1. ' MUHAMMAD HALEEM, C. J.-These appeals, by special leave, arise from the common judgment of the Punjab Service Tribunal, dated 18th of June, 1983, by which respondent Mushtaq Ahmad Warraich in Appeal No, 321 of 1983 and respondent Arshad Hussain in Appeal No, 322 of 1983 were given seniority from the date of their confirmation in accordance with rule 12'2 of the Police Rules, 1934, and were accordingly held senior to respondents Nos. 2 and 3 in both the appeals.
2. ' Respondent Mushtaq Ahmad Warraich was confirmed as Sub-Inspector with effect from 1st of January, 1974. He was placed on list 'F' on ll th of November, 1976, and was promoted as Inspector with effect from 6-11-1979. He was confirmed as such with effect from 24th of December, 1979.
3. Respondent Arshad Hussain was confirmed as Sub-Inspector on 1-3-1973. He was placed on list 'F' on 11th of November, 1976, maintained in accordance with rule 13'15 of the Police Rules, 1934. He was promoted as Inspector with effect from 11th of January, 1979, and confirmed as such on 16th of December, 1981. Because of their confirmation as Inspectors both of them became due for the next promotion as Deputy Superintendent of Police, and their cases were recommended by the Appellant No, 1 for promotion along with other Inspectors on 16th of September, 1982, to the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.
4. ' A question arose before the Committee as to whether the seniority of Inspectors should be determined from the date of their confirmation under rule 12'2 of the Police Rules or from the date of continuous appointment as provided under rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with section 7 of the Punjab Civil Servants Act, 1974. The Committee acted on the advice of the Law Department of the Government of the Punjab, dated 7th of December, 1982, and held that rule 12'2 was invalid as it was inconsistent with rule 8 read with section 7 of the Punjab Civil Servants Act, 1974. Accordingly, both the respondents were not cleared for promotion on account of their low placement in the seniority list. Against this decision, the respondents filed representations to the Governor on 9th of December, 1982, but as no reply was received they filed separate Appeals Nos. 106/90 of 1983 and 185/124 of 1983 before the Punjab Service Tribunal, Lahore, and succeeded.
5. ' At this juncture it would be pertinent to note that in 1981 the Provincial Government desired to amend the Punjab Police (Efficiency and Discipline) Rules, 1975, and accordingly, the matter came for advice to the Law Department and altogether a different opinion was given as to the applicability of the Police Act and the rules framed thereunder to the subordinate Police Officers.
6. The stand taken by the Law Department was in line with the arguments raised by respondents Mushtaq Ahmad Warraich and Arshad Hussain before the Punjab Service Tribunal. The opinion reads as under:
(i) The Subordinate Police Officers to whom the Police Act, 1861, applies continued to be governed by that Act and the Rules made thereunder.
(ii) The Punjab Civil Servants Act, 1974, does not apply to the subordinate Police Officers because the Police Act, 1861, is the special Law in that it deals with special subject namely Police, which is a disciplined force and only the special class of civil servant falls within its purview. On the other hand Punjab Civil Servants Act, 1974, is a general Act in that it deals with generality of civil servants.
(iii) The Punjab Civil Servants Act, 1974, does not repeal the Police Act, 1861, by implication.
7. ' Thus, the subsequent opinion rendered by the Law Department to the Departmental Promotion Committee stood in conflict with its earlier opinion. The Punjab Service Tribunal took note of this conflict and held that the subsequent opinion could not form the basis of decision given by the Departmental Promotion Committee as no justifiable reason was given as to what led the Law Department to form the subsequent opinion. The Punjab Service Tribunal thereupon examined the contentions of the parties on merits and held, firstly, that the first opinion of the Law Department was correct qua the applicability of the Police Act, 1861, and the rules framed thereunder to the subordinate Police Officers on the footing that it dealt with the special class of civil servants which was a disciplined force as against other civil servants who were governed by the Punjab Civil Servants Act, 1974, which was of general application and gave way to the special law; secondly, that the Punjab Civil Servants Act, 1974, did not repeal the Police Act, 1861, by implication; and thirdly, that no rules had been franked under the Punjab Civil Servants Act, 1974, to deal with the terms and conditions of the police force, and, therefore, the rules already in existence were saved under section 23(2) of the said Act.
