The relevant facts for the decision of this Constitutional petition are that respondent No,3 invited applications for 300 posts of Inspectors of Police through advertisement published in Daily 'NATION" dated 28-9-1997. The last date for applications was 20-10-1997. Thereafter, the applicants undertook written examination from 11-11-1997 to 14-11-1997. The petitioner, who is already serving as S.I., filed this Constitutional petition whereby the action of the respondents was challenged. The writ petition came up for hearing on 10-11-1997. The same was admitted to hearing and notice was issued to the respondents, who are represented by learned Advocate-General and Rana Muhammad Arif, learned Additional Advocate-General.
2. The learned counsel for the petitioner argued that direct appointments in the rank of Inspector could be made up to maximum of 10% in view of the provision of rule 12.3 of The Police Rules, 1934 (hereinafter to be referred as Rules of 1934). It was added that available posts in Government service could not be divided on zonal basis as period of 20 years fixed in proviso to Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 has expired on 13-8-1993. The learned counsel in this behalf referred to Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court and others (1997 SCMR 1043) and Dr. Shaheena Nusrat v. Province of Punjab etc. (1997 CLC 1308). It was argued that the move is mala fide and the purpose is to political bribe to members of the Parliament and Provincial Assembly.
3. On the other hand, learned Advocate-General argued that in view of the general allegations of inefficiency and corruption against police there was move for sanction of 600 posts of Inspectors, to be appointed directly on the basis of competition. The Finance Department granted the approval. Thereafter, the process of recruitment started. It was argued that the Governor of Punjab vide Notification dated 6-2-1998 has relaxed rule 12.3 of the Rues of 1934 relied on behalf of the petitioner. It was added that the Police Rules could be amended under section 46(3) of the Police Act, 1861 and the same were not framed under section 12.of the Police Act. It was argued that there was no political motive and for that reason the whole process has been made over to Punjab Public Service Commission. It was added that the petition is misconceived.
4. The learned counsel for the petitioner while summing up the arguments submitted that the notification relied by the learned Advocate-General is ultra vires of the provisions of Articles 25 and 27 of the Constitution. It was added that under section 12 of the Police Act, .1861 the rule relaxing power is with the I.-G. and not with the Governor, who was not competent to issue such notification.
In this behalf, he referred to Maulvi Muhammad Ali v. Crown (PLD 1950 FC 1) and Khalilur Rehman Khan, D.S.P. and others v. Province of Punjab (PLD 1985 SC 195). It was argued that relaxation could be made only in individual cases and not wholesale. In this behalf, learned counsel referred to section 23 of the Punjab Civil Servants Act, 1974. It was added that relaxation is otherwise beyond the competency of the Governor because as per section 20 of the General Clauses Act he could only amend, vary and rescind a rule. The power of relaxation of rule is not available. It was argued that the Notification dated 6-2-1998 does not in any manner affect the present writ petition because the applications have been invited, candidates examined much before its issuance. The rules became applicable from the date of its publication as per section 3 of the General Clauses Act. The learned counsel in this behalf referred to Saiyyid Abul Ala Maudoodi v. The Government of.
West Pakistan (PLD 1964 (W.P.) Kar. 478). In the end it was argued that the statutory rules cannot be annulled through an administrative order. In this behalf, learned counsel referred to Federal Land Commission v. Sher Muhammad and others (PLD 1990 SC 626), Yarntex Trading Company and others v. Chief Controller of Buildings and others (PLD 1998 Kar. 11) and Sher Muhammad and others v. Federal Land Commission and others (1989 MLD 4286).
5. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record and precedents. The recruitment of A.S.Is., S.Is. and Inspectors in dealt by rule 12.3. The same reads as under:--
6. "12.3. Except as provided in Rules 12.1 and 12.4, direct appointments shall not be made except in the rank of Inspector, Prosecuting Sub-Inspector and Assistant Sub-Inspector. Such appointments in the rank of Inspector and Assistant Sub-Inspector may be made up to a maximum of ten per cent, and twenty-five per cent of vacancies respectively."
6. The first question for decision is whether the rules have been framed under section 12 as argued by the learned counsel for the petitioner. The same reads as under:-- "12. Power of Inspector-General to make rules.--The Inspector-General of Police may, from time to time, subject to the approval of the Provincial Government frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the Police force, the places at which the members of the force shall reside, and particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information; and all such other orders and rules relative to the Police force as the Inspector-General, shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
It is clear from the opening part of this provision underlined that the rules are to be framed with the approval of the Provincial Government, which is competent to amend, add to or cancel any rules framed under this Act in view of section 46(3) of the Police Act, which reads as under:-- "46. Scope of Act.---(1)
All rules made under this Act may from time to time be amended, added to or cancelled by the Provincial Government."
7. It is clear from the perusal of section 12 reproduced above that the rule-making power of the Inspector-General is in respect of administrative matters. He has no authority to frame rules as to recruitment, terms and conditions of service etc. which is subject-matter of section 7 of the Police Act. In this behalf may refer to the judgment in the case of Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others (PLD 1985 SC 159). The case of Maulvi Mahmood Ali (supra) relied by the learned counsel for the petitioner is not relevant. Be that as it may, section 46(3) of the Police Act empowers the Government to amend, add to or cancel any rule framed under the Police Act. Therefore, the Governor has exercised the powers vested in him while issuing Notification dated 6-2-1998.
