Hamid Ali Mirza, J.--This civil appeal with leave of this Court dated 28.7.2005 is directed against judgment dated 17.6.2001 in W.P. No, 16600 of 2003 passed by the Lahore High Court, Lahore, whereby writ petition preferred by the respondent was accepted by setting side the notification of even No, dated 29.10.2003 with the direction to the appellants that the respondent be appointed against one of the seat allocated to Azad Jammu & Kashmir for the year 2002.
2. Precisely stating the facts of the case as enumerated in the impugned judgment are that for the purpose of filling up the vacancies for the Civil Services of Pakistan, The FPSC issued a public notice for conducting the CSS Examination for the year 2002, to be held in the year 2003. As per the advertisement, besides the general seats, special quota was allocated to the four Provinces of the Pakistan, as also the AJ&K which in the case of latter was 2%. The total vacancies to be filled, as has been stated by the appellants' representative, were 159 and the quota for the AJ&K in the normal circumstances was three seats. The petitioner alongwith other contestants of the same category, appeared in the examination for the AJ&K's quota and according to the respondent he was at No, 2 on the merit list which position is not disputed by the appellants. However, a couple of days before the result was declared, the Appellant No, 2 Chairman Federal Public Commission issued a press note dated 30.10.2003 mentioning therein that pursuant to Paragraph No, 11 of the Rules of Competitive Examinations, 2002 (hereinafter called as the said Rules), the seats for the AJ&K have been reduced to one. Thus on account of this reduction, the respondent, who otherwise was qualified for appointment on merits, was deprived of his right to be appointed against the said allocated seat as per quota assigned to AJ&K, hence the respondent filed writ petition before the Lahore High Court, Lahore which was allowed as per impugned judgment, hence the present appeal is filed by the appellants to challenge the said judgment of the High Court.
3. We have heard learned counsel for the appellants and their representatives and the respondent in person and perused the record.
4. Learned Deputy Attorney General besides raising legal pleas has raised the main plea that the learned Single Judge has not properly appreciated the allocation of quota according to Sl.No, 28 of Esta Code and has grossly fallen in error and ignored the calculation of seat of AJ&K on the basis of 2% quota as well as plus/minus fraction of the previous years and erroneously held that the seats are to be filled for a particular examination, whatever the total seats, those have to be divided on the percentage of AJ&K. He further submitted that if vacancies are calculated without keeping in view the plus/minus fraction of the previous year the quota system could not be implemented and rationale to quota system would be defeated. He also submitted that when plus/minus fraction is applied on working out the distribution of seats to various regions, it is done under a proper system and in this regard record is maintained containing plus/minus fractional record of all the regions and further that when new seats are available, these are distributed keeping in view the previous account of each, area, therefore all the available posts are distributed justly and equally. He further submitted that no right accrued to the respondent and he is not entitled to be appointed against the seat on merit as according to the calculation and plus/minus fraction as per available quota 2% of AJ&K after filling up one seat of the previous year i,e, of 1994 on account of order of Honourable High Court passed in Writ Petition No, 2765 of 1996 (Miss Asma Roohi Shah v. Hasa,'
Kamran Bashir & others) and the other seat allocated to Miss Kalsoom Hai having merit than the respondent as such there being no seat available according to the policy and quota- reserved for Azad Jammu & Kashmir against which the respondent could be appointed, hence the impugned judgment cannot be sustained in law.
5. Respondent in person submitted that as per recruitment policy for the Competitive Examination 2002 at page 6 of the Rules 2002, admittedly quota allotted to AJ&K is shown to be two percent and he has secured 2nd position amongst the candidates of AJ&K as per result announced by the appellants and in view of the quota and the previous policy there being at least two seats falling in the share of AJ&K , he should have been adjusted against the second seat, first having been given to Miss Kalsoom Hai. He further submitted that the appellants unauthorisedly and arbitrarily purported to exercise authority under para 11 of the said Rules effecting the recruitment policy as set out at page 6 of the said Rules could not have been reduced the quota allocated to AJ&K by reducing the number of seats and adjusting one seat on the basis of plus/minus ratio having been given away in advance to Mst. Asma Roohi Shah in the year 1994. He submitted that the High Court in W.P. No, 2765/1996 vide order dated 20.5.2002 has disposed of the said writ petition as under:-- "It is stated by the learned Deputy Attorney General for Pakistan who is accompanied Mr. Dilshad Ahmad Babar, Section Officer that the grievance of the petitioner stands redressed inasmuch as she will continue to serve Income Tax Group. In this view of the matter, learned counsel for the petitioner stated that the petition be disposed of as having fructified. Order accordingly."