8. Leave to appeal was granted to consider whether in the matter of confirmation/seniority/promotion and other related issues, the Punjab Police Rules. 1934, read with the Police Act, 1861, would he applicable to the respondents or the Punjab Civil Servants Act, 1974, and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, by reason of their general application to the civil servants as! a whole.
9. The respondents took the stand before the Service Tribunal that seniority on promotion was to be determined by reference to section 7(2) of the Punjab Civil Servants Act which provides that the seniority and promotion shall take effect from the date of regular appointment and not from the date of confirmation as enjoined by rule 12'2 of the Punjab Police Rules, 1934, which being inconsistent stood impliedly repealed as the Punjab Civil Servants Act, 1974. Being a later Act prevailed over the Police Act, 1861, and the rules framed thereunder. This is also the stand taken before us.
10. Before I dwell on the main question, it would be appropriate here to give a background of this Act.
11. The Police Act, 1861, was enacted at a time when the Government of India Act, 1858, as amended by their Government of India (Amendment) Act, 1859, held the field, and as its preamble shows the object of enacting it was "to reorganize the police and make it a more efficient instrument for the prevention and detection of crime". By section 7 of this Act the entire Police Establishment under "Local Government", which was later substituted by the words 'Provincial Government' was deemed to be one police force which was to be formally enrolled and constituted in such a manner as from time to time ordered by the Provincial Government. A provision was also made for enrolling officers and men to constitute such force but the number was left to be determined by the Provincial Government. By the Amending Order of 1937, the following further provision was inserted in this section: "Subject to the provisions of this Act the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the Provincial Government."
12. ' This added provision accordingly gave power to the Provincial Government to determine the terms and conditions of service of the officers of the subordinate ranks of Police force as being a disciplined force enrolled to combat crime and maintain public order and such other duties as are mentioned in section 23 of the Act. Section 3 vests the Provincial Government with the superintendence of the Police throughout a General Police District while section 4 designates the officers namely the Inspector-General of Police to be incharge of administration of the Police and the District Superintendent and the Assistant District Superintendents and the area of their jurisdiction. Section 7 deals with the powers to be exercised by the hierarchy of the police officers in accordance with the rules framed by the Provincial Government in the matter of appointment, dismissal and punishment, etc., of the subordinante officers. The other provisions not mentioned herein also reflect the disciplinary character of the police force. What is of significance is the enrolment of the police and vesting of the superintendence of police with the Provincial Government subject to the provisions of the Act in the matter of supersession or control of any police functionary. This was not without a purpose as it was the foremost duty of the Provincial Government to maintain public order and so also the prevention and detection of crime.
13. ' The Provincial Government duly framed the Punjab Police Rules, 1934, under sections 7 and 46(2) of the Police Act, 1861, laying down the terms and conditions of service of police officers of the subordinate ranks and other ancillary matters. On the promulgation of the Government of India Act, 1935, like section 241, section 243 conferred on the Provincial Government the power to frame rules determining the terms and conditions of service of the subordinate ranks of the various police forces by or under the Acts relating to the police force. This power to frame rules for the police force was again a significant feature. The Police Act of 1861 and the rules framed thereunder became existing law by reason of section 292 of the Government of India Act, 1935, and were deemed to be the rules framed under this provision. Accordingly, the conditions of service of the subordinate ranks were such as were prescribed by these rules, and were to be treated for all purposes of construction or obligation exactly on the same footing as if they were in the Act and had the same effect. There was thus a clear distinction between the subordinate ranks of the police force and other civil servants qua the treatment and the constitutional guarantees. In Noorul Hassan and others v. Federation of Pakistan (1), the implication of section 243 was considered and it was held that the constitutional guarantees, as provided in subsections (2) and (3) of section 240 of the Government of India Act, 1935, were available to the police officers of the subordinate ranks unless that protection was taken away by or under a Police Act. The rules, therefore, had an overriding effect by reason of the language of this section.
