' MRS. AYESHA A. MALIK, J.--- Through this Petition, the petitioner has impugned the letter dated 30- 7-2011 issued by the respondent No 1.
2. The case of the petitioner is that he qualified for the post of Assistant Director Investigation (BS- 17) in the Federal Investigation Agency (FIA) on the recommendation of the respondent No,4, Federal Public Service Commission (FPSC), Islamabad. He was issued appointment letter on 27-4- 2011 by the respondent No,
1. He submitted his acceptance on 4-5-2011. The grievance of the petitioner is that the FPSC withdrew its recommendation on 25-5-2011 and consequently the respondent No,1 withdrew the appointment of the petitioner on 30-7-2011 with immediate effect. In the same letter, the respondent No,1 requested for nomination of the candidate, in the place of the petitioner. Learned counsel for the petitioner argued that the petitioner's appointment was withdrawn pursuant to the recommendation of the FPSC. The FPSC had become functus officio because its recommendation had been acted upon and therefore it was no longer competent to withdraw its recommendation. Learned counsel further argued that once the petitioner was appointed, his services could not be terminated without issuance of a show-cause notice and hearing, given by the respondent No,
1. Learned counsel argued that Show-Cause Notice (Notice) dated 25-5-2011 was issued by the FPSC who had no authority under the law to issue the said Notice. Learned counsel further argued that the withdrawal letter dated 30-7-2011 is in pursuance of the Notice. Learned counsel explained that in terms of the application form he applied against his Domicile of Punjab whereas his appointment is against a seat of Azad Jammu and Kashmir (AJK). Learned counsel explained that the petitioner has a Subject State Certificate (SSC) of AJK and that he never concealed this fact from the FPSC. Further submitted that the petitioner submitted his SSC along with his Certificate of Domicile issued in the month of October, 1994. The petitioner was initially considered against his Domicile of. Punjab which is evident from letter dated 20-5-2010, however the respondent No,1 placed him at Sr.No,4 of the merit and showed his domicile as AJK on 12-4-2011. Learned counsel argued that the petitioner was recommended by the FPSC against an AJK seat whereas he had fully disclosed that he has a Domicile of Punjab and SSC of AJK. The Chairman of the FPSC considered this issue as per documents filed by the respondent No,4 and noted that the petitioner was not at fault because he did not conceal any fact from the FPSC. Learned counsel further argued that even otherwise the function of the FPSC is to conduct tests and take examinations and to advise the President. Once these 'functions are completed, the FPSC becomes functus officio and has no role in the matter. The petitioner was appointed on the recommendation of the FPSC. The recommendation stood acted upon and the FPSC could not subsequently withdraw that recommendation. Learned counsel argued that any grievance in this regard, if at all, was for the, respondent No,1 who had to follow due process. Learned counsel further argued that the law governing issuance of SSC and Domicile in AJK is under the Azad Jammu and Kashmir State Subjects Act, 1980 (Act of 1980) and Azad Jammu and Kashmir State Subject Rules, 1980 (Rules of 1980) whereas the issuance of Certificate of Domicile is governed under section 7 of the Succession Act, 1925 (Act of 1925). In this regard, learned counsel argued that the petitioner does not have a domicile of AJK. His Certificate of Domicile has been issued in the month of October, 1994 by the District Magistrate, Lahore. Learned counsel argued that any mistake on the part of the respondent No,4 in the appointment of the petitioner against a seat of AJK is the fault of the stated respondent and the petitioner should not be penalized.
3. Learned counsel for Iftikhar Ahmad Khan filed C.M. No,3277 of 2011 under Order I Rule 10 read with section 151, C.P.C. For impleading him as respondent No,5 on 17-9-2011. The grievance of the applicant is that he was recommended by the FPSC for the post of Assistant Director Investigation (BS-17) against the seat of the petitioner. The petitioner filed the instant petition and obtained interim order on 16-8-2011 which continues to date and as a result of which, the applicant has not been able to work at the post he was appointed.
4. Report and parawise comments have been filed on behalf of the respondents Nos.1-4. Learned D.A.-G. Argued that the petitioner was appointed by concealment of facts. Further argued that the very appointment of the petitioner is illegal and contrary to the rules as he has been appointed on the basis of his domicile being AJK. The status of the petitioner's domicile is that of the Punjab and therefore he is not entitled to occupy the present seat given to him on the basis of AJK domicile.
5. I have heard the learned counsel for the parties and gone through the record available op the file.
6. Two legal questions arise-from this petition. The first question is whether the FPSC can withdraw its recommendation once it has been acted upon. In this case the FPSC recommended the petitioner for appointment as Assistant Director Investigation (BS-17) on 12-4-2011 which recommendation was acted upon. The petitioner was appointed vide letter dated 27-4-2011 and submitted his acceptance on 4-5-2011. He started to work when on 25-5-2011 the respondent No,4 issued the Notice on the allegation that the petitioner was a domicile of Punjab butwas appointed against a seat of AJK and that he had concealed this fact from the FPSC. The FPSC then withdrew its recommendation on 25-5-2011.
