MUHAMMAD SHAN GUL, J .--- Through this judgment, the titled Constitutional petition is sought to be decided.
2. This petition challenges administrative instructions-cum-advice dated 06.5.2021 emanating from the S&GAD of the Province of Punjab on account of which the petitioner has been denied the facility and benefit of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rule's, 1974. In terms of Rule 17-A, one child of a Government servant who dies while in service or is rendered physically incapacitated or invalidated is offered a job without the observance of procedural formalities, by way of af firmative action.
3. The father of the, petitioner namely Munir Ahmed, Naib Qasid retired from government service on 11.09.2020 on the ground of incapacitation/invalidation in category-B. His son, Muhammad Waleed, the petitioner , was appointed as a Naib Qasid in BPS-I in terms of Rule 17-A on 29.12.2020. Ever since,, he was performing his duties but on account of a clarification issued by the Regulations Wing of S&GAD by means of the instructions, it has been ordered that government servants who were declared incapacitated or invalidated from government service in medical category '13' cannot be given the benefit of Rule 17-A and any benefit extended to the legal heirs of such persons was to be withdrawn. The petitioner claims that ever since the issuance of such notification dated 06.5:2021, the petitioner is not' being allowed to join duty and is not even being given any salary .
4. The notification of the Regulations Wing is being reproduced below for facility of reference:--- "2. The matter has been examined in the Regulations Wing, S&GAD and it is obse rved that no specific category of invalidation/incapacitation in mentioned in Rule- 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However , retirement on medical grounds in category B does not fall in the type of permanent disability/invalidation. Hence' , the Regulations Wing, S&GAD is of the view that children/wife of the officials who retired on medical grounds in category "B" are not entitled to get the benefit of job under Rule 17-A. There is tendency of getting oneself declared invalidated on the verge of retirement so that a child may get employment under Rule-17A. There is need to curb this misuse of the facility under the Rule ibid. Hence, it is informed that a committee has been constituted by the Chief Secretary to formulate recommendations regarding implications of Rule 17-A ibid. As and when its recommendations are received, the same would be updated. "
5. After having explained the factual matrix of this matter in the preceding nonnative, a reading of Rule 17-A may be in order:--- " I7-A. Notwithstanding anything contained in any rule to the contrary , whenever a Civil Servant dies while in service or is declared invalidated/incapacitated for further service, anyone of his unemployed children 'may be employed by the Appointing Authority against a post to be filled under rules 16 & 17 for which he/she possesses the prescribed qualifications and experience-and such child may be given 10 additional marks in the aggregate by the Public service Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above.
Provided further that one child of a government who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BSI to 5 in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure.
Provided such child is otherwise eligible for the post."
6. The most stark and conspicuous highlight of this Rule is that it does not in any manner create any divisions or classes of incapacitation or invalidation. And, interestingly this is exactly what the notification dated 06.05.2021 also acknowledges but then goes astray! But more of this later!
7. The learned Assistant Advocate Gene ral assisted by departmental representatives present in the Court was asked to assist the Court and he has stated that all medical conditions are not at par and that while some medical conditions are serious, there are other medical conditions that are not as serious and, therefore, has just tied the creation of a distinction based on categories "A" and "B". He has also argued that the Regulations Wing of S&GAD is responsible for explaining and amplifying Rules made by the government and, therefore, by issuance of the instructions dated 06.05.2021, it has clearly amplified the application of Rule 17-A. He has also referred to a judgment passed by a learned Division Bench of this Court reported as "Market Committee, Sa' him/. al v. Syed Zaigham Ali and others" (2012 PLC(C. S.) 319) to canvass that the Regulations Wing is well within its rights to have issued the clarification/notification. The learned Law Officers as also the departmental representatives have been repeatedly asked about the legal provenance of these administrative instructions, about how in the present of
(sic) Rule 17-A reliance can be placed on such administrative instructions-cum-advice and how these instructions can dilute the effect of a beneficial rule. Unfortunately , nothing more than mere rhetoric has been offered in reply . In fact, the departmental representatives have tacitly , albeit correctly , admitted that such administrative instructions can be ef fective only if these are adopted and incorporated in Rule 17-A by way of amendment of the Rule.
