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Petitioner: MUHAMMAD ASIF KHAN VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIRHonorable Justice Muhammad Azam KhanSadaqat Hussain Raja,Ch. Shaukat Aziz
2014 P L C (C.S.) 534
[Supreme Court (AJ&K)]
Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan and Sardar Muhammad Sadiq Khan, JJ
MUHAMMAD ASIF KHAN and 173 others
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 14 others
Civil Appeal No.108 of 2012, decided on 1st February, 2013.
(On appeal from the judgment of the High Court, dated 3-9-2012 in Writ Petitions Nos.700 of 2011, 1388 and 1452 of 2012).
(a) Police Rules, 1934---
----R. 2.9(1)(2)(3)---Induction in Additional Police Force---Absorption in Regular Police Force---Scope---Every person inducted in the Additional Police Force was not to be absorbed in the Regular Police Force---Persons, who were recruited in Additional Police, being trained Police persons and having got the experience, whenever permanent vacancies would occur, it was enjoined upon the authorities to induct them under R.2.9(2) of Police Rules, 1934 after evaluating the suitability and fitness---Only condition attached was that at the occurrence of vacancies, their suitability and eligibility was to be judged.
Ghulam Hassan Punjabi v. Government of Azad J&K and others PLD 1957 SC (Pak.) 219; State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others PLD 1975 AJ&K 81; 1993 SCMR 1394 and 2010 PTD (Trib.) 519 ref.
(b) Interpretation of statutes---
----Two "Co-ordinate Sections" of a statute apparently inconsistent---Duty of Court---Law should be interpreted in such a manner that it should be saved than destroyed---Law must be interpreted in a broader and liberal manner giving effect to all the parts; and the presumption would be that no conflict and repugnancy was intended by the framers---Where two "co-ordinate sections", were apparently inconsistent, an effort must be made to reconcile them, if it was impossible, the latter would generally override the earlier---Court would avoid reading a provision or enactment in the manner, the effect of which was to make nugatory another enactment, unless they were totally irreconcible, when it would be driven to hold that later in point of time impliedly repealed the earlier one---Sometimes where an enactment was added or amended in a statute, the earlier enactment with regard to the same subject was not expressly repealed; in such a situation, the latter enactment would impliedly repeal the earlier enactment---Courts while interpreting such enactments were bound to harmonize such inconsistencies, if it was possible---Whenever there were two provisions applicable with regard to the rights of a citizen, one favourable to the subjects, be given preference over the other---Where it was possible without doing any violation to the language of the statute, beneficial construction could be adopted while interpreting a statute, which would infringe upon the right of a citizen or a party.
Crawford's Statutory Construction, Interpretation of Statutes 262; Rafique Akhtar Chaudhary v. Azad Jammu and Kashmir Government PLD 1982 SC (AJ&K) 124; Fazal Dad v. Khadim Hussain and another 1995 MLD 1299; Halsbury's Laws of England, Vol.44; Imran Ali v. Public Service Commission and 4 others (Civil Appeal No.92 of 2011; Messrs Amin Spinning Mills v. Deputy Collector Central Excise and others 2004 PTD 2479 and Province of West Pakistan and another v. Mahboob Ali and another PLD 1976 SC 483 rel.
(c) Police Rules, 1934---
----R. 2.9(1)(2)(3)(4) & (5)---Additional Police Force---Entitlement for permanent absorption in Regular Force---Scope---Sub-rules (1) to (3) of R.2.9 of Police Rules, 1934 had postulated that extra men enlisted in the Additional Police Force, would be part of the District Police and would be entitled for permanent absorption in the Regular Force, whenever vacancies would occur, subject to the suitability and eligibility---Under sub-rules (4) & (5) of R.2.9 of Police Rules, 1934 extra men enlisted in Additional Police Force would be contract employees; and such contract would confer no right for permanent induction in the Police Force.
State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others 1993 SCMR 1394 and Statutory Construction by Crawford rel.
(d) Interpretation of statutes---
----Amendment of law, effect---If a right was vested in a person under law, and later on the said right was snatched by amendment, the operation of such amendment would be prospective and not retrospective.
