17-A Rules Category B. Punjab Civil Servants Rules 1974. Landmark Judgment by High CourtFORM No.HCJD/C-121 ORDER SHEET
IN THE LAHORE HIGH COURT, BAHWALPUR BENCH, BAHAWALPUR JUDICIAL DEPARTMENT
Case No. W.P. No.4396 of 2021
Muhammad Ijaz Versus Government of Punjab, etc.
| S.No. of order/ proceeding | Date of order/ proceeding | Order with signature of Judge, and that of parties of counsel, where necessary |
03.06.2021 Mr. Muhammad Asif Mehmood Pirzada, Advocate for the petitioner.
Barrister Syed Ali Nouman, AAG.
Through this consolidated order,
Constitutional petitions bearing No.4396/2021
titled “Muhammad Ijaz v. Government of Punjab,
etc.” and No.4402/2021 titled “Ahmed Ali v.
Government of Punjab, etc.” are sought to be
decided together because both petitions raise the
same question of law.
- 2. Both petitions challenge action of two
administrative departments of the Province of
Punjab whereby the petitioners have been denied
the facility and benefit of Rule 17-A of the
Punjab Civil Servants (Appointment and
Conditions of Service) Rules, 1974. In terms of
Rule 17-A, one child of a government servant
who dies while in service or is rendered
physically incapacitated or invalidated is offered
W.P. No.4396 of 2021 2
a job without the observance of procedural
formalities, by way of affirmative action. In W.P.
No.4396/2021 father of the petitioner namely
Allah Wasaya, Baildar retired from government
service on 09.11.2020 on the ground of
incapacitation/invalidation. His son, Muhammad
Ijaz, the petitioner, was appointed as a Cleaner in
BPS-1 in terms of Rule 17-A on 18.2.2021. Ever
since, he has been performing his duties but on
account of a clarification issued by the
Regulations Wing of S&GAD by means of a
notification, it has been ordered that government
servants who were declared incapacitated or
invalidated from government service in medical
category ‘B’ cannot be given the benefit of Rule
17-A and any benefit extended to the legal heirs
of such persons was to be withdrawn. The
petitioner claims that ever since issuance of such
notification dated 06.5.2021, the petitioner is not
being allowed to join duty and is not even being
given any salary.
- 3. In W.P. N4402/2021 the father of the
petitioner namely Abdul Shakoor was declared
physically incapacitated on 31.08.2020 and his
son, the petitioner was appointed in terms of Rule
W.P. No.4396 of 2021 3
17-A as Naib Qasid in BPS-1on 08.12.2020. He,
too, complains that ever since the issuance of this
clarification-cum-notification by the Regulations
Wing of the S&GAD he has neither been allowed
to perform his duties nor has his salary been
released.
- 4. The notification of the Regulations Wing
(supplied to the Court by the learned Assistant
Advocate General) is being reproduced below for
facility of reference:-
“2. The matter has been examined in the Regulations Wing, S&GAD and it is observed that no specific category of invalidation/incapacitation in mentioned in Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However, retirement on medical grounds in category-B does not fall in the type of permanent disability/invalidation. Hence, the Regulations Wing, S&GAD is of the view that children/wife of the officials who retired on medical grounds in category “B” are not entitled to get the benefit of job under Rule 17-A. There is tendency of getting oneself declared invalidated on the verge of retirement so that a child may get employment under Rule-A. There is need to curb this misuse of the facility under the Rule ibid. Hence, it is informed that a committee has been constituted by the Chief Secretary to formulate recommendations regarding implications of Rule 17-A ibid. As and when its recommendations are received, the same would be updated.”
- 5. After having explained the factual matrix
of both matters in the preceding narrative, a
reading of Rule 17-A may be in order:-
W.P. No.4396 of 2021 4
“17-A. Notwithstanding anything contained in any rule to the contrary, whenever a Civil Servant dies while in service or is declared invalidated/incapacitated for further service, anyone of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 16 & 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above.
Provided further that one child of a Government who dies while in service or is declared invalidated/ incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child is otherwise eligible for the post.”
- 6. The most stark and conspicuous highlight
of this Rule is that it does not in any manner
create any divisions or classes of incapacitation
or invalidation. And, interestingly this is exactly
what the notification dated 06.05.2021 also
acknowledges but then goes astray! But more of
this later!
