2018 PLP (C (PLC(CS))

R. 3

Federal Government Establishment Office Memorandum dated 24-06-2010

Appointment of Assistant Sub-Inspector (Police)

Petitioner employee, being police constable was over age by four years one month and ten days sought relaxation in upper age limit

Contention of department was that recruitment process had already been completed and selected candidates were getting training

Application filed by the employee for relaxation in age limit was dismissed by the Authority

Validity

Ten years age relaxation was permissible to a person who was working in the government department and had completed two years continuous service on the closing date of receipt of application

Petitioner employee was twenty nine years old at the time of advertisement for the post in question

Authority was directed to issue direction to the relevant department to include the name of petitioner employee for his participation in the recruitment process but it was not done

Employee could not be deprived form his valuable right which had accrued in his favour through Office memorandum of the Establishment Division

Islamabad Police being under the administrative control of Ministry of Interior was bound to follow the law with regard to age relaxation

Authority had not extended the benefit of relaxation in age to the employee which was contrary to law

Process of recruitment in which petitioner employee was not granted relaxation in age by ignoring R.3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division was in violation of the rules

Depriving the petitioner to apply for the post in question ignoring the relevant Rules was violation of Art.4 of the Constitution

Petitioner employee was declared to be eligible to apply for the post in question on the basis of relaxation in age by ten years as he was serving in the Police as constable since his appointment i.e. 10-07-2007

Impugned order passed by the department was set aside

High Court could change the relief under Art.199 of the Constituion in the changed circumstances

Authority were directed to reinitiate recruitment process for the post in question only to the extent of petitioner employee wherein he should apply and appear in written test and other tests which were taken by the Recruitment Committee in the case of previously selected candidates

Recruitment process was to be completed on merit within thirty days

If petitioner successfully completed all the stages of recruitment process, he should be appointed and sent for training where already selected candidates were getting

Inspector General of Police was directed to follow Office Memorandum of Establishment Division dated 24-06-2010 with regard to relaxation in age for future recruitments

If any advertisement with regard to recruitment in Islamabad Police was made in violation of said Memorandum as well as R.3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, same would be illegal

Constitutional petition was allowed in circumstances.

Art. 199

Constitutional jurisdiction of High Court

Scope

High Court could change the relief in the changed circumstances. Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad PLD 2011 SC 365 and All Pakistan Textile Mills Association v. FOP PLD 2009 Lah. 494 = 2009 PTD 1298 rel. Ms. Saima Naqvi, State Counsel. JUDGMENT MOHSIN AKHTAR KAYANI, J.

Through this writ petition, the petitioner has assailed the order dated 27.04.2017, passed by Inspector General of Police, Islamabad/respondent No.3, whereby application filed by the petitioner for relaxation in age limit to apply for the post of ASI (BPS-11) in Islamabad Police Counter Terrorism Force (CTF) was dismissed on the ground that the petitioner is over aged by 4 years, 1 month and 10 days against the prescribed age limit of 25 years.

2. Brief facts, necessary for disposal of the instant writ petition are that the petitioner is a constable in Islamabad Police and performing his duties since 10.07.2007. Father of the petitioner died during his service on 03.11.2011 as DSP in Sindh Police, Karachi. Respondent No.4 published vacancies for the post of ASI and the petitioner in order to apply for the said post moved an application to Inspector General of Police/Islamabad/respondent No.3 on 18.04.2017 for relaxation in age, however, the application of the petitioner was turned down vide impugned order dated 27.04.2017 on the ground that requisite age for the post of ASI is 25 years, whereas petitioner is over aged by 4 years, 1 month and 10 days.

3. Learned counsel for the petitioner has contended that order of rejection of the application filed by the petitioner is against the rules, whereas Establishment Division vide office memorandum dated 24.06.2010 gave clarification regarding general relaxation in upper age limit, which is also applicable to Islamabad Capital Territory Police but respondent No.3 did not consider the said office memorandum, which is misconduct on part of respondent No.3. Learned counsel for the petitioner further argued that the petitioner being already in service is entitled for age relaxation as per office memorandum of Establishment Division; that Establishment Division/respondent No.2 in its report submitted before this Court regarding age relaxation has also acknowledged that office memorandum dated 24.06.2010 provides 05 years general age relaxation to all citizens of Pakistan and 10 years to those employees, who have completed 02 years continuous government service on the closing date for receipt of application.

