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Petitioner: SAGHIR AHMAD NAQI VS Respondent: GOVERNMENT OF THE PUNJABHonorable Justice Syed Jamshed AliMuhammad Amjad Pervaiz,Liaquat Masih
2005 P L C (C
2005 P L C (C.S.) 1409
[Lahore High Court]
Before Syed Jamshed Ali, J
SAGHIR AHMAD NAQI
Versus
GOVERNMENT OF THE PUNJAB through Secretary Home (Prisons) Department, Lahore and another
Writ Petition No. 11290 of 2004, heard on 24th January, 2005.
Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit), Rules, 1976---
----R. 3(V)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Exclusion of period of service rendered in Government service while computing upper age limit---Petitioner serving as Upper Division Clerk in Accountability Court, applied for the post of Assistant Superintendent Jail---According to public notice, prescribed upper age limit was 25 years with five years general relaxation--At time of filing application for advertised post, petitioner being above 32 years his candidature was rejected---According to R.3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, the period of Government service rendered by petitioner as Upper Division Clerk in Accountability Court, was required to be excluded while computing upper age limit for the post in question which rule stood saved by Recruitment Policy of Government of Punjab dated 5-5-2003---Rule 3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 which had contemplated computation of upper age limit and not relaxation of upper age limit, was beneficial dispensation and was to be interpreted in a manner so as to advance the remedy---Rejection of petitioner's candidature was declared as without lawful authority and Punjab Public Service Commission was directed to consider candidature of petitioner by computing upper age limit in accordance with R.3(V) of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 after satisfying itself about the claim of petitioner for continuous earlier Government service.
Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others 2004 PLC (C.S.) 69 ref.
Muhammad Amjad Pervaiz for Petitioner.
Shahid Saleem, Section Officer, Home Department Punjab.
Liaquat Masih, Superintendent, Punjab Public Service Commission.
Date of hearing: 24th January, 2005.
JUDGMENT
The petitioner was candidate for the post of Assistant Superintendent Jail. He is serving as Upper Division Clerk in the Accountability Court and according to the learned counsel for the petitioner since 7-11-2000. He applied for the post in question through proper channel which was duly forwarded to the Punjab Public Service Commission. According to the public notice, the prescribed upper age limit was 25 years with five years general relaxation. His date of birth is 12-10-1971 and on the closing date i.e. 29-3-2004, he was 32 years 5 months and 18 days. His candidature was accordingly, rejected vide order dated 29-5-2004. He filed a representation to the Commission which did not evoke any response.
2. The learned counsel for the petitioner has referred to paragraph (3)(b) of the Recruitment Policy of the Government of the Punjab, dated 5-5-2003, according to which "no relaxation of qualification, experience, physical criteria etc. as provided in the relevant service rules shall be allowed, except as prescribed under the rules."
His contention is that according to rule 3(V) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules 1976, the period of Government service rendered by the petitioner as Upper Division Clerk was required to be excluded while computing the upper age limit for the post in question which rule, according to him, stands saved by the aforesaid Recruitment Policy. It is also maintained that in any case, statutory rules could not be modified or superseded by executive instructions. Reliance is being placed on Muhammad Qasim and 6 others v. Home Department, Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others (2004 PLC (C.S.) 69).
3. Mr. Shahid Saleem, Section Officer of Home Department, submits that in accordance with the Recruitment Policy, apart from the general relaxation of five years, no other relaxation could be granted to the petitioner. The representative of the Punjab Public Service Commission submits that the candidature of the petitioner was determined in accordance with the Government instructions.
4. The submissions made have been considered. Not only the 1976 Rules referred to above stand protected even by the Recruitment Policy aforesaid but also that a statutory rule could not be abrogated by an executive instruction. The question was considered by me in the case of Muhammad Qasim and 6 others (supra) and the view taken was that the benefit of rule 3(V) was available to a candidate in Government service. It was also held that the aforesaid rules was a beneficial dispensation and is to be interpreted in a manner so as to advance the remedy. It may also be observed that rule 3(V) contemplates computation of upper age limit and not relaxation of upper age limit.
5. Accordingly, the rejection of petitioner's candidature is declared as without lawful authority and the Punjab Public Service Commission is directed to consider the candidature of the petitioner by computing the upper age limit in accordance with rule 3(V) of the aforesaid 1976 Rules, of course, after satisfying itself as to the claim of the petitioner for continuous Government service from 7-11-2000.
6. Vide order dated 7-7-2004, the petitioner was allowed to take test/interview with a direction that his result shall not be declared. And, vide order dated 11-11-2004, it was directed that one post shall not be filled in. It is, therefore, directed that if after allowing the benefit of rule 3(V) of the 1976 Rules, to the petitioner, he is found to be within the upper age limit. His result shall be declared. No order as to costs.
H.B.T./5-396/L Order accordingly.