- 7. The learned Assistant Advocate General
was asked to assist the Court and he has stated
that all medical conditions are not at par and that
while some medical conditions are serious, there
are other medical conditions that are not as
W.P. No.4396 of 2021 5
serious and, therefore, has justified the creation of
a distinction based on categories “A” and “B”. He
has also argued that the Regulations Wing of
S&GAD is responsible for explaining and
amplifying Rules made by the government and,
therefore, by issuance of the notification dated
06.05.2021, it has clearly amplified the
application of Rule 17-A. He has also referred to
a judgment passed by a learned Division Bench
of this Court reported as “Market Committee,
Sahiwal v. Syed Zaigham Ali and others” (2012
PLC(C.S.) 319) to canvass that the Regulations
Wing is well within its rights to have issued the
clarification/notification.
- 8. I have heard the learned counsel for the
parties at length and have perused the available
record. Learned AAG accepts notice on behalf of
the Province and this matter is being decided as a
regular case.
- 9. It may be useful to mention here that Rule
17-A was originally not a part of the Punjab Civil
Servants (Appointments and Conditions of
Service) Rules, 1974. It is only in the year 1987
that Rule 17-A in its un-amended form was added
to the Rules. The Rule in its original form was
W.P. No.4396 of 2021 6
quite narrow and strictly framed. However,
gradually over the years the reach, ambit, sweep
and scope of the Rule has been considerably and
consciously widened so as to reflect a much more
beneficial intent, which is in line with the original
rationale for introducing such a beneficial Rule.
Here is a brief background of the Rule:-
- Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was added vide notification No.SOR-IV (S&GAD)15-2/86 dated 25.12.1987 (Annex-I). The said proviso reads as under:-
Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service any one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which the possesses the prescribed qualifications and experience and such child may be given to additional marks in the aggregate by the Punjab Public Service Commission or by the appropriate Selection Board or Committee, provided he otherwise qualifies in the test, examination and/or interview.
- The said rule was amended vide notification dated 14.10.1989 as under:-
Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in serviced or is declared invalidated / incapacitated for further service, any one of his unemployed children may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which the possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Commission or by the appropriate
W.P. No.4396 of 2021 7
Selection Board or committee, provided he otherwise qualifies in the test, examination and/or interview.
- The rule ibid was further amended vide notification dated 28.08.1993 which provides as under:-
Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated/ incapacitated for further service, one of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given 10 additional marks in the aggregate by the Punjab Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above.
Provided further that only one child of a government servant who dies while in service or is declared invalidated or incapacitated for further service shall be provided a job against posts in BS-1 to BS-5 in the department in which the deceased Government Servant was working, without observance of formalities prescribed under the rules / procedure, provided such child is otherwise eligible for the post.
The said rule was further amended vide notification dated 12.04.2003 by inserting the words “or his widow / wife” and “or widow / wife” and “the widow / wife” added respectively.
The rule was further amended vide notification dated 05.01.2008 to insert the words “and the posts of Junior Clerk”.
The said rule was notification dated under:-
substituted vide 24.09.2017 as
Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in
W.P. No.4396 of 2021 8
service or is declared invalidated/incapacitated for further service, one of his unemployed children or his widow/wife may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above. Provided further that only one child or widow or wife of an employee who dies during service or is declared invalidated or incapacitated for further service, if otherwise, eligible for the post, shall be appointed to a post in BS-1 to BS-11 in the department where the Government servant was serving at the time of the death or the declaration, without observance of the procedural requirements prescribed for such appointment.”
- 10. It is evident from the above that the scope
and sweep of Rule 17-A has been widened
horizontally as also vertically in that besides
extending the basis of entitlement from death
only to incapacitation and invalidation and
enlarging those eligible and entitled from
unemployed children to wife/widows as well, on
the way also granting more respectability and
improvement in grade and status, the Rule has
indeed come of age, so to speak, and the special
beneficial purpose and rationale behind insertion
of Rule 17-A is much more conspicuous now. It
may be mentioned here that the Rule is not based
W.P. No.4396 of 2021 9
on largesse or state bounty since there is a
consideration involved and which is bartering of
years of service resulting in death or permanent
incapacitation of the father or husband of a
person who seeks benefit of Rule 17-A. What is
also evident is that the Rule begins with a non-
obstante condition and, therefore, has to be
applied and enforced to the exclusion of all other
subordinate legislation, what to speak of
instructions and notifications. On the face of it,
the Rule does not specify any division,
distinction, or bifurcation of categories of
incapacitation or invalidation. Either one is
incapacitated or not incapacitated. Likewise,
invalidated or not. There is no such thing as being
partly invalidated or being semi-incapacitated.
