Rashid Ameer VS Federation of Pakistan

JUDGMENT SHEET.

ISLAMABAD HIGH COURT. ISLAMABAD.

W.P No.163112017.

Rashid Ameer Vs. Federation of Pakistan, etc.

Petitioner by: Sardar Muhammad Tariq Fareed Gopang, Advocate.

Respondents by: Arshad Mahmood, Superintendent Establishment Division.

Abdul Rauf, Inspector Legal, Islamabad police on behalf of respondents No.3 & 4

Ms. Saima Naqvi, State Counsel.

Date of hearing: 21.12.2017.

MOHSIN AKHTAR KAYAI\I. 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-ll) in Islamabad Police I Counter Terrorism Force (CTF) was dismissed on the ground that the petitioner is

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over aged by 4 years, 1 month and 10 days against the prescribed age limit of 25

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2.Brief facts, necessary for disposal of the instant writ petition are that the petitioner

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i is a constable in Islamabad Police and performing his duties since 10.07 .2007 . Father of

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the petitioner died during his service on 03.11.2011 as DSP in Sindh Police, Karachi.

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I 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

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Police/Islamabad/respondent No.3 on 18.04.2017 for relaxation in age, however, the

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i application of the petitioner was turned down vide impugned order dated 27,04.2017 on

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i the ground that requisite age for the post of ASI is 25 years, whereas petitioner is over

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aged by 4 years, 1 month and l0 days.

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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

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W.P No.163L|2OL7.

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 l0 years to those employees, who have completed 02 years continuous govemment 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 axe 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 under the rules.

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

6.From perusal of the record, it has been observed that respondent No.3 made advertisement in different newspapers inviting applications from suitable Pakistani Nationals for the post of ASI in Counter Terrorism Force, Islamabad, Capital Territory Police [CTF(ICT Police)]and as a result whereof, the petitioner being a constable in ICT, Police filed an application before Inspector General of Police, Islamabad/respondent No.3 for relaxation in age limit to apply for the said post, which was turned down vide impugned order/letter dated 27.04.2017 mainly on the ground that petitioner is over aged by 4 years, I month and l0 days, whereas prescribed age limit for the post of ASI is 25 years and no relaxation in age is

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W.P No.163t12017.

admissible as per advertisement. The application submitted by the petitioner before respondent No.3 is reproduced as under:-

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;.,!r (Relaxation of Upper Age LimiD Rules, 1993 otl L ,ylit L 6yt 4 Govemment of Pakistan, cabinet Secretariat Establishment Division part-Il General thtt J L ,f ? 66 & qfd s.n.o rclg O)/g3 i ,f; I -7fi w lq (i,/ J. z,t (iiD,/ J- f(Rehxation s1 t t - r

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Apply { L ASI / U'.,) €} Lyute4 tl t/-g! u i,,.Qj i .- -v,-lt { 6, ; -{ x j i d { =V -z-b tj v :bt 1!L./ :r

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.

8.It has been observed from the record that Establishment Division vide S.R.O. No.1079(1)/93 in pursuance of rule 12 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1993, made rules under the title Initial Appointment to Civil Posts (relaxation of Upper Age Limit) Rules, i,993, whereby relaxation in the recruitment rules was provided in respect of the different candidates. Rule 3 of Initial Appointment to Civil Posts (relmation of Upper Age Limit) Rules, I99i isreproduced as under:-

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W.P No.163Ll2:ot7

"(3) Mmimum age limit as prescribed in the recruitment rules shall be relaxed in respect of the candtdates mentioned in column (2) below to the extent mentioned against each under column (3):-

S/. No. Category of candidates Age relaxation admissible

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i)(a)Candidates belonging to 3 years.

Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government.

