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Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

W.P. No. 20431 of 2012.

Syed Muhammad Arif

Versus
Chairman, Punjab Public Service Commission (PPSC), Lahore etc.

JUDGMENT

Date of hearing: 03.06.2020.

Petitioner by: Rao Muhammad Akbar Khan Mayo,

Advocate.

Respondents by: Rana Shamshad Khan, Additional Advocate

General.
Mian Muhammad Iqbal, Advocate for PPSC.

Shujaat Ali Khan, J: - Unnecessary details apart, the

petitioner, while serving as Junior Clerk in City District

Government, Lahore applied against the post of Information

Officer (BS-17) pursuant to an advertisement got published by

the Punjab Public Service Commission (PPSC) and after

qualifying the written examination he was placed at Serial

No.64 of the Merit List. Thereafter, the petitioner appeared in

the interview but his candidature was rejected by PPSC, vide

communication, dated 14.06.2012, on the ground of being over-

W.P. No. 20431 of 2012. --2--

age and non-submission of Departmental Permission

Certificate. Against rejection of is candidature, the petitioner

submitted his representation alongwith the Departmental

Permission Certificate but without any success as his

representation was dismissed by PPSC vide communication,

dated 27.06.2012, on the ground that being City District

Government employee he was not entitled for relaxation in

upper age limit; hence this petition.

2. Learned counsel for the petitioner submits that according

to the provisions of the Punjab Civil Servants Recruitment

(Relaxation of Upper Age Limit) Rules, 1976 (hereinafter to be

referred to as “the Rules, 1976”) a government servant is

entitled to relaxation in upper age limit to the extent he has

served in the department; that in the Rules, 1976 no line of

distinction has been drawn in respect of government

departments but PPSC authorities while acting malafidely

through departmental instructions has excluded the City

District/Zila Council/Local Counsel servants from benefit of the

Rules, 1976; that mere guidelines/instructions issued by a

government department cannot be preferred over the rules

framed by the competent authority pursuant to the powers

vested by an Act. Relies on Muhammad Nadeem Arif and

W.P. No. 20431 of 2012. --3--

others v. Inspector-General of Police, Punjab, Lahore and

others (2010 PLC (CS) 924).

3. Learned Law Officer, while opposing the submissions

made by the learned counsel for the petitioner, submits that in

the advertisement it was clarified that relaxation in upper age

limit was not admissible to employees of Local

Government/Zila Council Servants, thus, when the petitioner

applied against the post in question without any agitation

against the said condition, he was bound to fulfil the same; that

Local Council services being not covered under Article 240 of

the Islamic Republic of Pakistan, 1973, the petitioner cannot

claim himself as government servant; that the Hon’ble Supreme

Court of Pakistan in the case reported as Muhammad Mubeen-

Us-Salam and others vs. Federation of Pakistan (PLD 2006 SC

602) has drawn a line of distinction amongst different

categories of employees and employees of Local Council have

been excluded from the definition of government servant.

4. While exercising his right of rebuttal, learned counsel for

the petitioner submits that since Mubeen-us-Salam’s case,

referred by the learned Law Officer, deals with difference

between a civil servant and a government servant, same cannot

unnecessarily be stretched to make a distinction between

W.P. No. 20431 of 2012. --4--

government servant and Local Council/Zila Council servant and

that since the Local Government is being supervised by the

Provincial Government the employees of Local Council/Zila

Council are government servants.

5. I have heard learned counsel for the parties at

considerable length and have also gone through the documents,

annexed with this petition, as well as the case-law cited at the

bar.

6. It is admitted position that initially the petitioner was

appointed as Junior Clerk, vide Order No.964, dated

27.10.1993, issued by the Administrator, Zila Council,

Narowal. Later on, he was posted as Junior Clerk in City

District Government, Lahore. Policy Decision No.7.5 of PPSC

deals with relaxation in upper age limit, which for convenience

of reference is reproduced herein below:-

“7.5 General Provisions Concession in upper age limit

admissible under the Punjab Civil Servant Recruitment
(Relaxation of Upper Age Limit) Rules, 1976.
a. In the case of persons serving in connection
with the Government of Punjab, the period of their
continuous service as such shall for the purpose of
upper age limit, be excluded from their age unless
provided otherwise in any Service rules or
Government’s Policy Instruction.
Note: - Employees of Federal Government or Semi
government and Autonomous Bodies of Federal
W.P. No. 20431 of 2012. --5--

Government or Provincial Government like

WAPDA, ADC and those of Local Bodies are not
entitled to age concession for the period of their
Service in such organizations.”

