1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHARY (CHAIRMAN).‑‑The appellant is serving as Constable in the Punjab Police. He submitted an application for relaxation in his upper age‑ to attend Lower Class Course at Sihala but his request was turned down vide order dated 30‑9‑1987. The grievance of the appellant is that he joined the Police after doing Intermediate, his service record is clean and he was duly recommended by his officer incharge. It is further pleaded that the appellant sought only relaxation of couple of months whereas the respondents have granted in other cases relaxation to the extent of years. The appellant not feeling satisfied with the result decided to invoke the jurisdiction of this Tribunal through present appeal under section 4 of P.S.T. Act. The appeal was admitted to regular hearing on 1‑11‑1987.

2. The respondents have contested the appeal, submitted written objections and prayed for its dismissal. We have heard the arguments of the learned counsel for the appellant as well as the learned District Attorney and gone through the relevant rules. The learned counsel for the appellant in support of the appeal has raised following points:‑ (1) Firstly, that the appellant joined the police service in 1975 after doing his Intermediate, 'he has successfully taken examination for list A in the year 1982 and he was awarded 18 certificates during the service; (2) Secondly, the appellant has a clean and unblemished service career and completed his one year stay in the Training Centre and was recommended by his officer incharge for relaxation of age; and (3) Thirdly, that appellant was metted discriminatory treatment as much as he has not been allowed relaxation of couple of months, in spite of his qualifications and clean service record, whereas many of his, colleagues having none of these qualifications were allowed relaxation to the extent of years.

3. On the other hand the learned District Attorney has argued that relaxation is within the sole discretion of the respondents and the same cannot be made subject‑matter of the appeal. It is added that according to Rule 13.7 of Police Rules only following categories of constables are legible for selection in the lower class training: (a) Whose name is borne at list B. I, or (b) Who have completed one year stay in training centre.

4. We have considered the arguments advanced on both sides. It is true that when the appellant made an application he was informed that his case will be referred when he completes one year stay at P.R.T.C., Lahore. The decision was communicated to him through Memo. dated 24‑7‑1987. Thereafter the appellant submitted an application that while he is completing one year in the P. R. T. C. in August and the next Course commences in October, therefore, the appellant be allowed relaxation in age only up to the starting of the Course. It meant relaxation to the extent of about 2 months. Although this request was duly recommended by the Officer Incharge P.R.T.C. yet it was turned down by the respondent No.l.

5. The decision of this appeal hinges on the decision of question whether the respondent No.1 can exercise the discretion vested in him arbitrarily or he must have some substantial considerations, before him which shall furnish basis for the exercise of his discretion. The learned D.A. argued that the discretion is absolute and controlled. We are not prepared to accept the proposition convested on behalf of respondent. The theory of absolute and uncontrolled discretion is now only part of textbooks. The fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 have since been restored. The respondent 1 is to be guided by some consideration while exercising his discretion as to the relaxation of age. Now since the fundamental rights have been restored, therefore, the appellant can make a grievance that the discretion has been exercised whimsically, arbitrarily and this has resulted in discriminatory treatment.

6. The constitution being supreme and fountain head of all laws, therefore, all laws and rules must be brought in line with the provisions of Constitution. It is high time for the respondent now to frame or have set all rules or principles which shall serve as criteria for exercise of the discretion. We can just point out certain principles which may be guiding principles for exercising the discretion:‑ (1) Academic qualifications. (2) Length of service. (3) Clean service record. (4) Some gallantry performance or outstanding performance.

7. The respondents are at liberty to lay down any guiding principles and then to exercise the discretion in accordance with the said principles. It is necessary to avoid their action being struck down as discriminatory on the one hand and on the other hand it is essential to give sense of security and equal treatment to all their subordinates. We have already limelighted and made it clear that the departmental authorities while exercising discretion or their authority should act even handedly and judicially because it is absolutely essential for keeping discipline in their respective departments. The authority exercised by the departmental authorities is akin to parental authority; their subordinates should not have even feeling that anybody else was given a better or favourable treatment. This is absolutely essential to preserve discipline and unity in the disciplined forces like police.

8. The result is that the appeal is allowed, impugned order is set aside and respondent No.1 is directed to reconsider the case of the appellant for sending him for training in the ensuing lower school course. There is no order as to costs. M.Y.H./209/Sr.P Appeal allowed.