2012 P L C (C.S.) 493
[Balochistan]
Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J
Syed RAUF KHAN WAZIR
Versus
GOVERNMENT OF PAKISTAN through Secretary Establishment Division Cabinet
Secret ariat, Islamabad and 2 others
Constitutional Petition No.368 of 2011, decided on 3rd November, 2011.
Federal Public Service Commission Rules for (CSS) Competitive Examination, 2009 ---
----R. 7 ---Federal Public Service Commission Ordinance (XLV of 197 7), S.7(3) ---Civil
Procedure Code (V of 1908), O.I, R.2 ---Constitution of Pakistan, Art.199 ---Constitutional
petition ---Central Civil Services (CSS) Examination ---Non-acceptance of post offered to a
candidate senior than petitioner on merit list ---Petitio ner, being next successful candidate in
CSS examination, was to be offered such post, but the Authority carried forward such
vacancy to the next examination ---Validity ---Petitioner had neither passed Common Training
Program nor approached the High Court up on learning about carrying forward of such post
nor explained delay of about five months in approaching the High Court ---Petitioner had not
explained as to why he failed to implead six candidates having prayed to be arrayed as
respondents ---Such six candi dates had legitimate expectance to be selected to such post
carried forward, thus, they ought to have been impleaded as parties ---Result of such six
candidates had been published in newspaper before filing of such petition by petitioner ---
Impugned order was not illegal or unlawful ---High Court dismissed constitutional petition in
circumstances.
Mazhar Ilyas Nagi for Petitioner.
Malik Sikandar Khan, D.A. -G. along with intervenors Messrs Liaquat Ali, Aminullah and
Abdul Wali Khan for Respondents.
Date of hearing; 3rd November, 2011.
JUDGMENT
QAZI FAEZ ISA, C.J. --- Learned counsel for the petitioner states that the petitioner had
participated in the Central Superior Services ("CSS") 2009 Examination and came 386th on
the all Pakistan merit list and stood at serial No.21 on the Balochistan merit list and since Mr.
Asfandyar Baloch another candidate, who stood 350th on the merit list, had declined to
accept the offer, therefore, the petitioner being the next person on the merit list from
Balochistan w as to be offered the said position; however, the same was not offered to him
and the vacancy in the Military Lands and Cantonment Group ("ML&CG") was carried
forward to the next competitive examination. The petitioner had taken the CSS written
examination on 25th April, 2009 and the Common Training Program ("CTP") of the
successful candidates of the said examination commenced on 13th January, 2011, which is
also referred to as the 38th Common. Learned counsel for the petitioner has placed reliance
upon lett er dated 29th December, 2010 of the Ministry of Defence ("ML&C" Department),
Government of Pakistan, which has been addressed to Mr. Asfandyar Baloch, wherein Mr.
Baloch was called upon to accept the offer by 7th January, 2011. failing which the said offer
would be treated as cancelled. Mr. Baloch declined the said offer through his letter dated 13th
January, 2011. Copies of both these letters have been attached with the petition and it is
stated that the said letters were provided to the petitioner by Mr. Baloch.
2. Learned counsel for the petitioner, Mr. Mazhar Ilyas Nagi, has also placed reliance upon
Rule 7 of the Rules for Federal Public Service Commission ("FPSC") Rules for (CSS)
Competitive Examination 2009 ("the Rules") which is reproduced hereunde r:---
"7. If any vacancies reserved in terms of paragraphs 1 -2 above cannot be filled by reason of
failure of candidates to pass the qualifying standard or otherwise, such vacancies will be
carried over and filled in on the result of the next year's exam ination from among the
candidates in whose quota the vacancies are so reserved."
Learned counsel has also referred to the office memorandum issued by the Establishment
Division (Training Wing) of the Government of Pakistan dated 19th March, 1991 ("the
Memorandum") contents whereof are reproduced hereunder: ---
"(a) In the first phase, Establishment Division will issue telegrams to all the candidates
allocated to various occupational groups/services with the advice to each candidate that
he/she should con vey his/her acceptance of the offer within 15 days from the date of issue of
telegram failing which allocation will be treated as cancelled and the vacancy will be offered
to the next eligible candidate. Simultaneously, the allocations made by the FPSC wil l also be
announced in all the leading newspapers with similar advice to the candidates.