The respondent submitted that there was no order of the High Court to adjust Miss Asma Roohi Shah against the seat which would fall vacant for the examination to be held in 2002-2003 but the High Court passed an order on the basis of said statement of learned D.A.G. and the said S.O., therefore, there was no command from the High Court to allocate the seat of the respondent which would come to his fortune in the year 2002-2003 knowing that there was two percent quota of AJ&K as such there would be two seats for the said area and in case he succeeded in having first two positions in AJ&K, he would be entitled to at least one out of the two seats. He submitted that the appellants cannot reduced the quota and ratio in service provided under the Rules and guaranteed under the Constitution on the basis of having allocated a seat in advance to a candidate who was entitled to a seat fallen in quota in the year 1994-95 in which he/she had appeared. He has placed reliance upon Moosa Wazir & two others v. NWFP Public Service Commission (1993 SCM R 1124) in support of his contention that examination being competitive, practice could not be adopted of maintaining a list of qualified candidate or its revalidation by the Government for a longer period and requisitions made could not be adjusted out of such lists without proper advertisement otherwise it would be a violation of fundamental rights which would not be condoned on any ground of expediency or administrative convenience.
6. The main controversy which needs to be resolved is whether in the facts and circumstances of the instant case the respondent could be deprived of his seat of his region which in fact fell within the quota/ratio in service allocated to the said region without same having been notified earlier before inviting application for the examination for the year 2002-2003.
7. Learned D.A.G. has placed reliance upon SI. No, 28 of Esta Code 1989 Edition which reads:-- "SI. No, 28: Reference Establishment Division's O.M. No, 8/9/72-TRV, dated August 31, 1973 (SI. No, 27)
Provincial/Regional quotas in respect of posts filled in a particular year are to be worked out to 1000th fraction. A Province/Region having larger fraction in accordance with the prescribed quotas, is allocated the vacant post of recruitment whereas the Province/Region not allocated the post due to smaller fraction, gets those fractions carried forward and added to its share in the subsequent year. The procedure for calculating and carrying forward the share of Province/Region, is indicated in Annexure-I.
2. Ministries/Divisions/Departments etc. are requested to regulate the Provincial/Regional allocations in respect of posts in Grade-17 and above filled by direct recruitment after August 31, 1973. A copy of the updated statement should invariably be forwarded alongwith summaries sent to the Establishment Division for seeking approval of the competent authority for initial appointment to posts in grade-17 and above. [Authority.--O.M. No, 9/7/80-A. III, dated the 23rd September, 1980]." Annexure I Province/ RegionQuota (%)No, of VacanciesShareLast Year's C/F BalanceTotalVacancies be allowedBalance to be carried forward 1 2 3 4 5 6 7 8 Sind (R) 11.4% 3 0.342 -- 0.342 -- +0.342 N.W.F.P. 11.5% 3 0.345 -- 0.345 1 -0.655 Balochistan 3.5% 3 0.105 -- 0.105 -- +0.105 FATA 4% 3 0.120 -- 0.120 -- + 0.120 A/Kashrnir 2% 3 0.060 -- 0.060 -- + 0.060 2nd Year Merit 10% . 5 0.500+0.3000.800 1 -0.200 Punjab 50% 5 2.500-0.5002.000 2 -- Sind(U) 7.6% 5 0.380+0.2280.608 1 -0.392 Sind(R) 11.4% 5 0.570+0.3420.912 1 -0.088 N.W.F.P. 11.5% 5 0.575+0.6550.080 -- -0.080 Balochistan 3.5% 5 0.175+0.1050.280 -- +0.280 FATA 4% 5 0.200+ 0.1200.320 -- + 0.0320 A/Kashmir 26 5 0.100+ 0.0600.160-- + 0.160 3rd Year Merit , 10% 2 0.200-0.200 -- -- -0.200 Punjab 50% 2 1.000 -- 1.000 1 -- Sind(U) 7.6% 2 0.152-0.392-0.240 -- -0.210 Sind(R) 11.4% 2 0:228-0.008+ 1.110 -- +0.1.10 N.W.F.P. 11.5% 2 0.230-0.080+0.150 -- +0.150 Balochistan 3.5% 2 0.070+0.320+0.350 +0.350 FATA 1% 2 0.080+ 0.320+ 0.4001 -0.600 A/Kashmir 2% 2 0.010+0.160+0.200 -- + 0.200 Rule-11 of Rules for Competitive Examinations 2002 reads as under: "11. The approximate number of vacancies in BS-17 to be filled on the results of this examination will be announced later. The Government, however, reserves the right to fill a smaller or larger number of vacancies than that announced".
