WIQAR AHMAD, J. This order is directed to dispose of the petition filed by petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Petitioners have contended in their writ petition that they were appointed as Khasadars/ Sepoys (BPS-1) in Bajaur Levies on 01.05.1996 and 26.08.2 009. Later , petitioner No. 2 was promoted to the rank of Naik. They have further contended in their writ petition that after promulgation of 25th Const itutional Amendment, Federally Administered Tribal Areas were merged in the Province of Khyber Pakhtunkhwa and all laws of the land were extended to those areas. To regulate and maintain the Khasadar Force, the Government of Khyber Pakhtunkhwa has promulgated the Khyber Pakhtunkhwa Khasadar Force (Maintenance, Regulation and Protection of Service)
(Transition) Ordinance, 2019 (hereinafter referred to as the "Ordinance" ) on 12.03.2019. They have further contended in their writ petition that vide letter dated 04.04.2019, the Worthy Chief Minister has issued direction for merger of all the levies and Khasadar Force of the merged areas into Khyber Pakhtunkhwa Police within six months. Thereafter , the Khyber Pakhtunkhwa Khasadar Force Act, 2019 (hereinaft er referred to as the "Act" ) was also promulgated by Government of Khyber Pakhtunkhwa vide Notification dated 16.09.2019. Rules were also made there-under , whereafter the Provincial Police Officer Khyber Pakhtunkhwa vide Notification No. 4476/GB dated 29.05.2019 has also re-designated the ranks of Levies and Khasadar Force for the purpose of their absorption in the Khyber Pakhtunkhwa Police. They have further contended that in pursuance of Section 5 of Act as well as Rule 3 of the Khasadar Force (Absorption in the Khyber Pakhtunkhwa Police) Rules, 2019 (hereinafter referred to as the "Rules"), all the members of Khasadar Force of Bajaur Tribal District were absorbed with effect from the date of their initial appointments vide Notification No. SO(Police)HD/SMY 2019 Merged Area/172-82 dated 10.02.2020. They have further contended in their writ petition that neither they, have been terminated from service nor retired under the Khyber Pakhtunkhw a Khasadar Rules, 1950 but they were informed that on attaining the age of 50 years as Khasadar , they had been retired from service under Rule-7 of the amended Service Rules of Khasadars in FATA w.e.f. 31.12.2019 vide Office Order dated 01.01.2020. Feelin g aggrieved from order of their retirement, petitioners have approached this Court through the instant constitut ional petition with the following prayer; "It is therefore, most humbly prayed that on acceptance of this petition with costs the impugned office order dated 01.01.2020 regarding compulsory/pre-mature retirement from service may graciously be declared illegal and without lawful authority and be set aside, quashed moreover the respondents may kindly be directed to allow the petitioners like other similar placed employees/members of the force to complete their 60 years statutory service for the ends of justice.
Or Any other relief which this Hon'ble Court deems fit and appropriate may also be granted in favor of the petitioners against the respondents.".
3. Comments of respondents No. 1, 3 & 4 were called, which were accordingly filed. It was contended therein that petitioners were not eligible for absorption and had been retired from their services by the competent authority under Rule-7 (i) of amended Service. Rules for Khasadars in F ATA.
4. Arguments heard and record perused.
5. Perusal of record reveals that all the petitioners have been ordered to be retired from service vide office order dated 01.01.2020 w.e.f. 31.12.2019 (A.N) of the District Police Officer Bajaur at Khar. The age of retirement given in the Rules for Naik, Lance Naik and Havaldar had been provided as 50 years of age or twenty five years of service, whichever is earlier . Petitioners have been contended that since an age of sixty (60) years had been provided for civil service of the Province of Khyber Pakhtunkhwa as the date of superannuation, therefore their age of superannuation should be considered as 60 years instead of 50 years and they should accordingly be dealt with.
Cases of the petitioners, as argued by their learned counsel had been that once they got absorbed in the Police Force of Khyber Pakhtunkhwa on the dent of the Ordinance and then on promulgation of the subsequent Act, their retirement could not have been ordered under the amended Service Rules of Khassadars in FATA. Learned counsel appearing on behalf of petitioners has mainly contended that the order of retirement had been issued on 01.01.2010, i.e. after promulgation of the Act and that petitioners had therefore been prejudiced in their rights relating to their service as regular policemen under the Government of Khyber Pakhtunkhwa, in violation of the Act.
