Mehta Kailash Nath Kohli, J.--This appeal under Section 7(3)(d) of the Federal Public Service Commission Ordinance, 1977 (No, XLV of 1977) has been directed against the decision of Federal Public Commission (F.P.S.C.), Islamabad (Respondent No, 1) issued by the Establishment Division, Cabinet Secretariat Government of Pakistan (Respondent No, 2), dated 18th June, 2008 on the representation filed by the appellant for group allocation on the basis of merits, as well as, decision dated 7th July, 2008, passed on the review application.
Facts of the case; in brief, are that appellant appeared in CSS examination 2007 for the post of (BS- 17) under Federal Government, vide roll number 4664, and stood qualified at Merit No, 143, issued by F.P.S.C., vide press note dated 16" February, 2008. It was further stated that appellant had submitted his order of preference for following occupational groups:--
1. Foreign Services of Pakistan.
2. District Management Group.
3. Custom & Excise Group.
4. Police Services of Pakistan.
5. Income Tax Group.
6. Pakistan Audit & Accounts Group.
7. Pakistan Railways.
8. Postal Group.
9. Information Group.
It is case of the appellant that in all respects he was suitable for the services in the Federal Government, and was entitled to be allocated Foreign Services of Pakistan, but; vide press note of Competitive Examination, 2007, issued by Government of Pakistan, cabinet Secretariat, Establishment Division, appellant was arbitrarily allocated Income Tax Group, ignoring the order of his preference list for Occupational Groups and Provincial Quota. It was further stated that the seat of Foreign Services of Pakistan has been allocated to Respondent No, 3 (Ghulam Haider), whose merit number is 145 in Pakistan and 7th in Balochistan. It was also stated that aggregate score of appellant was 793, while Respondent No, 3 scored 791. Being aggrieved of aforementioned allocation of seat, appellant filed representation before Federal Service Commission on 05th May, 2008, which was rejected vide order dated 18th June, 2008, contents whereof are reproduced herein-below:-- "2. You are further informed that allocation is based upon prescribed parameters, which include candidate's merit, suitability, preferences, domiciles, number of vacancies in each group/service (women quota & merit/provincial and regional quotas). Suitability of candidates is determined by the Commission's Viva Voce Board comprising the Chairman and Members under Rule-12 of Competitive Examination, 2007 reproduced below:-- "Subject to the Recruitment policy explained in Appendix-Ill of these Rules, candidates securing the highest places on the combined results of the written Examination, Psychological and Viva voce tests and eligible for appointment will be appointed upto the number of vacancies available. No candidate will, however, be considered for appointment to any of the Groups/Services for which he/she has been declared "not suitable" by the Commission at the time of Viva Voce test."
2. Accordingly, you were declared unsuitable for FSP & PSP, so you were allocated to ITG, as per rules."
Record shows that review application was filed on 30th June, 2008, which too was rejected on 7th July, 2008. Being aggrieved of aforementioned impugned orders, appellant has filed the present appeal and has sought the following prayer:-- It is, therefore, most humbly and respectfully prayed that keeping in view the aforementioned humble submission the appeal of the appellant may kindly be accepted and the impugned decision of the Federal Public Service Commission Islamabad issued by the Establishment Division, Cabinet Secretariat Government of Pakistan vide a Press Note (Allocation for CSS 2007) and orders dated 18th June 2008 & 07th July, 2008 passed by the Federal Public Service Commission Islamabad may kindly be ordered to be set aside and he may kindly be allocated to Foreign Services of Pakistan on merit basis as per his own order of preference; AND Declare that the clause 12 of the Rules for Competitive Examination (CSS 2007) is in violation and in contrast with the Competitive Examination 2007, Recruitment Policy-Appendix III, hence the Rule 12 of Competitive Examination (CSS 2007) is liable to be declared as ultra vires and the Respondent Nos,1 and 2 cannot be allowed to misuse the same.
Any other order deemed fit in the circumstances of the case may kindly be passed."