(b) In the second phase the vacancies occurring due to non -acceptance of offer within 15 days
of the announcement will be reported to the FPSC for completing re -allocation before the
commencement of the common training programme at the Civil Services Academy, Lahore.
Any vacancy occurring after the start of the common training will be carried over to the next
competitive examination.
(c) The announcement of initial allocation shall be made 45 days before the commencement
of common training at CSA to ensure timely completion of both the phases indicated above."
Learned counsel states that in view of the offer being declined by Mr. Baloch the
petitioner ou ght to have been offered the position rather than carrying forward the ML&CG
seat to the next competitive examination. Learned counsel has also placed reliance upon the
following cases: --
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress AIR 1991 SC 101
Ahmed Yar Chohan v. Federal Public Service Commission 1998 MLD 1832
lkram Bari v. National Bank of Pakistan 2005 SCMR 100
Federation of Pakistan v. Muhammad Tayyab 2006 SCMR 326
3. Learned Deputy Attorney -General has opposed the petition as the sam e and contends that
it is not maintainable in view of the Rules and the Memorandum. He further has states that
the petitioner had an adequate, alternate and efficacious remedy which was not availed as the
petitioner did not file either a representation to the Federal Public Service Commission
("Commission"), review to the Commission or appeal before the High Court respectively
under clauses (a) (b) and (c) of subsection (3) of section 7 of the Federal Service Commission
Ordinance, 1977. He also places relia nce upon an unreported judgment dated 23rd
November, 2005 passed in Civil Appeal No.1615 of 2005 of Hon'ble Supreme Court,
authored by Mr. Justice Nasir -ul-Mulk, and another unreported order of a Divisional Bench
of Lahore High Court in I.C.A. No.498 of 20 10 dated 10th November 2010.
4. Messrs Liaquat Ali, Tauqeer Ali Akbar, Najeebullah Khan, Aminullah, Muhammad
Ibrahim and Abdul Wali Khan have filed an application under Order I, Rule 10, C.P.C.
(C.M.A. No.2930 of 2011) seeking to be joined as respondents . They however state that they
do not seek formal amendment of the petition and want the petition to be disposed of on
merits at this juncture. It is their case that they took the CSS written examination on 6th
March 2010 and were the successful candidates from Balochistan and would be adversely
effected if the petitioner's petition is allowed as one of them would be the beneficiary of the
seat which has been carried forward to their year. They further requested for early disposal of
the matter as the 39th Common Training Program in respect of their batch would commence
from 14th November, 2011. Accordingly, the petition is admitted to regular hearing by
consent and the application allowed, as the applicants are proper and necessary parties, and
we proceeded to hear the case. The office is directed to insert the names of the persons
mentioned at page No.2 of C.M.A. No.2930 of 2011 respectively as respondents Nos.4, 5, 6,
7, 8 & 9 and to place the same as an amended title to the petition.
5. We have gone thr ough the above mentioned judgment authored by Mr. Justice Nasir -ul-
Mulk and reproduce the following paragraph No.5 there from, which is relevant to the present
case: --
"5. the Office Memorandum dated 19 -3-1991 issued by the Establishment Division (Traini ng
Wing), the subject of which is reallocation against the vacancies caused by repeaters and non -
joinders', expressly provides "Any vacancy occurring after the start of the common training
will be carried over to the next Competitive Examination" the admit ted position is that the
30th common training commenced on 28 -7-2003 and the seat surrendered by Tanvir
Ahmed Odhu had fallen vacant on 22 -12-2003. Thus in terms of Office Memorandum of
19-3-1991 the same had to be carried over to the next examinat ion, which was accordingly
done. No doubt the said rule has no statutory sanction, however there is no statutory rule,
provision, on the subject of reallocation of vacancies, and for that matter there is also no rule
providing for the filling up of vacanci es from the candidates who had issued the examination
in which the vacancy had occurred. This appears to have been only a practice as mentioned in
Saeed lqbal Wahala's case. The same has been done away with by the Office Memorandum
issued by the Establishm ent Division, the Department of the Federal Government concerned
with matters pertaining of federal services. The instructions given therein are not contrary to
or inconsistent with any statutory provisions or rules. Such instructions have legal status and
thus are to be followed, moreso in preference to a practice (see Fazal Qadir v. Secretary
Establishment Division ibid). It may be noted that the policy of carrying over vacancy to the
next Competitive Exam has been consistently followed and declared in of fice memorandums
since the year 1987."
