1999 PLP (C (PLC(CS))

Notwithstanding the afore‑referred sanction, the petitioner was not appointed as A.S. I.

2. The grievance being voiced through this petition, is that the relatives of other two police officials who were killed in the same incident have duly been accommodated and the petitioner has been discriminated against despite the order passed by the Chief Minister for relaxation of age limit.

3. In the comments submitted by the Inspector‑General of Police, Punjab, it is not denied that the petitioner is real brother of Muhammad Ashfaq who laid down his life in a police encounter with terrorists on 26‑4 1995; that the relatives of other two officials who were killed in the same encounter have been duly accommodated and that petitioner holds a Master's degree but the stance being taken by the respondents is that the Provincial Cabinet in its meeting dated 13‑8‑1990 had imposed a ban on granting of age relaxation for recruitment to the Police Force.

4. Learned Additional Advocate‑General, on the other hand, has opposed the petition by making a reference to Punjab Civil Servants Recruitment and Relaxation of Upper Age Limit Rules, 1976, to contend that the relaxation could be granted only if the case falls within the ambit of Rule 3 of the said Rules which is to the following effect:‑‑ Rule

3. Notwithstanding anything to the contrary contained in any rules applicable to any post or service: ‑‑ (i) in the case of the candidates from Scheduled Castes and Under developed Areas, for a period of ten years with effect from the commencing day of the Interim Constitution of the Islamic Republic of Pakistan, the upper age limit shall be relaxed by 3 years; (ii) in case of a person whose services under Government have been terminated for want of vacancy the period of service already rendered by him shall for the purposes of upper age limit under any rule, be excluded from his age; and (iii) in the case of Ex‑Defence personnel, the interval between the date of their release from the Defence Forces of Pakistan, including the Mujahid Force and the date of re‑employment in a Civil Department subject to a maximum of seven years and the whole of the period of service rendered by them in such forces shall for the purposes of upper age limit under any rule, be excluded from their age. (iv) in the case of a person who has rendered national service under the Pakistan National Service Ordinance, 1970, the period actually spent by him in such service shall, for the purpose of upper age limit prescribed under any rule, for appointment to any service/post be excluded from his age. (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, be excluded from his age."

4. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the Bar.

5. The practice to honour the sons and next kith and kin of those police officials who lay down their lives while on duty particularly in encounters is very old. Governments from time to time, have made rules and taken decisions to that effect. The last Cabinet decision in this regard in the Province of Punjab was taken in November, 1991 and finds mention in Services and General Administration's Letter No. Cabinet‑11/1‑21/91 Entry No. 2033/PS‑91, dated 10‑12‑1991, para. No.2 of which reads as under:‑‑ The important qualifying clause of the afore‑referred decision was that the appointment was to be made in accordance with the educational qualification and the relevant rules and regulations. Though, the petitioner is real brother of a "Shaheed Police Constable" and is academically qualified for the appointment for the post in question yet he was admittedly overage by six years and ten months. At one point of time, the Chief Minister, Punjab granted relaxation of upper age limit in his favour but when he was apprised of the relevant rules, he withdrew the sanction. Besides Rule 3 of the Punjab A Civil Servants Recruitment and Relaxation of Upper Age Limit Rules, 1976, referred to in para. No. 5 above, there is a Cabinet decision, dated 30‑8‑1990 which was communicated to all the departments in the Services and General Administrations Letter, dated 10‑9‑1990 which in clause (3) mandates as under:‑‑ "(iii) Age relaxation shall not be given beyond five years in any case. This concession shall not be considered for recruitment to the Police Force. " The Government of Punjab. reiterated the general relaxation of upper age limit by five years in respect of all candidates for vacancies in BPS‑1 to BPS‑15 under the administrative control of the Punjab Government and Autonomous Bodies excluding the Police Department. This is apparent from the Government of Punjab Services and General Administration's letter dated 9‑5‑1994 a copy of which has been placed on record by the learned Additional Advocate‑General, Punjab. A bare reading of the afore‑referred provisions of rules and the Cabinet decision taken, would show that the initial order passed by the Chief Minister in favour of the petitioner relaxing his upper age limit was not supported by any provision of law or rules. The same had rightly been withdrawn and no exception can be taken to the same. An authority which has a power to pass an order retains the power to withdraw, modify or rescind the same until such time, a decisive step has been taken pursuant to the order in question. In the instant case, no effective step had been taken in petitioner's favour inasmuch as no appointment order had as yet been issued and no right had been created violation of which could warrant interference under Article 199 of the Constitution. The Principle of locus poenttentiae is couched in section 21 of the General Clauses Act and has been elaborated at length by an instructive judgment of the Hon'ble Supreme Court in Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farrukh (PLD 1969 SC 407) wherein at page 412, it has been observed as under‑‑ "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of recalling till a decisive step is taken, is available to the Government or the relevant Authorities. In fact, the existence of such a power is necessary in the case of all Authorities empowered to pass orders to retrace the wrong steps taken by them. The Authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. In the present case, the order fixing the basic salary of Rs. 1,000 per mensem for the respondent Himayatullah Farukhi was made by the President on the 1st of October, 1959 when the 1956‑Constitution had been abrogated and the country was governed by the Laws (Continuance in Force) Order, 1958. Under Clause (11) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force) (Six Amendment) Order, 1960, it was provided that nothing in that Article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or to any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him that provided by this Article or the rule of enactment. Acting under this provision the President in the exercise of his supra Constitutional powers fixed the salary of the respondent at Rs. 1,000 per mensem, notwithstanding the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The Order of the President was duly communicated to the Ministry of Communications and the respondent and its implementation, thus, ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the 2nd order on the 26th of August, 1962, revoking the‑earlier one, the Constitution. of the Islamic Republic of Pakistan, 1962 had been enforced which contained a protective provision in Article 178 thereof, that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, shall not varied to his disadvantage. The President's subsequent order was, therefore, void on that basis."

6. For afore‑referred reasons, I do not find any merit in this petition which is dismissed. However, while parting with this judgment. I am constrained to remark that the terms and conditions of the lower ranks in Police Departments are appalling and merit serious reconsideration. No doubt against the Department, there are complaints of corruption; of fake police encounters; of tyranny and of torture and custodial deaths on account of which there has been a serious loss of credibility. But no institution is without its share of blacksheeps. This department, is no exception. However let those controversial officers in the ranks not cloud our perception about the institution as a whole. Unfortunately, on account of various factors, this institution like many others has been neglected and resultantly it has failed to deliver to an extent which is expected of it. In an age of high inflation and rising costs of living, they are condemned to live at a salary on which it is hardly possible to make the two ends meets. Most of them even today are provided with 303 rifles to confront Klashnikov, uzi and other sophisticated weapons. No wonder when a genuine encounter takes place, the Department has pay to its toll. But the police officials who die, their families are mostly given nothing except few hundred thousand rupees. It is hardly a compensation or consolation for a widow, a minor son and any other relative who not only loses an earning hand but identity and a little status that they enjoyed (on this account) in this badly status conscious society. It is high time that the Government should pay due consideration to this aspect to resurrect the lost image and the lost morale of an institution which has been entrusted to protect our lives. property, liberty and honour. A copy of this judgment shall be sent to Inspector‑General of Police, Punjab who shall bring this matter to the notice of the Chief Executive of the Province for an action that he may deem appropriate. A.A./M‑770/L Petition dismissed.