14. ' The Government of India Act, 1935, was repealed by the Constitution of the Islamic Republic of Pakistan,. 1956, which did not contain any provision like section 243. Article 4 of this Constitution relating to fundamental rights gave no protection to the Police Act qua the enforcement of fundamental rights as that would have interfered with the proper discharge of the duties of such police or the maintenance of discipline among the members constituting the force. A like provision was continued in the subsequent Constitutions namely, Articles 6(3)(i) of the 1962 Constitution, 7(3)
(a) of the Interim Constitution of 1972 and 8(3)(a) of the 1973 Constitution. Though the chapter relating to fundamental rights and principles of policy are in abeyance yet what clearly stands out is that the Police Act and the rules were left intact and not amenable to the impact of fund a-
(1) PLD 1956 SC 331 mental rights at a time when this Constitution was enforced. This constitutional deprivation again reflects to the fact that the police force was treated on a separate footing unlike the other services of the Provincial Government.
15. In this background the Act and the Rules according to their tenor must be regarded as a special law, and their existence cannot be lost sight of while considering the applicability of the Punjab Civil Servants Act, 1974, enacted by the Provincial Assembly under Article 240 of the 1973 Constitution to the Police Officers of the subordinate ranks.
16. ' Now coming to the crux of the matter, it will here be relevant to reproduce Articles 240, 241 and 268 of the 1973 Constitution, and sections 7 and 23 of the Punjab Civil Servants Act, 1974 : "Article 240. Appointments to Service of Pakistan and Conditions of Service.-Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Parliament, and
(b) in the case of the services of a province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly.
17. ' Explanation.-In this Article, 'All-Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament.
18. ' Article 241. Existing Rules, etc., to continue.-Until the appropriate Legislature makes a law under Article 240, or rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government.
19. ' Article 268. Continuance in Force and Adaptation of certain Laws.-(1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptation until altered, repealed or amended by the appropriate Legislature.
(2) The Laws specified in the Sixth Schedule shall not be altered, repealed or amended without the previous sanction of the-President.
(3) For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years from the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, and any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order.
(4) The President may authorise the Governor of a Province, the powers conferred on the President by clause (3) in respect of the laws relating to matters with respect to which the Provincial Assembly has power to make laws.
(5) The powers exercisable under clauses (3) and (4) shall be .Subject to the provisions of an Act of the appropriate Legislature.
(6) Any Court, tribunal or authority requied or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause
(3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.
(7) In this Article, existing laws means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial validity, immediately before the commencing day.
20. ' Explanation.-In this Article, 'in force', in relation to any law, means having effect as law whether or not the law has been brought into operation.
21. ' Section 7-(Punjab Civil Servants Act, 1974).
22. ' Seniority-(1) Seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner.
(2) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in the grade : Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
(3) For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared.
(4) Subject to the provisions of subsection k3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, shall be determined in such manner as may be prescribed.
23. ' Section 23-(Punjab Civil Servants Act, 1974).
24. ' Rules-(1) The Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purpose of this Act.
(2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by any authority competent to make them and in force immediately before the commencement of this Act shall, in so far such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
25. ' In the 1973 Constitution as enacted the constitutional guarantees such as these in section 240 of the Government of India Act, 1935, in Article 181 of the 1956 Constitution, in Article 177 of the 1962 Constitution and in Article 220 of the Interim Constitution of 1972, were omitted. Likewise the power to make rules conferred on the rule-making authority such as the Governor-General or the President and the Governor in the previous Constitutions was omitted. Instead Article 241 of the 1973 Constitution provides continuation of the existing rules and orders until such time as the appropriate Legislature "makes a law" under Article 240, provided they are not inconsistent with the provisions of the Constitution. These rules are liable to be amended from time to time by the rule- making authority such as the Federal or the Prot incial Government as the case may be. This nomenclature is used for the first time and is a departure from the earlier Constitutions. There, instead of the President or the Governor in whom the executive authority of the Republic or the Province vested and who had also the legislative power in the earlier Constitutions, the power to amend the rules is now conferred on the Federal or the Provincial Government which are terms of definite connotations as would appear from Articles 90 and 129 of the 1973 Constitution (now in abeyance).
