By this judgment I propose to dispose of Writ Petitions Nos. 253 and 5318 of 1990, as common questions of law and facts are involved therein.
2. Through Writ Petition No. 253 of 1990, the petitioner seeks a direction to the Federation of Pakistan, Federal Public Service Commission and Director-General, Civil Service Academy, Lahore, respondents Nos. 1, 2 and 3, respectively, to re-allocate the Sindh Rural Quota to the Federal Public Service Commission (hereinafter referred to as FPSC) in such a way that more seats from Sindh Rural Quota are allocated to Police Service of Pakistan and the seat allocated to Customs Group be re-allocated on merits so that the petitioner is preferred over Asif Ali Memon respondent No. 5 herein in such allocation. The petitioner has also prayed that after such re-allocation, he be allocated to either Police Service of Pakistan or Customs and Excise Group.
3. The facts relevant for disposal of this writ petition, in brief, are that through Public Notice dated 29-3-1988, the FPSC announced holding of Competitive Examination, 1988 for recruitment to posts in BPS-17 from 6-10-1988, in which rules of admission to the examination were laid down. Appendix III to the rules provides that vacancies up to 10% will be reserved for recruitment on the basis of merit and remaining vacancies will be shared as falling among candidates of different provinces/areas of Pakistan: "Punjab (including Federal area of Islamabad)50% Sindh (including Karachi)50% The share of Sindh will be further sub-allocated in the following ratio: -- Rules area namely Karachi, Hyderabad and Sukkur40% or 19% or 7.6% N.-W.F.P---------------..11.5% Balochistan3.5% North areas and Federally... 4% Azad Kashmir... 2%
4. The petitioner along with other candidates took the examination out of Sindh Rural Quota. Qazi Shahid Pervaiz was placed at No. 1 on nationwise merit. Amir Ahmad Khan, Muhammad Khalid Qureshi and Wasif Ali qualified the competitive examination of 1988 from Sindh Rural. They were placed in order of merit at No. 37, 25 and 68 respectively, whereas their position among the Sindh Rural Candidates was 5th, 4th and 8th respectively and were allocated the Income-tax Group. Mr. Wasif Ali Memon filed a representation/appeal against the said allocation, whereupon he was re-- allocated the Central Excise Group under the orders of the Prime Minister. It may be pointed out that vacancy was available in Sindh Rural Quota for the Competitive Examination of 1988 and, therefore, Wasif Ali Memon was adjusted against a newly-created vacancy to be deducted from the future vacancy of Central Excise Group belonging to Sindh Rural Quota.
5. The grievance of the petitioner is two-fold. First, that the FPSC did `not distribute the vacancies in accordance with the Regulations/Policy of the Government, in that, all the five seats for the Rural Sindh should have been allocated to the Group on merit and failure to do so has resulted in grave injustice to the petitioner, in that, he has been deprived of his allocation to Excise and Customs Group. It is further argued that discriminatory treatment has been meted out to the petitioner in violation of Articles 4 and 25 of the Constitution, inasmuch as, undue preference has been given to respondent No. 5, who in the order of merit was placed at serial No. 8 against serial No. 5 of the petitioner.
6. Mr. Salman Khalid Cheema, learned counsel for respondent No. 5 submitted that respondent No. 5 was allocated the Customs and Excise Group, as is evident from his appointment letter dated 30- 10-1989, appended as Annexure `C' to the writ petition, and this was the only appointment letter he received and on the basis whereof he joined the service.
At this stage, Mr. Faqeer Muhammad Khokhar, learned Deputy Attorney-General submitted that respondent No. 5 was initially allocated Income Tax Group, but thereafter he was allowed to change his Group from Income-tax to Central Excise. When faced with this, Mr. Salman Khalid Cheema frankly submitted that the petitioner only received one appointment letter from respondent No. 1 and was not aware of the internal decision taken by the Establishment Department as explained by Mr. Faqeer Muhammad Khokhar, the learned Deputy Attorney- General.
