1. BASHARAT AHMAD SHAIKH, J.---The facts which are essential for determination of the dispute in the present case are that some posts of Forest Rangers were advertised by the Public Service Commission. One of the seats was reserved for Muzaffarabad District Under the quota system ,,priming part of the recruitment policy of the Government which is duly incorporated in the relevant laws. The Public Service Commission issued a hand out on 19th October, 1998 in which it was declared that appellant Bilal Ahmed had been selected for appointment against the seat falling to the share of Muzaffarabad District. The recommendation of the Public Service Commission was accepted and the appellant's appointment was notified on 22nd October.
2. The Respondent, Syed Asmat Hussain Shah, filed a writ petition to challenge the recommendation of the Public Service Commission in favor of appellant Bilal Ahmed and the subsequent appointment order passed as a consequence of the said recommendation by filing a writ petition on 31st October, 1998. He raised the point that the Commission had failed to award additional marks to which he was entitled on the basis of a Sports Certificate. The. High Court upholding the writ petition by accepting the plea raised by Respondent Syed Asmat Hussain Shah that he was entitled to be granted one mark by the Public Service Commission for being a member of the University team of athletics. It will be profitable to reproduce the conclusion arrived at by the High Court. It reads as follows:-- "13. In view of above, the petitioner is allowed one mark for being a member of the University team of Athletics. While adding one mark to the petitioner's credit, ratio of the total percentage of the marks awarded to the petitioner and. Respondent No,5 respectively, come to 292.23 and 291.73. The petitioner, thus, stands higher in merit to respondent No,5 and is declared successful."
3. Consequently the recommendation in favor of appellant Bilal Ahmad was declared to have been made without lawful authority and his appointment as Forest Ranger was set aside. The Public Service Commission was directed to forward the recommendation in favor of respondent Syed Asmat Hussain Shah. The High Court also directed the Government to notify the respondent's appointment.
4. Judgment of the High Court was announced on 1st February, 1999. It appears that the Public Service Commission and the Government accepted the verdict of the High Court and duly carried out the directions. However, Bilal Ahmad has filed this appeal with leave of the Court.
5. Before adverting to the contentions of the learned counsel for the parties, it may be pointed out that there is no dispute about these facts. The advertisement inviting applications for recruitment was published on 14th March, 1998. The last date of filing applications was 15th April. Written test was held from 29th August to 3rd September. Interviews were held on 19th October. On 10th October a decision was taken by the Public Service Commission that, inter alia, one mark will be awarded to a candidate who has been member of a University team.
6. In support of the appeal, Ch. Muhammad Ibrahim Zia submitted that the decision under reference was taken on 10th October when the selection process was in final stages and, therefore, was not applicable to the post in dispute because the decision was prospective and not retrospective. He vehemently contended that the decision is not a matter of procedure but relates to rights of the candidates, therefore, it could, if at all, apply to subsequent appointments and not to the present appointment. He submitted that selection commenced when requisition was sent to the Public Service Commission on 14th March when the advertisement to invite applications was published. It was contended by the learned counsel that the process of recruitment to the post of Forest Ranger was to be completed in accordance with the rules and policy which were in force on the date when applications were invited. He also raised the point that under rule 5 of the Public Service Commission Procedure. Rules, 1994 it was mandatory to notify the policy decision but it was not done which leads to the result that decision had not become operative. The learned counsel also raised the objection that the decision under reference is not part of the High Court record because the relevant file was returned to the representative of the Public Service Commission who was summoned to proceed it before the High Court. The grievance of the learned counsel is that he was not given an opportunity to read the policy decision and to offer his comments on it.
7. The arguments mentioned above were opposed by Mr. Tabassum Aftab Alvi. He vehemently contended that since the decision had been taken before holding of interview it was to apply to the interview held subsequently and marks had to be awarded in light of the said decision. The learned counsel relied on the following cases in support of his contention. In the case titled Khurshid-ul- Hassan v. Azad Government and another (1996 SCR 327) it was held by this court that the Public Service Commission was bound to follow the notification by which regional quota was introduced in the service structure. In the case titled Altaf Ahmad Asmat v. Punjab Public Service Commission. etc. (1984 CLC 1308) it was held by the Lahore High Court that Government instructions issued to Public Service Commission carry binding force like a statutory rule. In the case titled, the Province of West. Pakistan through the Secretary, Social Welfare and Local. Government Department and another v. Din Muhammad and others (PLD 1964 SC 21) it was held that administrative instructions issued by authority competent to amend rules can be as binding as statutory rules.
