2019 PLP (C (PLC(CS)N)

ADNAN-UL-KARIM MEMON, J.

Petitioner is seeking declaration to the effect that the Impugned Order dated 25.09.2014 passed by Sindh Public Service Commission/Respondent No.4 as illegal, arbitrary not warranted by the law and void ab-initio and the same be set aside. Petitioner further seeks declaration that he is eligible and fit candidate for appointment as Assistant Sub-Inspector (ASI) BPS-09 in Sindh Police Department, on the basis of Shaheed quota.

2. The facts of the case of Petitioner are that the father of the Petitioner was working in Sindh Police Department as Inspector and during service; he passed away on 22.10.1988, as he suffered from stroke of brain hemorrhage. Petitioner added that in the year 1996 he applied for the post of Assistant Sub-Inspector in the Police Department on Son/Shaheed quota and he was referred to the Deputy Superintendent of Police Headquarter Sindh, Karachi for Physical measurement vide letter dated 18.10.2001 issued by Senior Superintendent of Police, South Karachi; Petitioner claims that he qualified the test but Medical letter was not issued. Petitioner further added that on 01.06.2006 he moved an application to the Home Secretary, Government of Sindh for the recruitment for the post of Assistant Sub-Inspector (ASI) in Sindh Police on the basis of Son/Shaheed quota the said application was forwarded by the office of Home Department, vide letter dated 06.06.2006 to the then Capital City Police Officer, (CCPO) Karachi, for taking necessary action as to the Petitioner's appointment under intimation to the Home Department. Petitioner averred that Deputy Inspector General of Police Training and Inspection Sindh by his letter dated 06.01.2008 informed the (CCPO) Karachi with reference to his letter dated 15.02.2007 that since the appointment to the post of ASI are to be made through Sindh Public Service Commission, and Petitioner be informed accordingly to wait till the posts of ASI in Sindh Police are advertised by Sindh Public Service Commission (SPSC). It is further added by him that in the year 2007 the Petitioner applied for the post of ASI through Sindh Public Service Commission, but such examination could not be conducted. It is further averred that the Petitioner again in response to the Advertisement No. 3/2011 dated 06.09.2011 issued by Sindh Public Service Commission, applied for the post of ASI, in response to which (SPSC) issued admission letter dated 11.09.2013 to the Petitioner for screening test, thereafter by admission letter dated 25.04.2014, pre-interview written test of the Petitioner was conducted and lastly by means of another Admission letter dated 24.07.2014 for physical fitness tests / measurements of height and chest were conducted. Per Petitioner, he was declared successful in all the above tests conducted by the Respondents/ SPSC. It is further averred by him that after undergoing through the requisite tests, the Petitioner was waiting for the interview / viva voice test for his appointment to the post of ASI. Petitioner further added that he was shocked to receive the Impugned Order dated 25.09.2014, whereby his candidature for the post of ASI was rejected by the Sindh Public Service Commission on the premise that the Petitioner was overage by 08 years, 11 months and 10 days on the closing date i.e. 11.07.2011. Besides, the Petitioner does not possess second class in Intermediate or equivalent. Petitioner claims that he approached the Respondents by moving applications for the post of ASI but they ignored the same without assigning any reason. Petitioner, being aggrieved by and dissatisfied with the Impugned letter dated 25.09.2014 issued by (SPSC), has approached this Court on 06.10.2015.

