Abdul Hameed Dogar, CJ.--This petition for leave to appeal is directed against judgment dated 08.5.2007 passed by learned Federal Service Tribunal, Islamabad whereby Appeal No, 1410(R)CS of 2005 filed by appellant Respondent No, 1 was accepted. His termination orders were set aside and he was reinstated into service with effect from the date of the impugned order with all consequential benefits subject to an affidavit by Respondent No, 1 that he was not gainfully employed during the intervening period.
2. Briefly, stated facts leading to the filing of instant petition are that Respondent No, 1 competed for induction in 2001 against vacancies earmarked for Armed Forces Officers and was placed at S.No, 6 in the overall list whereas in the inter se merit of the Pakistan Air Force Officers (PAF) he stood at S. No,
2. Flt. Lt. Faraz Zaidi from PAF whose name was at S. No, 4 refused to join PSP as such Respondent No, 1 stood at the top of the list of the qualified PAF Officers. As his name was not recommended by Petitioner No, 2 as such Respondent No, 1 filed a representation to Petitioner No, 1 and 2 which was not responded as such he filed Writ Petition No, 1034 of 2004 which was decided in his favour. The relevant para of the judgment is reproduced as under:-- "13. In view of above this WP is allowed and the respondents are directed to apply the principles of para of the summary referred to hereinabove uniformly to the case of induction of the officers of the Armed Forces of Pakistan to the available two posts of FSP and two posts of PSP for the year 2001 in supersession of the recommendations made by the FPSC through its Memorandum No, 2/24/2002-CSS dated 29.10.2002. While so doing, the FPSC shall also keep in mind the provisions of Para 6 of the minutes of the meeting dated 10th September 1991 referred to above as it will apply to the allocation of vacancies in the instant case. As the matter has already been protracted, the process shall be expedited."
The above decision was not challenged as such Establishment Division made appointments based on merit as under:-- S.No, Merit No,Name DepartmentDomicile
1. 1Capt. M. Usman lqbalPak ArmyNWFP
2. 2 Capt. Sulman BabarPak ArmyPunjab
3. 6Flt. Lt. Farrukh RasheedPAF Punjab
4. 8 Lt. Muhammad HilalNavy NWFP The offer of appointment was given to Respondent No, 1 by the Establishment Division vide their Letter No, 2(2)2003-E-3(Police) dated 11.07.2003 which was accepted by him and reported for Common Training Programme (CTP) on 28.7.2003 at the Civil Service Academy, Walton, Lahore. Lt. Muquddus Haider of Pakistan Navy who was not issued offer of appointment filed ICA No, 135 of 2003 against the judgment of the learned Lahore High Court, Rawalpindi Bench which was dismissed in limine on 17.9.2003. Feeling aggrieved, he filed Civil Petition No, 2016 of 2003 before this Court which was allowed on 20.10.2004 with the following direction: "In view of the above reasoning we find that the impugned judgment of the High Court cannot be sustained in law which is consequently set aside and the petition is converted into appeal and allowed. Petitioner Muquddus Haider s/o Sajjad Haider shall be adjusted in PSP Cadre in 2001 Batch and he shall be sent for relevant training accordingly in the concerned Academy."
This judgment was challenged by Respondent No, 1 through Civil Review Petition No, 263 of 2004 before this Court which was dismissed on 7.4.2005.