The Rule is a beneficial Rule and has to be
construed liberally and, of course, departmental
instructions cannot be allowed to make inroads
thereon. In fact, the instruction in the form of the
notification of S&GAD also recognizes this stark
fact. However, it even then goes on to justify the
existence of categorization of incapacity and
invalidation and its consequential effect on the
extension of the benefit contemplated by Rule 17-
W.P. No.4396 of 2021 10
- A. This it does by taking into account an
absolutely irrelevant consideration of possible
misuse of the facility. This renders the
notification illegal in the Wednesbury Sense (aka
Lord Greene in Wednesbury Corporation
1948 (1) KB 223). Even the aim is an improper
one so as to attract Wednesbury principles.
Improper purpose, misdirection in law, taking
into account an irrelevant consideration, are all
instances and grounds of judicial review which
were then catalogued by Lord Diplock under the
heads “illegality, irrationality, procedural
propriety and proportionality” (GCHQ case 1985
AC 374). These are acknowledged and judicially
approved grounds for a successful application for
judicial review. In the matter before this Court,
the notification suffers from not only being in
furtherance of an improper motive since the Rule
does not allow any such purpose or motive to be
taken into consideration and also because the
notification takes into account an irrelevant
consideration that is blatantly utilitarian but also
goes beyond the scope of the Rule, the very Rule
it seeks to amplify and explain. Moreover, the
entire purpose of the Rule is defeated by creation
W.P. No.4396 of 2021 11
of categories at an administrative level. One does
not need to think hard to suggest that if at all any
bifurcation is to be introduced in the Rule then
the same ought to be done by amending the Rule
because the Rule in its present form does not
allow any divisions or distinctions or for that
matter creation of a class of persons within a
class. To use a much hackneyed cliché, what Rule
17-A gives from one hand, the instructions of
Regulations Wing dated 06.05.2021 try and take
away with the other! In any case, administrative
instructions are neither laws nor rules and these
can only be subservient to laws and rules and,
therefore, cannot be allowed to dilute the facility
or benefit afforded by Rule 17-A. (See
“Hashwani Hotels Limited v. Federation of
Pakistan and others” (PLD 1997 SC 315 at 329)
and “Anoud Power Generation Limited and
others v. Federation of Pakistan and others”
(PLD 2001 SC 340).
- 11. A reference to precedents on the issue of
Rule 17-A may be in order. A Full Bench of
Lahore High Court in case reported as “Mst.
Ubaida Manzoor v. Government of the Punjab
through Secretary Education (Schools), Lahore
W.P. No.4396 of 2021 12
and 4 others” (2012 PLC (C.S.) 101) has held at
paragraph No.5 as follows:
“5. Under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the benefit is to be extended to a child of a civil servant, who dies during service or is rendered invalidated/incapacitated during service. No distinction is made in the said Rule between a son and a daughter. Again, there is no distinction between the married or unmarried son/daughter the clear and unambiguous object of this provision is to give relief to the bereaved family, who has been deprived of the bread earner. Discrimination on the basis of sex is violative to the fundamental right of equality of citizens as bestowed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise the narrower interpretation depriving a married daughter of such civil servant of the benefit given under Rule 17-A of the Rules ibid does not appeal to the rational mind as there may be an eventuality when the deceased leaves behind one married daughter and remaining minor children. If the daughter is not given the benefit then the family may not get any relief, which would be against the spirit of this benevolent provision of law, which appears to have been made for welfare of the bereaved families of the civil servants.”
- 12. In “Miss Iffat Tahira Secretary Schools
and others” (2010 PLC (C.S.) 1404) it has been
held at paragraph No.9 as follows:-
“................ it is clear that purpose of Legislature to formulate the said rule is to provide help/assistance to one child of the deceased civil servant irrespective of being a boy or girl, married or un-married with the ultimate object to provide stability to the family of the deceased civil servant. Thus it cannot be curtailed in scope as has been interpreted by the respondents thus far.”