26. ' Again as in clause (2) of Article 179 of the 1956 Constitution, although differently worded, Article 240 of the 1973 Constitution enables the Parliament and the Provincial Assembly to enact a law in regard to the appointments to and conditions of service of persons in the services of the Federation or the Province and so also the posts in connection with the affairs of the Federation or the Province. The distinction which emerges is that previously the appointments to and the terms and conditions of service were under the rule-making authority of the President or the Governor under the constitutional provisions of the earlier Constitution Acts whereas under Article 240 of the 1973 Constitution it is the law enacted by the Parliament or the Provincial Assembly which governs the appointments to and the conditions of service of persons in the services of the Federation or the Province and the posts in connection with their affairs of the Federation or the Province.
27. ' Again in Article 240(h) of the 1973 Constitution the words "by or under the Act of the Provincial Assembly" are not confined to one piece of legislation but as by reason of Article 263(b) the word singular includes the plural the result is that the Parliament or the Provincial Assembly may either enact one piece of legislation or more than one for carrying out the purposes of this Article. Here instances of the Parliament having enacted other legislations such as the Federal Security Force Act, 1973 (Act XL of 1973), the Cit it Servants Act, 1973 (Act LXXI of 1973), the Federal Investigation Agency Act, 1974 (Act VIII of 1975) and the Pakistan Railway Police Act, 1977 (Act VII of 1977) illustrate the power of the Parliament of the Provincial Assembly to enact more than one Act. However, the Provincial Assembly enacted only one Act called "the Punjab Civil Servants Act", under this constitutional dispensation. And as the preamble shows the Act was intended to regulate the appointment to and the terms and conditions of the services of the Province of the Punjab.
28. Subsections (1) and (2) of section 1 made it applicable to all civil servants wherever they may be. A "civil servant" is defined in section 2 (1)(b) to mean a person who is a Member of a civil service or holds a civil post in connection with the affairs of the Province. Again section 3 provides that the terms and conditions of service of a civil servant shall be as provided in this Act and the rules. It is section 7 which deals with the seniority which is the subject-matter of interpretation qua its applicability to the Police Officers of the subordinate ranks. In the case of initial appointment it lays down that the seniority shall be determined in the prescribed manner and in the case of promotion the criterion is the date of regular appointment to a post in the grade to which a civil servant is promoted. The rule-making power is contained in section 23(1). Subsection (2) of this section saves the rules earlier framed in so fat as they are not inconsistent with the provisions of this Act and are to be deemed to be the rules made under this Act. These rules follow the constitutional provision namely Article 241 of the 1973 Constitution as regards the inconsistency of the rules with the Act without any power having been conferred in this subsection to amend the rules although explicit power is given in subsection (1) of section 23 to make rules for carrying out the purposes of this Act.
29. The purpose of saving rules in Article 241 until such time as the appropriate Legislature makes a law was to maintain continuity of the rules which otherwise could also fall within the meaning of the term "existing law" but the framers of the Constitution chose to give them validity by this distinctive device. Such is not the case as regards the rules framed under the Police Act, 1861. The rules saved under Article 241 obviously are those which are framed by the President or the Governor in exercise of their rule-making authority under the earlier constitutional dispensations while the Punjab Police Rules, 1934, were framed to the Provincial Government under sections 7 and 46(2) of the Police Act, 1861, and not under any constitutional dispensation.
30. ' Accordingly, they could not be deemed to be those framed under subsection (2) of section 23 of the Civil Servants Act, 1974, by any stretch of imagination as they could not co-exist under two separate Acts but could only owe their origin to the Act under which they were framed. In D this context Article 268 is also of significance as it keeps alive the existing laws until altered, repealed or amended by the appropriate Legislature. The term "existing laws" not only means an Act or Ordinance but also includes the rules within its ambit. Therefore, both the Police Act, 1861, and the rules framed thereunder fell within the definition of this term and continued to operate in their own field. Here as the existing laws also include the rules necessarily, therefore, the word "Legislature" would also include the authority to whom the power is delegated to amend, alter or repeal the rules. The word "Legislature" has not been used in the technical sense only but would also include a law-making body to whom the power is delegated by the Act to amend, alter or repeal the rules.