(b)Candidates belonging to 3 years Sindh (R) and Balochistan in for posts BPS-I5 and below under the Federal Government.

ii)Released or retired 15 years or the Officers/personnel of the number of years Armed Forces of Pakistan. actually serted in the Armed Forces of Pakistan, whichever is less.

iii)Government servants who 10 years, upto the age have completed 2 years of 55 years.

continuous Government service on the closing date for receipt of applications.

iv)Disabled persons for I0 years appointment to posts in BPS-|5 and below.

v)Widows, son or daughter of 5 years a deceased civil servant who dies during service

9.Besides the above referred rule, vide office memorandum of Establishment Division dated 24.06.2010 clarification regarding general relaxation of 5 years in upper age limit prescribed in Recruitment Rules was made and this very fact has been admitted by respondent No.2/Establishment Division in its report submitted before this Court in the instant writ petition. Relevant paragraphs of the above referred office memorandum are reproduced as under:-

"2. In light of the recommendations of the Senate Standing Committee, the Ministries/Divistons/Departments are advised that hence-forth, the I concession of 5 years general relaxation in upper age limit shall be clubbed with the maximum age limit of the post in their advertisements. In case usual upper age limit of posts in various Basic Pay scales is as in column (2) below:-

Basic Pav Scak Ape Llmit" General Ase Relaxation MaxlmumAse Limit

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t-t 5 25 years +5 years 30 years

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W.P No.1631120L7.

I6 28 years *5 years jj years l7 30 year +5 years 35 years 18 35 years *5 years 40 years t9 40 years +5 years 45 years 20 45 years *5 years 50 years 21 50 years +5 years 55 years

3.The Ministries/Divisions are further advised that the following relaxation in upper age limit available to the category of candidates specified below (to the extent mentioned against each) should be clearly mentioned in their advertisements for vacant posts:-

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No. Catesorv of candidates Age relaxation admissible

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(i)(a)Candidates belonging to 3 years.

Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government.

(b)Candidates belonging to 3 years Sindh(R) and Balochistanfor posts in BPS-15 and below under the Federal Government.

(ii)Released or retired Officers/ 15 years or the number of personnel of the Armed Forces of years actually served in Pakistan. the Armed Forces of Pakistan, whichever is less.

(iii)Government servants who have 10 years, upto the completed 2 years continuous age of55 years.

Government service on the closing date for receipt of applications.

(iv)Disabled persons for appointment l0 years to posts in BPS-I5 and below.

(v)llidows, son or daughter of a 5 years deceased civil servant who dies during service Note: Where a candidale is entitled to age relaxation under more than one categories speci/ied 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 relcacation to an individual candidate for a period not exceeding three years.

5.Further,wheretheMinistries/Divisions/Departmentshaverecently 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 moy be re-advertised for additional applications with clear rule position about age limtt and age relaxations as at paras 2 & i 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

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W.P No.163Ll2Ot7.

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 tumed down by respondent No.3.

I l. The stance taken by Islamabad Police Department in its report/reply to the writ petition is based upon advertisement, wherein age limit was mentioned l8 to 25 years for both categories alongwith other pre-requisite.

12.In the light of offrce memorandum of Establishment Division dated 24.06.2010, an order was passed in C.M No.0l/2017 on21.06.2017, 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.0l/2017 in its repotlrcply 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 Appotntment to Civil Posts (relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of

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W.P No.153L|AOL7

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 l0 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 $!owed.

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 eamed 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 nrles, law and even order of this Court. While relying upon the judgments 2011 PLD SC 365 (Shahid Orakzai vs Pakictan lhroush Secrelarv Law- Ministrv of Law, lslamabadt & @LJ 2011 llahorel 32 (DBl (All Pakistan Textile Mills Association vs. FOPI, whereby the relief can be molded in the changed circumstances, respondents No.3 & 4 arc 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 successftrlly 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 rela:<ation in age in future recruitments and if any advertisement regarding recruitment in

W.P No.153t120L7.

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, l993,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.01i2017 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 No.3 & 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 rvillful 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 offrcial who has not complied with the Court order.

2I. The replies of above mentioned persons shall reach to this Court within 15 days from the date of announcement of this judgment, whereafter offrce shall register this case

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as criminal original and place before this Court on 25.01 .201{,for further proceedings.

(M AR ANr)

JUDGE

Announced in open Court on: 29th December.20l7. A

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Uploaded By :- Engr. Umer Rasheed Dar