3. On 12.3.2004 Respondent No, 1 assumed the charge of Assistant 'Superintendent of Police (Training) B-17 in the Capital Territory Police, Islamabad' after completion of the CTP and Initial Command Course at National Police Academy, Islamabad as such was struck off duty/retired from PAF. Meanwhile Establishment Division wrote letter to PAF and Pakistan Navy for repatriation of Respondent No, 1 and Lt. M. Hilal. On 11.1.2005 show-cause notice was issued to Respondent No, 1 as to why his appointment having become irregular in view of the decision dated 20.10.2004 of this Court not be terminated. In reply to the above show-cause notice Respondent No, 1 stated that since review petition is pending before this. Court as such detailed reply will be submitted after decision of review petition. On 8.3.2005, Ministry of Defence informed Establishment Division that PAF would not be able to allocate any of the anticipated vacancy to adjust Flt. Lt. Farrukh Rashid as process of selection for future induction of Air Forces Officers into civil services has already been finalized and the said arrangement will deprive new incumbents of their legitimate right. On this opinion of Law Division was sought which advised Establishment Division to withdraw show-cause but instead of this the services of Respondent No, 1 were terminated on 31.3.2005 by Establishment Division. Feeling aggrieved Respondent No, 1 filed Writ Petition No, 1002/2005 before learned Lahore High Court, Multan Bench impugning show-cause notice dated 10.12005 and termination order. He also filed representation to the Prime Minister of Pakistan which was forwarded to the Establishment Division on 21.4.2005. Writ Petition No, 1002 of 2005 was dismised on 21.6.2005, relevant portion is reproduced as under:-- "9. On the other hand, learned Standing Counsel for Federation alongwith Muhammad Naseem, S.O. Establishment Division, have vehemently opposed the arguments of learned counsel for the petitioner, contending that the merit list was prepared by ,the FPSC and the petitioner had not been recommended by the FPSC; that the petitioner had obtained the judgment had been set aside by the Hon'ble Supreme Court of Pakistan and that order of the Apex Court is final, hence, the matter cannot be reopened.
10. I have heard the learned counsel for the parties and gone through the record with their kind assistance.
11. Since the matter had already been dealt with by the Hon'ble Supreme Court of Pakistan and the judgment of this Court had been set aside, therefore, the criteria determined by the High Court is no more in the field. The present petitioner was respondent before the Hon'ble Supreme Court of Pakistan in Civil Petition No, 2016 of 2003 and after considering the contentions of the parties the full bench of Hon'ble Judges of Apex Court gave its verdict against the petitioner. The judgment of the Supreme Court is binding on all Courts of the country as provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, and it is the judicial dignity to abide by the dictum laid down by the Highest forum of the country.
12.The another aspect of the case is that the controversy involved in the matter pertains to the terms and conditions of a civil servant and in view of the bar contained in Article 212 of the Constitution, this Court lacks jurisdiction to entertain this petition.
13.In view of the judgment of the Hon'ble Apex Court, I need not comment upon the merits of the case as the controversy raised by the petitioner has already been settled by the Hon'ble. Supreme Court of Pakistan. Further the contentions raised by the learned counsel for the petitioner before this Court were available to the petitioner at the time of decision of Review Petition by the Apex Court. Hon'ble Supreme Court of Pakistan had not directed the petitioner to approach the High Court-afresh for the determination of his right.
14. For the foregoing reasons, this writ petition having no force is dismissed. However, petitioner may, if so advised avail of the alternate remedy under the law."
In pursuance of above directions, Respondent No, 1 filed Appeal No, 1410(R)CS of 2005 which was allowed by the learned Tribunal vide impugned judgment as stated above.
4. We have heard Ms. Nahida Mehboob Ellahi, learned DAG who appeared alongwith Mr.Ali Abid, Joint Secretary, Establishment Division for the petitioners and Mr. Muhammad Munir Peracha, learned counsel for Respondent No, 1 at length and have gone through the record and proceedings of the case in minute particulars.
5. Learned DAG vehemently contended that in view of judgment dated 20.10.2004 of this Court passed in Civil Petition No, 2016 of 2004 and the dated 7.4.2005 passed in Civil Review Petition No, 263 of 2003, the controversy raised by Respondent No, 1, the matter could not be agitated and raised for decision again which is hit by the principle of res-judicata. The judgment passed by learned Service Tribunal is against the law and facts and circumstances of the case. She further, contended that under Article 189 of the Constitution, the judgment of this Court is binding upon all Courts and no Tribunal or Authority can ignore this constitutional provision. According to her, as per existing policy in force 'since 1991 officers of the Armed Forces below 32 years of age, irrespective of their rank are eligible for induction in BS-17 in the DMG, PSP and FSP against 10% of the annual vacancies on the recommendation of the FPSC on the basis of provincial/regional quotas. In October 2002 FPSC recommended four candidates, namely, Capt. Muhammad Usman Iqbal Jadoon from NWFP, Capt. Salman Babar from Punjab, Lt. Muquddus Haider from Sindh (U) and Flt.