W.P. No.4396 of 2021 13
- 13. In “Mst. Sumaira District Coordination
Officer/Chairman, District Recruitment
Committee, Sargodha and 2 others” (2013 PLC
(C.S.) 274) it has been held in paragraph No.8
and 9 as follows:-
“Rule 17-A of the Rules ibid is aimed to provide a stop gap arrangement for the sustainability of a deceased government employee’s family on compassionate grounds and its non-adherence in the Recruitment Policy for the year 2011 will be detrimental to the vested rights of the dependents of deceased/incapacitated civil servants bestowed upon them by the Rule ibid.
- So far as the contention of the learned Law Officer that this Court cannot interfere in the policy matters is concerned, suffice it to say that recruitment policy is meant for the purpose of providing guidelines for making appointments and cannot attain the status of statutory rules or a law promulgated by an Assembly or Parliament Statutory Rules could not be modified or superseded by executive instructions.”
- 14. In “Kalsoom Bibi Secretary Education
and others” (2015 PLC (C.S.) 563) it has been
held in paragraph No.7 as follows:-
“There is no cavil with the preposition that departmental authorities are bound to implement the policies/decisions taken by the government from time to time but at the same time, the said power cannot be used to substitute language of a Statue. As far as the case in hand is concerned, prima facie respondent No.4 has tried to introduce interpretation of Rule 17-A ibid of his own choice. Such unbridled exercise of powers by respondent No.4 and that too in contravention to the clear cut provision of a Statue cannot be approved rather deserves to be deprecated.”
W.P. No.4396 of 2021 14
- 15. In “Ali Razzaq and others D.C.O. and
others” (2015 PLC(C.S.) 1495), a case which is
nearly identical to the matter in issue before this
Court, it has been held in paragraph No.10 as
follows:-
“10. ………. Perusal of this provision of law makes it crystal clear that the same was made and subsequently amended only for beneficial purpose of a civil servant who is not in a position to render his/her services in the department and not otherwise.”
- 16. In “Market Committee, Sahiwal Syed
Zaigham Ali and others” (2012 PLC(C.S.) 319),
a learned Division Bench of this Court (relied
upon wrongly by learned AAG since it supports
the case of the petitioner) has ruled at paragraph
No.6 as follows:-
“From a bare reading of section 17–A of Punjab Civil Service laws reproduced above it is clear that an unemployed child becomes eligible to be appointed in the place of his father only in case his father dies while in service or is declared invalidated/incapacitated for further service. In order to ascertain as to who is the competent authority authorized to determine whether or not an employee has become incapacitated. we have to go though the provisions of section 442 of Civil Service Regulations (Relating to Pension) which are reproduced below for the sake of reference:—
Section 442
“If an officer applying for an Invalid pension’ is sixty years old or upwards, no certificate by a Medical Officer is necessary; it suffices for the head of the office to certify to the incapacity of the applicant. Otherwise incapacity for service
W.P. No.4396 of 2021 15
must be established by a medical certificate.”
This judgment does not advance the case of the
respondent province but rather only establishes
that incapacitation must be established by a
medical certificate. This judgment does not say
that the said medical certification should reflect
divisions or distinctions or standards. Reliance of
the learned AAG on this judgment is, therefore,
misplaced.
- 17. What is, however, absolutely unarguable,
is the fact that Rule 17-A is a piece of beneficial
legislation. It is a Rule which purports to confer a
benefit on a class of persons. Examples of such
laws are public assistance laws, laws on
unemployment relief, etc. It is trite that beneficial
legislation should be interpreted in a purposive or
teleological manner as opposed to the strict literal
approach because such a purposive approach
would advance the objects of such welfare
legislation. This purpose oriented approach
encourages a liberal construction to promote its
objects. Words occurring in Rules of liberal
import such as social welfare and unemployment
relief Rules are not to be shrunk to Lilliputian
dimensions. In constructing such Rules, the
W.P. No.4396 of 2021 16
imposture of literal construction must be avoided.
What is relevant is the color, the content and the
context of such enactments. In the words of the
Indian Supreme Court (1980 (4) SCC 443
Surendra Kumar), “Semantic luxuries are
misplaced in the interpretation of bread and
butter enactments.” Welfare enactments must,
of necessity, receive a broad interpretation.
