Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 25.7.2007 passed by a Division Bench of the High Court of Sindh, Karachi, whereby Constitutional Petition No, D-1228 of 2007 filed by the petitioner was dismissed.
2. The petitioner, who at present, is working as Assistant Collector in the Customs & Excise Department, made three attempts for passing the C.S.S examination. In the first two forms, the petitioner mentioned Naushero Feroze, as place of birth of his father; whereas in the third it was mentioned as Hyderabad. Respondent No, 4, Assistant Director (CSS), Federal Public Service Commission, called for explanation from the petitioner in this regard vide letter dated 7.7.2000 which was replied on 13.7.2000, whereafter the said respondent vide letter dated 7th September, 2000, informed the petitioner that his domicile was accepted as Sindh Rural. The petitioner, through letter, dated 22nd October, 2000, requested Respondent No, 4 for reconsideration of decision determining his domicile as Sindh Urban, but it 'was turned down on 14.11.2000. Consequently Custom & Excise Group was allocated to him vide letter dated 15.11.2000, in pursuance whereof he joined the Academy and thereafter was posted in the said group.
It appears that, having cooled his heals, the petitioner did not agitate the matter immediately thereafter, but subsequently challenged the allocation of group by way of Constitutional Petition referred 'to herein, above before the High Court of Sindh, Karachi, primarily on the ground that since pursuant to decision, dated 7.8.2000, of a learned Division Bench of the High Court of Sindh, Rule 6(iii)(a) of the Federal Public Service (Rules of Competitive Examination) Rules, 1997 (hereinafter referred to as the "said Rules, 1997") was declared to be ultra vires the Constitution, and was accordingly amended and it was provided that seats earmarked for provincial/regional quota shall be allocated to the candidates on the basis of domicile certificate issued by the competent authority in accordance with law and rules; therefore action of the respondents in refusing to accept the domicile of the petitioner as Hyderabad Sindh (Urban) was illegal. The petition contained the following prayer:-- (a) To declare that the actions of the Respondents in refusing to accept the domicile of the petitioner as that of Hyderabad Sindh (Urban) and instead allocating to the petitioner domicile of his father's place of birth is unconstitutional, illegal, malafide and violative of the fundamental rights and principles of natural justice;
(b) Direct the Respondents to forthwith allocate the petitioner his due position on the basis of Domicile and PRC of Hyderabad, Sindh (Urban) and not on the basis of the place of birth/origin of his father and thereby allocate the petitioner to the Police Service of Pakistan with the same seniority as he is entitled to for the 28th common CSS 1999, which is in consonance and conformity with the judgment of superior Courts."
The petition was dismissed vide order dated 25.7.2007, inter-alia, on the ground that since the rule, 6(iii)(a) of the said Rules, 1997, came up for consideration before the Supreme Court in the case of Federal Public Service Commission & others v. Khan Faisal and others (Civil Appeal Nos, 1318 to 1327 of 2002) and it was laid down therein that cases of those candidates who had appeared in Competitive Examination held in the year 2000, joined course and completed training, their cases had to be treated as past and closed and the petitioner's case being at par with them, no useful purpose would be served in allowing him to change the cadre at the belated stage.
3. It would be beneficial to reproduce herein below the relevant discussion, in extenso which reads as follows:-- "7. The crucial question that falls for determination is as to which rule would govern the candidate who had appeared in 2001 Examination. Obviously, they cannot be governed by the rule which has been struck down by the Sindh High Court and we are of the considered view that those who took examination in 2001 shall be governed by subsequent amended holding the field in year 2002.
3. In a subsequent petition (C.P. No,D-393/2006) decided by another bench of this Court in which also one of us (Sabihuddin. Ahmad, (CJ) was a Member, it was explained that the distinguish drawn by the Supreme Court was bounded upon a principle of law that is to say that where the officers had joined the course and had completed their training the transaction had to be treated as past and closed, whereas when they were yet to join their services they could be allocated seats according to amended rather than old rules. Since the petitioner in the instant case had already joined the Customs and Excise Group and had been working for almost sever (07) years no public interest would be served in allowing him to rejoin the Government service at an initial stage in a different career. Accordingly, following the principles laid down by the Hon'ble Supreme Court, we would treat the matter as past and closed."
Being aggrieved, the petitioner has challenged the impugned judgment through the instant petition.