Notice of this appeal was given to the respondents. Pursuant to notice, para-wise comments were filed on behalf of respondent-F.P.S.C., wherein; objections were raised that; (i) allocation of competitive examination is based on prescribed criteria, which include candidate's merits, suitability, preference, domicile, number of vacancies earmarked for each group/services against merit/provincial and regional quotas, women quota. The suitability of a candidate to or group/service is determined by the Commission at the time of Viva Voce under Rule-12 of Competitive Examination 2007, hence; the appellant was declared not suitable for Foreign Service of Pakistan (FSP) and Police Service of Pakistan (PSP); suitability of all candidates is determined by the authority i,e, Viva Voce Board at the time of Viva Voce; (ii) as per rule-15, page 3 of rules for Competitive Examination 2007 under heading appointments no appeal against decisions of the Government is entertainable. On merits contents of the appeal were contested and denied. It was stated that at the time of viva voce, appellant had given his order of preference in FSP, DMG, CEG, PSP, ITG, PAAS, CTG, Post. G, IG, RCTG. It was further stated that the psychological test and viva voce of the appellant were conducted in terms of Rule-10(i) and .11 of Appendix-I of Rules of the Competitive Examination 2007, and thus; he was declared unsuitable for FSP and PSP in terms of Rule-12. It has been stated that appellant had not deposited the representation fee as required vide Rule-7 (ii), Appendix-I of Competitive Examination Rules, 2007, hence; he was directed vide letter dated 27th May, 2008 to deposit the required fee, as such; the delay in disposal of his representation was on his own part. Similarly, rejoinder has been filed by Respondent No, 3, who has also contested the claim of appellant.
Mr. Imran-ul-Haq Khan, Advocate appeared on behalf of appellant, while Mr. Muhammad Afzal Jami, learned Deputy Attorney General appeared on behalf of Respondents Nos, 1 and 2, assisted by Syed Asghar Ali Shah, Joint Secretary Cabinet Division and Mr. Saleem Akbar, Deputy Director, F.P.S.C. Quetta, and; Respondent No, 3 was represented by Messrs Mujeeb Ahmed Hashmi and Nadir Ali Chalgari, Advocates.
Learned counsel for the appellant has contended that the appellant had secured higher number and was entitled to be selected in his earlier preference number of choices, has been ignored, as such, the appellant has been deprived of his legal right. It was further contended that in some of the choices, the seats are available, but; those are declined to the appellant for the reasons best known to the Deputy Attorney General.
On the other-hand, learned Deputy Attorney General, as well as, counsel for Respondent No, 3 have strenuously contended that this Court has no jurisdiction to determine the group services, as such discretion vests with the Board interviewing in this behalf. It was also contended that the suitability and the fitness is the function of the Board, who has to examine the various factors for determination as to whether the appellant is entitled to be selected for the particular group. The appellant has no right to agitate that he should be allocated particular group and such decision is not justicable before the Court.
We have considered the arguments advanced by learned counsel for the parties and perused the record.
Federal Public Service Commission was constituted under the Ordinance XLV of 1977, wherein the right of appeal was provided in the year 2003 before the High Court. It was mentioned in Section-3 that against any decision of Public Service Commission, appeal can be filed before the relevant High Court. Section 10 provides for framing of Rules in this regard. Record-effects that rules were framed in 2007 for the examination of CSS and Rule 13 relates to the fact that the appellant cannot claim as a matter of right to be allocated a particular group of service. However, it was specifically mentioned that the candidate shall be selected amongst the choices given in the form. Rule-15 of the Competitive Examination (CSS) 2007 is reproduced herein-below:-- "15. The Government reserves the right to allocate a candidate against any Group/Service irrespective of his/her preferences, in the public interest. No appeal against the decision of the Government will be entertained." Above rule clearly bars the jurisdiction of the Courts to examine the suitability judged by the high powered Board with regard to the allocation of group/service, which function is of the Board, who have to consider various factors including psychological test, health considerations, aptitude test etc. It is the wisdom of the Legislature to leave it to the competent authority to examine the same, unless some malafidies are proved on record or established by cogent evidence. In the case in hand, there appears no malafidies in exercise of jurisdiction and appeal under Rule 15 is not competent. Even otherwise, it is to conclude that appellant has been granted one of the preferences in the application cannot claim as a matter of right to be selected for a particular post