3. Upon notice, the Respondents Nos. 1 and 2 have filed their para-wise comments.

4. Mr. Abdul Salam Memon, learned Counsel for the Petitioner has argued that the Petitioner had initially applied for the post of ASI in the year 1996 on the basis of Son/Shaheed quota; that physical measurement of the Petitioner was conducted on 18.10.2001 and only medical letter was required to be issued to the Petitioner, which was withheld with mala fide intention; that the Petitioner has been persistently pursuing the Police Hierarchy for his appointment as ASI on Son/Shaheed quota; that Petitioner was asked to wait for the advertisement by the Sindh Public Service Commission, which was published in the year 2011 and the Petitioner had appeared and qualified all the tests; that finally candidature of the Petitioner for appointment as ASI was rejected on the pretext that the Petitioner being overage for above 8 years, for which Petitioner cannot be blamed. Learned counsel raised point of discrimination and argued that on 13.01.1999, a Committee headed by the then Inspector General of Police Mr. Aftab Nabi and Deputy Inspector General of Police Mr. Saleem Wahidi, appointed a number of candidates as ASI on Son/Shaheed quota and Mr. A.D. Khawaja and SSP. District South, Karachi have also appointed various candidates of District South Karachi as ASI on the basis of Son/Shaheed quota, but the case of the Petitioner being an eligible candidate for the post of ASI, was not considered for his appointment.

5. Learned counsel pointed out that the Government of Sindh from time to time issued various Notifications, whereby relaxation was being allowed upto maximum of fifteen (15) years in the upper age limit for all the Applicants applying for the vacancies in all the Departments of Government of Sindh to be filled during different time periods; that it is incumbent upon the Respondents to fulfill their lawful promise by relaxing the upper age limit of the Petitioner for the post of ASI; that Respondents are discriminating the Petitioner in violation of Rule 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Standing Orders issued by IGP, and Police Rules. Learned counsel further added that since the Government of Sindh has been pleased to allow relaxation upto maximum of (15) fifteen years in the upper age limit, as such the ground of overage of the Petitioner by 08 years, 11 months and 10 days, is of no significance and merits no consideration in view of the Notifications allowing relaxation upto fifteen (15) years in upper age limit; that the application of the Petitioner has been wrongly cancelled by the (SPSC) on false and fabricated grounds with mala fide intention and ulterior motives; that Petitioner is entitled to be appointed to the post of ASI on the basis of Son/Shaheed quota as well as on merits, since he has been declared successful candidate in all the tests conducted by the (SPSC) from time to time; that the Petitioner has been seriously prejudiced and not treated equally, therefore, the Petitioner is entitled to be treated equally in accordance with law, as provided under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973; that grave injustice has been done with the Petitioner with no fault on his part by depriving him for his appointment to the post of ASI, for which he qualified all the prerequisite tests; that the Respondents are liable to rectify their arbitrary and illegal actions so as to enable the Petitioner to array him in seniority/promotion list of ASI's, which he has respective position as per law; that due to such acts and deeds of the Respondents, the Petitioner has suffered a lot of mental torture, agonies and by such situation, the Petitioner is facing problems too; that the denial in this regard by the Respondents amounts to invade upon and infringement of fundamental and legal rights of the Petitioner, as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 that are enforceable by this Court in exercise of its Constitutional jurisdiction; that the Petitioner, thus, have legal right/interest in ensuring that the Respondents be dealt with in accordance with law; that the Petitioner has been continuously approaching personally all the movers and shakers to appoint him for the post of ASI on the basis of Son / Shaheed Quota like other batch mates of the Petitioner; that the Petitioner is aggrieved by the illegal action of the Respondents. He lastly prays for allowing the instant Petition.