31. (See Chambers Twentieth Century Dictionary, 1976 Ed. p. 752): Article 268 keeps alive the existing laws if they are not inconsistent with the provisions of the Constitution as the words "subject to the Constitution" are also used in this Article while Article 241 saves the rules framed under the earlier constitutional dispensations provided they are not inconsistent with the provisions of the Constitution. Article 24 enables the appropriate Legislature to enact a law relating to the appointment to and the terms and conditions of the services of the Federal and the Provincial Government. Any law, therefore, enacted under the Article will have no constitutional status but will only be .a law of general application to the services and the posts in connection with the affairs of the Federation or the Province.
32. ' There are no words of exclusion of the Police Act, 1861, or the rules in Article 240 or 241 as to impede their operation as existing law under Article 268 and as held by this Court in State v. Zia-ur- Rahman (I).
33. "The Constitution has to be construed like any other document reading
(1) PLD 1973 3 C 49 it as a whole and giving to every part thereof a meaning consistent with the other provisions of the Constitution."
34. Therefore, the net result would be that the Police Act and the rules saved as existing law under Article 268 must co-exist with the Civil Servants Act, 1974 and the rules saved under Article 241 until the appropriate Legislature expressly repeals, alters or amends the Police Act or the rules made thereunder.
35. ' It is also worthwhile to notice that the Provincial Assembly while enacting the Civil Servants Act, 1974, did not repeal the Police Act, 1861, or the rules framed thereunder. This is also an added reason for their co-existence. From this the intendment must lie to keep the special law such as the Police Act and the rules alive.
36. ' The chapter relating to the fundamental rights and the Principles of Policy is in abeyance and of no value in view of the Provisional Constitution Order, 1981. Article 8(3)(a) which occurs in the above chapter at the time of enactment of the Constitution excepted the Police force from the application of the fundamental rights. There was thus no limitation on the legislature to enact a law even though it was inconsistent with the fundamental rights. Necessarily, therefore, the Police Act and the rules, which is existing law, could not also be challenged for the infraction of any fundamental rights then in force. This was not so in the case of civil servants who were not excepted from the operation of the fundamental rights. The words "subject to the Constitution" in Article 240 of the 1973 Constitution placed a limitation on the power of the Legislature not to legislate any provision in the Act which was inconsistent with any constitutional provision. Equally the test for the rules to be valid was that they should not be inconsistent with any constitute- Tonal provision. And if the Police force was to be governed by the law under Article 240 or the rules saved under Article 241 or those under section 23(2) of the Punjab Civil Servants Act, 1974, then like other civil servants they would also enjoy the same benefit as regards the infraction of any fundamental right. Such could not be the consequence in the case of the police force as it was excepted from the application of fundamental rights by reason of Article 8(3)(a) of the Constitution, which is now in abeyance. This obviously shows a different treatment meted out to the police force qua the constitutional dispensations. For that matter, the Police Act and the rules have a special statuts.
37. This test though merely of academic value cannot be lost sight of as at the time when the Constitution was enacted it laid the foundation for the continued application of the Police Act and the rules framed thereunder to the Police force. Their application cannot be whittled down as it would infract the maintenance of discipline. It is for this reason that this Court while interpreting the "rules" (Indian Police Regulation of Seniority Rules, 1936) relating to the seniority of Police Officers in Bashir Ahmad Khan v. Mahmud Ali Khan (1), said : "They are statutory rules of the highest validity, and as has been said above, they have the quality of settling the important matter of seniority as among officers of a service whose duties are directly connected with the maintenance of law and order, and are therefore,
(1) PLD 1960 SC 195 intimately bound up with a very important aspect of the public interest.'
38. Equally these observations would be applicable to the validity of the 1934 Rules governing the seniority of the Police officers of the subordinate ranks. Such being the case the special law assumes a great significance.
39. The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. K In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose.
40. ' The principle of interpretation stems from the legal maxim generalia specialibus non derogant.
41. Maxwell in his book on the interpretation of Statutes, Eleventh Edition, at page 168, says : "It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute (Supra, p. 78) to say that the general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects. A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."