Annexure-I indicates that under Column 2 share of quota of AJ&K is 2%, whereas under Column 3 No, of vacancies are 2 and under Column No, 4 its share is 0.040 in the total number of posts. While under Column 5 last years carrying forward balance is +0.160 whereas under Column 6 total posts + 0.200 and under Column No, 7 in respect of vacancy there is NIL vacancy to be allotted and under Column No, 8 balance to be carried forward is shown as + 0.200. For the purpose of clarification it has been mentioned under Sl. No, 29 of the ESTA Code as under:-- "(1) Posts in each grade ,should be considered separately for purposes of allocation of the prescribed merit and Provincial/Regional quotas.
(2) The Provincial/Regional' quotas do not apply to posts filled by promotion. These are applicable to direct, including lateral entry, appointments.
(3) Vacancies which cannot be filled by candidates belonging to the Province or region to which the vacancy is allocated should be carried over and re-advertised at a later date.
(4) Posts in the Ministry/Division should be allocated separately from posts in Attached Departments and Subordinate Offices. In other words, the allocation should be made separately for each Department, Office or Institution.
(5) Provincial/Regional quotas do not apply to posts filled by transfer of Government servants to posts in equivalent grade whether on deputation or on secondment as in the case of military officers.
(Authority.-O.M. No, 8/15/73-TRV, dated the 28th November, 1973)"
Paras (vi) to (viii) of the Concise Statement/skeletion of arguments filed by the appellants reads as under:-- "(vi) It is stated these rules are being followed in accordance with the O.Ms since 1973 without any transgression. The definite share of percentage cannot be followed being humanly impossible.
Fraction of a person cannot be employed. As such the fraction has to be converted to whole numbers according to a set of principles and laid down criteria so that any whimsical exercise is avoided.
(vii) This laid down criteria ensures the participation of different provinces and regions according to their share as per Article 27 of the Constitution of Islamic Republic of Pakistan.
(viii)Plus/minus fraction rule simply means that when the quota is divided on the number of seats available and if a fraction is obtained, which is less than half, it will be carried over to the next year and if it is more than half, extra candidate in this quota will be adjusted in the same year leaving the fraction to be subtracted from the same quota in the ensuring year."
8. The appellants in their concise statement have admitted that fraction cannot be converted to whole number unless fraction exceeds more than half as per universal principle laid down and further that participation of different provinces and regions are ensured to have their share as per Article 27 of the Constitution of the Islamic Republic of Pakistan, 1973 and further plus/minus fraction simply means that when quota is divided on the number of seats available and if fraction is obtained much less than half, it is carried over to the next year and if it is more than half extra candidate in this quota will be adjusted in the same year leaving the fraction to be subtracted from the same quota in the ensuring year.
9. In the instant case, the appellants have filed statement showing allocation to Azad Jammu & Kashmir for the five years viz. 1998 to 2002 but have not filed statement showing allocation for the year 1994-95 so as to find out what were the number of vacancies allocated in the year 1994-95 and what was the share and what was the position with regard to minus/plus ratio in the relevant year 1994-95 when a seat was in advance given away to Miss Asma Roohi Shah as per statement of the appellant's representative and not under the order of the High Court. It is not clear as to why seat allocated in the year 1994-95 to Miss Asma Roohi Shah was not subtracted from the quota in the ensuring year viz. from 1995 till 2001 during the period of six years. The non- subtraction/adjustment of advance seat for six years and non-production of statement of allocation for the year 1994-95 till 2001 clearly manifest mala-fides upon the part of the appellants leading to a legal conclusion that the appellants have not come with clean hands before this Court and have deliberately suppressed the document from production, therefore in view of Article 129 and illustration (g) of the Qanun-e-Shahadat, 1984, adverse presumption is to be drawn that if it would have been produced, same would have been unfavourable to the appellants who withheld the same, as it was their duty to produce being custodian of the record. Reference may be made to M. Saeed Sehgal u. Kazi Mhurshid Hassan, Proprietor, India Film Bureau (PLD 1964 SC 598) wherein this Court at page 611 has observed: "It may be pointed out here that there could have been no difficulty for the appellant to produce his accounts of these transactions, for, as already indicated, the moneys were being drawn from out of a cash credit account and the deposits were also being made into the same account in reimbursement. Statements furnished by the Punjab National Bank could, therefore, have been easily produced. The failure to call for such accounts certainly raises a presumption that if those accounts, which were available, had been called for, they would not have supported the appellant's case."