6. Mr. Abdul Jalil Zubedi, learned A.A.G Sindh, representing the Respondents, has contended that the Sindh Public Service Commission invited applications for the post of ASI (BPS-09) in Police Department, Government of Sindh, pursuant to Article 7(3) of Police Order, 2002 (since repealed) for direct recruitment as well as Graduate Constables and Head Constables (in service) vide Advertisement No. 03/2011 dated 09.06.2011 and as per press release dated 04.02.2013 the date of receiving of application forms was extended from time to time; that the age limit prescribed in the advertisement for those candidates, who intended to apply for direct recruitment was minimum 18 years and maximum 28 years and the candidates, who are in service, it was fixed as minimum 18 years and maximum 33 years with a note clearly mentioned in the advertisement that no relaxation in age, education or Physical standard will be allowed to the candidates for direct recruitment and the Petitioner applied for the post of ASI (BPS-09) in the capacity of fresh candidate against direct quota and was allowed to appear in Screening/Pre-Interview written test including Physical Fitness Test along with other such candidates provisionally with the condition clearly mentioned in his admission letter that eligibility of the candidates for the written Examination in terms of Recruitment Rules and conditions mentioned in the advertisement shall be determined after the conduct of Professional/Screening Test/ Examination. He has further added that when the documents of the Petitioner underwent the process of scrutiny, it revealed that he was overage by 08 years 11 months and 10 days on the closing date i.e. 11.07.2011 specified in the advertisement. Resultantly, his candidature was cancelled and rejection letter dated 25.09.2014 was issued to him accordingly. He has further contended that neither any post reserved against son quota was requisitioned by the Police Department nor advertised as such by the Commission and the Petitioner did not fulfill the requirement of age limit as prescribed in the advertisement and he was overage by more than 8 years. Even the Petitioner is not entitled to be appointed as ASI in Police Department on the basis of Son/Shaheed quota on the basis of Standing Orders issued from time to time by Inspector General of Police, Sindh as the same had not been approved by the Provincial Government. He further added that the Honorable Supreme Court has nullified all the Standing Orders issued by the Inspector General of Police, Sindh, which are not approved by the Provincial Government; therefore, no right has accrued in favour of the Petitioner for the post of ASI. He lastly prayed for dismissal of the instant Petition.

7. We have heard learned counsel for the parties and perused the material available on record.

8. Important questions of law involved in the subject Petition are as follows: i) Whether Petitioner can claim appointment as Assistant Sub-Inspector of Police against Son/Shaheed Quota under Standing Orders issued by Inspector General of Police, Sindh under Section 12 of the Police Act, 1861? ii) Whether the post of Assistant Sub-Inspector of Police can be filled through Sindh Public Service Commission under section 7(3) of Police Order, 2002(since repealed) or Police Rules, 1934? iii) Whether qualification that is, age and Physical Standard for appointment on the post of Assistant Sub-Inspector of Police can be relaxed? iv) Whether Petitioner was overage that is, 08 years, 11 month and 10 days on 11.07.2011 closing date specified in the advertisement? v) Whether the Petitioner does not possess 2nd class in Intermediate or equivalent? vi) Whether father of the Petitioner has been declared Shaheed on the basis of which he can claim appointment under Shaheed Quota as provided in Rule 11-A of the Sindh Civil Servants (Appointment, Transfer and Promotion) Rules, 1974?

9. We have perused Rejection Letter dated 25.09.2014 which is reproduced as follows: "Sindh Public Service Commission Thandi Sarak, Hyderaabad Mr./Ms. Rab Nawaz No. PSC/Rs/2014/ S/o M. Ayaz 25.09.2014 Roll No. 49042 SUBJECT: CANCELLATION OF CANDIDATURE TO THE POST OF ASSISTANT SUB-INSPECTOR (BPS-09) IN SINDH POLICE GOVERNMENT OF SINDH. Reference to your application for the post of Assistant Sub-Inspector (BPS-09) Sindh Police, Home Department, Government of Sindh. I am directed to inform you that your application for the above said post was considered by the commission and rejected as you have failed to fulfill the conditions mentioned for the said post in advertisement No. 03/2011 and 03/2013 on following ground(s).

1. You are over Age by year 08 Month 11 days 10 on closing date i.e. 11.07.2011.

2. You do not possess 2nd Class in Intermediate or Equivalent. Sd/- Assistant Director Recruitment Section"

10. We have noted that posts of ASI were referred to Sindh Public Service Commission, which invited applications for the said post vide Advertisement No. 03/2011 dated 09.06.2011 requiring following qualification etc. as under: AGE: Min: 18, Max 28 years for direct Recruitment. Min: 18, Max 33 years for Graduate constable and Head constable. QUALIFICATIONS: i. Intermediate with 2nd Division from any recognized Board/ University for General Recruitment. ii. For In-Service head Constable/Police Constables of Sindh Police Department, candidate should be Graduate. PHYSICAL STANDARD A candidate must be in good mental and physical health and should fulfill the following conditions: Male Height 5 X 5" (minimum) Chest 33 X 34 (minimum) Female: Height 5 X 2" (minimum) Sound Health Note: "No relaxation in age, education or physical standard will be allowed to the candidates for direct recruitment.

