2005 PLP 1760 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 17-6-2004 passed by learned Lahore High Court, Lahore, whereby the writ petition preferred on behalf of respondent has been accepted by setting aside the notification of even number dated 29-10-2003 with the direction that the respondent be appointed against one of the seats allocated to the Azad Jammu and Kashmir for the year 2002.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that `for the purpose of filling up the vacancies for the Civil Services of Pakistan, the FPSC, issued a public notice for conducting the CSS Examination, for the year 2002, to be held in the year, 2003. As per the advertisement, besides the general seats, special quota was allocated to the four Provinces of the Pakistan, as also the AJ&K, which in the case of latter is 2%. The total vacancies to be filled, as has been apprised by learned D.A.-G. in the Court today, and affirmed by the representatives of the FPSC and also the Establishment Division, were 159 and the quota for the AJ&K in the normal circumstances, was three seats. The petitioners along with the other contestants of the same category, appeared in the examination for the AJ&K's quota and according to the counsel for the petitioner, he is at. No.2 on the merit list. This position is not disputed by the respondents. However, a couple of days, before the result was declared, the respondent No. 1, issued the impugned press note dated 30-10-2003, envisaging that pursuant to paragraph No.II of the Rules of Competitive Examination, 2002, the seats for the AJ&K have been reduced to one. Thus, on account of this reduction, the petitioner, who otherwise was qualified for the appointment, on merits, has been deprived. Hence this petition.

3. After having heard Mr. Nasir Saeed Sheikh, learned Deputy Attorney-General on behalf of petitioners and Rana Naeem Sarwar, learned Advocate Supreme Court for the respondent, we are inclined to convert this petition into appeal by granting leave on the following points:-- (i) Whether the Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan as conferred upon the High Court could have been invoked in view of the alternate remedy as envisaged under section 7(3)(a) and (b) of the Federal Public Service Commission Ordinance, 1977? (ii) Whether the provisions as contained in Rules 7 and 11 of the Rules for Competitive Examination,. 2002 have been misinterpreted and misconstrued by decreasing the 2% quota meant for Azad Jammu and Kashmir? (iii) Whether the order passed in Writ Petition No.2765 of 1997 in case Mst. Asma Roohi Shah v. Hassan Kamran Bashir has been followed in its true perspective as no direction was given to accommodate Mst. Asma Roohi Shah and due to such accommodation the respondent cannot be deprived of the vacant/available seat of previous year against 2% quota meant for Azad Jammu and Kashmir? (iv) Whether an upto date and proper record has been prepared in accordance with prevalent rules indicating plus and minus fraction details qua all the divisions and distribution of available posts has been made in transparent manner by strictly following the allocated quota or otherwise? (v) Whether the provisions as contained in Article 240 read with Article 275(1) of the Constitution of Islamic Republic of Pakistan are being complied with strictly or otherwise which, inter ilia, provides that "the appointments to service of Pakistan and the conditions of service of persons in the service of Pakistan shall be determined in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan' Services by or under an Act of Parliament", and the dictum as laid down in Humayun Saifuliah Khan v. Federation of Pakistan PLD 1990 SC 599? (vi) Whether O. M. Nos.28 and 29 are in violative of the provisions as contained in Rules 7 and 11 of the Rules for Competitive Examinations, 2002? Keeping in view the career of respondent and significance of the matter, this appeal may be fixed soon after vacation. M.B.A./F-37/S Leave granted.