Learned counsel for respondent No. 5 argued that respondent No. 5 was a Post-Graduate from Liaqat Medical College. He had an excellent carrier in medicine and would not have joined the service if the said Group was not offered to him. He also placed reliance on Rule 5 to contend that the Government has a right to allocate a candidate any Group or service irrespective of his/her preference in the public interest and decision taken by the Government in this behalf is not open to challenge unless this discretionary power is exercised by the Government arbitrarily which is not the case here. It was argued that the Government exercised its discretionary power in favour of respondent No. 5 in public interest by giving him Customs and Excise Group on the basis of brilliant academic record, in that, he being best student of Liaqat Medical College was also holder of a civil medal. It was submitted that once respondent received the offer of appointment, he accepted it, joined the service in the Customs and Excise Group and has been attached to this Group for the last so many years and, therefore, it would not be in the public interest to dislocate him at this belated stage. Without prejudice to his submissions and right of respondent No. 5, he pointed out that the Government reverted respondent No. 5 to the Income Tax Group. Being aggrieved with his reversion, he filed Con,,iitution;t1 petition before the Sindh High Court, which was dismissed on the ground that the High Court had no jurisdiction m the matter of re-allocation in view of the bar contained in Article 212 of the Constitution. This is reported as Tanveer Ahmad Qureshi and others v.
Government of Pakistan through Secretary, Establishment Division, Islamabad and others 1993 PLC (C.S.) 505. Reliance, was also placed on Dr. Fazlullah Pechuho and others v. The Federation of Pakistan, Cabinet Secretariat, Establishment Division and 3 others 1991 PLC (C.S.) 960, which was dismissed on similar grounds in view of the bar contained in Article 212 of the Constitution. The case of Dr. Fazlullah Pechuho, was upheld by the Supreme Court by means of Civil Petitions Nos. 16-Q and 17-Q of 1991 decided on 3-7-1991. It was further pointed out that pursuant to the judgment of the Sindh High Court in case of Tanveer Ahmad Qureshi (supra), respondent No.5 filed appeal before the Federal Service Tribunal, Islamabad (Appeal No.20-K/92), but the same was dismissed on 2-10-1993 on the ground that the respondent should in the first instance exhaust departmental remedy for redress of his grievance for violation of any terms and conditions of his service. On these premises it was argued that the writ petition was not maintainable.
7. The grievance of Allah Dino Khawaja, the petitioner in Writ Petition No. 5318 of 1990 is that allocation of Customs and Excise Group to Wasif Ali Memon, in preference to him is without lawful authority, in that, the petitioner was placed at No. 3 on the merit among the candidates from Sindh Rural, while respondent No. 6 was at serial No. 8 in the same Group.
8. Mr. Faqeer Muhammad Khokhar, learned Deputy Attorney-General argued that since there was no vacancy for Rural Sindh in the Customs and Excise and P.S.P. Group, therefore, the petitioner was adjusted in the Income--tax Group, As regards Customs and Excise Group vacancies, it was argued that Mujtaba Memon, who had earlier cleared the examination was re-allocated Excise and Customs Group under the order of the Prime Minister against the vacancy of P.S.P. Group in the Competitive Examination of 1988. It was further submitted that there were only two vacancies and both were already filled in by Ghulam Mujtaba and Allah Dino Khawaja, petitioner in Writ Petition No.5318 of 1990. It was submitted that originally Allah Dino was also given PSP Group on merit, but under the orders of the Prime Minister he was sent to the Foreign Service without any appeal from him and he was then re-allocated the original Group. Similarly, the other vacancy of the PSP Group was filled in by Mr. Sanaullah Abbasi, who qualified the Civil Superior Service Examination in 1987 as well, was adjusted by orders of the Prime Minister.
9. As to the question of maintainability of the writ petition, Mr. Hamid Khan submitted in rebuttal that the judgments relied upon by Mr. Salman Cheema were related to re-allocation and not initial allocation and exercise of choice. Reliance was placed on Abdul Qadir Memon v. Government of Pakistan (W.P. No. 328-S/85, decided on 16-8-1988), to contend that the. High Court can interfere in the matter of allocation of Groups in CSS. In the precedent case, additional posts were created in various groups, but the candidates did not exercise option with respect thereto nor any such option could be exercised when no post existed. When the additional posts were created, no options were obtained from the candidates. In these circumstances, it was held that "the petitioners validly exercised their preferences for their allocation to D.M.G., from their respective regions, on the day the additional posts in that group were created. In terms of the declaration; hereinbefore made, the respondent No. 1 shall act in accordance with law to redress their grievances". No such controversy is involved in the instant case. Mr. Hamid Khan, learned counsel for the petitioner in Writ Petition No. 253 of 1990, next placed reliance on Musa Wazir and 2 others v. N: W.F.P. Public Service Commission through its Chairman and others (1993 SCMR 1124), to contend that the High Court can interfere in the matter of re-allocation of seats. In the precedent case, leave was granted by the Supreme Court to examine whether notwithstanding the selection of successful candidate being made from one combined competitive examination the selection could be said to be different because requisition for recruitment to more posts was received by the N: W.F.P. Public Service Commission at a subsequent stage. On merit, the High Court came to the conclusion that selection for the purpose of recruitment was unfair, but the relief prayed for by the petitioner in the matter of selection was declined on the ground. Of pest and closed transaction, in that, no grievance was made by them when they joined the service. The writ petition was also dismissed on, the ground that the petitioners therein were not aggrieved persons within the meaning of Article 199 of the Constitution. On appeal, the Supreme Court, on the basis of its earlier decision in Mian Fazal Din v. Lahore Improvement 'trust, Lahore and another (PLD 1969 SC 223) and Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 2 others (PLD 1973 SC 144) held "it is not criteria prevailing on the date of advertisement which is to be taken into consideration, but those existing when the posts were being actually filled up." The judgment of the High Court was set aside and it was held: -- " .... The three appellants were entitled subject to two important conditions of their suitability already determined and the zonal allocation, to preference over those junior to them and already adjusted. They shall be restored to their options subject to these conditions and given their due seniority. We find from the list that the appellant No. 3 (Muhammad Aslam) has been adjudged unfit both for the police and for the post of EAC. If this be correct, then he would not be entitled to adjustment in service for which he has been found unsuitable notwithstanding his merit and his option. This is a matter, however, for the verification by the Commission and the Government because it was never a matter in issue either in the High Court or before us."
