' AMIR HANI MUSLIM, J.---These appeals, by leave of the court, are directed against judgments of even date, passed by the Islamabad High Court, Islamabad, in Writ Petition No,.527 of 2011 and F.A.O.
No,.9 of 2011, respectively.
2. Facts, which are material for the disposal of these appeals, are that the appellant appeared and qualified the Central Superior Services Examination (CSS) in the year 2009. He was placed at merit position No,.130. The CSS examination comprises 12 occupational groups/ services and every candidate appearing in the examination was required to give preferences, in terms of Rule 25(ii) of the Competitive Examination Rules 2009. The groups/services are allocated on meritcum-choice basis. For the sake of convenience, Rule 25(ii) (ibid) is reproduced hereunder:-- "Candidates will be considered for those groups/services only which they indicate in the application form. No, candidate will be considered for the groups/services which he/she will not mention in the form. Candidates will however, be given a chance to revise their choice of occupation groups at the time of the viva voce. Preferences so revised at the time of the viva voce shall be treated as final and no subsequent change will be allowed under any circumstances.
Candidates may opt for a group/service irrespective of the fact whether there is a vacancy therein or not."
3. The appellant, after qualifying the written examination, gave only three preferences i,e, PSP, DMG and CEG. He revised his preferences to PSP, DMG and FSP, at the time of psychological assessment.
However, he changed his mind at the time of viva voce and gave preferences to PSP, DMG, CEG and ITG. Since the appellant could not qualify for any of the afore-said groups/services and had not given preferences for any other group, therefore, according to the rules, he was not assigned any of the service/group.
4. Feeling aggrieved, the appellant filed representation under section 7(3)(a) of the Federal Public Service Commission Ordinance, 1977. As per rules, the appellant could not engage any lawyer to represent him before the Commission, but the appellant appeared along with his lawyer. The lawyer was denied audience and the appellant, who did not appear before the Commission, was marked absent. The representation of the appellant was rejected by the Commission, by its order dated 10-2-2011., The appellant challenged the order of the Commission through F.A.O. No,.9 of 2011.
The appellant also instituted a Writ Petition No,.527 of 2011, in the Islamabad High Court seeking declaration that the Rule 25(ii) (ibid) is ultra vires of the Constitution.
5. The F.A.O of the appellant was dismissed, by the impugned judgment dated 12-12-2011, inter alia, on the ground that the appellant had failed to file a review petition, under section 7(3)(b) of the Ordinance, 1977, before the Commission, and an appeal could only lie to the High Court under section 7(3)(d) of the Ordinance against an order passed on review petition. The relevant provision of section 7(3)(d) is read as under:- "any candidate aggrieved by a decision of the Commission under paragraph (b) may, within thirty days of the decision, prefer an appeal to the High Court."
' The writ petition of the appellant was also dismissed by the impugned judgment of even date holding therein that the Rule 25(ii) is not ultra vires of the Constitution.
6. The appellant impugned both the judgments before this Court through separate civil petitions in which leave was granted on 8-3-2011. Hence these appeals.
7. The learned counsel for the appellant has contended that the appellant ought to have been assigned any of the occupational group by the Commission, as on merits he was placed at serial No,.130. He submits that Rule 25(ii) (ibid) reproduced hereinabove, is in negation to the Rule 27 of CSS Examination Rules, 2009, which provides discretion in the Federal Government to allocate a candidate any group/service against his/her preference in the public interest. Such allocation by the Government does not provide a candidate right of appeal against the Government. According to the learned counsel, on one side in terms of Rule 25(ii) (ibid) a candidate is restricted to be considered for the groups/services only which he indicates in the application form. This rule further provides that the candidates will, however, be given a chance to revise their choice of occupational groups at the time of the viva voce which revised preferences shall be treated as final and no subsequent change shall be allowed under any circumstances. He contends that as against this, the Government, on the other hand, has the discretion to allocate a candidate any group/service irrespective of the preferences of the candidate.
8. He contends that the rules, by reading together, negate each other. The learned counsel states that the appellant is a brilliant student and was placed at serial No,.130 of the merit list, but on account of this anomaly in the rules referred to hereinabove, he could not be assigned any of the occupational group/service.
9. He next submits that the Commission and the Government were obliged to accommodate the appellant if on merits he had 'acquired more marks than those who were assigned different occupational groups other than those preferred by the appellant.
10. As against this, the learned Deputy Attorney-General has contended that the powers of the Federal Government under the Rule 27 are distinct and can only be exercised in the public interest.
He submits that in order to regulate the competitive examination, rules have been framed and the object behind these rules is that merit-cum-choice has been made criterion for the appointments.
According to the learned DAG, the rules are in conformity with the object of the FPSC Ordinance, 1977 and could not be declared ultra vires on the grounds argued by the learned counsel for the appellant.
11. We have heard the learned counsel for the appellant and the learned DAG and have perused the record. Rule 25(ii) (ibid) provides that a candidate will be considered for those groups/services which he indicates in the application form. It debars a candidate from being considered for any other occupational group/service, for which he has not applied. The said rule, however, provides a chance to a candidate to revise his choice of occupational group/service at the time of viva voce, and preferences so revised, shall be considered final and no subsequent change will be allowed.
The Rule 25(ii) (ibid) has been framed under section 7(a) read with section 10 of the Federal Public Service Commission Ordinance, 1977. Section 7(a) of the Ordinance provides that to conduct business of the Commission, the Chairman of the Commission, with the approval of the Federal Government, may frame rules for regulating the conduct of business. In fact, the Rule 25(ii) (ibid) clearly suggests encouragement of the candidates on merit. The contention of the learned counsel for the appellant that a person, who is placed at serial No,.130 of the merit list, and has given preferences to which he is found unsuitable by the Commission, must be given any of the occupational group other than the one for which he has given preferences, is misconceived and is volatile of the language and spirit of the Rule 25(ii) (ibid). If such contention is accepted, it may lead to abuse of authority. The purpose of this rule is to regulate the choices of the candidates visa-a-visa their merit. It does not provide that a candidate, who has passed the examination, must be inducted in any of the occupational group, once he is found not suitable for the occupational groups of his preferences. The purpose behind this rule is to reflect transparency in the conduct and regulation of the CSS examination. The appellant exercised his option at the time of submitting application for appearing in the CSS examination and on two subsequent occasions changed his preferences. Therefore, if the appellant is allocated any other group, which he has not preferred, it will amount to depriving the other candidates who have opted for such group/service.
The appellant could not be given premium over those candidates who opted for a particular group and get induction on the basis of merit-cum-choice. The Rule 27 of the CSS Examination Rules, 2009, in no way, negates the spirit of Rule 25(ii) (ibid) and in fact, the powers of the Government in terms of Rule 27 can only be exercised in the public interest and not otherwise.
12. We are clear in our minds that Rule 25(ii) (ibid) of the CSS Examination Rules, 2009, is in conformity with the provisions of Federal Public Service Commission Ordinance, 1977, and, in no way, infringes any of the fundamental rights of the appellant. The impugned judgment of the High Court passed in Writ Petition" No,.527 of 2011 is plainly correct to which no exception can be taken.
Likewise, the F.A.O. For the reasons stated herein above, has been rightly dismissed by the learned High Court.
13. As a sequel to the above discussion, both these appeals being without merit are dismissed. The parties shall bear their own costs.