2021 PLP (C (PLC(CS))

SHUJAAT ALI KHAN, J.

Unnecessary details apart, the petitioner, while serving as Junior Clerk in City District Government, Lahore applied against the post of Information Officer (BS-17) pursuant to an advertisement got published by the Punjab Public Service Commission (PPSC) and after qualifying the written examination he was placed at Serial No.64 of the Merit List. Thereafter, the petitioner appeared in the interview but his candidature was rejected by PPSC, vide communication, dated 14.06.2012, on the ground of being over-age and non-submission of Departmental Permission Certificate. Against rejection of his candidature, the petitioner submitted his representation along with the Departmental Permission Certificate but without any success as his representation was dismissed by PPSC vide communication, dated 27.06.2012, on the ground that being City District Government employee he was not entitled for relaxation in upper age limit; hence this petition.

2. Learned counsel for the petitioner submits that according to the provisions of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 (hereinafter to be referred to as the Rules, 1976 ) a government servant is entitled to relaxation in upper age limit to the extent he has served in the department; that in the Rules, 1976 no line of distinction has been drawn in respect of government departments but PPSC authorities while acting malafidely through departmental instructions has excluded the City District/Zila Council/Local Counsel servants from benefit of the Rules, 1976; that mere guidelines/instructions issued by a government department cannot be preferred over the rules framed by the competent authority pursuant to the powers vested by an Act. Relies on Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others (2010 PLC (C.S.) 924).

3. Learned Law Officer, while opposing the submissions made by the learned counsel for the petitioner, submits that in the advertisement it was clarified that relaxation in upper age limit was not admissible to employees of Local Government/Zila Council Servants, thus, when the petitioner applied against the post in question without any agitation against the said condition, he was bound to fulfil the same; that Local Council services being not covered under Article 240 of the Islamic Republic of Pakistan, 1973, the petitioner cannot claim himself as government servant; that the Hon ble Supreme Court of Pakistan in the case reported as Muhammad Mubeen-Us-Salam and others v. Federation of Pakistan (PLD 2006 SC 602) has drawn a line of distinction amongst different categories of employees and employees of Local Council have been excluded from the definition of government servant.

4. While exercising his right of rebuttal, learned counsel for the petitioner submits that since Mubeen-us-Salam s case, referred by the learned Law Officer, deals with difference between a civil servant and a government servant, same cannot unnecessarily be stretched to make a distinction between government servant and Local Council/Zila Council servant and that since the Local Government is being supervised by the Provincial Government the employees of Local Council/Zila Council are government servants.

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.

6. It is admitted position that initially the petitioner was appointed as Junior Clerk, vide Order No.964, dated 27.10.1993, issued by the Administrator, Zila Council, Narowal. Later on, he was posted as Junior Clerk in City District Government, Lahore. Policy Decision No.7.5 of PPSC deals with relaxation in upper age limit, which for convenience of reference is reproduced herein below:- 7.5 General Provisions Concession in upper age limit admissible under the Punjab Civil Servant Recruitment (Relaxation of Upper Age Limit) Rules, 1976. a. In the case of persons serving in connection with the Government of Punjab, the period of their continuous service as such shall for the purpose of upper age limit, be excluded from their age unless provided otherwise in any Service rules or Government s Policy Instruction. Note: - Employees of Federal Government or Semi government and Autonomous Bodies of Federal Government or Provincial Government like WAPDA, ADC and those of Local Bodies are not entitled to age concession for the period of their Service in such organizations. According to afore quoted Policy Decision relaxation in upper age limit is only admissible to the persons who are government servants. Moreover, according to Rule 3(v) of the Rules, 1976, relaxation in upper age limit is admissible to the government servants.

7. Now the question which boils down for determination by this Court is as to whether the employees of Zila Council are government servants or not. Initially, the terms and conditions of Zila Council employees were governed under the West Pakistan Municipal Committees Servants Service Rules, 1969, which were succeeded by the Punjab Local Council Servants (Service) Rules, 1997 (hereinafter to be referred as the Rules, 1997). According to Rule 2 of the Rules 1997, every local council shall have its own service set up. Since the salaries and allied emoluments of Zila Council employees are paid from the funds to be raised by the Union Council concerned or provided by the Local Government Board they have nothing to do with the affairs of the Provincial Government. To exemplify the said fact a reference can be made to Rule 15 of the Punjab Local Government District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005 according to which a government servant and members of Local Council services are two different entities.

8. During the course of arguments learned counsel for the petitioner has put much emphasis on the fact that since Policy Decision 7.5 of the PPSC is ultra vires to the Rules, 1976 the same has no legal sanctity. It has not been denied by the learned counsel for the petitioner that the respondents in the advertisement clarified that relaxation in upper age limit was not permissible to the employees of Local Bodies. Further even in the present petition the petitioner has not challenged said Policy Decision and until and unless the same is declared ultra vires by a forum of competent jurisdiction the same shall hold the field.