8. I have heard the learned counsel for the parties at length and have perused the available record.
9. It may be useful to mention here that Rule 17-A was originally not a part of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. ft is only in the year 1987 that Rule 17-A in its un-amended form was added to the Rules, The Rule in its original form was quite narrow and strictly framed. However , gradually over the years the reach, ambit, sweep and scope of the Rule has been considerably and consciously widened so as to reflect a much more beneficial intent, which is in line with the original rationale for introducing such a beneficial. Rule. Here is a brief background of the Rule:-- Rule 17-A of the Punjab Civil Servants {Appointment and Conditions of Service) Rules, 1974 was added vide Notification No. SOR-IV (S&GAD) 152/86, dated 25.12.1987 (Annex-I). The said proviso reads as under:--- Notwithstanding anything contained in any rule to the contrary , whenever a civil servant dies while in service any one of his unemployed children may be employed by the Appointing Authority against a post to be .filled under rules 16 and 17 for which he possesses the prescribed qualifications and experience and such child may be . given to additional marks in the aggregate by the Punjab. Public Service Commission or by the appropriate Selection Board or Committee, provided he otherwise qualifies in the lest, examination and/or interview . The said rule was amended vide notification dated 14.10.1989 as under:--- Notwithstanding anything contained in any rule to the contrary , whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, any one of his unemployed children may be employed by he Appointing Authority against a post to be filed under rules .16 and 17 for which the possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Commission or by the appropriate' Selection Board or committee, provided he otherwise qualifies in the test, examination and/or interview . The rule ibid was further amended vide notification dated 28.08.1993 which provides as under:-- Notwithstanding anything contained in any rule to the contrary , whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above.
Provided further that only one child of a government servant who dies while in service or is declared invalidated or incapacitated for further service shall be provided a job against posts in BS-1 in the department in which the deceased Government Servant was working, without observance of formalities prescribed under the rules/procedure, provided such child is otherwise eligible for the post.
The said rule was further amended vide notification dated 12.04.2003 by inserting the words or his widow/wife" and or widow/wife" and the widow/wife" added respectively .
The rule was further amended vide notification dated 05.01.2018 to insert the words "and the posts of Junior Clerk".
The said rule was substituted vide notification dated 24.09.2008 as under:-- Notwithstanding anything contained in any rule to the contrary , whenever a civil servant dies while in service or is. declared invalidated/incapacitated or further service, one of his unemployed children or his widow/wife may be employed by the. Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above. Provided further that only one child or widow or wife of an employee who dies during, servic e or is declared invalidated or incapacitated for further service, if otherw ise, eligible for the post, shall be appointed to a post in BS1 to BS-1 1 in the department where the Government servant was serving at the time of the death or the declaration, without observance of the procedural requirements prescribed for such appointment."