According to afore quoted Policy Decision relaxation in upper

age limit is only admissible to the persons who are government

servants. Moreover, according to rule 3(v) of the Rules 1976,

relaxation in upper age limit is admissible to the government

servants.

7. Now the question which boils down for determination by

this Court is as to whether the employees of Zila Council are

government servants or not. Initially, the terms and conditions

of Zila Council employees were governed under the West

Pakistan Municipal Committees Servants Service Rules, 1969,

which were succeeded by the Punjab Local Council

Servants (Service) Rules, 1997 (hereinafter to be referred as the

Rules, 1997). According to Rule 2 of the Rules 1997, every

local council shall have its own service set up. Since the salaries

and allied emoluments of Zila Council employees are paid from

the funds to be raised by the Union Council concerned or

provided by the Local Government Board they have nothing to

do with the affairs of the Provincial Government. To exemplify

the said fact a reference can be made to Rule 15 of the Punjab

Local Government District Service (Tehsil/Town Municipal

W.P. No. 20431 of 2012. --6--

Administration Cadre) Rules, 2005 according to which a

government servant and members of Local Council services are

two different entities.

8. During the course of arguments learned counsel for the

petitioner has put much emphasis on the fact that since Policy

Decision 7.5 of the PPSC is ultra vires to the Rules 1976 the

same has no legal sanctity. It has not been denied by the learned

counsel for the petitioner that the respondents in the

advertisement clarified that relaxation in upper age limit was

not permissible to the employees of Local Bodies. Further even

in the present petition the petitioner has not challenged said

Policy Decision and until and unless the same is declared ultra-

vires by a forum of competent jurisdiction the same shall hold

the field.

9. It is imperative to note that the word “government

servant” has not been defined in the Rules, 1976, thus, for the

purpose we have to refer to other enactments wherein the said

term has been defined. In the Punjab Civil Servants (Restriction

on Marriages with Foreign Nationals) Rules, 2011 the said term

has been defined as “Government servant” means a government

servant to whom these rules apply. Likewise, in the Punjab

Government Employees Welfare Fund Ordinance, 1969 the said

W.P. No. 20431 of 2012. --7--

term means “a person, not being a member of an all Pakistan

service or a contract employee of the Government”. In the

Punjab Government Servants (Conduct) Rules, 1966 the term

“government servant” has been defined as a person to whom the

said rules are applicable. From the accumulative study of the

above definitions it is crystal clear that the “government

servant” means a person to whom the rules framed by the

Government of the Punjab are applicable. Insofar as the instant

case is concerned, as the terms & conditions of service of the

petitioner are governed under the Rules, 1997 he cannot be

termed as a “government servant” for the purpose of relaxation

in upper age limit in terms of rule 3(v) of the Rules, 1976. The

interpretation of rule 3(v) of the Rules, 1976 came under

discussion before the Hon’ble Supreme Court of Pakistan in the

case reported as Saleem-ur-Rehman and another v. Govt. of the

Punjab through Secretary, S&GAD, Lahore and others (1986

SCMR 747) wherein while dealing with the preposition as to

whether intent of the legislator is to be followed or those rules

should be extended even to those categories which are not

mentioned in proviso to rule 3(v) ibid, the Apex Court of the

country has inter-alia held as under: -

“The rules sought to be interpreted, namely, Relaxation

Rules were framed under section 23 of the Punjab Civil
W.P. No. 20431 of 2012. --8--

Servants Act, 1974 and a new clause (v) was added in

terms hereunder:‑

"(v) In the case of a candidate already working as

a Government servant, the period of his continuous
service as such shall, for the purpose of upper age
limit prescribed under any service rules of the post
for which he is a candidate shall be excluded from
his age."

