' HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against judgment, dated 18-6-2003 in Writ Petition No,1034 of 2003 (Flt. Lt. Farrukh Rashid v. Federal Public Service Commission and another) passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the said writ petition was allowed hence this petition.
2. Brief facts of the case are that respondent No,2 Government of Pakistan decided to induct officers of Armed Forces of Pakistan in the District Management Group, Foreign Service of Pakistan and Police Service of Pakistan equal to 10% of the annual vacancies in each of the said groups with minimum of two vacancies in each group which assignment was entrusted to respondent No,1 Federal Public Service Commission and in the said regard the respondent-Government of Pakistan, communicated its decision vide letter dated 8-9-1991 mentioning therein to select from the officers of the Armed Forces recommended when the respondent No,1 was to allocate them occupational groups on the basis of psychological test, viva voce keeping in view the regional and provincial quota fixed by the respondent-Government of Pakistan. The respondent Federal Public Service Commission in its meeting held on 10-9-1991 decided as under:-- "(5) As regards observance of regional/provincial quotas, one view was that these vacancies may be filled on merit, while the majority view was that the quotas should be observed in the best manner feasible. If the quotas were to be determined out of six expected vacancies, 3 may be allocated to Punjab, one to Sindh one to N.-W.F.P. And one to the best officer from amongst those belonging to Balochistan, A.J.K and N.A./FATA grouped together. As regards the Sindh vacancy it would be allocated to Sindh (R) and Sindh (U) in alternate years so that a balance was maintained over a period of time.
(6) The representatives of Ministry of Defence pointed out that previously out of 10 vacancies, one each used to be allocated to the Navy and the Air Force. He suggested that this pattern of sub- allocation amongst the three Service may be adopted while making selection through the F.P.S.C.
As well. He further proposed that out of 6 vacancies, one each may be allocated to the officers belonging to the Navy and the Air Force and the rest may go to the Army. This was agreed to in principle by the meeting subject to confirmation by the Establishment Secretary in consultation with Ministry of Defence."
' The respondent No,1 Federal Public Service Commission in terms of above reproduced decision informed the Secretary Establishment Division Government of Pakistan vide letter dated 22-5-2002 that break up of the vacancies in the said categories of Central Service of Pakistan for the year 2001 would be (i) 3 for Punjab, (ii) 1 for Sindh, (iii) 1 for N.-W.F.P. And (iv)1 for Azad Jammu and Kashmir, in all total six vacancies, when the vacancy for Sindh was to be rotated alternately between rural and urban areas stating further that in the years 2000 and 2001 one vacancy was to be given to Sindh (Urban). The respondent Federal Public Service Commission asked the Pakistan Army, Pakistan Air Force and Pakistan Navy to recommend suitable officers against six vacancies to be filled in from the Armed Forces in the Central Superior Service of Pakistan. The petitioner Lt. Muquddas Haider was recommended by the Pakistan Navy for being allocated for one of the vacancies from quota of Sindh (Urban). The petitioner along with other recommended officers of Armed Forces including respondent No,3 appeared before the respondent Federal Public Service Commission for their appointment against the above-stated six vacancies. It may also be stated that the respondent- Government of Pakistan did not make available quota of vacancies in the District Management Group for the year 2001, therefore, only four vacancies were left to be filled in, two from Foreign Service of Pakistan and two from Police Service of Pakistan. The respondent Federal Public Service Commission considered all the candidates who appeared before it and after usual procedure made selection of the candidates and recommended vide letter, dated 29-10-2002, the following:- -
(1) Capt. Muhammad Usman Iqbal Jadoon.
(2) Capt. Salman Babar.
(3) Lt. Muquddus Haider.
(4) Flt. Lt. Muhammad Arif.