4. Conversely, Inspector Legal, Islamabad Police argued that office memorandum dated 24.06.2010 is not applicable to Islamabad Police and the advertisement published for the recruitment of ASI was duly approved by the Establishment Division through Ministry of Interior, Islamabad but the Establishment Division did not refer any such office memorandum at that time. He further argued that if relaxation in age limit is allowed, it will open Pandora box; that recruitment process of ASI (CTF) has already been completed and selected candidates are getting training in Hangu Police College since 25.11.2017. He further argued that petitioner will be given chance in the next recruitment process for the post of ASI subject to his clearance the rules.

5. I have heard the arguments and gone through the record.

7. The above referred application was forwarded to respondent No.3 by Superintendent of Police Headquarters, Islamabad on 18.04.2017. Respondent No.3 while deciding the same did not considered the law referred in the application in its true perspective. Sl. No. Category of candidates Age relaxation admissible 1 2 3 (i) (a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government. 3 years (b) Candidates belonging to Sindh (R) and Balochistan for posts in BPS-15 and below under the Federal Government. 3 years (ii) Released or retired Officers/personnel of the Armed Forces of Pakistan. 15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less. (iii) Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications. 10 years, upto the age of 55 years (iv) Disabled persons for appointment to posts in BPS-15 and below. 10 years (v) Widows, son or daughter of a deceased civil servant who dies during service 5 years Basic Pay scale Age limit General age Relaxation Maximum age limit (1) (2) (3) (4) 1-15 25 years +5 years 30 years 16 28 years +5 years 33 years 17 30 years +5 years 35 years 18 35years +5 years 40 years 19 40 years +5 years 45 years 20 45 years +5 years 50 years 21 50 years +5 years 55 years Sl. No. Category of candidates Age relaxation admissible 1 2 3 (i) (a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all pots under the Federal Government 3 years (b) Candidates belonging to Sindh (R) and Balochistan for posts in BPS-15 and below under the Federal Government. 3 years (ii) Released or retired Officers/personnel of the Armed Forces of Pakistan. 15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less. (iii) Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications. 10 years, upto the age of 55 years (iv) Disabled persons for appointment to posts in BPS-15 and below. 10 years (v) Widows, son or daughter of a deceased civil servant who dies-during service 5 years Note: Where a candidate is entitled to age relaxation under more than one categories specified above, he shall be allowed relaxation in age only in one category.

4. In addition to above, the President/Prime Minister may, on extreme compassionate grounds, grant age relaxation to an individual candidate for a period not exceeding three years.

5. Further, where the Ministries/Divisions/Departments have recently advertised various posts and the candidates have appeared in written test but their interviews are yet to be held i.e. their selection process is not over, the said posts may be re-advertised for additional applications with clear rule position about age limit and age relaxations as at paras.2 and 3 above.

10. The above referred rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010 clearly establish that any person, who is working in the government department and has completed two years continuous service on the closing date of receipt of the application, 10 years age relaxation is permissible to him, whereas at the time advertisement for the post of ASI, the petitioner was 29 years old but his request for relaxation in age to apply for the post of ASI was turned down by respondent No.3.

11. The stance taken by Islamabad Police Department in its report/reply to the writ petition is based upon advertisement, wherein age limit was mentioned 18 to 25 years for both categories along with other pre-requisite.

12. In the light of office memorandum of Establishment Division dated 24.06.2010, an order was passed in C.M No.01/2017 on 21.06.2017, whereby the IG of Islamabad Police was directed to issue direction to the relevant authorities to include the name of the petitioner for his participation in the recruitment process but surprisingly respondent No.3 did not bother to obey the said order. The conduct of the police official is highly disregarded to the Court's orders.

13. Islamabad Police also acknowledged passing of order dated 21.06.2017 in C.M No.01/2017 in its report/reply to the writ petition, however, Islamabad Police took the stance that all the selected candidates have joined the Hangu Police College for training on 25.11.2017 and it is not possible for them to accommodate the petitioner at this stage.