7. The other related question that the powers to amend, add to or cancel by the Provincial Government does not cover relaxation. It is not possible to agree with this part of the argument as the words ' amend' and cancel' are sufficient to make any exception. The relaxation is in fact amendment of the rule, therefore, legal.
8. There is no force in the argument that the notification is ultra vires of Article 25 of Constitution of 1973, which provides that all citizens are equal before law and entitled to equal protection and there shall be no discrimination while Article 27 provides safeguard against discrimination in service. These provisions of Constitution are not relevant to the present controversy.
9. The next legal argument was that there could be relaxation only in individual cases in view of section 23 of the Punjab Civil Servants Act, 1974. This provision is not relevant. The relaxation is dealt under Rules 22 and 23 of the Punjab Civil Servants Rules, 1975 framed under section 23 of the Act of 1974. The notification in this case has not been issued under the Civil Servants Act or Rules framed thereunder but under Rule 12.3 of the Police Rules, 1934. These rules have been framed under the Police Act and not under the Punjab Civil Servants Act and they would govern the appointment of the Inspectors etc. In this behalf, reference can again be made to the case of Mushtaq Ahmad Warraich and others (supra).
10.The argument with reference to section 20 of the General Clauses Act again is not relevant to the present controversy because it is a general provision while section 46(3) is a special provision, therefore, the same would govern the case. This question has elaborately been dealt in the case of Mushtaq Ahmad Warraich (supra) with reference to Maxwell on Interpretation of Statutes, Crawford's treatise on Statutory Construction and Craies on Statute Law and Montreal Corporation v. Montreal Industrial Land Company (AIR 1932 PC 252); Tahira Haq v. A.R. Khan Niazi, Additional Commissioner (Revenue), Multan and others (PLD 1968 Lahore 344) and Ramchander v. Delhi Administration (ILR 1 Delhi 284). The case of Khalilur Rehman Khan, D.S.P. and others (supra) relied by the learned counsel for the petitioner also directly lends support to this view. It was clearly held in this case that section 12 of the Police Act does not concern subjects covered by specific rules framed by the Government on recruitment, seniority, promotion etc.
11. The next argument that since the notification, which was published on 6-2-1998, would not be covering the recruitment process already started is misconceived. Because the law or rules are to be seen at the time of the appointment and not at the time when the applications are invited or the preliminary arrangements are started. Similarly, the argument that executive instructions cannot override statutory rules is without force because the Governor through Notification, dated 6-2-1998 amended the rule 12.3. It is not an executive order but amendment in rule.
12. The other argument that resort to direct recruitment at large number is mala fide is without any merit. It more or less has become a fashion of dub every action. Order of the executive as mala fide without meeting the requirement of the pleading and giving the necessary detail. There is nothing on record even to suggest mala fide on the part of the executive. On the other hand, the bare fact that the selection has been entrusted to the Punjab Public Service Commission is sufficient to dispel this allegation.
13. The last argument that direct recruitment would affect the promotion of the officers already serving and would be a discouragement to them. So for promotion is not a vested right, therefore, the prospectus of promotion cannot be made a ground to challenge the direct recruitment of Inspectors, moreso when the same is permissible under the law and rules as amended.
14. The other question that it would discourage the existing strength of A.S.Is. and S.Is. is not a matter to be considered by this Court as it is a matter of policy.
15. The move is appreciable but it is high time to reorganize Police Force. Now when highly educated young men are to be recruited on purely merit through Punjab Public Service Commission then they should also be given better terms, conditions and chances of promotion as an incentive for integrity, honesty and hard work. The system of giving senior slots to the P.S.P. has almost failed to achieve the object as is clear from position of law and order prevailing in the country.
16.It is expected that the Government is conscious of the fact that increase in Police Force alone is not sufficient to achieve the desired result in the matter of law and order. The judiciary has to be provided necessary man power for this purpose. There is nothing wrong with the present laws and the system and once the required number of officers are in position there would be no complaint of delay at any level. The reasons for backlog are deficient strength, poor working conditions and unattractive terms and conditions of service. The solution is not to scrap the system but to strengthen it. In past at least three proposals for new systems were debated, scrutinized and studied for months together but ultimately it has to be conceded that the present system is best.
The High Courts could guarantee speedy disposal of all sort of cases at all levels if required funds and man power is made available.
17. The Nation would welcome any system so long expenditure remained the same otherwise experience is that for new set ups unlimited financial sources are utilised and generated. This resolution more strain on public exchequer and for raising funds more taxes, which are already on the higher side, are imposed. It is also a matter of past experience that the haphazard amendments in the laws and legal system without involving law commission did not produce positive results. This goes a long way to show that defect is not in the system. The saying that it is not the gun but the man behind the gun which matter is true fit case of the Courts, also. It is not failure of the system but intentionally letting down the system as punishment for affecting separation of the Judiciary.
18. Lastly but more important is making the future generations better citizens. It is high time to start long term planning as we are already very late. Initially it would not cost anything but only teachers and parents have to be made conscious of their duty to inculcate civic sense in the children. There should be emphasis on religious teachings and children should know about their National Heroes rather than the heroes of the movies and T.V. Dramas. The children learn quickly and retain more easily good habits than the grown up. Once this object is achieved everything including law and order, pollution, resolution of disputes and office working would start improving. We have the living example of Singapore which is a model for any third world country.
19. The upshot of the above discussion is that this writ petition is dismissed.