2020 PLP (C (PLC(CS)N)

WAQAR AHMAD SETH, J.

By this single/consolidated judgment, this Court intends to dispose of all the writ petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as arising out of the same subject matter. The particulars of said writ petitions are given below:- S. No. Case No. Title

1. W.P. No. 4616-P/2016. Shah Saud Vs Khyber Pakhtunkhwa Public Service Commission through its Secretary and others.

2. W.P. No. 4338-P/2016. Wajid Ali Vs 'ditto'

3. W.P. No. 4672-P/2016. Farman Ali Vs 'ditto'

4. W.P. No. 4625-P/2016. Muhammad Faisal Vs 'ditto'

5. W.P. No. 4629-P/2016. Waseem Ullah Khan Vs 'ditto'

6. W.P. No. 4673-P/2016. Fawad Yousaf Vs 'ditto'

7. W.P. No. 4686-P/2016. Majid Khan Vs 'ditto'

8. W.P. No. 4687-P/2016. Muhammad Asif Vs 'ditto'

9. W.P. No. 4693-P/2016. Noor Muhammad and others Vs 'ditto'

10. W.P. No. 4729-P/2016. Waqar Ahmad Vs 'ditto'

2. The brief but essential facts leading to the present writ petitions are that petitioners in all the writ petitions were refused to appear in the up-coming viva voce for the post of ASI (Assistant Sub-Inspector) in Khyber Pakhtunkhwa Police Department being over-age. Keeping in view the Relaxation of Upper Age Limit Rules, 2008, the petitioners have impugned the letters of their rejections as per detail mentioned below ;- S.No. Case No Title Impugned rejection letter

1. W.P. No. 4616-P/2016. Shah Saud v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/087557 dated 15-11-2016.

2. W.P. No. 4338-P/2016. Wajid Ali v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/081282 dated 4-11-2016.

3. W.P. No. 4672-P/2016. Farman Ali v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/092014 dated 18-11-2016

4. W.P. No. 4625-P/2016. Muhammad Faisal v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/081357 dated 7-11-2016.

5. W.P. No. 4629-P/2016. Waseem Ullah Khan v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/NIL dated 14-11-2016.

6. W.P. No. 4673-P/2016. Fawad Yousaf v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/092016 dated 18-11-2016.

7. W.P. No. 4686-P/2016. Majid Khan v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/081366 dated 7-11-2016.

8. W.P. No. 4687-P/2016. Muhammad Asif v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/087552 daed 15-11-2016.

9. W.P. No. 4693-P/2016. Noor Muhammad and others v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/091934 dated 17-11-2016. KPPC/Exam/C/089681 dated 16-11-2016. KPPC/Exam/C/081358 dated 7-11-2016

10. W.P. No. 4729-P/2016. Waqar Ahmad v. Khyber Pakhtunkhwa Public Service Commission through its Secretary and others. KPPC/Exam/C/NIL dated 22-11-2016

3. All the petitioners in their respective writ petitions collectively prayed that;- "On acceptance of these writ petitions directions may kindly be issued to the respondents to allow the petitioners to appear in the up-coming viva voce for the post of ASI (Assistant Sub-Inspector) in Khyber Pakhtunkhwa Police Department keeping in view the Relaxation of Upper Age Limit Rules, 2008 and also the fact that other candidates have already been granted upper age relaxation for the same post under the same advertisement by the Establishment Department Khyber Pakhtunkhwa who have been allowed for the final viva. Respondents may also be directed to grant upper age relaxation as per the mandate of "Relaxation of Upper Age Rules, 2008" and also on the basis of the opinion rendered by "Law Parliamentary Affairs and Human Rights Department Khyber Pakhtunkhwa vide Letter No. SO(OP-II)LD/5-1 / 2012-VOL-III 26495-96 dated Peshawar the 29th November, 2016. That impugned rejection letters mentioned against their name issued by the respondents and also act of the respondents not granting upper age relaxation to the petitioners may be declared void ab-initio, illegal and against the fundamental rights for the best administration of justice and fair play."

4. In essence the grievances of all the petitioners are that respondents advertised several posts of ASI (Assistant Sub-Inspector) in Khyber Pakhtunkhwa Police Department vide its different advertisements for which the petitioners being eligible candidates have applied for the same. That after completion of codal formalities respondents issued roll numbers to the petitioners and directed them to appear in the physical test, screening test, comprehensive written examination, psychological test and also psychological including viva voce. The petitioners were declared successful in written tests, but later on vide impugned rejection letters well mentioned in para two of the judgment referred above, were declared as over-age and being over-age all the petitioners were avowed ineligible to appear in the up-coming final viva voce. Thereafter petitioners approached the appointing authority i.e. Secretary, Home and Tribal Affairs Department and Inspector General of Police Khyber Pakhtunkhwa. But the ball was thrown towards the Secretary, Law Department, Khyber Pakhtunkhwa, Peshawar, for their opinion and the reply thereof was received in favour of the petitioners. But the respondents are still calm and quite over the issue which compel the petitioners to knock the door of this Court in its constitutional jurisdiction.

5. Respondents were put on notice. The answering respondents contested the petition vehemently by filing their respective comments.