In fact the appellants should have kept in view the object of Article 27 of the Constitution of the Islamic Republic of Pakistan and should have shown their magnanimity to the smaller region/province/area in giving or adjusting to the respondent a seat which area and region have smaller fraction of quota in the vacancies.
10.It is true that Rule 11 of the Competitive Examination 2002 gives the appellants a right to fill smaller or larger number of vacancies than announced but it does not authorize them to reduce the quota/ratio allocated to AJ&K region and further it does not authorize the appellants to allocate seat in advance to a candidate who had appeared in the year 1994-95 a seat which would fall vacant in the year 2002 after a period of six years when it has also not been shown by the appellants that in the year 1994-95 fraction carried over in the year 1995 was more than half so as to give said candidate extra a seat to be subtracted from the same quota in the ensuring year.
The ensuring year would not amount that it could be subtracted in the year 2002 but prior to it there was six years/period wherein the said seat could have been subtracted. The appellants have not shown any reasonable cause or justification in the said respect consequently the action of reduction of ratio/quota in the year 2002 which hit the respondent's entire career harsh was a mala fide action on their part. It appears to be against law and equity and fairness that a candidate who was entitled to a seat on the basis of quota/ratio in the year 2002 was being deprived because six years earlier a candidate was allocated a seat which could not be subtracted during six years period viz. from 1995 to 2001 but was it subtracted in the year 2002. It may also be observed that Rules as well as SI. No, 29 of ESTA Code, 1989 cannot override the provisions of Article 27 of the Constitution of the Islamic Republic of Pakistan, where safeguards against the discrimination in Service of Pakistan have been provided to the citizens of this. country where under proviso-I of Article 27 reads :-- "Provided that, for a period not exceeding forty years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan."
Quota reserved cannot be allowed to be reduced by reducing the number of posts reserved for the persons belonging to any class of area for the year in which competitive examination was to be held.
11. It may be observed that letter dated 17th September, 2002, Press Note issued by the appellants Federal Public Service Commission mentioned allocation of seats in respect of AJ&K as AG-01, CEG-01, PSP-01 = 03 posts. Besides, there is a note in addition to above vacancies, posts of A.C.
Income Tax-Cum-Assistant, Collector Central Excise-Excise and Taxation Officer under the AJK & C are also to be filled amongst the candidates having domicile of AJK on the basis of Competitive Examination, 2001. Paras 2, 3 & 4 of the above Press Note reads as under:-- "2. Above distribution of vacancies has been made keeping in view the plus/minus fraction of the last year's Examination and carried over vacancies have been added in the respective Groups of the concerned Provinces/Regions.
3. Allocation of candidates to one or the other Service/Occupational Group will be made keeping in view the suitability or unsuitability of the candidates as determined by the Commission, the merit position, preference of the candidates and the quota of Provinces/Regions as set out in the Rules for the Examination.
4. The Government, however, reserves the right to fill a smaller or a larger number of vacancies than those indicated in para 1 above."
