2015 PLP (C (PLC(CS))

MAHMOOD AHMAD BHATTI, J.

Mst. Ameeran Mai filed this petition under Article 199 of the Constitution of Islamic of Pakistan, 1973, contending that her husband, Muhammad Nawaz was serving in the police department, who passed away on 10-5-2011, while his boots were on. In other words, he died in harness. He was survived by the petitioner and his son, Muhammad Imran. Muhammad Imran filed an application with City Police Officer, Multan, respondent No.3 on 5-2-2014 requesting that he be inducted into the police as driver constable. Instead of making any order on the aforesaid application, respondent No.3 sent it up to Regional Police Officer, Multan, respondent No.2 on 12-6-2014.

2. The grievance made by the petitioner is that she was not crying for the moon, rather she was simply demanding her due. In a nutshell, her case is that when her husband passed away on 10-5-2011, the police department was to take on her son, Muhammad Imran as a constable in the light of Standing Order No.1 of 2008 as amended in June, 2011. According to her, the subsequent notification issued by the respondents in 2014 whereby the standard of education was changed from Middle into Matric did not apply to the case of her son.

3. Learned counsel for the petitioner has reiterated the contentions raised in the writ petition. It was also urged by him that two other persons were accommodated by the respondents, but the same treatment was not being accorded to the petitioner, which is discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contentions, he has placed reliance upon the cases reported as "Messrs Asif Traders and another v. Collector of Customs through Assistant Collector and another" (2014 PTD 1057), "Muhammad Asif Khan and 173 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 14 others" [2014 PLC (C.S.) 534], "Atta Ullah and another v. Provincial Police Officer and another" [2014 PLC (C.S.) 766], "Dr. Syed Ansar Hussain Shah Naqvi v. Khyber Pakhtunkhwa Public Service Commission through Secretary and 4 others" [2014 PLC (C.S.) 879] and "R.M. Gulistan Engineering and Constructors (Pvt.) Ltd. through Chief Executive v. Collector of Customs (Appeals) and another" (2014 PTD (Trib.) 76).

4. Learned Law Officer has vehemently opposed this petition, contending that Muhammad Imran, son of the petitioner does not qualify to be inducted into the police department. According to him, he is not a Matriculate, and as such does not come near to the minimum qualification.

5. Arguments heard and record perused.

6. From a perusal of Standing Order No.1 of 2008 as amended in June, 2011 issued by the then Inspector General of Police, Punjab, Lahore, it is pretty clear that for the recruitment of a constable, the minimum qualification would be Matric or equivalent thereof. This qualification has been set forth in paragraph No.4 of the said order. However, in sub-para "c" thereof, an exception has been made for the children of shaheed/family claim basis. For the ease of reference, the same is reproduced hereunder: QUALIFICATION (c) On shaheed/family claim basis (in District Police): "Educational standard will be middle instead of Matric for recruitment of Driver constables on family/shaheed claim basis."

7. It is worth recalling that husband of the petitioner breathed his last on 10-5-2011, when he was performing his duties in the police department as Sub-Inspector. When Standing Order No.1 of 2008 was amended in June, 2011, the case of Muhammad Imran, son of Muhammad Nawaz S.I. was covered by paragraph No.4(c) reproduced herein above. However, he was a minor at that time and could not be inducted into police service. Naturally, he was to bide his time. No sooner had he come of age than he seized the opportunity and moved an application for being taken on as a driver constable. It has not been denied by the respondents that aside from the barrier of educational standard, Muhammad Imran is otherwise well qualified. I fully agree with the learned counsel for the petitioner that once a right has accrued to a person, it cannot be taken away subsequently by issuing another notification. Furthermore, notifications having the potential to impair the existing rights or benefits always apply prospectively, not retrospectively. In this respect, the observations of the Supreme Court of Pakistan made in the case of "Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others" (1992 SCMR 1652) are instructive, which are reproduced hereunder:

"It seems to be well-settled proposition of law that a notification which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but, the converse i.e. a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law." In "Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong" [PLD 1970 SC 439] it was observed that:

"It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law."

8. With utmost respect to the learned Law Officer, I am unable to subscribe to the argument made by him that the case of the petitioner is hit by Standing Order No.1 of 2014. No doubt under the changed policy, from now onwards, the minimum educational standard to enlist a driver constable would be Matric even for the offspring of shaheed or persons applying on the family claim basis. But Standing Order No.1 of 2014 was to go into effect in the future, and this is evident from the opening paragraph of this order. The same reads as under:

"To standardize the selection process and to ensure the selection of a constable on the basis of merit, following procedure is prescribed which shall be strictly observed in future. (emphasis supplied)

9. For what has been stated above, this petition is allowed. Consequently, Muhammad Imran, son of the petitioner and late Muhammad Nawaz S.I. would be duly considered for recruitment on the basis of his existing educational standard (Middle) provided he fulfils other criteria laid down by the respondents for the recruitment of driver constables. SA/A-172/L