Mst. Sardar Begum v. Rehmat Khan and 11 others Civil Appeal No.19 of 2006; Construction of Statutes, 1940 Edition, page 581 by Crawford; The State v. Muhammad Jameel PLD 1965 SC 681; Muhammad Alam v. The State PLD 1967 SC 259 and Nizam Din and another v. Custodian and 15 others 2011 SCR 390 rel.
Sadaqat Hussain Raja, Advocate for Appellants.
Ch. Shaukat Aziz, Additional Advocate-General for Respondents.
Date of hearing: 10th January, 2013.
JUDGMENT
MUHAMMAD AZAM KHAN, C.J.--- The captioned appeal by leave of the Court arises out of the judgment of the High Court dated 3-9-2012, whereby Writ Petitions Nos.700 of 2011, 1388 of 2012 and 1452 of 2012 have been dismissed.
2. Muhammad Asif and others filed Writ Petition No.700 of 2011 on 24-4-2011 alleging therein that they are first class State subjects and eligible to be appointed as constables in the Police Department under rules. They were appointed as constables in the Police Department vide orders dated 26-4-2008, 29-4-2008, 2-5-2008, 29-4-2008, 6-5-2008, 14-7-2008, 26-6-2008 and 6-5-2008, respectively. During their contract period, the respondents advertised some vacant posts of constables in daily "the NEWS" to fill in the same on permanent basis. The advertisement was challenged through writ petition titled Shakoor Bashir and others v. Azad Government and others, which was accepted vide judgment dated 17-7-2009. The said judgment was challenged by the respondents through an appeal before the Supreme Court which was dismissed on 11-5-2010. A review petition filed by the respondents was also dismissed on 8-11-2010. In the light of the judgment of the High Court dated 17-7-2009, appointment orders of the petitioners in that writ petition were issued but the appellants, herein, were not permanently inducted in the service on the ground that they were not party in the aforesaid writ petition. They requested for their permanent adjustment under the provisions of sections 13 and 14 of the Police Act, 1861 (to be referred as the Act hereinafter) read with rule 2.9 of Chapter II of the Police Rules, 1934 (to be referred as the Rules hereinafter), as laid down by the Supreme Court. It was further claimed that the Government vide notification dated 9-3-2010, with mala fide intention for depriving them of their accrued vested rights of permanent absorption and to frustrate the judgment of the apex Court, have amended Rule 2.9 and sub-rules (4) and (5) have been added in the Rules. A direction was sought for their permanent absorption in the regular force. The rules were also challenged on the ground of being ultra vires, against the accrued vested rights and mala fide. In Writ Petitions Nos.1388 of 2012 and 1452 of 2012, the petitioners alleged that respondent No.2 advertised vacant posts of constables. The petitioners being qualified, applied for the same, participated in the test/interview and were declared qualified for recruitment. In the result they were appointed on contract basis against the quota of different units as constables. After completing the training from Police Training School, Muzaffarabad they are performing their duties at different projects and schemes. It was alleged that the respondents advertised the posts of constables in daily "Khabrain" on 3-7-2012 to fill in the posts on permanent basis. They further alleged that through notification dated 9-3-2010 the Government introduced sub-rules (4) and (5) in rule 2.9 of the Rules, which came in their knowledge after filing of objections by the respondents. They sought a direction for their permanent absorption against the post, under sections 13 and 14 of the Act read with Rule 2.9 of the Rules and also requested for cancellation of notification dated 9-3-2010 and advertisement dated 3-7-2012.
3. The respondents filed written statement and claimed that the petitioners have no locus standi to file writ petitions. They have claimed their rights on the strength of the judgment of High Court dated 17-7-2009. After the said judgment, the Rules were amended through notification dated 9-3-2010, whereby the Government has been empowered to appoint constables for additional police force on contract basis and the Government has properly appointed them on contract basis after induction of sub-rules (4) and (5) in rule 2.9 of the Rules. After necessary proceedings, the High Court dismissed the writ petitions, vide impugned judgment.