Where an enactment is designed to give relief to a
particular group or class of persons, the Court is
not to make inroads by making etymological
excursions.
- 18. The raision d’etre behind insertion of Rule
17-A is not hard to discern. It was specifically
added in an already existing catalogue of Rules
only to compensate and provide a bond of fate to
one immediate family member of a government
servant who either died or was rendered
incapacitated or invalidated while in service.
There is no other possible reason for the insertion
of Rule 17-A. One question that arises in the
present context is as to how administrative
instructions or notifications that do not have the
force of law be allowed to whittle down the effect
and impact of the Rule. In fact, any notification
W.P. No.4396 of 2021 17
or instruction that seeks to take away the benefit
conferred by Rule 17-A borders on being
exploitative within the meaning of Article 3 of
the Constitution. It may also be viewed as an
unnecessary incursion into the protection
afforded by Articles 9 and 14 of the Constitution.
It is trite that right to life not only denotes the
right to a vegetative life but to a vibrant life in
which basic facilities and amenities required for
human and civil existence are accessible and
available to a citizen. Likewise, a citizens’
dignity which is secured by Article 14 of the
Constitution will be compromised if
administrative instructions are allowed to make
inroads on his dignity.
- 19. In “M Ubaida Manzoor v. Government
of the Punjab through Secretary Education
(Schools), Lahore and 4 others” (2012 PLC
(C.S.) 101) it has been held that the principle
which regulates interpretation of statutes must be
taken to regulate the interpretation of Rules as
well. Any addition or subtraction in the words
used in such Rules was not desirable since the
object of the Rules would be frustrated by such
an exercise. Furthermore, executive instructions
W.P. No.4396 of 2021 18
in the form of notifications or clarifications can
have no bearing on the interpretation of statutory
rules, nor can these be allowed to supersede
statutory rules (“Babulal Chowdhary v. Editor
and Publishers New Bharat” 1982 Jab LJ
230).
- 20. The Court must interpret statutory rules in
accordance with the language used in the
statutory rules and not get swayed by government
departmental instructions (“Williams Tacks v.
Madras” AIR 1935 Madras 656)
- 21. Even otherwise, administrative instructions
or notifications which are not even delegated
legislation in the strict sense cannot possibly be
allowed to operate retrospectively so as to impair
already accrued rights and benefits. On this count
alone, the administrative instructions dated
06.05.2021 cannot possibly be sustained. In cases
“Khan Asfandyar Wali and others v. Federation
of Pakistan through Cabinet Division, Islamabad
and others” (PLD 2001 SC 607) and “Adnan
Afzal v. Capt. Sher Afzal” (PLD 1969 SC 187), it
has been held that administrative instructions or
rules cannot operate retrospectively so as to take
away vested rights. Both petitioners before this
W.P. No.4396 of 2021 19
Court having already been granted the benefit of
Rule 17-A cannot retrospectively, by way of
administrative instructions, be dealt a marked
hand. It is the duty of the Court to interpret the
beneficial provision liberally so as to give it a
wide meaning rather than a restrictive meaning
which would negate the very object of the Rule
(“Madan Singh v. Union of India” 1999 (6) SCC
459). If this Court were to restrict the operation of
Rule 17-A by allowing the administrative
instructions to be read into it, the object of Rule
17-A will be negated. Such course of action is,
therefore, not permissible. A beneficial Rule such
as Rule 17-A has to be construed in its correct
perspective so as to accentuate the intent behind
its enactment. Socio-economic legislation enacted
with the objective of social welfare is not meant
to be interpreted narrowly so as to defeat its
object.
- 22. For what has been discussed above, this
Court is of the considered view that any
administrative instructions or notifications
making inroads in the benefit afforded by Rule
17-A and that too retrospectively cannot be
allowed to remain legally effective. These must
W.P. No.4396 of 2021 20
be struck down so as to allow the beneficial Rule
an un-interpreted, holistic and wholesome
existence.
- 23. Both these petitions are allowed and
respondents are directed to ensure that the
petitioners are taken back on their posts and they
are paid the salaries accordingly. The
administrative instructions contained in
notification dated 06.05.2021 are struck down as
being violative of Rule 17-A. No order as to
costs.
(MUHAMMAD SHAN GUL) JUDGE
Approved for reporting.
Judge.
Waseem
