' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 9-5-2000, whereby the writ petition filed by respondent No, 1 . Tanveer Ahmed, was accepted.
2. The necessary facts, giving rise to the present appeal, are that Public Service Commission, respondent No,3 herein, advertised 24 posts for Animal Husbandry out of which six were reserved for Muzaffarabad District. It was disclosed in the advertisement that in case suitable candidates from Muzaffarbad and Kotli District were not available, selection shall be made on the basis of open merit out of other candidates. After conducting the test and interview, a Handout was issued on 13th August, 1997. The Public Service Commission declared seven candidates selected; out of them six belonged to Muzaffarabad District while the 7th one, appellant herein, was selected on the basis of open merit, who belonged to Bhimber District, as no suitable candidate from Muzaffarabad and Kotli Districts could qualify for the said post of Poultry. A writ petition was filed by respondent No,1 in the High Court on the ground that no person domiciled outside Muzaffarabad District could be selected against a vacancy which fell to the share of District Muzaffarbad. So, according to the respondent, the selection of appellant was made against the said post in violation of law and a prayer was made that the same may be annulled. The High Court in the first instance dismissed the writ petition filed by respondent No,
1. However, on remand order made by the Supreme Court in a subsequent round, the High Court vide the impugned order, accepted the writ petition filed by respondent No,1. Hence this appeal by the appellant.
3. In support of appeal it was vehemently contended by Mr. M. Riaz Tabassaum, the learned counsel for the appellant, that due to non-availability of suitable candidates on the post reserved for Muzaffarabad District, the same was filled in on the basis of open merit and the same could not be kept in vacuum for an indefinite period. The post could have been filled by another suitable candidate available from other districts as held in a case Khurshid-ul-Hassan v. Azad Government and others (1996 SCR 327). The learned counsel for the appellant also contended that the respondent No,1 in compliance of advertisement and being fully aware of the, terms laid down in advertisement participated in the examination without any protest and after having failed in the examination he was estopped and precluded by his conduct to invoke the extraordinary jurisdiction of the High Court, as such the writ petition was liable to the dismissed on the sole ground. The learned counsel pressed into service the submission that respondent No,1 failed in examination, therefore, he was not an aggrieved person.
4. On the other hand controverting the arguments raised by the learned counsel for the appellant, Mr. Muhammad Azeem Dutt, the learned counsel for respondent No,1, strenuously argued that quota has been fixed through Government order which has been given protection under rules. The learned counsel contended that quota falling to the share of any one district could not be re- allocated to the share of any other District on the ground of nonavaialbility of a suitable candidate from the relevant District. He further maintained that if a suitable candidate from Muzaffarabad District was not available, the post should have been re-advertised. The learned counsel for respondent placed reliance on Umar Hayat v. Azad Government and others (1999 PLC (C.S.) 78).
5. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, appearing on behalf of respondents Nos.2 to 4, fully supported the contentions raised by the learned counsel for respondent No, 1.
6. The High Court has observed that as the Government Notification dated 5th July, 1972, was revoked by a subsequent notification dated January 30, 1997, therefore, the action of Public Service Commission was without lawful authority and the post should have been advertised afresh.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record made available, it may be stated that in the advertisement issued by the Public Service Commission, 24 posts for Animal Husbandry were duly advertised; out of them six posts were reserved for. Muzaffarabad District. It was also indicated in the advertisement that in case the suitable candidates from Muzaffarabad and Kotli Districts were not available, the selection shall be made on the basis of merit out of other candidates. The Public Service Commission after conducting the test and interview issued a Handout on 13th August, 1997 and declared seven persons selected; out of them six belonged to Muzaffarbad but against the post of Poultry, the selection of appellant was made on the basis of open merit stating therein that no candidate from Muzaffarbad could qualify for that. The writ petition filed by respondent No,1 before the High Court as stated earlier, was accepted and it was observed that in view of subsequent notification dated January 30, 1997, the post should not have been filled on the basis of open merit but the same should have been re-advertised. We cannot subscribe to the view of the High Court as a vacancy cannot be left in vacuum for an indefinite period. In a case reported as Khurshid-ul-Hassan v. Azad Government and others (1996 SCR 327) it was observed at page 335 of the report as follows:-- "As a result of the foregoing analysis we have reached the conclusion that Notification of 5th of March, 1972 continuous to be valid. The portion of the .Notification which has bearing on the outcome of present appeal is that if no suitable candidate from a particular district available then the P.S.C. Will recommend a person on the basis of open merit."
8. We also agree with the contention of the learned counsel for the appellant that respondent No,1 in pursuance of advertisement, wherein one of terms and conditions was that if suitable candidates from Muzaffarabad District were not available, the same may be filled up by any suitable candidate from other Districts. The respondent duly participated in the test and interview after going through the terms and conditions of advertisement published by the Public Service Commission and surrendered himself to its jurisdiction. As the respondent could not qualify the test, he was not an aggrieved person to challenge the selection of appellant by filing a writ petition.
Our aforesaid view is supported by a case reported as Muhammad Sharif v. Muhammad Manzoor and others (1993 SCR 92), wherein it was observed that a party is estopped by his conduct in the proceedings by taking a specific position. Thus, the appeal was dismissed on the ground that appellant is estopped from changing his stand.
9. We may also observe here that in the subsequent Notification dated January 30, 1997, although the notification, dated 5th July, 1972 was repealed, but all the same the Public Service Commission in its advertisement clearly stated that if suitable candidates from Muzaffarbad District were not available, the post in question shall be filled in on the basis of open merit. No contrary advertisement of the Public Service Commission was placed on record. Therefore, when the Public Service Commission itself offered the candidates that if suitable candidates from Muzaffarabad District were not available, the vacancy shall be filled in on the basis of open merit, the appellant could not have been penalised for the fault of the Public Service Commission.
' In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the High Court. The writ petition, therefore, filed by respondent No,1 in the High Court stands dismissed. In the circumstances of the case we pass no order as to costs.