' It may be noted that the name of respondent No,3 Flt. Lt. Farrukh Rashid was not recommended by the Federal Public Service Commission when the petitioner was allocated Police Service of Pakistan from Sindh (Urban) quota and the such intimation was sent to the petitioner and the said recommendation of respondent F.P.S.C. Was accepted by the Prime Minister of Pakistan who being the Ministry Incharge of the Establishment Division. The petitioner after having been declared as a successful candidate was awaiting to join Civil Service Academy of Pakistan as it was to start its training course from 28th July, 2003 but the petitioner did not receive any such letter from the Civil Service Academy for undergoing training, consequently he started making enquiries and came to know on 5-8-2003 that the respondent No,3 Flt. Lt. Farrukh Rashid behind his back mala fide file Writ Petition No,1034 in the Lahore High Court, Rawalpindi Bench, Rawalpindi challenging the result/recommendations of respondent F.P.S.C. Dated 13-11-2002 in which the petitioner was declared successful along with three others. The said writ petition was heard in absence of the petitioner being not party to the said petition and was allowed whereby directions were given to the respondents to apply the principles of para.10 of the summary referred to dated 8-3-2003 uniformly to the case of induction of the officers of the Armed Forces of Pakistan to the available two posts of F.S.P. And two posts of P.S.P. For the year 2001 in suppression of the recommendation made by the F.P.S.C. Through its Memorandum No,2/24/2002 CSC, dated 28th October, 2002 and while doing so the respondent F.P.S.C. Should also keep in mind the provisions of para.6 of the minuets of the meeting dated 10th September, 1991 and would apply the same allocating the vacancies. The petitioner after obtaining the certified copy of the order, dated 18-6-2003 on 7-8- 2003 filed I.C.A. No,135 of 2003 before the learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi on 27-8-2003 which I.C.A. Was rejected being incompetent vide order, dated 16-9-2003. The petitioner preferred the present petition for leave to appeal wherein order dated 18-6-2003 passed by learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi has been challenged and an application for condoning the delay has also been filed with this petition.
3. We have heard learned counsel for the parties and perused the record.
4. Contention of the learned counsel for the petitioner is that the petitioner was not made as party in Writ Petition No,1034 of 2003 by the respondent No,3 hence not aware of the pendency of the said petition, therefore, on coming to know of the impugned judgment he immediately filed I.C.A. Before learned Division Bench of Lahore High Court in order to set at naught the order passed but on technical ground the petitioner was declined relief when instead of returning the petitioner's appeal for presenting it before this Court, erroneously rejected the petitioner's Intra-Court Appeal which the petitioner bona fide in good faith was pursuing before the said forum to seek justice. He further submitted that it is well-settled principle of law that no one is to be condemned unheard and the petitioner who has acquittal the right to be appointed against the recommended post by the F.P.S.C. Could not have been taken away without impleading and hearing him, therefore, the impugned judgment of the High Court qua the petitioner was liable to be set aside. He further submitted that the learned Judge in Chambers has failed to apply the formula of the respondent Federal Government for the post created for the year 2001 when according to respondent No,3 he was recommended for open merit in respect of vacancies created for the year 2002 when the latter also did not challenge the quota system rather relied upon it. He further submitted that respondent No,3 instead of pursuing statutory remedy available under section 7(3)(b) of F.P.S.C.
Ordinance, 1977 rushed to the High Court in its Constitutional jurisdiction which petition was not maintainable in view of efficacious and alternate remedy available to him. He further submitted that the learned Judge in Chambers has not taken into consideration the policy of Government which was framed in the larger national interest and could not be substituted by the Court in the Constitutional jurisdiction ignoring the rights of under-developed Provinces; as the petitioner was nominated by the Naval Headquarter of Armed Forces when the former appeared before the respondent F.P.S.C. And after passing the required examination/test his name was recommended to the respondent-Government of Pakistan which recommendations were approved by the Prime Minister of Pakistan being Incharge Minister of the Establishment whereas respondent No,3 was neither recommended for' the year 2001 to the Establishment Division nor his name was approved by the Prime Minister of Pakistan but the learned Judge in Chambers erroneously held that summary of recommendation of respondent No,3 was approved by the Prime Minister.
