' QAZI FAEZ ISA, C.J.--- Learned counsel for the petitioner states that the petitioner had participated in the Central Superior Services ("CSS") 2009 Examination and came 386th on the all Pakistan merit list and stood at serial No,21 on the Balochistan merit list and since Mr. Asfandyar Baloch another candidate, who stood 350th on the merit list, had declined to accept the offer, therefore, the petitioner being the next person on the merit list from Balochistan was to be offered the said position; however, the same was not offered to him and the vacancy in the Military Lands and Cantonment Group ("ML&CG") was carried forward to the next competitive examination. The petitioner had taken the CSS written examination on 25th April, 2009 and the Common Training Program ("CTP") of the successful candidates of the said examination commenced on 13th January, 2011, which is also referred to as the 38th Common. Learned counsel for the petitioner has placed reliance upon letter dated 29th December, 2010 of the Ministry of Defence ("ML&C"
Department), Government of Pakistan, which has been addressed to Mr. Asfandyar Baloch, wherein Mr. Baloch was called upon to accept the offer by 7th January, 2011. Failing which the said offer would be treated as cancelled. Mr. Baloch declined the said offer through his letter dated 13th January, 2011. Copies of both these letters have been attached with the petition and it is stated that the said letters were provided to the petitioner by Mr. Baloch.
' Delhi Transport Corpn. v. D.T.C. Mazdoor Congress AIR 1991 SC 101 2. Learned counsel for the petitioner, Mr. Mazhar Ilyas Nagi, has also placed reliance upon Rule 7 of the Rules for Federal Public Service Commission ("FPSC") Rules for (CSS) Competitive Examination 2009 ("the Rules") which is reproduced hereunder:--- "7. If any vacancies reserved in terms of paragraphs 1-2 above cannot be filled by reason of failure of candidates to pass the qualifying standard or otherwise, such vacancies will be carried over and filled in on the result of the next year's examination from among the candidates in whose quota the vacancies are so reserved."
' Learned counsel has also referred to the office memorandum issued by the Establishment Division (Training Wing) of the Government of Pakistan dated 19th March, 1991 ("the Memorandum") contents whereof are reproduced hereunder:-- "(a) In the first phase, Establishment Division will issue telegrams to all the candidates allocated to various occupational groups/services with the advice to each candidate that he/she should convey his/her acceptance of the offer within 15 days from the date of issue of telegram failing which allocation will be treated as cancelled and the vacancy will be offered to the next eligible candidate. Simultaneously, the allocations made by the FPSC will also be announced in all the leading newspapers with similar advice to the candidates.
(b) In the second phase the vacancies occurring due to no acceptance of offer within 15 days of the announcement will be reported to the FPSC for completing re-allocation before the commencement of the common training programmer at the Civil Services Academy, Lahore. Any vacancy occurring after the start of the common training will be carried over to the next competitive examination.
(c) The announcement of initial allocation shall be made 45 days before the commencement of common training at CSA to ensure timely completion of both the phases indicated above."
' Learned counsel states that in view of the offer being declined by Mr. Baloch the petitioner ought to have been offered the position rather than carrying forward the ML&CG seat to the next competitive examination. Learned counsel has also placed reliance upon the following cases:-- ' Ahmed Yar Chohan v. Federal Public Service Commission 1998 M LD 1832 lkram Bari v. National Bank of Pakistan 2005 SCM R 100 Federation of Pakistan v. Muhammad Tayyab 2006 SCM R 326
3. Learned Deputy Attorney-General has opposed the petition as the same and contends that it is not maintainable in view of the Rules and the Memorandum. He further has states that the petitioner had an adequate, alternate and efficacious remedy which was not availed as the petitioner did not file either a representation to the Federal Public Service Commission ("Commission"), review to the Commission or appeal before the High Court respectively under clauses (a) (b) and (c) of subsection (3) of section 7 of the Federal Service Commission Ordinance, 1977. He also places reliance upon an unreported judgment dated 23rd November, 2005 passed in Civil Appeal No,1615 of 2005 of Hon'ble Supreme Court, authored by Mr. Justice Nasir-ul-Mulk, and another unreported order of a Divisional Bench of Lahore High Court in I.C.A. No,498 of 2010 dated 10th November 2010.
4. Messrs Liaquat Ali, Tauqeer Ali Akbar, Najeebullah Khan, Aminullah, Muhammad Ibrahim and Abdul Wali Khan have filed an application under Order I, Rule 10, C.P.C. (C.M.A. No,2930 of 2011) seeking to be joined as respondents. They however state that they do not seek formal amendment of the petition and want the petition to be disposed of on merits at this juncture. It is their case that they took the CSS written examination on 6th March 2010 and were the successful candidates from Balochistan and would be adversely effected if the petitioner's petition is allowed as one of them would be the beneficiary of the seat which has been carried forward to their year. They further requested for early disposal of the matter as the 39th Common Training Program in respect of their batch would commence from 14th November, 2011. Accordingly, the petition is admitted to regular hearing by consent and the application allowed, as the applicants are proper and necessary parties, and we proceeded to hear the case. The office is directed to insert the names of the persons mentioned at page No,2 of C.M.A. No,2930 of 2011 respectively as respondents Nos.4, 5, 6, 7, 8 & 9 and to place the same as an amended title to the petition.
