GULZAR AHMED, J. --- By this petition for leave to appeal, the petitioner, Federal Public Service Commission, Islamabad has challenged the judgment dated 04.12.2012 of a learned Judge of the Islamabad High Court, Islamabad, by which Writ Petition No. 3512 of 2012, filed by Respondent No. 1, was allowed and it was directed that Respondent No. 1 and Respondent No. 2, both be adjusted against the Information Group by the petitioner.
2. Learned, counsel for the petitioner has contended that it was through a mistake that Respondent No. 1 whose name appeared at Serial No. 639 of merit list was issued letter of congratulation by the petitioner and was allocated Information Group and offered 40th Common Training Programme.
He contended that Respondent No. 2, Romana Fazal, whose name appeared at Serial No. 637 of the merit list was subsequently found to be possessing the domicile of Bajaur Agency, FATA was mistakenly ignored in allocation of the Information Group and offering of training, which was rectified by the petitioner as Respondent No. 2 was higher in merit as against the Respondent No. 1, whose name appears in the merit list at Serial No. 639. He further contended that 10 vacancies were allocated to GB/FATA and three vacancies were allocated from 10% women quota and that the three vacancies could not be increased as it will be violative of the rules and policy of Government and will create serious insurmountable difficulties for the petitioner. He contended that in view of the three vacancies being allocated, the learned High Court was not justified in increasing the said three (03) vacancies to four (04) by allowing the adjustment of Respondent No. 1.
3. On the other hand, the learned counsel appearing for Respondent No. 1 supported the impugned judgment and contended that after issuance of letter of congratulation and allocation of Information Group and invitation of 40th Common Training Programme, the Respondent No. 1 had acquired a vested right and thus such right could not have been taken away on the plea of mistake and that the learned High Court has rightly allowed the Respondent No. 1 to be adjusted alongwith Respondent No. 2. In support of his submissions the learned counsel has relied upon the case of Chairman, Selection Committee/Principal, King Edward Medical College, Lahore & 2 others v. Wasif Zamir Ahmad and another (1997 SCM R 15) and Asim Khan and others v. Zahir Shah and others (2007 SCM R 1451). The Respondent No. 2 has appeared in person and has adopted the submissions made by the learned counsel for the petitioner.
4. We have considered the submissions of the learned counsel and have gone through the record.
5. Brief facts of the matter are that Competitive Examinations (CSS) 2011 for recruitment to the posts under the Federal Government in BS-17 were held by the Federal Public Service Commission (FPSC), Islamabad and through a press note dated 31.05.2012, the FPSC notified the result of the persons, who have qualified the said competitive examination. The name of Respondent No. 2, Romana Fazal was shown in the said press note at Serial No. 637 with the domicile of KPK while the name of Respondent No. 1, Amna Afridi was shown at Serial No. 639 with domicile of GB/FATA. On the basis of such result, the Respondent No. 1, whose domicile was shown to be that of GB/FATA, was issued the letter of congratulation with allocation of Information Group and was invited to undertake 40th Common Training Programme to be conducted by the Civil Services Academy, Walton, Lahore on the basis of three (03) vacancies of women quota for GB/FATA. Subsequently, it was found that in the merit list: the domicile of KPK against the name of Respondent No. 2 was mistakenly mentioned as she in her application form for the competitive examination in Clause 10 has ticked the column of Khyber Pakhtoonkhwa (Tribal Area) and has mentioned the District of domicile as Bajaur Agency. On such mistake having surfaced, the petitioner made thorough inquiry about it and it was confirmed by all relevant sources that the domicile of Respondent No. 2 was that of Bajaur Agency being a part of FATA and she being higher in merit list than Respondent No. 1, the Respondent No. 2 was qualified to be offered the Information Group and the invitation of 40th Common Training Programme and accordingly through letter dated 19.09.2012, the Civil Services Academy informed Respondent No. 1 of such position and asked the Respondent No. 1 to resolve the matter before 29.09.2012, otherwise the letter of invitation will be treated as withdrawn. The petitioner accordingly filed the writ petition in which the impugned judgment has been passed.
6. Having considered all the aspects of the matter, we find that in the first place that the name of Respondent No. 2 admittedly appears at Serial No. 637 in the merit list, which was over and above the Respondent No. 1, whose name appeared in the merit list at Serial No. 639. As regards the question of domicile of Respondent No. 2, a copy of her application form for competitive examination has been filed by the petitioner at page 19 of CMA No. 3104/13, wherein in Clause 10 relating to domicile, the Respondent No. 2 has ticked the column of Khyber Pakhtoonkhwa (Tribal Area) and has mentioned the District of domicile to be that of Bajaur Agency. It was admitted by the learned counsel for Respondent No. 1 that Bajaur Agency is a part of a FATA and no dispute was raised by him that Respondent No. 2 was more qualified than Respondent No. 1 as per the merit list.
The learned counsel for Respondent No. 1, however pressed that in the were of the fact that Respondent No. 1 has been issued letter of congratulation with allocation of Information Group and invited to 40th Common Training Programme, which training programme was attended by her, she has acquired a vested right for being adjusted and cannot be deprived of the same.
7. Before we proceed to deal with the matter further, we may refer to the first case relied upon by the learned counsel for Respondent No. 1, which was with regard to the admission in the Medical College and it was observed by this Court that the admission on merit was given to the student by the competent authority of the College after considering his case. The requisite fee was accepted against a valid receipt and > the student was directed to join 1st year class of MBBS and it was admitted that the student is likely to complete the 2nd year course of the MBBS and by lapse of time the student has obtained a valid right to continue his studies. In the second case relied upon by the learned counsel for Respondent No. 1, was with regard to appointment of PTC Teachers. It was observed in this case on admitted fact that appointment qua the post as PTC Teachers. Was made on the recommendations of Departmental Selection Committee duly constituted by the competent authority upon which the teachers have acquired vested right. Both these cases are distinguishable from the facts and circumstances of the present case as though the letter of congratulation and allocation of Information Group and invitation to join 40th Common Training Programme was offered to Respondent No. 1, but before such training programme could be attended by Respondent No. 1, the mistake as noted above surfaced and Respondent No. 1 was informed of it accordingly. It was through order of the Court that Respondent No. 1 was allowed to join the 40th Common Training Programme and such joining by Respondent No. 1 of the training programme by itself will not confer any vested right on her and the authority will have power to recede from its earlier order as no final order of appointment of Respondent No. 1 and its acceptance and joining by Respondent No. 1, was at all made. Having come to such conclusion, we note that the learned High Court in its impugned judgment has admitted the fact of mistake as mentioned above and has found that Respondent No. 2 is entitled to preference over Respondent No. 1, but' on erroneous assumption that Respondent No. 1 has acquired vested right has proceeded to direct her adjustment also in the Information Group by creating 4th vacancy. We are afraid that such findings of the learned High Court could not be sustained as there is no room in the rules and policy for creation of 4th vacancy and once it is found that Respondent No. 2 was entitled to be selected for the Information Group. There is no justification with the learned High Court to interfere with the rules and policy of the Government that of increasing of fixed quota/vacancies from 3 to 4.
We are, therefore, find the judgment of the learned High Court to the extent of adjustment of Respondent No. 1 to be without any justification and not valid in the eye of law and therefore, set aside the same.
8. Accordingly, this petition is converted into an appeal and is allowed. There shall however, be no order as to costs.