Section 2 which is a definition clause of the Punjab Civil

Servants Act defines 'Government' as the "Government of
the Punjab". It is a restrictive definition for the word
"means" has been used for defining it. Section 19 of the
General Clauses Act provides as follows:‑

"19. Construction of orders to issue under

enactments. Where, by any West Pakistan Act, a
power to issue any notification, order, scheme,
rule, form, or bye-law is conferred, then,
expressions used‑in the notification, order,
scheme, rule, form or bye‑law shall unless there is
anything repugnant in the subject or context have
the same respective meanings as in the Act
conferring the power."

In view of these two statutory provisions the normal rule

of interpretation would lead to the conclusion that the
word '"Government" in the Relaxation Rules refers to
Punjab Government.

There is another principle of interpretation of statutes

which is attracted to the situation. The relaxation rules
are expressed to be in derogation of or a departure from
the normal rule for recruitment to the services. Not only
the relaxation rules are expressed to be so their effect is
also the same. For this reason, where an exemption or
relaxation is sought to be created in respect of certain
category a restricted and not an extended meaning is
given for understanding and applying the statutory
provision. On this view also the extended or the popular
meaning cannot be introduced defeating thereby the
legislative intent and the purpose.
W.P. No. 20431 of 2012. --9--

The only other submission of the learned counsel for the

appellants which requires further examination is that the
rules applicable to the recruitment read as whole justify
such an extended meaning. He has referred to the other
clauses, for example, in clause (iii) of rule 3 of the
Relaxation Rules and rule 6, clause (ii), proviso (2)
reproduced above wherein provision has been made for
certain categories of Government servants actually
serving or who have already served in connection with
the affairs of the Federation. We have examined these
rules and find that there is no conflict or incongruity to
justify a departure from the ordinary rule of
interpretation for where departure was intended it was
expressed in clear language which was itself restrictive
and not general and extensive.

The learned counsel for the appellants has also pointed

out that the more appropriate word to be used in the
context would have been 'Civil Servant' instead of
'Government servant' if the intention was to confine the
benefits to the employees of the Provincial Government.
For good reason, this argument has been rejected by the
Appeal Bench and we agree with the reasoning because
if the expression 'Civil Servant' had been used then a
large section of even the Provincial Government servants
for whom this rule has been framed would have stood
excluded.

We find no merit in this appeal which is dismissed

leaving the parties to bear their own costs. We want to
make it clear while dismissing this appeal that if it is only
a question of relaxation of age, the Government may if it
is short of officers or of qualified candidates and is
facing difficulty in recruitment it may in case of suitable
and qualified candidates from amongst the appellants, if
any, relax this requirement of age. The learned counsel
after consulting the appellants has expressed their
readiness if in the case of those qualifying, such
relaxation in the matter of their age in forthcoming to
forego the batch seniority and instead claim seniority
from the date relaxation in age is ordered or appointment
is made. However, this is a matter for the Provincial
Government to deal with.”
 W.P. No. 20431 of 2012. --10--

10. The Supreme Court of India in the case of UPSC v.

Jamuna Kurup (AIR 2008 SC 2463) while dilating upon the

point as to the status of the employees of municipal

corporation/committee, has inter-alia held as under: -

“*****But a municipal corporation is not

“Government”, and municipal employees are not
government servants governed by Articles 309 to 311.
Though permanent employees of municipal corporation
or other statutory bodies may be governed by statutory
rules, they do not enjoy the status of government
servants.”

If the case of the petitioner is adjudged on the touchstone of the

afore-referred judgment there leaves no ambiguity that he does

not fall within the definition of the “government servant” as

envisaged under rule 3(v) of the Rules, 1976, as employees of

City District Government are even not covered under Article

240 of the Constitution of Islamic Republic of Pakistan, 1973,

thus, no illegality was committed by the PPSC authorities while

rejecting the candidature of the petitioner.

11. For what has been discussed above, I see no force in this

petition which is hereby dismissed with no order as to costs.

Judge

Announced in Open Court today i.e. 19.06.2020.

Approved for Reporting.

Judge
G.R.*