11. Admittedly Petitioner applied for the post of ASI (BPS-09) as fresh candidate in pursuance of above specified Advertisement and was allowed to appear in Screening/Pre-Interview written test including Physical Fitness Test along with other candidates on the condition mentioned in Admission Letter as follows: IMPORTANT INSTRUCTIONS Instructions given below are for strict compliance. "Eligibility of the candidates for the written Examination of English Essay, Sindhi/ Urdu Essay, General Knowledge, in terms of recruitment Rules and conditions mentioned in the advertisement shall be determined after the conduct of Professional/Screening Test/Examination. On detailed scrutiny of the applications as well as documents if they are found ineligible their candidature will be cancelled irrespective of the fact whether they have appeared in the examination/test or even qualified therein. On rejection of the applicants' candidatures on the basis of their ineligibility, the applicant would be informed by the Commission defining the reasons of their ineligibility. However if they feel aggrieved of rejection of their applications, they may file the appeal within seven days from the date of issuance of rejection letter with the documentary evidence against rejection of their candidature. Their appeal should be supported with the original treasury receipt of Rs. 250/= as appeal fee in the head of account "C 02101 organ of state appeal fee Sindh Public Service Commission otherwise the same will not entertained. This admission is "PROVISIONAL" subject to verification of all conditions of illegibility after the conduct of professional/Screening Test/ Examination."

12. During the process of scrutiny conducted by SPSC, Petitioner was found overage by 08 years, 11 months and 10 days on closing date that is, 11.07.2011. Secondly, Petitioner did not possess 2nd class in Intermediate or equivalent. Therefore, candidature of Petitioner was rejected vide order dated 25.09.2014.

13. It is settled principle of law that no relaxation in age and qualification can be given. Only those candidates can be appointed who meet the requisite criteria. In this regard, our view is supported by Rules 12.6 and 12.15 of Police Rules, 1934.

14. We are of the view that SPSC has rightly rejected candidature of the Petitioner. Besides, Petitioner has failed to establish case of discrimination and/or violation of any Law.

15. In order to clarify the legal position that has emerged in the present case we first take up legal issue of appointment in Sindh Police through Standing Order No. 279/2014 issued by the Inspector General of Police, Sindh.

16. It has been agitated by the learned counsel for the Petitioner that under the Standing Orders issued by the Inspector General of Police appointment on the post of ASI on Son/Shaheed Quota can be made without resorting to Sindh Public Service Commission. To rebut the said contention, learned AAG has stated that all the Standing Orders issued by the Inspector General of Police without approval of Provincial Government have been declared nullity by the Hon'ble Supreme Court of Pakistan in the case of Gul Hassan Jatoi and others v. Faqeer Muhammad Jatoi and others (2016 SCMR 1254). Therefore, no sanctity can be attached to such Standing Orders.

17. As per AAG, the Office of Inspector General of Police, Sindh, Karachi vide order dated 09.06.2014 issued Standing Order No.279/2014 notifying the recruitment in Sindh Police against Shaheed Quota/Son Quota (children of deceased, invalidated on medical grounds, retired and in-service police officers/men). Apparently, the said Standing Order has not been approved by the Provincial Government as required under Section 12 of Police Act, 1861.

18. The relevant portion of section 12 of Police Act, 1861 is reproduced as follows: "

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 organization, classification and distribution of the police-force, the places at which the members of the force shall reside, and the particular services to be formed 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."

