MUMTAZ ALI MIRZA, J.-- The facts necessary for the disposal of the instant constitution petition as narrated by the petitioner are that he appeared in the Central Superior Services Examination, 1998, securing 94th position in the over all merit list prepared and announced by the FPSC on all Pakistan basis; that the petitioner being domiciled in Punjab was allocated to accounts Group as per Government Recruitment Policy based on regional/provincial quota as stipulated in the FPSC Rules in the competitive examination, 1998; that one of the candidates allocated to Income Tax Group against the quota reserved for the Punjab Province namely Muhammad Umar, merit No. 78 did not join the service, and submitted his refusal/non-acceptance to Establishment Division; that as per rules of merit and principles of Justice the vacancy occurring as a result of the non-acceptance of the offer of the FPSC by Mr. Muhammad Umar, the vacancy must have been offered to the next candidate in the merit from the Punjab Province and that the petitioner was the next candidate as per his merit from the Province of Punjab and was entitled to be offered the vacancy but it did not happen due to ma/a fide and irrational policy of Establishment Division, respondent No. 1; i.e. Establishment Division through respondent No. 3 i.e. Director General, Civil Services Academy, Lahore for the re-allocation/adjustment in the Income Tax Group; that respondent No. 1 used the delaying tactics on one pretext or the other and kept the case pending for more than four months inspite of the repeated communications of the petitioner and at long lost vide its order dated 8.7.2000 the request of the petitioner where-allocation of the occupational group was declined on two grounds, the report regarding nonjoining/non-acceptance of offer of appointment by Mr. Muhammad Umar, merit No. 78 had not been received by them earlier, meaning thereby before the start of the Common Training Programme, (ii) as the Common Training Programme at Civil Services Academy had already started w.e.f. 18:2.2000, the request of the petitioner was received at belated stage and could not be as 'such accepted.
2. In the afore stated background of facts, the petitioner, Fakhar-uz-Zaman A.I Cheema has approached this Court in the exercise of its Constitutional jurisdiction so as to interfere with the order dated 8.7.2000 passed by the Establishment Division, respondent No. 1 refusing to re-allocate the petitioner to income Tax Group for the reasons herein above stated. At the preliminary hearing the petitioner was represented by Mr. Shahshad Ullah Cheema, Advocate. After hearing the learned counsel for the petitioner, notice was directed to issue to the respondents to appear in the Court and to meet the case as set up by the petitioner in the constitution petition. Pursuant to the notice issued, the respondents appeared through Mr. Mansoor Ahmad, Deputy Attorney General for Pakistan alongwith Hafeez-ur-Rehman, Deputy Secretary Establishment Division and Sadiq All Anjum, Deputy director FPSC.
3. After hearing the parties' learned counsel the constitution petition was accepted and the direction asked for was issued against the respondents striking down the impugned order passed by the Establishment Division on 8.7.2000. While dictating the judgement, it was felt that the issue raised in the constitution petition merits re-consideration so as to consider as to whether the same was hit by Article 212 of the Constitution. Accordingly, the verbal order announcing the acceptance of the constitution petition was recalled and the parties were directed to address arguments on the said questions. The petition was accordingly reheard on 8.3.2001 and today i.e. 9.3.2001. As Mr. Shahshad Ullah Cheema, Advocate, learned counsel for the petitioner had proceeded on Haj, Fakhar-uz-Zaman A.I Cheema, the petitioner himself argued his case, With reference to Civil Servants Act, 1973 wherein the terms and conditions of service of a civil servant have been defined, the petitioner submitted that tested on the touchstone of the statutory definition of "terms and conditions of service" as given in the statute; the question in issue i.e. Reallocation of occupational group could not, be termed to be a question relating to the terms and conditions of service and this being so, there was no question of the bar contained in Article 212 of the Constitution being attracted. On merits he questioned the impugned order on the ground that in his case respondent No 1 i.e. Establishment Division had taken the position, before this Court that petitioner's request for re-allocation of this occupational group could not be considered as the Common Training Programme had already started at the Civil Services Academy at Lahore whereas in case of. Mr. Muhammad Naveed Chaudhry, a successful candidate of the examination held by the FPSC was allocated OMG Group from Postal Group after one month of the start of the Common Training Programme at the Civil Services Academy.' The petitioner submitted that for doing so, respondent No. 1 was seeking refuge behind the policy framed by it for the purpose of re-allocation. The petitioner questioned the said policy on the ground that the same had no statutory force. Under Section 25 of the Civil Servants Act, 1973, the Government was competent to frame rules for giving effect to the provisions of the Act. However, no rules had till this day been framed by the government for the purpose. This, the petitioner maintained, was not an accident slip but this omission on the part of the government was intentional in that it wanted to keep room for itself to treat different people with Different Yardsticks under the cover of so called policy of the Government. The petitioner submitted that policy is too loose a term to be enforced through court.
Under the cover of this so called policy the Establishment Division could where it wanted to re- allocate an occupational group to a candidate accede to his request and where it did not 'want to do so, could refuse the same, It is plain that valuable rights of the citizens cannot be sacrificed on the alter of this so called policy which was like the nose of wax which could be turned either way rigs t or left. When confronted with the plea taken by the petitioner with reference to the case of Mr. Muhammad Naveed Chaudhry who, as aforesaid, was re-allocated his occupational group after the start of the Common training Programme at the Civil Services Academy, the respondent could not controvert the same. They rather accepted the fact that the said Mr. Muhammad Naveed Chaudhry was re-allocated his occupational group after one month of the start of the Common training Programme at the Civil Services Academy. The stand of the Government that petitioner's request for re-allocation of the occupational group could not be acceded to as the Common Training Programme had already started in the Civil Services Academy at Lahore merits rejection vis-a-vis the claim of the petitioner on the ground that the commencement of the Common Training Programme could have stood in the way of the petitioner if he had not joined the said Programme at the Civil Services Academy at Lahore. The fact of the matter, however, was that the petitioner had joined the Academy and was undergoing the Common Training. The argument of the government could perhaps have held the ground if the Common Training Programme had commenced and the petitioner had not joined the same. The Government in that event alone could veil the argument that the petitioner had missed a part of the Common Training Programme by not joining the Academy. Such, however, was not the case. Now, if the petitioner had already joined the Civil Services Academy and was undergoing the Common Training, how could his request be turned down by the Establishment Division on the plea that the Common training had already started. The not result of the foregoing discussion is that the impugned order dated 8.7.2000 passed by respondent No 1 i.e. Establishment Division refusing to allocate the Income Tax Group to the petitioner in place of accounts Group is declared as illegal, without jurisdiction and without lawful authority and respondent No. 1 is directed to allocate the Income Tax. Group to the petitioner on account of the vacancy occurring as result of the non-acceptance of the offer of appointment by Mr. Muhammad Umar in that group i.e. Income Tax Group. The parties are left to bear their own costs.