' The petitioner as also respondent No,3, both of whom claim to belong to Azad Jammu and Kashmir, appeared in the competitive examination held by the Federal Public Service Commission for recruitment to various posts in the service of Pakistan. According to the result announced by the Federal Public Service Commission, the petitioner was placed at No,168 and respondent No,3 at 137th position in the merit list. As a consequence of this result, respondent No,3 was allocated the only seat in the District Management Group, which was reserved for persons belonging to Azad Jammu and Kashmir, while the petitioner granted employment in the Pakistan Postal Service although he had opted for District Management Group and Foreign Service of Pakistan.
2. The petitioner filed a representation before respondent Nos.1 and 2 pointing out that respondent No,3 was in no way connected with Azad Jammu and Kashmir or the former Indian State of Jammu and Kashmir and, therefore, he could have not been allocated the seat reserved for Azad Jammu and Kashmir in the District Management Group. This representation was rejected by respondents Nos.1 and - 2 on 21-10-1991. It was in these circumstances that the petitioner filed Writ Petition No,11466 of 1991 in this Court which was admitted to regular hearing. In the written statement filed by respondents Nos.1 and 2, it was alleged that the petitioner could not have in any case been taken in the District Management Group or the Foreign Service of Pakistan as he was found unsuitable for those services by the Federal Public Service Commission. The petitioner thereupon withdrew that petition with permission to file a fresh one. Whereafter this petition was instituted by him.
3. Mr. Salman K. Chima, learned counsel for respondent No,3 has raised the following contentions in support of this petition:
(i) That respondent No,3 cannot be considered against the post reserved for Azad Jammu and Kashmir as he has no connection whatsoever with AJ&K or even with former Indian State of Jammu and Kashmir and as such he cannot be said to be belonging to that place within the contemplation of para. 6(iii) (d) (i) of the Rules embodied in the notice inviting applications from the candidates to sit in the competitive examination; and
(ii) that the Federal Public Service Commission has no jurisdiction to determine the suitability or otherwise of a candidate for a particular occupational group and, therefore, the refusal of the respondent to consider the petitioner for the District Management Group/Foreign Service is illegal.
' In elaboration of the second contention, the learned counsel traced the historical background of the powers of the Federal Public Service Commission in order to show that though under section 266 of the Government of India Act, 1935, the Constitution of Islamic Republic of Pakistan, 1956 as also the Constitution of Islamic Republic of Pakistan, 1962, the Federal Public Service Commission had the power to determine suitability or unsuitability of a candidate but no such jurisdiction has been vested in the Federal Public Service Commission under the Federal Public Service Commission Ordinance, 1977 framed pursuant to Article 240 of the Constitution of Islamic Republic of Pakistan, 1973.
5. This petition has been opposed by the respondents. I have also heard Mr. Faqir Muhammad Khokhar, learned Deputy Attorney-General for Pakistan, who was asked to assist this Court. Apart from rebutting the arguments advanced' by the petitioner's learned counsel, the respondent's learned counsel as also the learned Deputy Attorney-General has raised an objection that the petitioner is estopped by his own act and conduct from filing the present petition inasmuch as he had taken the examination under the Rules for Competitive Examination, 1990 as notified by the Federal Public Service Commission, according to para. 14 of which the Federal Public Service Commission was fully authorized to determine the question of suitability or otherwise of a candidate. On these premises it was argued that the petitioner is not entitled to the exercise of discretionary jurisdiction vesting in this, Court in his favour.
6. The objection raised by the respondents' learned counsel is well merited. There is no dispute between the parties that the petitioner as also respondent No,3 had appeared in the competitive examination held by the Commission in the year 1990. The petitioner has himself placed on record the Rules under which the aforesaid examination was held as Annexure 'D', para. 12 of which reads as under:--- "Subject to the recruitment policy explained in Appendix III of these Rules, candidates securing the highest places on the combined results of the run written Examination, Psychological and Viva Voce tests and eligible for appointment will be appointed up to the number of vacancies available.
No candidate will, however, be considered for appointment to any of the Groups/Posts for which he/she has been declared unsuitable by the Commission at the time of Viva Voce Test". (Emphasis supplied).
7. Even if it be assumed as has been contended by the petitioner's learned counsel that there is no statutory backing for such a power, yet the fact remains that it was on the basis of these Rules that the examination in question was held and taken by the petitioner without any protest or demur. The petitioner, as such, is clearly estopped from urging to the contrary, after he had been found unsuitable for District Management Group/Foreign Service by the Federal Public Service Commission.
8. In Federation of Pakistan through Secretary, Government of Pakistan Establishment Division, Islamabad v. Mirza Muhammad Irfan Baig and 4 others 1992 SCM R 2430, it was observed by the Supreme Court that: "In order to get over the difficulty posed by para. 3 and other contents of the Public notice, the learned counsel for the respondents 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".
9. None of the two arguments raised by learned counsel for the petitioner in support of this petition may, therefore, be examined or commented upon though it may be said to the credit of the petitioner's learned counsel that he had taken great pain to point out that in view of the deliberate omission of the word "suitable" in the 1973 Constitution and the Federal Public C Service Commission Ordinance, 1977 as compared to the earlier Constitutional documents, the Federal Public Service Commission does not have any power to determine suitability or otherwise of a candidate. This question can, however, more appropriately be examined in other case if it arises.
10. Another reason which has prevailed with me in refusing to exercise the discretion in favour of the petitioner is that both, respondent No,3 as also the petitioner, have since been adjusted and are working in the posts which they are occupying since 1991. It would, therefore, neither be appropriate nor fair to interfere at this stage.
' For the foregoing reasons, this petition is dismissed leaving the parties to bear their own costs.