Muhammad Younis Thaheem, J.-Through this constitutional petition, the petitioner has questioned the Notification No, 1/9/2007-T-V dated 25.07.2007 and press note dated 24.07.2007 vide which Respondent No, 3 was allocated position in the income tax group on the basis of 10% female quota for F.A.T.A and had deprived petitioner from his vested right despite the fact that petitioner's position on merit is 157 while as compared to Respondent No, 3 who had secured 169 position.
2. Brief facts of the case are that Federal Public Service Commission (hereinafter called F.P.S.C) had advertised holding of competitive examination for C.S.S on 17.02.2006 for the recruitment of different posts in BPS-17 relating to vacancies about different groups of services in Federal Government including Pakistan Audit & Accounts service group (hereinafter called P.A.A.S).
3. The petitioner and various other eligible candidates including Respondent No, 3 a female candidate belonging to F.A.T.A, applied for taking part in the competitive examination and it was clearly mentioned in the advertisement about rules and instructions of Federal Public Service Commission that posts will be filled on the basis of merit/provincial and other quotas.
4. Petitioner and other candidates appeared in the examination held on 27.05.2006 and result of same was declared on 25.10.2006, after fulfillment of other tests like viva-voce petitioner got 157 position on open merit while got 7th position amongst the F.A.T.A candidates while Respondent No, 3 secured 169 position on open merit while from FATA she got 8th position.
5. Federal Government/Establishment Division issued the press note vide which 15 candidates were selected on open merit, 100 seats to Punjab, 08 vacancies were filled from F.A.T.A and successful candidates were assigned different occupational groups and petitioner was allocated information group under Roll No, 1974 but Respondent No, 3 was allocated income tax group (P.A.A.S) from formal quota of FATA in view of 10% quota allocated to women by bifurcating 4% quota for candidates belonging to F.A.T.A. So petitioner feeling aggrieved from this 10% quota allocation to women particularly allocated to Respondent No, 3 filed instant writ petition.
6. Petitioner was informed by Respondent No, 1 vide Letter No, 01/09/2007-T-V dated 25.07.2007 about the allocation of information group to him and was further directed to convey his consent within 15 days from the date of issuance of above said letter and according to record petitioner accepted this position and service group vide his acceptance and letter dated 30.07.2007 placed on petition as Annexure "H".
7. Petitioner feeling aggrieved by notification dated 25.07.2007 and press note dated 24.07.2007 filed representation under Section 7(3) (a) of F.P.S.0 Ordinance, 1977 against the impugned press note claiming his entitlement on merit on 7th position from Quota meant for F.A.T.A candidates according to the prescribed 4% quota alongwith raising different other pleas with prayer for assigning him P.A.A.S group (income tax).
8. Respondents No, 1 and 2 submitted comments separately raising various legal as well as factual objections, mainly on 10% quota fixed for women and rejection of petitioner's representation on 26.11.2007 and against same decision dated 26.11.2007 petitioner was legally required to file appeal under Section 7(3)(d) of F.P.S.0 Ordinance, 1977 within 30 days before the High Court which he failed.
9. Learned counsel for Respondent No, 3 supported by DAG raised preliminary objection about the maintainability of petition firstly on the ground that the representation of petitioner was rejected by the competent authority on 26.11.2007 and against that decision petitioner had not filed appeal before the Honourable High Court so instant petition is not maintainable and is hit by the principle of laches and with delay of more than two years had invoked the constitutional jurisdiction of this Court on 24.01.2009 without availing officious remedy, hence petition is barred by law.
10. Learned counsel for petitioner responded to preliminary objection and argued that petitioner was entitled and would have been allocated vacancy falling in P.A.A.S group and his allocation of quota to information group despite higher in merit than Respondent No, 3 is great injustice to petitioner and thus had been deprived of his vested right and responding to the preliminary objection the learned counsel rebutted the arguments over non-maintainability of petition by arguing that his petition is not hit under the principles of laches and preliminary objection raised is not valid, while further arguing that where miscarriage of justice had been caused and impugned order/notification/press note issued is against law and if is ab-initio void then the question of laches losses importance.
11. Arguments heard, considered and record perused.
12. From the perusal of record it is admitted that both petitioner and Respondent No, 3 belongs to F.A.T.A and according to constitution 4% quota in Federal Government public service is meant for F.A.T.A or its other departments and would be governed, regulated and allocated according to prescribed quota system for each federating unit, and its further bifurcation within the federating units and 10% for women candidates with the purpose to bring all the competitive youth of Pakistan into Federal Public Services with the aim that the talented youth of Pakistan with less opportunities and inadequate educational facilities must be benefited. Moreover, Pakistani women which is half of our population must be given opportunity to share socio-economic development process aid with this aim were allocated above said 10% quota and in this respect women welfare oriented rules were added in already existing rules as described in the advertisement for C.S.S examination, 2006 and in the same advertisement recruitment policy was further elaborated which is reproduced as below: RECRUITMENT POLICY APPENDIX III
8. "THE POLICY LAID DOWN ABOVE IS LIABLE TO MODIFICATION AND ANY CHANGE WHICH MAY BE MADE THEREIN WILL BE APPLICABLE TO THE CANDIDATES FOR THIS EXAMINATION."