4. Mr. Sadaqat Hussain Raja, advocate, counsel for the appellants, argued that the judgment of the High Court is against law and the facts. The petitioners in Writ Petition No.700 of 2011 were appointed as constables in the result of test/interview conducted by the authority on 26-4-2008, 29-4-2008, 2-5-2008, 29-4-2008, 6-5-2008, 14-7-2008, 26-6-2008 and 6-5-2008 and in the light of judgment of this Court delivered in Shakoor Bashir's case, decided on 11-5-2010, they are entitled for permanent absorption in the regular police force. The learned counsel argued that in Shakoor Bashir's case, sections 13 and 14 of the Act and Rule 2.9 of the Rules were interpreted whereby the High Court and this Court declared that under the provisions of Rules-2.9, there is no concept of contract service in the Police Department. The persons appointed temporarily have a right to be inducted permanently whenever permanent vacancies occur in the Department. In the light of Shakoor Bashir's case, the permanent vacancies occurring in the Police Department cannot be advertised. It is enjoined upon the authorities to appoint the appellants against the vacant posts. The advertisement is bad in law. The learned counsel argued that through the notification dated 9-3-2010, sub-rules (4) and (5) have been added in Rule 2.9 after sub-rule (3), whereby appointment for additional police force can be made on contract basis, is against the provisions of the Act. The learned counsel contended that for the purpose of Writ Petition No.700 of 2011, newly added Rules 4 and 5 cannot be applied because the appellants, petitioners in Writ Petition No.700 of 2011, were appointed as constables in the year 2008, prior to introduction of sub-rules (4) and (5) in Rule 2.9. The operation of these rules is not retrospective rather these rules are prospective. Sub-rules (4) and (5) are not applicable in the case of the petitioners in Writ Petition No.700 of 2011. The judgment of the High Court on this count is against law and not maintainable. The learned counsel vehemently argued that sub-rules (1) to (3) of Rule 2.9 are the parts of the Rule from the very beginning. The Rules were framed to carryout the purpose of sections 13 and 14 of the Act for creation of additional Police force. Sub-rules (4) and (5) of Rule 2.9 of the Rules are directly in conflict with sub-rules (1) to (3) of Rule 2.9 and both cannot co-exist. There is a long standing practice of the Department for recruiting additional police force in the light of sub-rules (1) to (3) of Rule 2.9 of the Rules. It cannot be defeated by amending the Rules. The accrued vested rights cannot be taken away by introducing sub-rules (4) and (5) in Rule 2.9 of the Rules. The learned counsel submitted that two different yardsticks cannot be applied for the same subject matter. Under sub-rules (1) to (3) of Rule 2.9, as laid down in Shakoor Bashir's case, the Department is bound to absorb permanently the persons appointed in additional police force and under sub-rules (4) and (5) after completion of contract period, their service will be terminated. The rules have provided an opportunity to the Government to exercise the powers arbitrarily.
5. As regard the petitioners in other writ petitions, who are appointed after 9-3-2010 on contract basis, the learned counsel argued that sub-rules (4) and (5) are directly in conflict with sub-rules (1) to (3) of Rule 2.9. These cannot co-exist. The learned counsel argued that when there are two provisions in an Act or rules, one beneficial to and in the interest of subjects shall be adopted. Sub-rules (1) to (3) of Rule 2.9 provide that persons appointed in the additional police force be absorbed in permanent police whenever a permanent vacancy occurs while sub-rules (4) and (5) of Rule 2.9 deprive the petitioners, appellants herein, of such an opportunity or right. He argued that notification dated 9-3-2010 is against the accrued vested rights of the appellants. He requested for striking down the same. He lastly argued that for interpreting law, the Act as a whole be read. He referred to the cases reported as In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan [PLD 1957 SC (Pak.) 219], Ghulam Hassan Punjabi v. Government of Azad J&K and others [PLD 1975 AJ&K 81], State Life Insurance Corporation of Pakistan v. Mercantile Mutual Insurance Company Limited and others [1993 SCMR 1394] and 2010 PTD (Trib.) 519.
In the case reported as in the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan [PLD 1957 SC (Pak.) 219] it was held by the Supreme Court of Pakistan that is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. If there appears any apparent repugnancy between different provisions, the Court should harmonize them if possible.
In the case reported as Ghulam Hassan Punjabi v. Government of Azad J&K and others [PLD 1975 AJ&K 81], it was observed that the rule-making power of the President is an incidental power that must follow and not run parallel to the parent Act.