42. ' Similarly Crawford in his treatise on Statutory Constitution, 1940 Ed. At page 429, observes : "It is not uncommon to find one statute treating a. Subject in general terms and another treating only a part of the same subject-matter in a more minute manner. Where this situation exists, the two statutes should be read together and harmonized. This is especially true where the two statutes are in pari materia. In the event of repugnancy, the special statute should prevail, in the absence of a X contrary legislative intent, since the specific statute more clearly evidences the legislative intent than the general statute does. And this rule-that a statute relating to a specific subject controls a general statute which includes the specific subject-is not necessarily dependent on the time of the enactment of such statutes, although it may be a vital and important consideration. "
43. ' Craies also in his book "On Statute Law", Sixth Ed. p. 376, states thus : "The general rule, that prior statutes are held to be repealed bay implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is a special and the subsequent enactment is general, the rule of law being, as stated by Lord Salborne in Seward v.
44. Wera Cruz, 'that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.' `There is a well-known rule which has application to this case, which is that a subsequent general Act. Does not affect a prior special Act by implication. That this is the law cannot be doubted and the cases on the subject will be found collected in the third edition of Maxwell on the Interpretation of Statutes.' The general maxim is, generalia specialibus non derogant-i.e general provisions will not abrogate special provisions. 'When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended t interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms."
45. In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeal of the earlier special Act by the later general Act without particular intention of implied repeal merely by the use of general words. As held earlier there is not an express repeal of the Police Act and the rules by the Provincial Assembly while enacting Civil Servants Act, 1974, nor there is any constitutional exclusion of the Police Act and the rules from their application to the officers of the subordinate ranks of the police force. The substance of the provisions of the Civil Servants Act which are of general application also do not give any indication to the contrary by the force of the general words used.
46. ' Now coming to the case law 1 would first refer to the case of the Punjab Province v. Sita Ram (1). In this case the present appeal was pending before the Privy Council at the time of the promulgation of Ordinance XV of 1949 passed on 15th of October, 1949. Thereafter on 1st of May, 1950 the Privy Council (Abolition of Jurisdiction) Act, 1950, became effective and a question arose as to the effect of the later legislation on the former. While holding that no question of amendment of the subsequent Act by Ordinance XV of 1949 can arise even though they were not consistent with each other, it was observed : "One cannot tail to notice that the Privy Council (Abolition of Jurisdiction) Act, 1950, came into operation from the 1st May, 1950. No question, therefore, of its amendment by Ordinance XV of 1949 can arise and all that perhaps can be urged is that the Ordinance and the Act are not consistent with each other, but it is a fundamental rule in the construction of statutes that a subsequent statute in general terms is not to be construed to repeal a previous particular statute unless there are express words to indicate that such was the intention or unless such an intention appears by necessary implication. Queen v. Champneys. I do not think it necessary to cite many authorities in support of the above proposition. It is well-recognised
(1) PLD 1956 FC 157 that general words in a later enactment do not indirectly repeal particular provisions in an earlier enactment made for quite a different purpose. A general rule should be understood in its general sense. Section 34 of the Ordinance is, therefore, to be read along with section 4 of the Privy Council (Abolition of Jurisdiction) Act, 1950."
47. ' In State v. Mir Ahmed (1), while enunciating "the accepted general principles" for the avoidance of collision between different statutes" the first principle laid down was that if the earlier and the later Acts are so inconsistent with each other that they cannot stand together then the earlier Act stands impliedly repealed by the later Act. The basis for this enunciation is the rule of implied repeal. But this principle was again emphasized to be subject to the rule "If the prior enactment is special and the subsequent enactment is general, the earlier special legislation will not be, indirectly, repealed, altered or derogated from merely by force of the general words of the later statute, without any indication of particular strong intention to do so."
48. I have not been able to discover any particular strong intention from the generality of the provisions in the Civil Servants Act of 1974 for the avoidance of the Police Act, 1861, or the rules framed thereunder even though it was enacted to apply to the services of the Province of Punjab and the members of the civil service or a person who holds a civil post in connection with the affairs of the Province. Though it cannot be denied that the police force is one of the services of the Province and the police officers of the subordinate ranks are members of the service who satisfy the definition of "civil servant" yet distinction nonetheless remains that they belong to a disciplined force to which the particular Act and the rules were applied from time immemorial. The added distinction is that M when the Constitution was enacted in 1973, the police force being a disciplined force was treated differently as they were excepted from the application of Article 8(1) and (2), now in abeyance with the result that the Police Act and the rules framed thereunder could not be challenged on the basis that they infringed the constitutional rights nor was there any constitutional limitation on the power of the Parliament or the Provincial Assembly to legislate in contravention of clause (1) of Article 8.