Further in this respect SRO No, 410(1)/2007 dated 18.05.2007 had been issued vide which 10 % quota for women was approved which is reproduced as under: "10 % quota is reserved for women from the share of their Province/Region except Merit quota in terms of Establishment Division's O.M.No, 3/17/2005-R.2 dated 26.09.2006".
13. Another candidate belonging, to F.A.T.A namely Shah Nawaz Khan who is not party to the instant petition has been shown on Merit No, 140 who was allotted P.A.A.S group in fact was higher in merit than the petitioner having Merit No, 157.
14. Now adverting to argument raised by learned counsel for petitioner that this women quota has been introduced with retrospective effect so is ineffective upon the rights of petitioner and was also neither disclosed in the advertisement nor is the clause of F.P.S.0 Act. This argument is not valid as Rule No, 8 of Appendix III (reproduced earlier) of advertisement dated 17.02.2006 envisages that the F.P.S.O policy laid down above is liable to modification and any change which may be made therein will be applicable to all the candidates for this examination. Women quota had been implemented by the Establishment Division vide 0.M No, 3/17/2005-R dated 26.09.2006 so the comments and record annexed reveals that no retrospective effect has been given. This special 10 % quota allocated for women candidates for Pakistan Public Service for all Federal/Provincial and.
District Governments or any other subordinate departments to the governments since then is in forced.
15. F.A.T.A has been allocated 4% quota under the law for available circulated posts which were total 202 in BPS-17 out of these 202 posts 8.80 fell to F.A.T.A candidates and same were further bifurcated according to 10 % women quota and its merit breakup would fall as 3.6 % for men and 0.4 % for women. So according to above calculation out of total 202 vacancies 8 posts were allocated by F.P.S.0 and Establishment Division to F.A.T.A and out of it one vacancy fell to women quota and 7 to men. The same one was allocated to a single F.A.T.A lady candidate i.e Respondent No, 3.
16. Though the petitioner has annexed the representation/ review petition u/S. 7(3)(a) of F.P.S.0 Ordinance, 1977, however, both the respondents had mentioned about its rejection on 26.11.2007 and according to ibid F.P.S.0 Ordinance it is provided that when some candidate is aggrieved from the decision of Commission, he may file appeal u/S. 7(3) (d) of F.P.S.C. Ordinance before the High Court within 30 days but petitioner did not file appeal in view of above referred law. When learned counsel for petitioner was put query by this Court as to whether petitioner has filed appeal in view of provisions of law u/S. 7 (3) (d) of F.P.S.0 Ordinance, 1977 the learned counsel was unable to explain or to provide copy of appeal and decision on it and submitted that petitioner has filed instant petition.
17. Thus, we are of the view that petitioner had not invoked available efficacious remedy of appeal u/S. 7 (3) (d) of F.P.S.O Ordinance, 1977 before High Court. Secondly, his review petition u/S. 7 (3) (a) of ibid Ordinance had been rejected on 26.11.2007 by the competent authority under ibid Ordinance but had filed this petition on 24.01.2009, so this petition on the ground of lathes is also not maintainable being filed with the delay of more than two years.
18. Thirdly, on merit also Respondent No, 3 was allocated one seat of P.A.A.S group meant for female F.A.T.A candidates so in above scenario Respondent No, 3 was rightly allocated the P.A.A.S group of Federal Public Service. In this respect reliance is placed on the judgment of Honourable Supreme Court in case titled Lt. Muqaddas Haider vs. Federal Public Service Commission through Chairman and others cited as .2008 SCM R 773 relevant enunciated principle is reproduced as below: "It may be noted that Respondent No, 1 admittedly has allocated quota/reserve seats, to the candidates of Armed Forces of Pakistan to the candidates who on merit were better than the Respondent No, 3 on the basis of policy decision which was framed by Respondent No, 2 in view of proviso to Article 27 of the Constitution of the Islamic Republic of Pakistan, therefore, Respondent No, 3 was not legally entitled to be appointed against the seat of the petitioner which appointment did not violate or infringe the provisions of the constitution of Pakistan, resultantly the writ petition filed by Respondent No, 3 was not maintainable before the High Court, considering also that the said Respondent No, 3 also failed to exhaust statutory alternative officious remedy available to him."
19. Thus what has been discussed above, this petition being devoid of merit is dismissed.