In the precedent case, the dispute raised before the High Court was regarding selection of candidates in different cadres according to the preference given by them. The High Court non- suited the petitioners inter alia on the ground of non-maintainability as they were not treated as `aggrieved persons' within the meaning of Article 199. It was held that no vested right of the petitioners under the law was deprived to them. They were offered different cadres according to their preference within the limited posts. They accepted the offer without reservation and, therefore, had no vested right for re-determination of their preference for creation and requisition of new posts. The Court dismissed the writ petition.
10. After haring learned counsel for the parties at some length, I do not consider it necessary to go into merits of the case. Suffice it to say that respondent No. 5 on the issues involved in this petition earlier moved the Sindh High Court. His writ petition was, however, dismissed in view of the bar contained in Article 212 of the Constitution. Consequently, respondent No. 5 approached the Federal Service Tribunal for redress of his grievance. That petition was also dismissed on the ground that he should in the first instance, exhaust departmental remedies in respect of his alleged terms and conditions of service. Therefore, it cannot be directly or indirectly pre judged what the Supreme Court would have done if a petition for leave to appeal would have been filed by the respondent under Article 212(3) of the Constitution against judgment of the Tribunal or a petition for leave to appeal by the respondent No. 5 under Article 185(2)(F) of the Constitution against the judgment of the High Court. In somewhat similar case of The Superintendent of Police, Headquarter, Lahore and 2 others v. Muhammad Latif (PLD 1988 SC 387), it was held that "the High Court had no jurisdiction to pre-judge what the Supreme Court had to do if a petition for leave to appeal would have been filed under Article 212(3) of the Constitution". In the case of Dr. Fazalullah Pechuho (supra) decided on 3-7-1991 in C:P.S.L.A. 16-Q and 17-Q of 1991, the Baluchistan High Court earlier held that Constitutional petitions were not maintainable where the petitioners therein had been reverted to their original Group and the grievance arising out of their reversion to their original Group could only be inquired into by the Service Tribunal. The Supreme Court declined to grant the relief observing as follows: -- "We find little merit in this contention. As already stated, the petitioners were appointed to the Accounts Group consequent upon the allocation made by the Federal Public Service Commission.
After receiving their training they were posted as Accounts Officers. Subsequently, on their representation they were appointed to the District Management Group. Still later, the Federal Government changed its decision and reverted the petitioners to the Group to which they were originally appointed. The main question that needed consideration was not whether the two petitioners were suitable for appointment to the District Management Group but that, after having been appointed to the said Group they could be, consistently with the terms and conditions of their service, reverted to the Accounts Group. It was the service Tribunal which alone could competently resolve this question after finding out from the circumstances which had led to the twice changing of the occupational Groups by the petitioners. The High Court was, therefore, right in holding that it had no jurisdiction to entertain the petitioners. Leave is refused."
11. In the case of Musa Wazir (supra), it may be stated with respect that the applicability or otherwise of Article 212 was neither raised nor argued. The questions of law and facts' involved in the instant case are ex facie different than the precedent case. Here the dispute is regarding re- allocation of posts to various Groups. Such a dispute is relatable to terms and conditions of a civil servant. These writ petitions are, therefore, not maintainable in view of Article 212 of the Constitution and are hereby dismissed with no order as to costs.