It is not understandable that when above said additional two vacancies became available for the domicile of AJ&K why Miss Asma Roohi Shah was not adjusted against those seats. There is no dispute with regard to total number of seats to be filled-in in the year 2002-2003 by the appellants FPSC as would appear from the Press Note, dated 30.10.2003 at page 39 of the Paper Book but instead of at least two seats of AJ&K, it has been reduced to one seat for which we do not find any justification to deprive the respondent because they themselves had given away seat to Miss Asma Roohi Shah and kept quiet for so many years not to adjust the seat from the year 1994 till 2001 but attempted to adjust it in the year 2002 which clearly proved malafide on the part of the appellants. It may also be observed that learned Chairman of the FPSC in his own hand on 29.11.2005 in para 141 of the summary observed: "141. We are bound under the law, until the judgment of the High Court is in the field, to comply with the Court directions. However the revision of allocation affects all the successful candidates below the candidate in whose favour the judgment has been given. On perusal of the reallocation it appears that out of 5 candidates below Mr. Hassan Kamran Bashir, the service group of two is being affected i,e, Merit No, 269 who gets of OMG in place of ITG and Merit No, 293 who gets I.G. in place OMG. Ordinarily the Court should have asked the petitioner to implead the previous affected/likely to be affected by the adjudication and decision of petition, because by the initial allocation and acceptance thereof those candidates are deemed to have acquired vested right to such allocation. One way out would be for the Government to create a new post of ITG to avoid dislocation of other candidates. The Estt. Div. May be informed about this position for action at their level.
142. However as already observed, we have to give effect to the Court judgment and therefore Mr. Hassan Kamran is entitled to be allocated the ITG post available in quota of AJK. We may leave the rest of the matter to the Govt. on the reallocation as worked out as at para 6/N. Para 7 is accordingly approved."
In the light of above orders of the then Chairman FPSC a letter dated 22.11.2005 was issued to the appellant Establishment Division wherein request was made to the Government to create one post of Income Tax Group for Hasan Kamran Bashir to avoid allocation referred above. It may be noted that the said Hasan Kamran Bashir was also a candidate on the basis of competitive examination 1994 in which Miss Asma Roohi Shah had appeared. Letter dated 22nd August, 1996 issued by the appellant Establishment Division No, 1/9/95-T.V (Pt.IV) addressed to Central Board of- Revenue, indicated that the appellants themselves had passed an order allowing Miss Asma Roohi Shah to continue her training to the group which she was initially allocated i,e, ITG, till the final orders of the Lahore High Court. There is no direction from the High Court to adjust either Miss Asma Roohi Shah or Hasan Kamran Bashir in any future vacancy but it was the Establishment Division who on its own desired to adjust their seats in future but not specifiying that the same were to be adjusted in the year from the seats of Competitive Examination 2002-2003. Learned Single Judge of the Lahore High Court in the said respect in para-5 of the impugned judgment has observed: "5. As regards the plea of respondent's side that FPSC has exercised the power of reducing the seats of AJ&K under Rule 11 of the Competitive Examination Rules 2002. Suffice it to say that this rule does empower the FPSC to increase or decrease the total number of seats. But it does not in any manner authorizes it to circumvent and reduce the quota, which as per Serial No, 28 of the ESTA Code, has been allocated to a particular category. Therefore, the issuance of the impugned notification is outside the scope of Rule 11 mentioned above."
This Court in the case of Mossa Wazir (supra) in para 11 at page 1132 has observed: "11. The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purpose of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair. Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning in the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc. has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be established."
12. So far the plea with regard to non-maintaibility of writ petition before the High Court, it may be observed that the said plea was not agitated, pleaded, or argued before the High Court, therefore the said plea cannot be agitated before this Court. Reference may be made to decision of this Court (i) Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum & others (PLD 2002 SC 706 at 710, 711), (ii) Juma Khan & others v. Mst. Bibi Zenaba and others (PLD 2002 SC 823 at page 830), and
(iii) United Bank Ltd. v. Pakistan Industrial Credit & Investment Corporation Ltd. & another (PLD 2002 SC 1100 at page 1110).
13. In view of aforesaid reasoning and material on record action of reducing the seat by the appellants was a malafide act not warranted by law and provisions of the Constitution considering that the respondent's right as a citizen of this country cannot be taken away on the frivolous grounds of having adjusted the seat in the year 1994 of the year 2002 on the basis of plus/minus fraction principles, when no statement of allocation for the said region for the year 1994-95 is filed by the appellants showing that minus/plus ratio was more than half to treat it as a whole entity thereby to take away whole seat falling to the lot of AJ&K region so as to deduct it ensuring year that also after six years. We find no merit in the contentions of learned counsel for the appellants as such find no factual or legal infirmity with the impugned judgment hence required no interference by this Court in the Constitutional jurisdiction, considering also that no substantial question of law is involved, hence no merit in this appeal, consequently this appeal is dismissed with costs.