10. It is evident from the above that the scope and sweep of Rule 17-A has been widened horizontally as also vertically in that besides extending the basis of entitlement from death only to incapacitation and invalidation and enlarging those eligible and entitled from unemployed children to wife/widows as well, on the way also granting more respectability and improvement in grade and status, the Rule has indeed come of age, so to speak, and the special beneficial purpose and rationale behind insertion of Rule 17-A is much more conspicuous now. It may be mentioned here that the Rule is not based on largesse or state bounty since there is a consideration involved and which is bartering of years of service resulting in death or permanent incapacitation of the father or husband of a person who seeks benefit of 17-A. What is also evident is that the Rule begins with a non-obstante condition and, therefore, has to be applied and enforced to the exclusion of all other subordinate legislation, what to speak or instructions and notifications. On the face of it, the Rule does not specify any division, distinction, or bifurcation or categories or incapacitation or invalidation. Either one is incapacitated or not incapacitated. Likewise, invalidated or not. There is no such thing as being partly invalidated or being semi-incapacitated. The Rule is a beneficial Rule and has to be construed liberally and, of course, departmental instructions cannot be allowed to make inroads thereon. In fact, the instruction in the form of the notification of S&GAD also recogn izes this, stark fact. However , it even then goes on to justify the existence of categorization of incapacity and invalidation and its consequential effect on the extension of the benefit contemplated by Rule 17-A. This it does by taking into account an absolutely irrelevant consideration of possible misuse of the facility . This renders the notification illegal in the Wednesbury Sense (aka Lord Greene in wednesbury Corporation 1948 (1) KB 223). Even the aim is an improper one so as to attract Wednesbury principles. Improper purpose, misdirection in law, taking into account an irrelevant consideration, are all instances and grounds of judicial review which were then catalogued by Lord Diplock under the heads "illegality , irrationality , procedural propriety and proportionality" (GCHQ case l98.5 AC 374). these are acknowledged and judicially approved grounds for a successful application for judicial review . In the matter before this Court, the notification suffers from not only being in furtherance of an improper motive since the Rule does not allow any such purpose or motive to be taken into consideration and also because the notification takes into account an irrelevant consideration that is blatantly utilitarian but also goes beyond the scope of the Rule, the very Rule it seeks to amplify and explain. More over, the entire purpose of he Rule is defeated by creation for categories at an administrative level. One does not need to think hard to suggest that if at all any bifurcation is to be, introduced in the rule then the same ought to be done by amending the Rule because the Rule in its present form does not allow any divisions or distinctions or for that matter creation of a class of persons within a class. To use a much-hackneyed clich, what Rule 17-A gives from one hand, the instructions of Regulations Wing dated 06.05.2021 try and take away with other . In any case, administrative instructions are neither laws nor rules and these can only be subservient to laws and rules and, therefore, cannot be allowed to dilute the facility or benefit afforded by Rule 17-A. (See "Hashwani Hotels Limited v. Federation of Pakistan and others" (PLD 1997 SC 315 at 329) and "Anoud Power Generation Limited and others v. Federation of Pakistan and others" (PLD 2001 SC 340).
11. A reference to precedents on the issue of Rule 17-A may be in order . A Full Bench of Lahore High Court in case reported as "Mst. Ubaida Manzoor v. Government of the Punjab through Secretary Education (Schools), Lahore and 4 others" (2021 PLC (C.S.) 101) has held at paragraph No. 5 as follows: "5. Under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The benefit is to be extended to a child of a civil servant, who dies during service or is rendered invalidated/incapacitated during service. No distinction is made in the said Rule between a son and a daughter . Again, there is no distinction between the married or unmarried son/daughter the clear and unambiguous object of this provision is to give relief to the bereaved family , who has been deprived of the bread earner . Discrimination on the basis of sex is violative to the fundamental right of equality of citizens as bestowed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise the narrower interpretation depriving a married daughter of such civil servant of the benefit given under Rule 17-A of the Rules ibid does not appeal to the rational mind as there may be an eventuality when the deceased leaves behind one married daughter and remaining minor children. If the daughter is not given the benefit then the family may not get any relief, which would be against the spirit of this benevolent provision of law, which appears to have been made for welfare of the bereaved families of the civil servants."
12. In "Miss Iffect Tahira v. Secretary Schools and others" (2010 PLC (C.S.) 1404 ) it has been held at paragraph No. 9 as follows:--- "...........................it is clear that purpose of Legislature to formulate the said rule is to provide help/assistance to one child of the deceased civil servant irrespective of being a boy or girl, married tm nun-married with the ultimate object to provide stability to the family of the deceased civil servant. Thus it cannot be curtailed 'in scope as has been interpreted by the respondents thus far ."