7. The FPSC was established under section 3 of the Federal Public Service Commission Ordinance, 1977 (Ordinance of 1977). The functions of the FPSC are given in section 7 of the Ordinance of 1977 which are as under:-
(a) To conduct tests and examinations for recruitment of persons to All Pakistan Service, the civil services of the Federation and civil posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent.
(1a) The recruitment to the posts in basic scales 11 to IS .Made by any authority or person on or after the 28th May, 2003, other than through the Commission, shall, notwithstanding any provision of this Ordinance or any other law, rule; notification or any order, decision or judgment of any Court or forum, be deemed to be, and always to have been, validly made taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(b) to advise the President
(i) on matters relating to qualifications for and method of recruitment to, services and posts referred to in clause (a);
(ii) on the principles to be followed in making initial appointments to the services and posts referred to in clause (a) and in making appointments by promotion to posts in BS-18 and above and transfer from one service or occupational group to another; and
(iii) on any other matter which the President may refer to the Commission.
From the above provisions, it is clear that the functions of the FPSC are limited to conduct tests and take examinations for recruitment of civil service in basic pay scales 16 and above and for advising the President on matters relating to qualifications and method of recruitment. After nominating a candidate for appointment in the service of Pakistan, the role of the FPSC comes to an end. Once the recommendation of the FPSC has been acted upon and a candidate has been notified at his position, the role of the FPSC has concluded. Thereafter the FPSC cannot withdraw its recommendation because the same has been acted upon. At best if it discovers any omission or error in the application, it can bring it to the notice of the competent authority being the appointing authority of that candidate. The FPSC also cannot issue a Notice to an appointed candidate, as to why action should not be taken against him in terms of instruction No,23 of General Instructions for concealing the material information. It is for the competent authority to take notice of the fact and take action as per law. In the instant case, pursuant to the Notice issued by the FPSC and withdrawal of its recommendation in favour of the petitioner, the respondent No,1 recalled the appointment of the petitioner through the impugned letter dated 30-7-2011. There is nothing on the record nor has anything been argued before this Court to show that the respondent No,1 had any problem with the petitioner. The only reason for withdrawing his appointment is on account of the allegations raised by the FPSC. Since the FPSC could not issue the Notice or withdraw its recommendation, therefore the respondent No,1 could not have recalled its appointment order without looking into the merits of the case.
8. This case has been argued at length and therefore it is necessary to look into the merit of the allegation raised by the FPSC. The petitioner applied for the post of Assistant Director as per application form in which against district of domicile he has written Jammu and in his educational qualification it shows Lahore Board and University of Punjab. Similarly against his experience qualification, it shows all experience in Punjab. His home address is also shown in Lahore. The petitioner appended along with this application form, Certificate of Domicile which was issued in the month of October, 1994 of Punjab and his SSC of Jammu and Kashmir dated 19-10-1994.
Thirteen Assistant Directors were called for interview on 20-5-2010 and the petitioner is at Sr.No,7 of the list where his domicile is shown as Punjab. Subsequently he qualified the interview for the post of Assistant Director (Investigation) ,and his name is found at Sr.No,4 of the list dated 12-4-2011.
Against his name it says AJK, meaning that he is appointed against AJK seat. The petitioner accepted the position on 4-5-2011 and joined on 10-5-2011. He started work and the Notice is issued by the FPSC on 25-5-2011. It is alleged in the Notice that he claimed to be a Domicile of AJK and he was appointed against a vacancy reserved for the AJK. However, subsequently it transpired that he joined the service on his Punjab. Domicile, hence he was concealing material information. The petitioner rendered his explanation, however the FPSC withdrew its recommendation and hence the impugned order was issued on 30-7-2011. Admittedly the petitioner submitted both the domicile certificates and the SSC to the FPSC. Both documents are distinct and have their separate functions. Evidently, the FPSC was not aware of the distinction. Furthermore the Chairman also found that the petitioner did not conceal anything at the time of his appointment. The error is totally on the part of the FPSC, who did not consider his documents properly and subsequently blamed the petitioner for concealment. Interestingly, their own internal documents appended with the petition show that they considered him on his Punjab Domicile and ultimately recommended him against an AJK seat. Therefore, the petitioner was not at fault.
9. Applicant Iftikhar Ahmad Khan was appointed, on 30-8-2011 due to the erroneous acts of the FPSC. He gave his joining and on account of order of this Court he has not been able to join his position.
10. In view of the aforesaid, this petition is allowed. The impugned letter dated 30-7-2011 issued by the respondent No,1 is set aside. The respondent No,1 is directed to adjust the petitioner retaining his original position as Assistant Director Investigation BS-17 against a seat for Punjab.