On the other hand the judgments cited by learned counsel for the petitioner are on general
principles of law, which are not attracted in the present case.
6. Admittedly, the petitioner did not partake of the six m onths Common Training Program,
which commenced on 13th January, 2011. Surprisingly, the petitioner also did not approach
this court soon upon learning that the subject seat had been carried forward. Learned counsel
for the petitioner has sought to explain lathes by placing reliance upon letter dated 14th
January, 2011, wherein a request was made by the petitioner that the vacated seat of Mr.
Asfandyar Baloch be offered and allocated "as per government policy" to the next candidate
and urgency was reflected in such letter since the 38th Common Training Program had
already started on 13th January, 2011. Learned counsel states that the petitioner received a
reply to his request vide letter dated 28th February, 2011 of the Cabinet Secretariat
Establishment Divis ion, Government of Pakistan, relevant portion whereof is reproduced
hereunder: ---
"As regards the vacancy of ML&CG which occurred on 13 -1-2011 due to non -
acceptance of offer of appointment by Mr. Asfandyar Baloch, FPSC is of the view th at this
vacancy is required to be carried forward to the next Competitive Examination in terms of
Government Policy contained in this Division O.M No 1/29/87 -T-V dated 29 -3-1991 because
38th CTP has since been started w.e.f. 13 -1-2011."
A typographical e rror appears to have crept in the above letter where the O.M. letter's dated is
mentioned as '29 -3-1991' instead of 19 -3-1991. The petitioner also received a reply from the
Federal Public Service Commission dated 15th March, 2011 (relevant portion of which ) is
reproduced hereunder: ---
"Reference your request dated 14 -2-2011, on the above subject and to invite your attention to
para 20 of the Instructions to Candidates of CE -2009, reproduced below: ---
"After the final results of the Examination have bee n announced by the Commission, all
communications regarding physical examination, appointment on the results of the
examination, etc. should be addressed direct to the Cabinet Secretary (Secretary,
Establishment Division) and/or the respective Ministry/Div ision of the Government of
Pakistan as the case may be."
Apparently, the petitioner not being satisfied with the reply of the Commission wrote another
letter to the Commission and the Commission vide its letter dated 25th March, 2011
reiterated its earli er position and concluded by stating, "no further correspondence on the
subject matter will be entertained".
7. The petitioner filed this petition on 31st May 2011 and he has failed to explain why he
waited for so long before approaching this court. In a ddition he also has to explain why he
failed to join the six candidates who submitted application to be arrayed as respondents.
These applicants/respondents had a legitimate expectancy to be selected to the seat carried
forward and as such ought to have be en arrayed as parties. They had taken their written
examination on 6th March 2010 and their results were published in the newspaper dated 15th
October, 2010, which was considerably before filing of the petition. We are of the view that
the petitioner has n ot satisfactorily overcome either of these two hurdles and on these points
alone the petition is not maintainable.
8. We, however, proceed to determine the remaining point, whether the official respondents
or any one of them had acted in an illegal and u nlawful manner in not offering the seat to the
petitioner and or violated the Rules and or the instructions/policy contained in the
Memorandum. Rule 7 (supra) of the Rules stipulates that if any vacancy cannot be filled "by
reason of failure of candidates to pass the qualifying standard or otherwise such vacancies
will be carried over and filled in on the result of next year's examination from among the
candidates in whose quota the vacancies are so reserved" (emphasis added by us). The
Memorandum also stat es as much. The respondents have complied with the Rules and the
Memorandum and placed the vacancy in the next year. Another difficulty comes in the way
of the petitioner as he has not partaken of the 38th Common Training Program. The action of
the officia l respondents under the circumstances cannot be construed as illegal or unlawful to
warrant interference by this court acting in its constitutional jurisdiction. In view of the
aforesaid the question whether the petitioner ought to have filed a representat ion, review or
an appeal becomes immaterial and is not dilated upon.
9. Therefore, for the aforesaid reason the petition is dismissed and ad interim order stands
vacated.
S.A.K./151/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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