5. We have gone through the above mentioned judgment authored by Mr. Justice Nasir-ul-Mulk and reproduce the following paragraph No,5 there from, which is relevant to the present case:-- "5. the Office Memorandum dated 19-3-1991 issued by the Establishment Division (Training Wing), the subject of which is reallocation against the vacancies caused by repeaters and non- joinders', expressly provides "Any vacancy occurring after the start of the common training will be carried over to the next Competitive Examination" the admitted position is that the 30th common training commenced on 28-7-2003 and the seat surrendered by Tanvir Ahmed Odhu had fallen vacant on 22-12-2003. Thus in terms of Office Memorandum of 19-3-1991 the same had to be carried over to the next examination, which was 'accordingly done. No doubt the said rule has no statutory sanction, however there is no statutory rule, provision, on the subject of reallocation of vacancies, and for that matter there is also no rule providing for the filling up of vacancies from the candidates who had issued the examination in which the vacancy had occurred. This appears to have been only a practice as mentioned in Saeed lqbal Wahala's case. The same has been done away with by the Office Memorandum issued by the Establishment Division, the Department of the Federal Government concerned with matters pertaining of federal services. The instructions given therein are not contrary to or inconsistent with any statutory provisions or rules. Such instructions have legal status and thus are to be followed, more so in preference to a practice (see Fazal Qadir v. Secretary Establishment Division ibid). It may be noted that the policy of carrying over vacancy to the next Competitive Exam has been consistently followed and declared in office memorandums since the year 1987."
' On the other hand the judgments cited by learned counsel for the petitioner are on general principles of law, which are not attracted in the present case.
6. admittedly, the petitioner, did not partake of the six months Common Training Program, which commenced on 13th January, 2011. Surprisingly, the petitioner also did not approach this court soon upon learning that the subject seat had been carried forward. Learned counsel for the petitioner has sought to explain lathes by placing reliance upon letter dated 14th January, 2011, wherein a request was made by the petitioner that the vacated seat of Mr. Asfandyar Baloch be offered and allocated "as per government policy" to the next candidate and urgency was reflected in such letter since the 38th Common Training Program had already started on 13th January, 2011. Learned counsel states that the petitioner received a reply to his request vide letter dated 28th February, 2011 of the Cabinet Secretariat Establishment Division, Government of Pakistan, relevant portion whereof is reproduced hereunder:--- "As regards the vacancy of ML&CG which occurred on 13-1-2011 due to non - acceptance of offer of appointment by Mr. Asfandyar Baloch, FPSC is of the view that this vacancy is required to be carried forward to the next Competitive Examination in terms of Government Policy contained in this Division O.M No 1/29/87-T-V dated 29-3-1991 because 38th CTP has since been started w,e,f, 13-1-2011."
' A typographical error appears to have crept in the above letter where the O.M. Letter's dated is mentioned as '29-3-1991' instead of 19-3-1991. The petitioner also received a reply from the Federal Public Service Commission dated 15th March, 2011 (relevant portion of which) is reproduced hereunder:--- "Reference your request dated 14-2-2011, on the above subject and to invite your attention to para 20 of the Instructions to Candidates of CE-2009, reproduced below: -- "After the final results of the Examination have been announced by the Commission, all communications regarding physical examination, appointment on the results of the examination, etc. Should be addressed direct to the Cabinet Secretary (Secretary, Establishment Division) and/or the respective Ministry/Division of the Government of Pakistan as the case may be.
' Apparently, the petitioner not being satisfied with the reply of the Commission wrote another letter to the Commission and the Commission vide its letter dated 25th March, 2011 reiterated its earlier position and concluded by stating, "no further correspondence on the subject matter will be entertained".
7. The petitioner filed this petition on 31st May 2011 and he has failed to explain why he waited for so long before approaching this court. In addition he also has to explain why he failed to join the six candidates who submitted application to be arrayed as respondents. These applicants/respondents had a legitimate expectancy to be selected B to the seat carried forward and as such ought to have been arrayed as parties. They had taken their written examination on 6th March 2010 and their results were published in the newspaper dated 15th October, 2010, which was considerably before filing of the petition. We are of the view that the petitioner has not satisfactorily overcome either of these two hurdles and on these points alone the petition is not maintainable.
8. We, however, proceed to determine the remaining point, whether the official respondents or any one of them had acted in an illegal and unlawful manner in not offering the seat to the petitioner and C or violated the Rules and or the instructions/policy contained in the Memorandum. Rule 7 (supra) of the Rules stipulates that if any vacancy cannot be filled "by reason of failure of candidates to pass the qualifying standard or otherwise such vacancies will be carried over and filled in on the result of next year's examination from among the candidates in whose quota the vacancies are so reserved" (emphasis added by us). The Memorandum also States as much. The respondents have complied with the Rules and the Memorandum and placed the vacancy in the next year. Another difficulty comes in the way of the petitioner as he has not partaken of the 38th Common Training Program. The action of the official respondents under the circumstances cannot be construed as illegal or unlawful to warrant interference by this court acting in its constitutional jurisdiction. In view of the aforesaid the question whether the petitioner ought to have filed a representation, review or an appeal becomes immaterial and is not dilated upon.
9. Therefore, for the aforesaid reason the petition is dismissed and ad interim order stands vacated.