4. Mr. Abdul Hafeez Prizada, learned Senior ASC, for the petitioner, has contended that learned Division Bench of the. High Court has gravely erred in law by treating the case of the Petitioner as past and closed transaction because the petitioner had though participated in the CSS exam lastly in the year 1999, yet the group was allocated to him on 15.11.2000 and by that time Rule 6(iii)(a) of the said Rules, 1997 was already declared as ultra vices the constitution by the Sindh High Court, therefore, case of the petitioner was to be governed by the amended rule. He added that since the above judgment of the High Court having been upheld by the Supreme Court, had attained finality, and the relevant rule was also amended in pursuance thereof, therefore cases of all the candidates including the petitioner, who had not completed training by that time had to be governed by the amended rule and the petitioner as such was entitled to be treated as domicile of Sindh Urban instead of Sindh. Rural and should have been allocated the Police Service of Pakistan which was his choice as indicated in the CSS form. He strenuously urged that petitioner's case could not have been treated as past and closed transaction on the touchstone of the observations made in the case of Federal Public Service Commission vs. Khan Faisal and another (supra), because therein cases of those candidates were treated as past and closed who were allocated groups and had completed their training and since the petitioner had completed his training somewhere in January 2003, whereas judgment of the High Court striking down Rule 6(iii)(a) of the said Rules, 1997 was holding the field since June, 2002, therefore, his case, in all probabilities, had to be governed by the amended rule.
5. Raja Niaz Ahmed Rathor, learned DAG, appearing for the respondents, while controverting the contentions of learned counsel for the petitioner has submitted that since petitioner appeared in the competitive examination, lastly in the year, 1999 and at the relevant time Rule 6(iii)(a) of the said Rules, 1997, in its unamended form, was holding the field, therefore, case of the petitioner had to be governed by the said rule, particularly when it was categorically observed by the Supreme Court in the case Of Khan Faisal (supra), that the cases of only those candidates who had appeared in 2001 examination were to be governed by subsequently amended rule and with regard to the cases of those candidates who had appeared in the year 2000, it was observed that their cases had to be treated as past and closed. Learned counsel has, however, not controverted that allocation of group to the petitioner was made on 15.11.2000 and that he had completed his training somewhere in 2003.
6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance, minutely. This is an admitted position that old Rule 6(iii)(a) was struck down by a learned Division Bench of the High Court, on 7th August, 2000 and the said judgment was upheld by the Supreme Court in the case of Khan Faisal (Supra) and in pursuance of the above judgment the said rule was amended. Dispute is only with regard to application of the amended rule. It would be advantageous to reproduce herein below paras 6 & 7 from the above decision of the Supreme Court which read as under,:-- "6. The comparison of both the rules reproduced above, shows that under the subsequent rule, allocation of seats shall be made on the basis of domicile certificate issued by the competent authority in accordance with law and the rules. As far as the candidates who had appeared in Competitive Examination held in year 2000, we are informed, that they have already been allocated the groups and one of them has also completed the training, and as rightly pointed out, appeals to their extent have become infructuous, because the rule has already been implemented and the matter has become past and closed.
7. The crucial question that falls for determination is as to which rule would govern the candidate who had appeared in 2001 examination. Obviously, they cannot be governed by the rule which has been struck down by the Sindh High Court and we are of the considered view that those who took examination in 2001 shall be governed by subsequent amended holding the field in year 2002."
7. No doubt in the above cited case, it was held by this Court that the cases of those candidates who had appeared in the competitive examination held in 2000 had to be treated as past and closed, yet the relevant observations made in view of the fact that the Court was informed that the said candidates had already been allocated groups and one of them had also completed his training. A perusal of impugned judgment as well as the one delivered in C.P. No,D-393 of 2000 by the Sindh High Court, indicate that while referring to the above observations of this Court it has escaped from notice of the learned Judges in the High Court that cases of only those candidates were treated as past and closed by this Court who while appearing in 2000 exam, had completed their training or at least were allocated groups. It is an admitted fact that the petitioner was allocated Customs and Excise group on 15.11.2000, when the rule in-question had already been struck A down and he completed training in the year 2003, thus his case was clearly distinguishable from those candidates whose eases were treated as "past and closed" by this Court in the case of Khan Faisal (supra) It would be pertinent to mention here that in petitioner's case the crucial date was 15.11.2000, when group was allocated to him and, therefore, the events which took place subsequently were immaterial and irrelevant.
8. Upshot of the above discussion is that this petition is converted into appeal and allowed.
Impugned judgment dated 25.7.2007 passed by Division Bench of the High Court of Sindh, Karachi in Const. Petition No, D-1228 of 2007 is set-aside and the respondents are directed to consider the case of the petitioner as per amended Rule 6(iii)(a) of the Federal Public Service (Rules of Competitive Examination) Rules, 1997, on merits, in accordance with law.