8. The authorities mentioned above do not deal with the question as to when a rule or order take effect which is the point which needs determination in this case. It was rightly contended by the appellant's learned counsel that this point stands concluded by recent judgments of this Court. In Civil Appeal No,70 of 1998 titled Muhammad Fayyaz v. Shahnawaz and others it was held that if rules are amended by the Government after, sending the requisition to the Public Service Commission the amended rules will not apply to the posts for which requisition has already been sent to the Commission. This Court has also laid down the laNV that if.a post has been advertised candidates have a right to be considered according to the qualifications etc. mentioned in the advertisement. In Muhammad Fayaz's case we examined a large number of judgments from different jurisdiction before reaching the following conclusion:-- ... ....Thus, in our opinion, the Moot point in this case is as to how the amendment in the Rules of 1990 would affect the case of the respondents. It is well-settled principle of law, as is also evident from the authorities cited by the learned counsel for the parties, that an amendment in existing law would be prospective until and unless it is otherwise provided by the law Consequently a direction was issued that the test and interview for the post of Assistant Electric Inspector may be held as initially scheduled by avers. In the instant case the amendment in the Rules of 1990 has not been controverted that the advertisements inviting applications had already been published in May, 1997 when the unlamented Rules of 1990 held the field. The contention of the learned counsel for the respondents that despite the fact that amendment in the said Rules was made after the publication of the advertisements, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively. The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualifications etc. laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisements. "
9. This principle has more recently been reiterated in Civil Appeal No,131 of 1998 the case titled Muhammad Intiaz Khan v. Azad Government and others. The facts were that a requisition was sent to Public Service Commission for filling in the post of Assistant Electric Inspector. The Commission duly advertised it. Call letters were issued for interview but a few days before the date of interview Secretary of the Electricity Department sent a letter to the office of Public Service Commission in which he requested that the Selection for the post of Assistant Electrict Inspector may be postponed. It was stated in the letter that there was only one post of Assistant Electric Inspector and the Government wanted to fill in the post by promoting an experienced serving hand for which purpose rules were being amended. Consequently the interview was postponed. The departmental rules were also then amended. Muhammad Imtiaz Khan filed a writ petition in the High Court which was dismissed. He thereupon brought his case to this Court. This Court set aside the view taken by the High Court that mere filing of an application did not vest any right in a candidate and it was held, in light of the rule laid down in Muhammad Fayyaz's case (supra), that if a post has been advertised candidates have a right to be considered in accordance with the qualificationi etc. laid down in the advertisement. It was observed that:-- "Thus, a right had come to reside the appellant that he should be considered for appointment to the advertised post in light of the rules prevalent at the time when the post was advertised."
10. 'Consequently a direction was issued that the test and interview for the post of Assistant Electric Inspector may be held as initially scheduled by ignoring the letter of Secretary Electricity Department as well as amendment in the relevant departmental rules.
11. In the light of the two judgments cited above it is clear that the High Court fell in error in awarding an additional mark to respondent Syed Asmat Hussain Shah on the basis of a policy formulated when the process of selection was in the final stages.
12. Even on facts the respondent had no case. It is mentioned in para. 8 of the judgment of the High Court that one mark was awarded to the respondent for being member of University team, but the documents which the High Court accepted as proof in support of the claim of the respondent have been clearly misread. Annexure-F in the High Court file is a certificate of merit issued by Directorate of Sports, University of Azad Jammu and Kashmir, in favour of Syed Asmat Hussain Shah for obtaining second position in 400 meters race in 1989-90 session. Annexure-G is a certificate issued by Director of Physical Education of the University on 26-10-1998 which is as follows:-- "CERTIFICATE It is certified that Syed Asmat Hussain Shah son of Syed Sarwar Shah former student of this campus, participated in the 400 meters race on behalf of 'Qasim House' as a member of Athletic team in the Annual Sports held on April 1990 and obtained second position." (Translated).
13. Both these documents, which are about the same event, do not show that the respondent was a member of the University team, as held by the High Court. From annexure-G it is clear that the respondent was a member of the "Qasim House" team. Thus the High Court fell in error in drawing wrong conclusion that respondent was member of the University team.
14. As a result of the forgoing, we have no hesitation in accepting the appeal to set aside the judgment of the High Court. It follows that appellant Bilal Ahmad was validly appointed as Forest Ranger and his appointment shall be deemed to have subsisted without interruption.