1987 PLP 1342 (CLC)

4. Fiaz‑ud‑Din 49.04 9.04

5. Muhammad Shafi. 45.10 5.10

6. Muhammad Siddique 52.07 12.07

7. Karam Masih 53.02 13.02

8. Abdul Rashid 44.07 4.07

9. Riaz Ahmad 52.08 12.08

10. Bashir Ahmad 52.08 12.08 The Director Land Records declined the recommendation on the ground that age limit could be waived only in special circumstances which, according to him, did not exist in the cases of the recommended persons. In addition, he laid down certain principles to be considered in this connection. This is what he said in para.3 of his letter dated 20‑11‑1985:‑ "You are, therefore, requested to re‑refer the case, if so desired, keeping the following points in view:‑

(1) Relaxation in the upper age limit of 40 years cannot be granted as a rule, or routine; (2) it should be recommended in rare and exceptional cases, where it is considered absolutely necessary to do so; (3) the special circumstances or grounds justifying such relaxation should be clearly laid down; and (4) the relaxation in upper age limit should be confined to a reasonable period. " The Deputy Commissioner again recommended the cases of these very persons (vide his letter dated 28‑4‑1985) for relaxation of their age on the sole ground of their seniority in service adding that it was because of the non‑availability of the vacancies for such a long time that they could not be promoted earlier. Accepting the recommendation, the Director Land Records, by means of his memo. dated 5‑5‑1985, waived the condition of upper age limits in the case of 10 recommended Patwaris (respondents Nos. 3 to 12) and the Deputy Commissioner there‑after promoted them as Kanungo candidates vide his order, dated 26‑5‑1985. Orders dated 5th of May, 1985 and 26th of May, 1985, passed by respondents Nos. 1 and 2 respectively, have been assailed in these petitions by Lal Din, Muhammad Ishaque, Karam Elahi and Ashfaq Hussain (Writ Petition No. 2069/85) and Syed Ikhlaq Hussain Naqvi, petitioner (Writ Petition No. 4013/85). As common question of law and fact is involved, they are being disposed of by this order. It is contended by the learned counsel for the petitioners that respondent No.l was not competent to allow relaxation of upper age limit in the case of persons over 40 years of age. It is further contended that the direction of the Supreme Court and this Court for considering the petitioners for promotion along with others was not complied with. The impugned orders, according to the learned counsel, were in contravention of section 8 of the Punjab Civil Servants Act, 1974. It is next submitted that the impugned orders were passed on irrelevant consideration and are, therefore, liable to be vitiated. The respondents with bad record of service were promoted against the recommendation of the Selection Committee while the petitioners who had an unblemished service record were not considered for promotion despite the fact that they had been recommended by the Selection Committee. Syed Ikhlaq Hussain Naqvi, Writ Petitioner in W.P.No. 4013/1985 contends that though he had successfully cleared Kanungos departmental examination in July, 1984, he was not considered for promotion. His case, according to the petitioners, was on better footing as compared to all the respondents. The relaxation of upper age limit of respondents Nos. 3 to 12 has also been objected to by him. Before adverting to the facts of the case, it is desirable to refer to the relevant rules bearing on the subject. Under para. 21 of Chapter II, Part‑B of the Punjab Land Records Manual, a register of Kanungo candidates for the whole district is required to be maintained by the Deputy Commissioner. This is revised from time to time and the names of persons who become ineligible for appointment are struck out under rule 2.3 ibid. No candidates' name is retained on the register after the age of 40 but the Director Land Records may, in special circumstances to be recorded in writing, waive the age limit. It was under this rule that the Deputy Commissioner recommended the names of 10 persons for their relaxation of age limit but as, according to the Director Land Records, no special circumstances existed, he declined waiver. Thereafter, the Deputy Commissioner again referred the case on the sole ground of seniority adding that they could not be promoted earlier due to non‑availability of vacancies. Accepting the recommendation the Director Land Records waived the condition of upper age limit and, consequently the Deputy Commissioner passed their promotion orders. The only ground and the so‑called 'special circumstances' which appear to have weighed with respondents Nos.l and 2 was that the respondents could not be promoted earlier as there was no vacancy available. This can hardly be a circumstance, muchless special, to exercise the discretion vesting in the Director Land Records. It is, by how a well‑established principle of law that discretionary powers should be exercised judicially, not arbitrarily. It is evident that departmental instructions contained in para.2.1 ibid. to revise the register from time to time were not faithfully complied with by respondent No.2. Had this been done; there could have been no necessity of making a general recommendation for relaxation of upper age limit of persons who should not have been there at the relevant time. This grace should not have been allowed at the cost of petitioners' interest who apparently were not considered for promotion for unexplained reasons. The relaxation of age limit was available to the director Land Records upto a maximum period of five years in special circumstances to be recorded in writing but without specifying the special reasons justifying the relaxation of age, the Director Land Records has exercised the discretion in the case of all the respondents on the asking of the Deputy Commissioner. Since the exercise of powers by the Director Land Records was not in accordance with rules, the entire building raised thereon comes down with the result that the order of the Deputy Commissioner promoting the respondents as Kanungo candidates is no order in the eye of law. In consequence the writ petitions are accepted, the impugned orders are set aside being without lawful authority and of no legal effect and the respondents Nos. 1 and 2 are directed to deal with the case of the petitioners on merits vis‑a‑vis the respondents, in the light of the observations made in the earlier decision of this Court as well as of the Supreme Court of Pakistan. M. B. A./L‑6/L Petition accepted.