14. The petitioner cannot be deprived from his valuable right, which has accrued in his favour through office memorandum of Establishment Division dated 24.06.2010.

15. Moreover, clause 5 of the said office memorandum further strengthen case of the petitioner that if the advertised posts are under the process of selection and interviews have not yet been taken, the said post will be re-advertised for additional application with clear rule position about age limit and age relaxations, therefore, it can safely be concluded that Islamabad Police being under the Administrative control of Ministry of Interior was under obligation to follow the law regarding age relaxation in stricto sensu and despite rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, respondent No.3 did not extend the benefit of relaxation in age to the petitioner, which is contrary to the law.

16. Keeping in view the background and law on the subject referred above, this Court is of the considered view that the process of recruitment of ASI, in which the petitioner was not granted relaxation in age by ignoring rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, Islamabad Police Department has deprived the petitioner to apply for the post of ASI in clear cut violation of the rules. Depriving the petitioner to apply for the post of ASI by ignoring the relevant rules is also violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 which guarantees equal protection of law.

17. For the foregoing reasons, instant writ petition is accepted and the petitioner is declared to be eligible to apply for the post of ASI on the basis of relaxation in age by 10 years as he is serving in Islamabad Police as constable since his appointment i.e. 10.07.2007, therefore, impugned order dated 27.04.2017 is hereby set aside and instant writ petition is allowed.

18. As per report/reply of Islamabad Police Department the recruitment process has been completed and selected candidates have joined their training on 25.11.2017, therefore, at this stage, if this Court set asides the entire recruitment process, it will affect the other selected candidates, who have already earned their legitimate right after due process of law and they should not be suffered for the wrong of respondent No.3, who did not bother to follow the rules, law and even order of this Court. While relying upon the judgments PLD 2011 SC 365 (Shahid Orakzai v. Pakistan through Secretary Law, Ministry of Law, Islamabad and PLD 2009 Lah. 494=2009 PTD 1298 (All Pakistan Textile Mills Association v. FOP), whereby the relief can be molded in the changed circumstances, respondents Nos.3 and 4 are directed to reinitiate recruitment process for the post of ASI (BPS-11) in Islamabad Police (CTF) only to the extent of petitioner, wherein the petitioner shall apply and participate in written test, physical test or any other test, which were taken by the Recruitment Committee in the cases of previously selected candidates. This recruitment process shall be completed on merits within 30 days from the date of announcement of this judgment under intimation to this Court through learned Registrar. If the petitioner successfully completes all the stages of recruitment process, he shall be appointed and sent to training in Hangu Police College, where the already selected candidates are getting training.

19. Inspector General of Police Islamabad/respondent No.3 is directed to strictly follow office memorandum of Establishment Division dated 24.06.2010 regarding relaxation in age in future recruitment and if any advertisement regarding recruitment in Islamabad Police is made in violation of the said office memorandum as well as rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, the same shall be illegal, hence, Secretary Establishment is directed to convey the said office memorandum to the Secretary Ministry of Interior as well as Chief Commissioner, Islamabad and Inspector General of Police for ready reference and application of the rules regarding relaxation in age.

20. As earlier mentioned in Para 12 of the judgment that order passed in C.M. No.01/2017 on 21.06.2017 was not complied with by respondent No.3 despite the fact that the order was passed in the presence of Abdul Rauf, Inspector Legal, Islamabad Police, Tahir Jamil Ahmed, D.S (R-II) Establishment Division and M. Waqar, P.A (R.6) Establishment Division, therefore, office is directed to issue notice to the Inspector General of Police and Assistant Inspector General Police (Establishment), i.e. respondents Nos.3 and 4 to explain, their position as to why the petitioner was not allowed to participate in the recruitment process and contempt of Court proceedings may not be initiated against them for wilful defiance of this Court's order dated 21.06.2017. The Inspector General of Police shall submit detailed report comprising of recruitment process, stages, dates of recruitment and after fixing the responsibility of the delinquent police official who has not complied with the Court order.

21. The replies of above mentioned persons shall reach to this Court within 15 days from the date of announcement of this judgment, whereafter office shall register this case as criminal original and place before this Court on 25.01.2018 for further proceedings. ZC/2/Isl. Petition allowed.