49. ' In Abdul Samad v. Lqbal Ahmed Khan (2), one of the questions which arose for consideration was as to whether the West Pakistan Maintenance of Public Order Ordinance, 1960, which dealt with the subject of preventive detention, repealed the relevant portions of section 14 (1) (d) of the West Pakistan Control of Goondas Ordinance, 1959, by implication, and it was held that the rule of implied repeal was not attracted as the two statutes were entirely different in their scope and purpose. In this connection a reference was made to the doctrine of implied repeal, as expounded by Craies in his book "On Statute Law" merely to impress its non-applicability for resolving the dispute. This was one of those principles cited earlier in the Quetta case.
50. ' In Abeejuddin Shah v. Abdus Subhan Sarkar (3), the rule that the special Act will prevail over the general provisions was recognised in this
(1) P I. D 1970 Quetta 49 (2) PLD 1972 Lah. 41
(3) P L .1) 1967 Dacca 135 case upon an argument raised that section 15 of the Easements Act being a special provision of a special Act, will prevail over the general provisions of the Limitation Act. But the decision did not turn on the applicability of this rule as the facts at that stage did not merit the application of the rule in the absence of evidence in the case.
51. ' In Saiyyid Abul A'la Maudoodi v. Government of West Pakistan (1), the question was as to whether there was an overlapping between the provisions of the Criminal Law Amendment Act (XIV of 1908) and the Political Parties Act (III of 1962) and as to the consequence if this was so. Hamoodur Rahman, J., as he then was, held : "No doubt the Courts should not be too astute in discovering such inconsistency, for, such inconsistency is not to be readily inferred ; but where the co-existence of the two sets of provisions would palpably be destructive of the object for which the later statute was passed, the earlier must be deemed to have been impliedly repealed to the extent of the inconsistency. Repeal by implication is merely the consequence of contradictory or inconsistent legislation to which the Courts must give effect if the inconsistency cannot reasonably be reconciled."
52. ' Here the two statutes were of general application and the doctrine of "implied repeal" was pressed into service as the co-existence of the earlier Act was destructive of the object for which the later Act was passed. However, there was no consideration as to the effect of the special law over the later law of general application in the context of the special field covered by the special law. This principle of implied repeal was taken notice of in the Quetta case as well. 1 may repeat here that the special law was given the status of existing law under Article 268 until such time as it was not expressly repealed by the appropriate Legislature which again N reacted against the rule of "implied repeal", and although judicially recognised it nonetheless remains a principle of interpretation which was pressed into service in view of the collision between the two Acts of general application in the circumstances pointed out above by Hamoodur Rahman, J., for giving effect to the later Act. It does not, in any manner, 0 rule out the exclusion of the maxim generalia specialibus non derogant in suitable cases.
53. ' In Montreal Corporation v. Montreal Industrial Land Company (2), the principle of interpretation as propounded in the above treatises by Maxwell, Craies and Crawford was judicially recognised in the following words : "When the legislature has given its consent to a separate subject and made provisions for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provisions' unless it manifests that intention very clearly But each enactment must be construed in that respect according to its own subject-matter and its own terms."
54. Here comparing the two statutes I find that the provisions of the special law are of a disciplinary character and were enacted with the object to fulfil the requirements of a disciplined force, which purpose cannot be achieved if the provisions of the general law were to be applied to them. The field of operation of special law is, therefore, altogether different and limited to one subject, that is, the police force. Hence, there cannot be any possibility of any collision to attract the doctrine of "implied repeal".