19. Section 12 of the Police Act, 1861 reproduced supra leaves no room or ambiguity as to the fact that police force is commanded by Inspector General of Police, who has powers to frame Orders and Rules with regard to recruitment, organization, classification and distribution of Police Force subject to the approval of the Provincial Government. In other words, the aforesaid Provision enables Inspector General of Police to cater to a situation where it is expedient for him to issue such orders and make such rules as required to meet the contingencies with approval of the Provincial Government. 20 We are fortified by the judgment rendered in the case of Gul Hassan Jatoi (supra) and Mohammad Nadeem Arif and others v. IGP Punjab, Lahore and others (2011 SCMR 408) in which Hon'ble Supreme Court has held that the Standing Orders issued by Inspector General of Police have to be approved by the Provincial Government.

21. Reverting to the moot point raised by the learned Counsel for the Petitioner that candidature of the Petitioner was assessed by SSP, South, Karachi vide Letter dated 18.10.2001 for the post of ASI against Son/Shaheed Quota. It is an admitted position that Standing Orders have not been approved by the Provincial Government. Therefore, no sanctity can be attached with such Standing Orders to claim benefit. To asses this plea, we reproduce section 7(3) of Police Order, 2002 (since Repealed by The Sindh (Repeal of the Police Order, 2002 and revival of the Police Act 1861) Act, 2011) as under: "The recruitment in the police other than ministerial and specialist cadres shall be in the rank of constable, Assistant sub-Inspector and Assistant Superintendent of Police. Provided that selection for direct recruitment in the rank of Assistant Sub-Inspector shall be through the appropriate Public Service Commission and shall not exceed twenty five percent of total posts in that rank."

22. Learned counsel for the Petitioner while laying emphasis on Rules 10-A and 11-A of Sindh Civil Servant (Appointment, Promotion and Transfer Rules, 1974) argued that Petitioner cannot be non-suited on the ground of overage as there is general relaxation of upper age limit in all the departments of Government. However, after thorough examination we have noted that Rule 10-A and Rule 11-A until 30th July, 2011, published on 01.09.2011 were as follows:- "10-A. Notwithstanding anything contained in these rules, where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his unemployed children or, as the case may be widow (when all the children of the deceased employee are minor) may be employed against a post meant for initial appointment in BPS-16 and 17 for which he/she possess the minimum qualifications prescribed to that post: Provided that such child or widow may be given ten additional marks in the aggregate by the Sindh Public Service Commission or the appropriate Selection Board or Committee, if he or she otherwise qualifies the test, examination or interview; Provided further that a person who may have applied under this rule and qualifies purely on merit shall not be awarded any additional marks and his selection shall be made on merit and not under this rule: Provided further that the cut of date shall be within two years of the death of the officer or official. 11-A. Where a civil servant dies while in service or is declared invalidated or incapacitated for further service, one of his/her children or, as the case may be, widow (when all the children of the deceased employee are minor) shall be provided job who applies within a period of two years of death or declaration of invalidity of incapacity of civil servant on any of the basic pay scales Nos. 1 to 15 in the Department where such civil servant was working; Provided that such appointment shall be made after fulfillment of formalities as required in the requirement rules and holding interview, for the post applied for; provided further that the cut of date shall be within two years of the death of the officer or official" Third proviso of Rule 10-A as well as second proviso of Rule 11-A, specifically provides cutoff date for making of application for appointment under the deceased employees quota within 2 years of the occurrence of death of the Government Official. Through a further Notification dated 16.09.2014, two further provisos were added in Rules 10-A and 11-A and they are as follows:- "

1. Under Rule 10-A after third proviso, the following fourth proviso shall be added:- "Provided further that if a right of employment has already accrued to any of the children of deceased or invalidated or incapacitated civil servant then the former shall not be deprived of the benefit accrued to him under Notification dated 11.03.2008 and 17.07.2009 of these rules."

2. Under Rule 11-A, after second proviso, the following third proviso shall be added:- "Provided further that if a right of employment has already accrued to any of the children of deceased or invalidated or incapacitated civil servant then the former shall not be deprived of the benefit accrued to him under Notifications dated 11.03.2008 and 17.07.2009 of these rules"

23. We are not impressed by the contention of learned counsel for the Petitioner that Services, General Administration and Coordination Department, Govt. of Sindh issued various Notifications by allowing relaxation up to 15 years maximum in the upper age limit to all the applicants applying for vacancies in all departments of Government of Sindh.