9. It is imperative to note that the word government servant has not been defined in the Rules, 1976, thus, for the purpose we have to refer to other enactments wherein the said term has been defined. In the Punjab Civil Servants (Restriction on Marriages with Foreign Nationals) Rules, 2011 the said term has been defined as Government servant means a government servant to whom these rules apply. Likewise, in the Punjab Government Employees Welfare Fund Ordinance, 1969 the said term means a person, not being a member of an all Pakistan service or a contract employee of the Government . In the Punjab Government Servants (Conduct) Rules, 1966 the term government servant has been defined as a person to whom the said rules are applicable. From the accumulative study of the above definitions it is crystal clear that the government servant means a person to whom the rules framed by the Government of the Punjab are applicable. Insofar as the instant case is concerned, as the terms and conditions of service of the petitioner are governed under the Rules, 1997 he cannot be termed as a government servant for the purpose of relaxation in upper age limit in terms of Rule 3(v) of the Rules, 1976. The interpretation of Rule 3(v) of the Rules, 1976 came under discussion before the Hon ble Supreme Court of Pakistan in the case reported as Saleem-ur-Rehman and another v. Government of the Punjab through Secretary, S&GAD, Lahore and others (1986 SCMR 747) wherein while dealing with the preposition as to whether intent of the legislator is to be followed or those rules should be extended even to those categories which are not mentioned in proviso to Rule 3(v) ibid, the apex Court of the country has inter alia held as under:- The rules sought to be interpreted, namely, Relaxation Rules were framed under section 23 of the Punjab Civil Servants Act, 1974 and a new clause (v) was added in terms hereunder:‑ "(v) In the case of a candidate already working as a Government servant, the period of his continuous service as such shall, for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate shall be excluded from his age." Section 2 which is a definition clause of the Punjab Civil Servants Act defines 'Government' as the "Government of the Punjab". It is a restrictive definition for the word "means" has been used for defining it. Section 19 of the General Clauses Act provides as follows:‑ "

19. Construction of orders to issue under enactments. Where, by any West Pakistan Act, a power to issue any notification, order, scheme, rule, form, or bye-law is conferred, then, expressions used‑in the notification, order, scheme, rule, form or bye‑law shall unless there is anything repugnant in the subject or context have the same respective meanings as in the Act conferring the power." In view of these two statutory provisions the normal rule of interpretation would lead to the conclusion that the word "Government" in the Relaxation Rules refers to Punjab Government. There is another principle of interpretation of statutes which is attracted to the situation. The relaxation rules are expressed to be in derogation of or a departure from the normal rule for recruitment to the services. Not only the relaxation rules are expressed to be so their effect is also the same. For this reason, where an exemption or relaxation is sought to be created in respect of certain category a restricted and not an extended meaning is given for understanding and applying the statutory provision. On this view also the extended or the popular meaning cannot be introduced defeating thereby the legislative intent and the purpose. The only other submission of the learned counsel for the appellants which requires further examination is that the rules applicable to the recruitment read as whole justify such an extended meaning. He has referred to the other clauses, for example, in clause (iii) of rule 3 of the Relaxation Rules and rule 6, clause (ii), proviso (2) reproduced above wherein provision has been made for certain categories of Government servants actually serving or who have already served in connection with the affairs of the Federation. We have examined these rules and find that there is no conflict or incongruity to justify a departure from the ordinary rule of interpretation for where departure was intended it was expressed in clear language which was itself restrictive and not general and extensive. The learned counsel for the appellants has also pointed out that the more appropriate word to be used in the context would have been 'Civil Servant' instead of 'Government servant' if the intention was to confine the benefits to the employees of the Provincial Government. For good reason, this argument has been rejected by the Appeal Bench and we agree with the reasoning because if the expression 'Civil Servant' had been used then a large section of even the Provincial Government servants for whom this rule has been framed would have stood excluded. We find no merit in this appeal which is dismissed leaving the parties to bear their own costs. We want to make it clear while dismissing this appeal that if it is only a question of relaxation of age, the Government may if it is short of officers or of qualified candidates and is facing difficulty in recruitment it may in case of suitable and qualified candidates from amongst the appellants, if any, relax this requirement of age. The learned counsel after consulting the appellants has expressed their readiness if in the case of those qualifying, such relaxation in the matter of their age in forthcoming to forego the batch seniority and instead claim seniority from the date relaxation in age is ordered or appointment is made. However, this is a matter for the Provincial Government to deal with.

10. The Supreme Court of India in the case of UPSC v. Jamuna Kurup (AIR 2008 SC 2463) while dilating upon the point as to the status of the employees of municipal corporation/committee, has inter alia held as under: - *****But a municipal corporation is not Government , and municipal employees are not government servants governed by Articles 309 to

311. Though permanent employees of municipal corporation or other statutory bodies may be governed by statutory rules, they do not enjoy the status of government servants. If the case of the petitioner is adjudged on the touchstone of the afore-referred judgment there leaves no ambiguity that he does not fall within the definition of the government servant as envisaged under Rule 3(v) of the Rules, 1976, as employees of City District Government are even not covered under Article 240 of the Constitution of Islamic Republic of Pakistan, 1973, thus, no illegality was committed by the PPSC authorities while rejecting the candidature of the petitioner.

11. For what has been discussed above, I see no force in this petition which is hereby dismissed with no order as to costs. SA/M-104/L Petition dismissed.