6. Detailed arguments heard from both the sides and available entire record was perused with the able assistance of learned counsel for the parties.

7. Overall arguments of both the learned counsel for the parties were basically focused over the upper age limit. In the matter learned AAG relied on the case law "2013 SCMR 85" titled (Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others), but it cannot be relied upon as the same relates to different entity/domain.

8. We noticed with great concern that as per their respective vicinity all the petitioners have applied for the posts of ASI (Assistant Sub-Inspector) so advertised by the respondents being qualified and eligible candidates. Albeit after completion of due process/codal formalities, roll numbers have also been issued to them, but later on they were rejected/refused with one stroke of pen for the viva voce, vide above referred impugned letters numbers well mentioned against each candidate/petitioners in para 02 of this judgment on the ground of being overage. Perusal of record further speaks that other candidates have been given age relaxation time to time. The detail whereof is well mentioned in below lines;- S. No. Name and father names. CCP, Number Officer Order No. Date

1. Muhammad Usman Khan son of Muhammad Zahir Khan. 163/P 3394-3405 / E.C.-I 19-2-2017

2. Aadarsh Majmar son of Khadim Shah 164/P SOE-III (E&AD) 2-2/2016. 14-11-2016

3. Alia Nawab d/o Nawab Ali Khan 181/P 3394-3405 / Executing Court-I. 19-2-2016

4. Muhammad Jehan Zeb Khan son of Sakhi Jan Nil SOE-III (E&AD) 2-2/2016. 05-12-2016

5. Nauman Khan son of Shah Niaz Khan Nil SOE-III (E&AD) 2-2/2016. 02-12-2016

6. Imran Khan son of Zakir ur Rehman Nil SOE-III (E&AD) 2-2/2016. 02-12-2016

7. Abdul Waheed son of Abdur Nil SOE-III (E&AD) 2-2/2016. 23-11-2016

8. Shah Saud Khan son of Hamish Gul Nil SOE-III (E&AD) 2-2/2016. 25-11-2016

9. Shahid Alam son of Noor Rehman Nil SOE-III (E&AD) 2-2/2016. 11-08-2014 Grant of age relaxation to the other candidates by ignoring the petitioners amounts to violation of fundamental rights of petitioners which ought to have been dealt equally along with other candidates who have been given upper age relaxation for the same posts by the Government of Khyber Pakhtunkhwa Establishment and Administration Department, Peshawar time and again.

9. Record further suggests that Public Service Commission along with its Advertisement No. 04/2014 also annexed general conditions wherein issue regarding age relaxation has also been defined. Relevant portion is reproduced below for ready reference;- "General Conditions" Age shall be reckoned on 01.01.2015. The candidates are required to be academically qualified in all respects by 22.08.2014. Candidates not in possession of the required qualification by the last date for receipt of application for inland candidates shall not be considered. Maximum age limit as prescribed in the recruitment Rules shall be relaxed upto Ten years for Disable persons and Government servants who have completed two years continuous service and upto 03 years for candidates belonging to backward areas specified in the appendix attached to the Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008. However, a candidate shall be allowed relaxation in age in one of the above categories provided that the candidates from backward areas, in addition to automatic relaxation of three years shall be entitled to one of the relaxations available to Government servants, general or disable candidates, whichever is relevant and applicable to them. Employees or Ex-employees of development projects of the Government of Khyber Pakhtunkhwa and employees or Ex-employees of development projects of the Federal Government under the administrative control of the Government of Khyber Pakhtunkhwa shall also be entitled to age relaxation equal to the period served in the projects, subject to a maximum limit of ten years provided that this age relaxation shall not be available in conjunction with any other provisions of the age relaxation Rules."

10. Moreover, vide Letter No. SO (OP-II) LD/5-1/2012-VOL-III / 26495-96 dated 29.11.2016 Government of Khyber Pakhtunkhwa Law, Parliamentary Affairs and Human Rights Department, Peshawar also granted upper age relaxation to the petitioners/applicants in general. The relevant portion is reproduced for ready reference;- "Para No. 2. "The age relaxation policy at Serial No. 3 in table under Rule-3 of the initial appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008, the age relaxation in upper age limit to general candidates upto 2 years can be granted by the appointing authority." Para No. 3. "Further, in accordance with section 31(i)(iii) of the Ordinance ibid (Khyber Pakhtunkhwa Police Ordinance, 2016), 25% of the posts of Assistant Sub-Inspector shall be filed by initial recruitment through Public Service Commission the prescribed manner, hence age relaxation upto 2 years, may be granted by the appointing authority for Assistant Sub-Inspector."

11. In this view of the matter and what has been discussed above particularly in the light of Letter No.SO(OP-II)LD/5-1/2012-VOL-III / 26495-96 dated 29.11.2016 referred above, the petition in hand and including all those cases as mentioned in first para of this judgment are hereby 'ALLOWED' as prayed for. The respondents are directed to allow all the petitioners for the viva voce as they are sanguine about their success. Let the chance be given to them to compete pre-requisite for the post of ASI (Assistant Sub-Inspector). ZC/152/P Petition allowed.