13. In "Mst. Sumaira v. District Coordination Officer/Chairman, District Recruitment Committee, Sargodha and 2 others" ( 2013 PLC (C.S.) 274 ) it has been held in paragraph No. 8 and 9 as follows:--- "Rule 17-A of the Rules ibid is aimed to provide a stop gap arrangement for the sustainability of a deceased government employee's family on compassionate grounds and its non-adherence in the Recruitment Policy for the year 2011 will be detrimental to the vested rights of the dependents of deceased/incapacitated civil servants bestowed upon them by the Rule 9 ibid. So far as the contention of the learned Law Officer - that this Court cannot interfere in the policy matters is concerned suffice it to say that recruitment policy is meant for the purpose of providing guidelines for making appointments and cannot attain the status of statuary rules or a law promulgated by an Assembly or Parliament Statutory Rules could not be modified or superseded by executive instructions."
14. In "Kalsoom Bibi v. Secretary Education and others" (2015 PLC (C.S.) 563) it has been held in paragraph No. 7 as follows:--- "There is no cavil with the preposition that departmental authorities are bound to implement the policies/decisions taken by the government from time to time but at the same time, the said power cannot be used to substitute language of a statute. As far as the case in hand is concerned, prima facie respondent No. 4 has tried to introduce interpretation of Rule 17-A ibid of his own choice. Such unbridled exercise of powers by respondent No. 4 and that too in contravention to the clear cut provision of a Statute cannot be approved rather deserves to be deprecated."
15. In "Ali Razzaq and others v. D.C.O. and others" (2015 PLC (C.S.) 1495 ), a case which is nearly identical to the matter in issue before this Court, it has been held in paragraph No. 10 as follows:--- "10. ... ...-...... Perusal of this provision of law makes it crystal clear that the same was made and subsequently amended only for beneficial purpose of a civil servant who is not in a position to render his/her services in the department and not otherwise."
16. In "Market Committee, Sahiwal v. Syed Zaigham Ali and others" (2012 PLC(C.S.) 319), a learned Division Bench of this Court has ruled at paragraph No. 6 as follows:-- "From a bare reading of section 17-A of Punjab Civil Service laws reproduced above it is clear that an unemployed child becomes eligible to be appointed in the place of his father only in case his father dies while in service or is declared invalidated/incapacitated for further service. In order to ascertain as to who is the competent authority authorized to determine whether or not an employee has become incapacitated, we have to go through the provisions of section 442 of Civil Service Regulation (Relating to Pension) which are reproduced below for the sake of reference:--- Section 442 "If an officer applying for an invalid pens ion is sixty years old or upwards, no certificate by a Medical Officer is necessary; it suffices for the head of the office to certify to the incapacity of the applicant. Otherwise incapacity for service must be established by a medical certificate."
This judgment does not advance the case of the respondent province but rather only establishes that incapacitation must be established by a medical certificate. This judgment does not say that the said medical certification should reflect divisions or distinctions or standards. Reliance of the learned AAG on this judgment is, therefore, misplaced.
17. What is, however , absolutely the fact that Rule 17-A is a piece of beneficial legislation. It is a Rule which purports to confer a benefit on a class of persons. Examples of such laws are public assistance laws, laws on unemployment relief, etc. It is trite that beneficial legislation should be interpreted in a purposive or teleological manner as opposed to the strict literal approach because such a purposive approach would advance the objects of such welfare legislation. This purpose-oriented approach encourages a liberal construction to promote its objects.
Words occurring in Rules of liberal import such as social welfare and unemployment relief Rules are not to be shrunk to Lilliputian dimensions. In constructing such Rules, the imposture of litera l construction must be avoided.