Lt. Muhammad Arif from AJ&K which were approved by the Prime Minister. She further stated that for the year 2001 only four vacancies were available for the Armed Forces Officer for induction in Civil Services and one, vacancy allocated to each regional group. As such only one seat was available against the quota of Punjab. She further contended that quota is a concession and not a right, the allocation of seats is made on provincial/regional basis according to the induction policy enforced since 1991.
6. On the other hand learned counsel for Respondent No, 1 controverted the above contentions and supported the impugned judgment. He contended that this Court had not directed the Establishment Division to terminate the services of Respondent No, 1 as the direction was only to accommodate Lt.Muquddus Haider who fell in the category. According to him as per decision of FPSC in the meeting held on 10.1.1991 provincial/regional quota for Punjab was 50% of the seats and inter services quota required one seat for PAF, one for Navy and rest for the Army. He further- contended that there existed a vacancy for PAF as Flt. Lt. M. Arif belonging to AJK domicile and recommended by FPSC was not offered appointment after the decision of learned Lahore High Court on the basis of merit, consequently there was no representation of the Air Force in the 2001 induction. Respondent No, 1 rather was terminated though entitled to continue in service as a nominee of the PAF with Punjab domicile against the seat misallocated to AJK. It was held in the legal opinion tendered by Law and Justice Division and final opinion rendered by Attorney General for Pakistan that two seats were allocated to Punjab and Respondent No, 1 was already working on the seat of Punjab.
7. As per decision of the FPSC in the meeting held on 10.1.1991 provincial/regional quota for Punjab was 50 % of the seats and the Inter Services quota required one seat for PAF, one for Navy and rest for the Army. Admittedly, Fit. Lt. M. Arif belonging to PAF with AJK domicile who was recommended by the FPSC was not offered appointment after the decision of the learned Lahore High Court, consequently there was no representation of the PAF in the 2001 induction. It has been held by learned High Court in Writ Petition No, 1002 of 2005 that petitioner may, if so advised, avail of the alternate remedy under the law. The alternate remedy in this case involving terms and conditions of services is the Tribunal to the exclusion of any other forum which the appellant has chosen to avail. The controversy with regard to misallocation of quota was neither settled in any of the judgments delivered in this case so far nor the said judgment dated 21.6.2005 of the learned Lahore High Court categorically ruled out the scope of its further examination. This view is amply supported by law division and learned Attorney General for Pakistan. In view of this the matter is not hit by the principle of resjudicata. The instant case is with regard to allocation for Punjab amongst the three Services. Admittedly Punjab gets 50% vacancies as against one seat having actually been allocated by FPSC to Punjab which amounts to 25%. The claim of appellant that even after reversal of the policy of merit and restoration of quota policy Respondent No, 1 still entitled to a vacancy of Punjab going to PAF on the basis of Inter Services merit after withdrawal of the other competitors. Rather , his services were terminated though he was entitled to continue in service as a nominee of the PAF with Punjab domicile against the seat supposedly misallocated to AJK. His appointment was not only valid on the basis of merit alone but also on the basis of quota based policy if it had been worked out correctly. It is important to note that appointment of Respondent No, 1 as ASP was never challenged nor made contingent upon any future development. The appointment letter issued to him was not protested by any one. Lt. Muquddus who filed ICA and Civil Petition before this Court has, in fact, agitated his own right of appointment based on the principle of quota policy. It was held in the case of Pakistan International Airlines Corporation v.
Inayat Rasool (2003 SCM R 1128) that order having taken legal effect and created certain rights in favour of an individual cannot be withdrawn or rescinded to the detriment of those rights. Certainly vested right was created in favour of the respondent. There is no justification to ignore the opinion of the Law & Justice Division. That principle of locus poentientiae was pertinently involved in favour of Respondent No, 1 and the opinion of learned Attorney General for Pakistan was not only supportive of the above view but also contained an emphatic observation that Respondent No, 1 deserve reinstatement both on the ground of legitimate expectation and constitutional right of equity. Learned DAG though argued at length but could not point out any illegality or infirmity in the impugned judgment warranting interference by this Court. We also do not find any ground to interfere with the impugned judgment which being well reasoned and based upon cogent reasons is maintained. The petition being devoid of merit is dismissed and leave to appeal refused.