Hamayun Khan Vs Government of Khyber Pakhtunkhwa and 02 others

I

(Judicial Department)

Hamayun Khan

Yersus

Govt. of K.P and 02 others t**

Date ofhearingt U!-@:E

For petitioner: Mr. Muhammad Shah Nawaz Khan Sikandri, Advocate,

For respondents Mr. Abdul Waheed Khattah Asstt: A.G. alongwith Mr. Inam Ullah Khan AAC Sub division Wazir Bannu on behalf of respondent No.3.

LIAHAMMAL TARIO AFRIDI. l.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,the petitioner, Hamayun Khan, seeks a direction to the respondents to consider his case for appointment as Patwari, having qualified the Special Patwar Examination-2022, and to grant age reloration of about one and a half to two years, claiming that denial by respondent No.3 is illegal and without lawful justification.

2.The brief facts ofthe case are that respondent No.3/ Deputy Commissioner, Bannu, advertised 09 posts of Patwaris. The petitioner appeared in the Supplementary Special Patwar Examination held from 28.11.2022 to 01.12.2022 and was declared successful vide result dated

24.01.2023 issued by the Director Land Records, Khyber Pakhtunlihwa. However, respondent No.3 refused to register he the petitioner's name for appoinfinent on the ground that was overage by 02 years, and that thete was no provision for age relaxation under the Khyber Paktrtunkhwa Revenue Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Services) Rules, 2008.

3.The petitioner's learned counsel argued that since the petitioner had qualified the required examination, he should not be excluded from consideration on hyper-technical grounds. He submitted that under general goveflrment policy and civil service rules, age relaxation is allowed, and the respondents have acted in a discriminatory and non- tansparent manner. Leamed counsel referred to the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008, contending that general relarotion can be extended under the said rules unless specifically excluded by the service rules' He prayed for a direction to the respondents to consider the petitioner for

4.Conversely, leamed Assistant Advocate General submitted that the recruifinent process to the post of Patrvari is governed by the specific service rules, namely the Khyber Pakhtunkhwa Revenue & Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Services) Rules, 2008, and the upper age limit prescribed therein is 35 years. He

placed reliance on the amendment introduced vide Notification dated 01.01.2010 bearing Endsr No'07- 80/Admn:YII/A, Relaxation, issued in pursuance of the approval ofthe ChiefExecutive and under Section 26 ofthe NWFP Civil Servants Act^, 1973, whereby the following amendment was incorPorated:

"The upper age limit for the post of Patwari ls extended to 35 years by amending the existing NWFP Revenue & Estate (Tehsildar, Naib Revenue Service) Rules, 2008 (Patwari S.No'8 Appendix) once for all' No provision for age rela:<ation over 35 years shall be allowed under any circumstances by any authority."

Leamed Asstt: A.G. further contended that the 2008 Rules are special and govem the recruitment to Patwari and related posts; therefore, any general relaxation provided under the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 cannot override the specific bar in the department-speciflc recruitment rules. He further argued that respondent No.3 lawfully refused to register the petitioner's candidature, as he had no jurisdiction to allow age relaxation not provided under the applicable rules.

Therefore, no illegality or mala fide can be atEibuted to the official act of rejecting a time-barred candidature.

5.We have heard the leamed counsel for the parties and carefully examined the record.

6.There is no dispute as to the petitioner's success in the Patwar examination. The controversy centers around his

ineligibility on account of age' The Notification dated 01.01.2010 clarifies beyond ambiguity that although the upper age limit for the post of Patwari was extended from 33 to 35 years, it was done so once for all, and the bar against any further age relaxation was made absolute, applicable under all circumstances and by all authorities. The petitioner, concededly, was over the marimum age limit of 35 years on the cut-off date. In such circumstances, and in view of the express statutory bar intoduced through the above-referred Notification, no discretion lies with any appointing or recommending authority to condone the age limit nor can the petitioner invoke general age relaxation rules, which stand ousted by the special service nrles governing the post' 7, It is a settled principle of law that where special rules are in the field, they prevail over general rules' The recruitment to the post of Patwari is governed specifically under the Khyber Pakhfirnkhwa Revenue and Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008, which prescribe the upper age limit as 35 years and do not provide any mechanism or discretion for relaxation. Therefore, the general provisions under the Initial Appointment to Civil Posts (Relaxation of Upper fue Limit) Rules, 2008 would not automatically apply to appointrnents made under the ibid 2008 Revenue Rules. In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in Suit Northern Gas Pipelines Ltd. (SNGPL),

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Islamabad v. Messrs S.K. (Pvt.) Limited and others (2025 SCMR 570), wherein it was held:

"The Latin maxim 'generalia specialibus non derogant friEEIiE 'things general do not derogate from things special'. This is a routine tenet of statutory emphasizing that where there is a conflict between general and special law, the sPecial law prevails. Similarly, the Latin maxims 'ejusdem genens and expressro unius est exclusio alterius' exemplifr that when two rules or laws exis! oirl general and one specific, the specific rule takes precedence over the general ruIe."

Further reliance is placed ot Commissioner Inland Revenue v.

Messrs Riaz Bottlers (Pvt) Ltd. (Now L'oue Akhtar Beverages (Pvt.) Ltd.) (2024 SCMR 684), wherein it was observed in puagraph-9 that:

"Moreover, it is pertinent to state, with regards to the statute, which is a special law, this Court has opined in Gulistan Textile Mills Ltd. v. Soneri Bank (2018 CLD 203) '...according to the principle of harmonious interpretation the special law would take precedence over the general law (generalia specialibus non derogant)."'

Likewise, in Ghulam Akbar and 5 othprs v. Government of Punjab tltrough Seoetary Home and others (2016 PLC (C.S.)

1254),the Lahore High Court emphasized the same principle while adjudicating the applicability ofgeneral age relaxation rules to a disciplined force. It was held:

"There is no cavil to the proposition that Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 were formulated under the Punjab Civil Servants Act, 1974 and is a general law applicable to all the civil servants, but it is settled position of law that when there is a special law then general law will not apply. In this case the matter pertains to police service and it .rilell as the rules is govemed by Police Order,2002 as framed thereunder... These are specific rules meant for specific pu{poses; therefore, general rule would not apply... The police law is special law only applicable

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to police department and when special law is available for any territory, class of employees or for arry department then general law will not be applicable."

These authoritative pronouncements reinforce the view that the general relaxation rules cannot override the binding statutory bar under the departmental service rules applicable to the recruitment of Patwaris. Thus, this Court is constrained to hold that the petitioner is ineligible due to overage and his candidature has rightly not been entertained.

8.Even otherwise, it is not the case of the petitioner that any other similarly placed candidate was granted age relamtion for the same recruitment. Therefore, the claim of discrimination or mala fide does not find support from the record.

9, For the reasons discussed above, this petition is without merit and is accordingly dismissed.

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Announced.

Dt:10.7.2025 Imranf JUDGE

b/"'

IUDGE

(D.B)

2 Hon'ble Mr. Justice MuhanmadTariq Afridt Hon'ble Mn Justice Abdul Fayaz