24. Suffice it to say that Notification dated 26.02.2014 issued by the Chief Secretary, Government of Sindh clearly spells out that this relaxation is not applicable in Police service, which reads as follows:- NOTIFICATION No. SO11 (S&GAD) 5-64/2011: In continuation of this Department's Notification No. SOII (S&GAD 6-12/2004, dated 02.10.2012 and with the approval of Chief Minister, Sindh notwithstanding the contents of table given under Rule 12(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and the orders contained in this Department's Standing Order No. SORI (SGA&CD) 6/4/85, dated 19.04.2004, Standing Order No. SORI (SGA&CD) 6/4/85 dated 15.06.2004 and Corrigendum dated 02.07.2004 issued in this behalf, Government of Sindh are pleased to allow relaxation upto maximum of 15 (fifteen) years in the upper age limit to all the applicants applying for the vacancies in all the years in the upper age limit to all the applicants applying for the vacancies in all the departments of Government of Sindh (except Police Service and the posts to be filled through combined competitive examination by the Sindh Public Service Commission to be filled during the period with effect from 1st July 2013 to 30th June 2014 in relaxation of Rules. (Emphasis added) Sd/- SALIM SAJJAD HOTIANA CHIEF SECRETARY GOVERNMENT OF SINDH

25. The Honorable Supreme Court in C.Ps. Nos. 482-503-K of 2016 vide order dated 10.08.2016 has held that the above two provisos added by Notification dated 16.09.2014 omit the application of Notifications dated 11.03.2008 and 17.07.2009 to those candidates under the above quota whose right of employment has already occurred. In Notification dated 17.07.2009, the cutoff date for making application for employment under the above quota was provided as 17.07.2009. It is clear from Notification dated 16.09.2014 that the clog of two years for making application for employment under the deceased quota for the children who have already applied for employment prior to making of this rule, was done away.

26. We have come across Sindh Shaheed Recognition and Compensation Act, 2014 (Sindh Act No. XVI of 2014) published in Sindh Government Gazette on 11.06.2014. The case of Petitioner does not fall within the ambit of definition clause (f) of section 2 and section 3(5) of said Act. For ready reference subsection (5) of section 3 and section 2 (f) are reproduced as under:- "Government shall, in addition to the financial compensation under subsection (4), appoint at least two members of the family being the legal heirs of Shaheed person into service of Government in relaxation of the conditions of qualifications and age, to the extent as Government may deem appropriate." Section 2 (f) of Sindh Shaheed Recognition and Compensation Act, 2014, provides definition of Shaheed which reads as under:- "Shaheed" means a person who offered sacrifice of his life in line of duty in counter terrorism or becomes victim of an act of terrorism operation or targeted and killed by terrorists group and declared Shaheed in the manner prescribed by Government."

27. We may observe that Sindh Civil Servants Act, 1973 is an act of general application while Police Act, 1861 is of special application to the officers of subordinate rank of Police Force. The same goes with the rules. Therefore, Petitioner cannot take resort of either Standing Orders or Sindh Civil Servants Act, 1973 and Rules framed thereunder to claim appointment to the post of ASI. Reliance is safely placed upon the case of Inspector General of Police, Punjab, Lahore another v. Mushtaque Ahmed Waraaich and others (PLD 1985 SC 159).

28. In the light of above discussion, it is crystal clear that Police Department cannot circumvent the law to make recruitment to the post of ASI on the basis of Son/Shaheed quota by issuing Standing Orders or by invoking Rule 11-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and Sindh Shaheed Recognition and Compensation Act, 2014. The appointment of ASI can only be made through competitive process on merit.

29. In view of what has been discussed above, the instant Constitutional Petition is dismissed along with pending application(s). ZC/R-5/SINDH Petition dismissed.