' MUHAMMAD AFZAL LONE, J.---This appeal by leave to appeal has been filed by the Federation of Pakistan against the acceptance of Writ Petition of respondents Nos,1 and 2 by the learned Single Judge of the Rawalpindi Bench of the Lahore High Court.
2. The facts are that the two respondents possessing Punjab Domiciles qualified C.S.S. Examination held in November 1988. Against 188 vacancies in all; on merit the positions secured by respondents Nos.1 and 2 were 207 and 218 respectively. Due to poor merit, they could not be accommodated in the allocation zone of Punjab. The respondents, however, relied upon the Establishment Division Memorandum No, 1/29/87-TV, dated 19-4-1988, which required that:-- ... Any vacancy ,due to repeaters or non-joiners within two weeks of the starting of the training course of the Civil Service Academy, shall be filled up from amongst the candidates of the same competitive examination. The vacancies so caused after two weeks of the start of the Academy Training shall be carried over to the next competitive examination."
' On the strength of this memorandum the practice in vogue before the invitation of the applications from the candidates for participation in the competitive examination, was that on the request of the Establishment Division the Federal Public Service Commission recommended candidates to fill in the vacancies caused by the repeaters/non-joiners. Such vacancies were 34 in all, out of which the respondents claimed that 25 fell to the lot of Punjab. Having been placed at Serial Nos.18 and 23 in the list of the leftovers they asserted that they had the right to be adjusted against two of such vacancies.
3. It is to be noticed that the memorandum aforesaid was modified by the Training Wing of the Establishment Division vide memorandum of even number dated 1st July, 1989, as under:-- "In supersession of this Division's O.M. Of even number dated 19th April, 1988, on the above subject the undersigned is directed to state that it has been decided with the approval of the competent authority that vacancies caused by repeaters and non-joiners from amongst the candidates of the same Competitive Examination may be carried over to the next Competitive Examination."
' On the authority of this memorandum, the vacancies caused on account of repeaters/non-joiners were carried forward and allocated to the next Competitive Examination. The respondents' claim was thus refused. They challenged this refusal through a writ petition and prayed for issuance of a direction to the Federation of Pakistan and the Federal Public Service Commission to re-allocate the seats of the repeaters/non-joiners to the successful candidates of 1988 Competitive Examination including the respondents. As stated above this writ petition was allowed and a direction given for adjustment of the respondents against the non-occupied posts, in question. The High Court took the view that the Office Memorandum dated 19-4-1988 has a statutory backing; it created a vested right in the respondents to be appointed against the posts left by repeaters/non- joiners, which could not be taken away retrospectively, meaning thereby that Memorandum dated 1st July, 1989, was not applicable to them.
4. In defending the impugned order the learned counsel for the respondents supported the reasoning which, prevailed with the learned Single Judge and further submitted that the respondents acted upon the Memorandum dated 19-4-1988 and took the examination on the understanding that under the recruitment policy then in force if they could not succeed on merit against the regional quota earmarked for Punjab Province they would be considered for the seats left vacant by the repeaters/non-joiners. It was contended that Memorandum dated 19-4-1988 having the force of rules could not be altered to the disadvantage of the respondents and the rights vested in them thereunder extinguished retrospectively. Some case-law was aiso cited to support this argument but this judgment need not be burdened with the discussion thereof as it is not helpful for resolution of the controversy before US.
5. The main plank of the respondents' argument on which the impugned judgment is largely founded is that under Memorandum dated 19-4-1988 they acquired a vested right which could not be impaired by its amendment through Memorandum dated 1st July, 1989. The question is whether the respondents had acquired any vested right to be adjusted against the vacancies caused by the repeaters/non-joiners. By vested right is meant a right which is complete and not dependent on any contingency and its enjoyment has become the property of the person concerned. But such is not the position here. The respondents took the examination under the conditions specified in the notice dated 24-4-1988 issued by the Federal Public Service Commission. Its para.3 runs as under:- - "The examination will be conducted by the Federal Public Service Commission in accordance with the following Rules, subject to such changes as may be decided by the Government before finalising appointments on the basis of the examination!
6. Evidently this provision of the notice authorises the Government to make any alteration in the recruitment policy before finalization of the appointments. According to the information laid down before us by the learned Deputy Attorney-General, the result of the examination was announced on 10-9-1989, allocation of groups to the successful candidates made on 11-10-1989 and they reported to the Academy for training on 18-11-1989. It is obvious that the decision to carry forward the vacancies to the next Competitive Examination caused by the repeaters/non-joiners was taken by the Government much before the appointment of the successful candidates. The change, took place before the right claimed by the respondents could mature into a vested right. Under this notice a right has also been reserved for the Government to fill in a smaller or larger number of vacancies than that announced. In this view of the matter, it is idle to settle the controversy as to whether or not Memorandum dated 19-4-1988 can be categorized as a statutory rule.
7. In order to get over the difficulty posed by para.3 and other contents of the public notice, the learned counsel for the respodents raised the plea that determination of the policy and the mode of filling in of the vacancies is the function of the Government which cannot be appropriated unto itself by the Federal Public Service Commission. In other words, the argument was that para.3 ibid and other similar provisions were in excess of the powers of the Commission. We are, however, not persuaded by these submissions. The respondents appeared in the examination on the footing of this public notice and were well aware of its contents, as writ petitioners, it now does not lie in their mouth to assail the validity of this provision.
8. On behalf of the respondents, it 'has also been urged that one Toaha Hussain Bugti, a candidate from Balochistan, was placed at Serial No,508 of the merit list but was posted against a vacancy in contemplation of Memorandum dated 19-4-1988. An attempt was thus made to show that the respondents were subjected to discrimination, but the learned Deputy Attorney-General has categorically stated before us that this candidate was awarded a seat against his Balochistan domicile and not under the memorandum aforesaid. The stand taken by him has remained unrebutted. We may observe that another factor which persuaded us to decline to uphold the impugned judgment is that the vacancies against which the respondents aspired to be posted were filled in long ago; the persons who were accommodated against these vacancies were not party to the writ petition before the High Court.
' For the foregoing reasons, we hold that the view taken by the High Court is wrong in law.
Resultantly, this appeal is accepted and the impugned judgment set aside, leaving the parties to bear their own costs.