In the case reported as 2010 PTD (Trib.) 519, it was observed as under:---
"....Though the first and foremost duty of a Court is to ensure harmonious construction, yet if a conflict is found out amongst the different sections of the Ordinance, it is then to normally resolve in favour of the subject of the State...."
5-A. While controverting the arguments of the counsel for the appellants, Ch. Shaukat Aziz, the learned Additional Advocate-General, argued that the judgment of the High Court is perfectly legal. Shakoor Bashir's case is not applicable in the case because the posts were advertised on 3-7-2012 while sub-rules (4) and (5) of Rule 2.9 were introduced through notification dated 9-3-2010. He admitted that operation of rules is prospective and the advertisement was issued after introduction of sub-rules (4) and (5). The learned Additional Advocate-General emphasized on the word `necessity' incorporated in sections 13 and 14 of the Act and argued that additional police is recruited whenever `necessity' of additional police force arises and necessity has arisen for some projects of national importance i.e. Neelum Jehlum Hydro-electric Project and other projects for earthquake affected areas of Azad Jammu and Kashmir, which are being run by Chinese experts and for the purpose of security of Chinese nationals working on the said projects. He referred to the appointment orders of the appellants and argued that the appointment orders have been issued for a specific contract period. After accepting the conditions laid down in the contract orders, the appellants are estopped from challenging the same. He requested for dismissal of appeal.
6. We have heard the learned counsel for the parties and perused the record. The matter needs interpretation of sections 13 and 14 of the Act and sub-rules (1) to (3) of Rule 2.9 and newly introduced sub-rules (4) and (5) of Rule 2.9 of the Rules. Before proceeding further we deem it necessary to go through the provisions of sections 13 and 14 of the Act and sub-rules (1) to (3) and newly introduced sub-rules (4) and (5) of Rule 2.9 of the Rules. For proper appreciation these are reproduced as under:---
"13. Additional Police Officers employed at cost of individuals.--- It shall be lawful for the Inspector-General of Police, or any Deputy Inspector-General, or Assistant Inspector-General, or Additional Inspector-General or for the District Superintendent, subject to the general direction of the Magistrate of the District, on the application of any person showing the necessity thereof, to depute any additional number of police officers to keep the peace at any place within the general police district, and for such time as shall be deemed proper. Such force shall be exclusively under the orders of the District Superintendent, and shall be at the charge of the person making the application:
Provided that it shall be lawful for the person on whose application such deputation shall have been made, on giving one month's notice in writing to the Inspector-General, Deputy Inspector-General or Assistant Inspector-General or to the District Superintendent, to require that the police officers so deputed shall be withdrawn; and such person shall be relieved from the charge of such additional force from the expiration of such notice."
"14. Appointment of additional force in the neighborhood of railway and other works.--- Whenever any railway, canal or other public work, or any manufactory or commercial concern shall be carried on, or be in operation in any part of the country, and it shall appear to the Inspector-General that he employment of an additional police force in such place is rendered necessary by the behavior or reasonable apprehension of the behavior of the persons employed upon such work, manufactory or concern, it shall be lawful for the Inspector-General, with the consent of the Provincial Government, to depute such additional force to such place, and to employ the same so long as such necessity shall continue, and to make orders, from time to time, upon the person having the control or custody of the funds used in carrying on such work, manufactory or concern, for the payment of the extra force so rendered necessary, and such person shall thereupon cause payment to be paid accordingly."
"2.9. Additional Police under sections 13 and 14.--- (1) Sections 13 and 14 of the Police Act V of 1861, regulate the employment of police officers at the cost of individuals, and the appointment of police officers in the neighborhood of railways and other works. Such police are designated "Additional Police" whether extra policemen in excess of regular establishment are enlisted or not.
(2) If extra men are enlisted, they shall be deemed part of the district Police force and shall, if suitable and eligible, be absorbed in the regular establishment as vacancies occur, being replaced by new enlistments, who are subject to discharge on reduction of the additional police.
(3) Superintendents are required to give early information to Deputy Inspectors-General of their inability to provide for additional police coming under reduction in order that arrangements may be made to absorb them in other districts where vacancies may exist."
"(4) Additional Police shall be recruited in as many numbers, as approved for the respective project on contract basis. Approval of Inspector-General of Police shall be obtained for such recruitments required to be made on contract basis.