(1) PLD 1964 SC 673 (2) AIR 1932 P C 252 ' In Tahira Haq v. A. R. Khan Niazi, Additional Commissioner (Revenue) Multan and others (1), the rule was again reiterated in the following words : "The principle that the general law would not prevail over a specific enactment is now well-settled and one may refer in this behalf to AIR 1921 Lah. 280 ; A 1k 1941 Lah. 364 ; AIR 1936 All. 222 ; AIR 1932 P C 252 ; AIR 1950 Mad. 711 ; AIR 1934 Sind 89 ; AIR 1934 Born. 16 and AIR 1936 Nag.
180. The principles which emerge from these authorities are that where special provision is made in a special statute that special provision exclude the operation of a general provision in the general law."
55. ' It may also be pointed out that the Provincial Government despite the framing earlier of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, under section 23(2) of the Punjab Civil Servants Act, 1974, which were made applicable to all civil servants, yet framed separate rules namely, the Punjab Police (Efficiency and Discipline) Rules, 1975, on 4th S of December, 1975, under section 7 of the Police Act of 1861, applicable to all police officers below the rank of Deputy Superintendent of Police. This exercise itself shows the intention of the Provincial Government to treat the Police force on a separate footing, and, accordingly, framed the rules suitable to serve the disciplinary force.
56. ' I would here mention that Article 13 of the Indian Constitution does not contain any constitutional deprivation nonetheless it were the Police Rules which were applicable as special law to the police officers of the subordinate ranks in case of inconsistency with the rules framed under Article 309 of the Indian Constitution, which were of general application. (See Ramchander v. Delhi Administration (2).
57. From the above discussion it is clear that the special law will prevail over the later law of general application. Therefore, rule 12.2 of the Punjab Police Rules, 1934, will provide the criterion for determining the seniority of the subordinate ranks of the Police force as from the dates of T their confirmation and not from the dates of continuous appointment in the grade as laid down in rule 8(1)(b) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with section 7(2) of the Punjab Civil Servants Act, 1974. As the date of confirmation o respondents Mushtaq Ahmad Warraich and Arshad Hussain as Inspectors was earlier to the dates of the continuous appointment of respondents, Iqbal Akbar, Muhammad Tahir Ali in the grade of Inspectors, they were, accordingly, senior to them and could not be overlooked for promotion merely because of their "low" placement in the seniority according to the wrong principle applied in determining it. I further hold that the rules deemed to be the rules under section 23(2) of the Punjab Civil Servants Act, 1974, do not include the police rules framed under sections 7 and 46(2) of the Police Act, 1861. In this view of the matter, the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, was not competent to determine the seniority of the Police officers of the subordinate ranks much- U less to hold that they were not entitled for promotion as they were placed "low" in the seniority list. The reason being that these rules would not be applicable to the police force and as such their cases could not be competently referred for determining their eligibility for promotion to the rank of Deputy Superintendent of Police. In this connection I may point out
(I) PLD 1968 Lah. 344 (2) I L R 1 Delhi 284 that the Punjab Service Tribunal was correct in holding that the advice first given by the law Department to the Government of the Punjab was correct, that is, that the special law continued to govern the police force and that it was not repealed by the Punjab Civil Servants Act, 1974, by V implication.
58. ' I have not been able to assess the efficacy of Article 143 and Article 148 of the Constitution which were taken into consideration by the Tribunal for determining that the Police Act and the rules framed thereunder prevailed over the Punjab Civil Servants Act on the criterion that they were Central Acts, which is not correct as the Police Act is now a Provincial Act by reason of the subject- Police, being within the legislative competence of the Provincial Legislature. The alternate argument dealt with in paragraph 11 of the Tribunal's order is also of no efficacy once it is held that the special law prevails over the later law of general application.
59. ' For the foregoing reasons, I agree with the Tribunal in applying rule 12.2 of the Punjab Police Rules in determining the seniority of the Police Officers of the subordinate ranks. However, I would observe that the cases of those promoted because of the misapplication of the rule of seniority by the Provincial Government and have served in the higher ranks till to date also deserve consideration against those posts, if available, but this should not be at the cost of the respondents namely, Mustaq Ahmad Warraich and Arshad Hussain who have also suffered for all these years or others similarly placed.
60. ' These appeals are, accordingly, dismissed with costs.
…and 13 more citing cases