6. We do not find such assertions of learned counsel for petitioners having any force. Section 3 of the Act provided for reconstitution, regulation and maintenance of the Khasadar force. Said section being relevant is reproduced hereunder for ready reference; "3. Re-constitution, regulation and maintenance of the Khasadar Force.---
(1) On commencement of this Act, the Khasadar Force, shall be re-constituted, regulated and maintained by Government in accordance with the provisions of this Act and shall be known as the Khyber Pakhtunkhwa Khasadar Force, consisting of all existing strength of its members.
(2) The Khasadar Force shall be organized in senior ranks and junior ranks officers and officials.
(3) The senior rank officer shall consist of Commandant, who shall be District Police Officer , having additional charge of the Commandant in the district, while the junior ranks shall consist of the following; a) Subedar Major; b) Subedar; c) Naib Subedar; d) Havaldar; and e) Khasadar .
Section 10 of the Act provided for the powers of the Government to make rules for carrying out purposes of the Act.
Section 11 of the Act has given overriding effect to provisions of the Act over any other provision of law, which may be found covering the subject. Section 14 of the Act had provided for repeal of the Khyber Pakhtunkhwa Khasadar Force Ordinance, 2019.
7. Clause (a) of subsection (2) of Section 13 of the Act has provided that existing terms and conditions of service of the Khasadar Force unless amended through a substitute rules or instrument, would not be effected by promulgation of the Act or any provision thereof, unless specifically provided otherwise. Rules have no doubt been framed under section 10 of the Act but the new rules have not totally repealed the earlier rules. Rule-7 of the new rules provided that all rules, orders or instructions etc, in force in respect of the Khasadar Force immediately before the commencement of the Rules would be deemed repealed, so far as those rules orders or instructions were inconsistent with the new rules. It means that the earlier rules would also hold the field except in cases of inconsistency with the new rules. No period of retirement has been provided in the new rules. Had the new rules provided any age of retirement other than the one provided in the earlier rules, the new rules would have repealed the earlier provision in this respect but since this is not the case, therefore the earlier provision of retirement of age would continue to hold the field. Clause (a) of sub-rule 2 of Rule-7 has also provide d for saving any right, privilege, obligation or liability acquired, accrued on incurred under the repealed rules, orders and instructions. Neither the Act nor any rules framed under the Act has provided that the age of superannua tion shall be considered as 60 years instead of 50 years (as provided in the earlier rules). Inconsistency vis--vis date of superannuation given in the earlier rules, has not been forthcoming from the new dispensation provided for regulating Khasadar Force.
8. It is a force reconstituted, maintained and regulated under section 3 of the Act, by the Government of Khyber Pakhtunkhwa but it does not mean that merely by providing thereof all the laws relating to civil service of the Province had become ipso-facto applicable to them. Forces are always regulat ed under their respective legal dispensation. The Khasadar Force had earlier been serving under the Federal Government but they have never been treated under the Civil Servants Act, 1973. Same is the case here, where we find no mention of the fact that Khasadar Force shall be dealt with under the laws relating to civil service of the Province in respect of their terms and conditions of service. They have their own law and the earlier rules regulatin g their service have been given protection, unless new rules are framed by the Government regulating services of the Khasadar Force. Same was the case with the Ordinance, where in its clause (a) of subsection 2 of Section 12, it had been provided that the existing terms and conditions of service of the Khasadar Force would continue unless amended through a substitute rule or instrument. There had not been any subsequent amendment in the rule or instruments providing for a dif ferent age of superannuation or retirement of the petitioners.
9. One of the grounds of attack of the petitioners regarding the impugned order of retirement had been related to giving it a retrospective effect. The retirement order has been issued on 01.01.2020 w.e.f. 31.12.2019. There is no dispute regarding date of birth of petitioners in the instant proceedings. It is also not disputed that petitioners had not attained the age of 50 years on the date of their retirement shown in their order . The reason that their retirement order could not be issued timely , had been because of that the Force had entirely been based in the District which got merged with the Province of Khyber Pakhtunkhwa by way of 25th Constitutional Amendment on 31.05.2018. The nebulous and unclear situation for these areas and this Force in particular , has not been a hidden truth. In such a situation of flux, the reason for not issuing the orders for retirement of the petitioners have very much been forthcoming and such a plea cannot be used by the petitioners for calling the order of their retirement as invalid or continuing their service despite attaining the age of superannuation.
10. In light of what has been discussed above, the instant constitutional petition was found lacking any substance and, same is accordingly dismissed.