(5) These recruitments shall purely be project specific and shall not in any case confer any right towards permanent absorption."
7. Writ Petition No.771 of 2008 was filed by Shakoor Bashir and 36 others whereby they challenged the advertisement on the ground that there is no concept of contract service in additional police. The writ petition was dismissed in limine. Shakoor Bashir and others filed petition for leave to appeal in the Supreme Court. The appeal was accepted and the writ petition was admitted for regular hearing on 27-5-2009 and the case was remanded to the High Court for decision while considering Rule 2.9 of the Rules. The writ petition was accepted and the advertisement was quashed on 17-7-2009. It was observed by the High Court as under:---
"The argument of the learned advocates for the respondents, that conditions of the appointment of the petitioners cannot be challenged in writ jurisdiction is correct but where the authority itself has committed a fault, then the petitions cannot be penalized for the acts committed by the authorities. A perusal of the advertisement made at the time of induction of the petitioners reveals that these posts were to be filled in for the purpose of the projects mentioned, therein, hence, the induction was within the purview of sections 13 and 14 of the Police Act and in case of availability of new vacancies in the Department, it was proper for the competent authority to adjust the petitioners in view of Chapter II, Rule 2.9 of the Police Rules.
The upshot of the above is that accepting the petition, the advertisement under challenge is hereby quashed. The respondents are, therefore, directed to absorb the petitioners according to their merit, prepared at the time of their induction."
This judgment was challenged through an appeal in this Court, which was dismissed on 11-5-2010. It was observed in para 6 as under:---
"6. It is admitted that respondents have been appointed on recommendation of the selection committee for security of Chinese Engineers. They were appointed for three years on contract basis through the same process as the general Police is appointed. It is also made out from the record that they had earlier appeared in the test for the post of Constable (B-5) and had qualified but couldn't attain merit position against the available vacancies, hence, were not regularly appointed but were subsequently appointed as additional police force. It is lawful for the Inspector-General of Police or the Deputy Inspector General of Police to depute any additional number of police officers to keep peace at any place within general police district for such time as shall be deemed proper under sections 13 and 14 of the Police Act, 1861. Under Rule 2.9 of the Police Rules, 1934, the Police so deputed is called additional police and are deemed to be part of the district police force, who are entitled to be absorbed in the regular establishment as vacancies occur subject to suitability and eligibility. In the case in hand it appears from record that vacancies have occurred in the police Department on account of which they issued advertisement on 8-11-2008. In the wake of the vacancies having occurred it was incumbent upon the appellants to adhere to Rule 2.9 of Part II of the Police Rules to evaluate suitability and eligibility of the respondents for appointment against the vacancies and then advertise the posts after absorbing additional police force (respondents.)"
8. The Government filed a review petition which was also dismissed by this Court. The Court settled the law that provisions of Rule 2.9 of Chapter II of the Rules are mandatory in nature and it is incumbent upon the authorities to adhere to Rule 2.9 of Chapter II of the Rules to evaluate the suitability and eligibility of the men enlisted in additional force for appointment against the vacancies and then advertise the posts after absorbing the persons serving in additional police force. The judgment of the High Court was delivered on 17-7-2009 while the notification, whereby sub-rules (4) and (5) were introduced in Rule 2.9 of the Rules, was issued on 9-3-2010. Section 13 of the Act empowers the Inspector-General of Police, Deputy Inspector-General and Assistant Inspector-General or the District Superintendent to depute any additional number of Police officers to keep peace at any place within the general police district under the directions of the District Magistrate for such period as deemed necessary. A proviso is attached to the section which provides that the person on whose application such additional police force has been deployed, shall, on giving one month's notice in writing to the Inspector-General of Police, Deputy Inspector-General, Assistant Inspector-General or to the District Superintendents, to require that the additional police force so deployed shall be withdrawn and such person shall be relieved of the charge of such additional police from expiration of such notice. The concept of additional police force is that whenever in addition to regular police, the necessity arises that additional number of police is required for a project, the Inspector-General, Deputy Inspector-General, Assistant Inspector-General or District Superintendent may depute such number of additional police force which is necessary. Section 14 of…
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