5. Learned counsel for respondent No,2 Government of Pakistan has filed concise statement wherein paras.2 and 4 the name of the petitioner Lt. Muquddus Haider was recommended by respondent No,1 for one of the vacancies for the year 2001 for P.S.P. Group and also approved by the Prime Minister of Pakistan and further affirmed the contents of petition while in para. 3 Establishment Division asked for creation of two more seats one for Punjab and one for Sindh but the respondent F.P.S.C. Declined. The Establishment Division Government of Pakistan in the alternative suggested that the respondent No,3 Flt. Lt. Farrukh Rashid be adjusted against the seat allocated to Azad Jammu and Kashmir but the same was also declined by the respondent No,1 in view of policy decisions taken in the high level meetings dated 10-9-1991 and 8-9-1991. Learned Deputy Attorney-General has fully supported the case of the petitioner and has stated that the impugned judgment of the High Court cannot be sustained in view of the clear policy of the Government based on the basis of recommendation of the F.P.S.C.
6. Learned counsel for respondent No,3 in reply has submitted that the High Court judgment is legal and proper hence cannot be interfered with and further that the said respondent has been relieved by the Air Force and has joined the academy and has completed training considering that vide Annexure "D" at page 72 of the paper book as per "result statement", the said respondent was at merit No,6 whereas the petitioner was at merit No,12, therefore, the F.P.S.C. Erroneously and illegally recommended the petitioner and Flt. Lt. Muhammad Arif who was at merit No,27. He in the end submitted that the respondents have now amended the policy whereby selection of the Armed Forces Officers will be made on all Pakistan merit instead of Provincial. Regional quotas which should be given retrospective effect, which would entitle the respondent No,3 to be recommended and appointed on the said P.S.P. Post on the basis of better position on merit.
7. We find merit and substance in the submissions of learned counsel for 'the petitioner while the submissions made by learned counsel for the respondent No,3 have neither merit nor substance.
8. Letter dated 29-10-2002 sent by the respondent-Commission to the Secretary Establishment Division Government of Pakistan, at page 75 of the Paper Book, would show that Defence Division Letter No,2/5D-24/02, dated 20-5-2002 mentioned that Commission received names of 56 officers of three Armed Forces along with their bio data and ACRs/Dossieris, out of which 52 officers were called for and their psychology test and viva voce were held and conducted by the Commission from 14-10-2002 to 23-10-2002 at F.P.S.C. Headquarters Islamabad and thereafter Commission recommended in order of merit for appointment against four vacancies P.S.P.2 and F.S.P.2 of the following:- Merit Name Deptt/serviceDomicile Allocated Group service
1. Capt. Muhammad Usman Iqbal JadoonPak Army N.-W.F.P. FSP
2. Capt. Salman Babar Pak Army Punjab FSP
12. Lt. Muquddus Haider Pak Army Sindh (U) PSP
27. Flt. Lt. Muhammad ArifPak Air Force AJK PSP
9. Letter No,3/1/2002 CP.7, dated 13-11-2002 issued by Section Officer, Government of Pakistan, Cabinet Secretariat, Establishment Division at page 60 of the paper book would show that the petitioner was recommended for appointment against one of the two vacancies reserved for induction of Armed Forces Officers in the Police Service of Pakistan for the year 2001. In parawise comments at pages 97-98 of the paper book filed by respondent-Government of Pakistan it has been stated that the Prime Minister has approved the recommendations of F.P.S.C. For allocation of seats, so also in concise statement at page 130 of the paper book filed on behalf of Secretary Establishment it has been stated that the petitioner was recommended for one of the P.S.P. Post by the Commission respondent which summary was approved by the Prime Minister of Pakistan. The record would show that the respondent No,3 Flt. Lt. Farrukh Rashid was neither recommended by respondent-Commission for any of the said vacancies nor by the Establishment Division nor any approval to alleged recommendation for respondent No,3 was accorded by the Prime Minister of Pakistan. It is also settled law that notification/letter of policy cannot take effect retrospectively. The amended policy which has been said to have been approved in the month of January, 2004 cannot be made to operate retrospectively for the vacancies of the year 2001 against which the petitioner was recommended for his appointment as such vested rights were created in his favour which could not be taken away by any such notification or any such amended policy decision that allocation would be made on all Pakistan merit basis.
