no experience has been prescribed under the Act. He submits that condition of three years experience has been introduced in the Sub-Inspectors and Inspectors (Appointm ent and Condition of Service) Rules, 2013 (Rules) , which being beyond the scope of the Act is ultra vires of law. He placed reliance on PLD 2011 Supreme Court 619 (SUO MOTU CASE No.13 OF 2009), 2003 SCMR 370 (PAKIST AN through Secretary Finance, Islamabad and 5 others versus ARYAN PETRO CHEMICAL INDUSTRIES PVT.) LTD., PESHA WAR and others), 2016 SCMR 550 (NATIONAL ELECTRIC POWER REGULA TORY AUTHORITY versus FAISALABAD ELECTRIC SUPPL Y COMP ANY LIMITED), 1985 SCMR 365 (MIAN ZAIUDDIN versus PUNJAB LOC AL GOVERNMENT and others) and 2013 SCMR 363 (M. NAZIR AHMAD versus MUHAMMAD ASLAM and others). He further submits that in any case, the petitioner was appointed as Head Constable on 18.09.2014 and on the date of interview i.e. on 19.09.2017, the petitioner already attained the required three years' experience, hence could not be denied promotion.
4. Learned Law Officer, on the other hand , submits that the Rules are neither in conflict to the Act nor the same are going beyond the scope of the Act. He further submits that on the closing date, the petitioner did not fulfill the required experience, hence could not be promoted against the post of Sub-Inspector .
5. Arguments heard. The first legal question require determination in this case is that whether three years' experience prescribed in the advertisement dated 30.07.2017 for the post of Sub-Inspector based on rules is against or beyond the provisions of the Act. For convenience, the relevant Section 2(3c)(a) of the Act is reproduced hereunder:- "(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; For ease of reference, relevant Rule providing minimum qualification for appointment/promotion against the post of Sub-Inspector (Service Quota) is as under:- i) Graduate from a recognized university; and ii) Three years' service as Head Constable or Assistant Sub-Inspector in the functional unit.
The plain reading of the Section 2(3c)(a) of the Act shows that promotion to the rank of Sub-Inspector against 25% departmental promotion quota shall be made through Public Service Commission amongst officers holding bachelor 's degree in the rank of Head Constable and Assistant Sub-Inspector , however , the above-said provision is subject to Rules. The perusal of the relevant Rules supra shows that beside Graduate from recognized University , the Head Constable or Assistant Sub-Inspector must have three years' experience.
6 There is no cavil with the settled law in afore-noted judgments (referred by petitioner 's learned counsel) that Rules framed under an enactment must be consistent with the provision of said enactment and if rule goes beyond what the section contemplates, the rule must yield to the Statute, however , the situation is different here. When Section 2(3c) of the Act itself say that same is subject to Rules, then it cannot be said that experience prescribed in the Rules are beyond the scope of the Act. The situation would have been differen t, if the provision of the Act was exhaustive and provided the entire requisite qualifications and was not made subject to the Rules. By rendering provision of the Act subject to rules, the legislation in its wisdom, left certain details to be decided by the rule making authority and if any additional criteria is prescribed in rules, it cannot be said that same is beyond the scope of the Act. The reason to give precedent to rules is also not difficult to understand because what qualification and how much experience is required for a particular job, can best be decided by the rule making authorities, as they have the technical expertise and know how about the job.
7. The similar proposition was discussed by the Hon'ble Supreme Court of Pakistan in the case of JALAL DIN AND OTHERS versus (I) Sheikh MUHAMMD RAFIQ, etc. (PLD 1965 Supreme Court 261). In the said case, the provision of Section 31(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act of 1958) , provided that "subject to the provisions of the Act and Rules", the Chief Settlement Commissioner by Notification could delegate the powers under the Act to any Settlement Commissioner or Additional, Deputy or Assistant Settlement Commissioner . The Hon'ble Supreme Court of Pakistan while interpreting the word "subject to provisions of the Act and Rules" held that "The intention obviously was that even by rules this power may be curtailed and that is why the words "or rules made thereunder were added. In the face of these words it is clear that a provision in the rules curtailing the power granted by section 31(2) would be binding". Similarly , in the case of BAHADUR YAR JANG COOPERA TIVE HOUSING SOCIETY LTD. versus FEROZE SHAMSI and others (PLD 2010 Supreme Court 1058 ), where section 17-B of the Cooperative Societies Act, 1925 (Act of 1925) , makes the "membership" subject to Rules, the Hon'ble Supreme Court of Pakistan held that Act itself has bestowed precedent to the Rules framed under the Act. The relevant observations are reproduced hereunder:- "15. A bare perusal of the provisions of the said section 17-B which make the membership subject to the rules and of the definition of the word "member", would demonstrate that the present is one of those situations where the Act itself has bestowed precedence on the "Rules" framed under the Act and upon the "Bye-laws", in the matter of admitting persons to the membership of a co-operative society . The reason is not far to find because the philosophy culminating to the Co-operative Societies Act of 1925 was to encourage people to voluntarily come together for attainment of common economic and social interests and for achieving better , standards of living on self help basis and on basis of mutual assistance."
8. The word "subject to" was also discussed in the case of K. R. C. S. Balakrishna Chetty and Sons & Co., v.
The State of Madras (AIR 1961 SC 1152) and the Supreme Court held that the use of the word "subject to" has reference to effectuating the intention of the law and the correct meaning in our opinion is "conditional upon". In 1992 SCMR 90, (in the matter of show-cause notice against Mr. Yusuf Ali Khan Advocate Supreme Court), the Hon'ble Supreme Court of Pakistan discussed the provision of section 28 of the Legal Practitioners and Bar Councils Act, 1973 (Act of 1973) which made a person qualified to be an Advocate subject to Act and Rules and held that "no person shall call himself or hold himself out as an Advocate of the Supreme Court until he has signed the role of advocates under the Rules of the Supreme Court". The law settled in above case law is that where the Act itself gives precedent to the Rules framed under the Act, the same cannot be held ultra-vires of the Act, if some additional qualifications are prescribed therein.
9. The next argument of the learned counsel for the petitioner that the petitione r had already completed three years' experience, hence was qualified to be appointed against the post of Sub-Inspector , is also misconceived. In the advertisement dated 30.07.2017, the closing date for submission of requisite documents was 15.08.2017 and the petitioner being appointed as Head Constable on 18.09.2014 did not complete his three years' service experience on the above closing date. The relevant date to reckon the experience as prescribed in the advertisement was the closing date in the advertisement and not the date of interview .
10. In view of above discussion, this petition being meritless is dismissed.