What is relevant is the color , the content and the context of such enactments. In the words of the Indian Supreme Court (1980 (4) SCC 443 Surrender Kumar) "Semantic luxuries are misplaced in the interpretation of bread and butter enactments." Welfare enactments must, of necessity , receive a broad interpretation. Where an enactment is designed to give relief to a particular group or class of persons, the Court is not to make inroads by making etymological excursions.
18. The raision d'etere behind insertion of Rule I 7-A is not hard to discern. It was specifically added in an already existing catalogue of Rules only to compensate and provide a bond of fate to one immediate family member of a government servant who either died or was rendered incapacitated or invalidated while in service. There is no other possible reason for the insertion of Rule 17-A. One question that arises in the present context is as to how 'administrative instructions or notifications that do not have the force of law be allowed to whittle down the effect and impact of the Rule. In fact, any notification or instruction that seeks to take away the benefit conferred by Rule 17-A borders on being exploitative within the meaning of Article 3 of the Constitution. It may also be viewed as an unnecessary incursion into the protection afforded by Articles 9 and 14 of the Constitution. It is trite that right to life not only denotes the right to a vegetative life but to a vibrant life in which basic facilities and amenities required for human and civil existence are accessible and available to a citizen. Likewise, a citizens' dignity which is secured by Article 14 of the Constitution will be compromised if administrative instructions are allowed to make inroads on his dignity .
19. In "Mst. Ubaida Manzoor v. Government of the Punjab through Secretary Educa tion (Schools), Lahore and 4 others" (2012 PLC (C.S.) 101) it has been held that the principle which regulates interpretation of statutes must be taken to regulate the interpretation of Rules as well. Any addition or subtra ction in the words used in such Rules was not desirable since the object of the Rules would be frustrated by such an exercise. Furthermore, executive instructions in the form of notifications or clarifications can have no bearing on the interpretation of statutory rules, nor can these be allowed to supersede statutory rules ("Babulal Chowdhry v. Editor and Publishers New Bharat" 1982 Jab LJ 230 ).
20. The Court must interpret statutory rules in accordance with the language used in the statutory rules and not get swayed by government departmental instructions ("Williams T acks v . Madras" MR 1935 Madras 656).
21. Even otherwise, administrative instructions or notifications which are not even delegated legislation in the strict sense cannot possibly be allowed to operate retrospectively so as to impair already accrued rights and benefits. On this count alone, the administrative instru ctions dated 06.05.2021 cannot possibly be sustained. In cases "Khan Asfandyar Wali and others v. Federation of Pakistan through Cabient Divison, Islamabad and others" (PLD 2001 SC 607) and "Adrian Afzal v. Capt. Sher Afzal" (PLD 1969 SC 187), it has been held that administrative instructions or rules cannot operate retrospectively so as to take away vested rights. The petitioner before this Court having already been gratned the benefit of Rule 17-A cannot retrospectively , by way of administrative instructions, be dealt a marked hand. It is the duty of the Court to interpret the beneficial provision liberally so as to give it a wide meaning rather than a restrictive meaning which would negate the very object of the Rule ("Madan Singh v. Union of India" 1999 (6) SCC 459). If this Court were to restrict the operation of Rule 17-A by allowing the administrative instructions to be read into it, the object of Rule 17-A will be negated. Such course of action is, therefore, not permissible. A beneficial Rule such as Rule 17-A has to be construed in its correct perspective so as to accentuate the intent behind its enactment. Socio-economic legislation enacted with the objection of social welfare is not meant to be interpreted narrowly so as to defeat its object.
22. For what has been discussed above, this Court is of the considered view that any administrative instructions or advice making inroads in the benefit afforded by Rule 17-A and that too retrospectively cannot be allowed to remain legally effective. These must be struck down so as to allow the beneficial Rule an un-interpreted holistic and wholesome existence.
23. This petition is allowed and respondents are directed to ensure that the petitioner is taken back on his post and he is paid the salaries accordingly . The administrative instructions contained in notification dated 06.05.2021 are struck down as being violative of Rule 17-A. No order as to costs.