10. The subsequent request by the Establishment Division to the respondent-Commission to adjust respondent No,3 against the seat allocated to the candidate of Azad Jammu and Kashmir or to create two more seats one each for Punjab and Sindh so as to accommodate the said respondent when already recommendation of candidates was finalized and same was also approved by the Prime Minister of Pakistan, the said request would be unjust, unfair, arbitrary against the policy decision dated 8-9-1991 of the respondent No,2 and 10-9-1991 of respondent No,1 and also would lead to heart burning on the part of candidates who were recommended and approved against the reserved/quota seats of their Provinces allocated for the year 2001 in view of the policy of the Government of Pakistan framed under Article 27 of the Constitution of the Islamic Republic of Pakistan. It may also be observed that Reservation/ quota system was introduced to secure adequate representation in the service of qualitative inadequacy of representation for the persons belonging to socially and educationally backward class or area, so that they should have adequate representation in the lowest rung of service for which they aspire to secure adequate representation in the selection posts in the services as well, as such quota is being approved by the respondent No,2 so as to give effect to the intention of the Constitution-makers in order to make adequate safeguards for the advancement of backward classes and to secure their adequate representation in the services. It may also be observed that in view of the policy decision of the respondent. No,2 Government of Pakistan with regard to 10% of annual vacancies to induct officers of Armed Forces with minimum of two vacancies in each group was entrusted to respondent No,1 Federal Public Service Commission of Pakistan, who after carrying out the usual test and viva voce declared the above-said candidates fit for the stated posts which fitness cannot be questioned/ challenged by the respondent No,3 on the ground raised before the High Court considering that Province of Punjab was given due share by allocating two seats out of the four seats in the Civil Services when one was given to the Province of Sindh and one to Azad Jammu and Kashmir in terms of the policy decision of respondent No,2, therefore, there could not be said to be any discrimination or mala fide on the part of respondent No,1. It may be observed that two candidates who were appointed from Province of Punjab on the basis of quota were having better position on merit than that of respondent No,3 consequently there was neither mala fide nor discrimination against the respondent No,3 by the rest of respondents. It may be noted that respondent No,1 admittedly has allocated quota/reserved seats to the candidates of Armed Forces of Pakistan to the candidates who on merit were better than the respondent No,3 on the basis of policy decision which was framed by respondent No,2 in view of proviso to Article 27 of the Constitution of the Islamic Republic of Pakistan, therefore, respondent No,3 was not legally entitled to be appointed against the seat of the petitioner which appointment did not violate or infringe the provisions of the Constitution of Pakistan, resultantly the writ petition filed by respondent No,3 was not maintainable before the High Court, considering also that the said respondent No,3 also failed to exhaust statutory alternative efficacious remedy available to him.
11. So far the question of condonation of delay the petitioner has shown sufficient cause that he was not made party to the writ petition before the High Court and he bona fide in good faith pursue his remedy before the High Court in I.C.A. Where he was technically knocked out that the said appeal was not competent, consequently, the petitioner has made out sufficient cause for condoning the delay in filing this petition. Reference may be made to Haji Hussain Haji Dawood through Legal Heirs and others v. M.Y. Kherati 2002 SCM R 343. Accordingly delay in preferring this petition is condoned.
12. Learned counsel for the respondent No,3 has placed reliance upon (i) Ch. Muhammad Shafi v.
Settlement and Rehabilitation Commissioner, Lahore and others PLD 1972 Lah.
187. The cited case has no application to the facts of the instant case as in the cited case learned Judge in Chambers of the Lahore High Court at page 192 observed that the High Court in suitable case could convert the appeal into writ petition as if it would be an appeal, it would be barred by time. However, in the instant case we have condoned the delay in filing this petition in view of the reasons assigned in the application for condonation of delay; (ii) Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164. This cited case is also of no assistance to the case of the respondent No,3 as in the cited case the High Court has allowed revision petition to be treated as second appeal and the question before the High Court was as to from which date revision should be treated to be converted into second appeal when this Court observed that as no other formality was to be completed in the nature of deficiency in court-fee to be made up or condition to beatisfied, e.g. The initial bar of limitation, the treatment has to be from the date when revision petition was instituted.
13. In view of the above reasonings 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 son of Sajjad Haider shall be adjusted in PSP Cadre in 2001 Batch and he shall be sent for relevant training accordingly in the concerned Academy.