' HAFIZ TARIQ NASIM, J.--- Brief facts leading to this writ petition are that the petitioner joined Government service as Stenographer in the District Courts, Sargodha on 26-7-1983, then in February, 1987 he joined Lahore High Court, Lahore, as Personal Assistant, improved his qualification and promoted to the post of Private Secretary, Lahore High Court, Lahore. On 28-9-2000 the petitioner joined as Extra-Assistant Commissioner, however, his lien was retained in the Lahore High Court, Lahore as Private Secretary.
2. During the performance of his duties as Private Secretary, the petitioner realized that his date of birth was wrongly recorded as 20-8-1963 instead of 6-6-1965, so the petitioner intimated the Registrar, Lahore High Court through application dated 27-10-1999 and approached Board of Intermediate and Secondary Education, Sargodha for the correction of his date of birth, his request was acceded to and revised matriculation certificate showing his date of birth as 6-6-1965 was issued. Accordingly, the petitioner also applied before the Registrar, Lahore High Court, Lahore for correction of date of birth through application dated 14-7-2000 but his request was declined on 25-8-2000, however, the petitioner's request for correction of date of birth was accepted by the Honourable Chief Justice, Lahore High Court through order; dated 17-4-2003 and that too in response to the petitioner's application dated 14-7-2000 and accordingly correct date of birth was recorded in the petitioner's service record, who is now serving as Special Judicial Magistrate on executive side in the Government of Punjab.
3. The present controversy started when Punjab Public Service Commission advertised certain posts of Civil Judges on 16-1-2000 and the petitioner applied for the same through proper channel mentioning his date of birth i,e, 6-6-1965 (corrected date of birth through revised Matric certificate, dated 11-12-1999).
4. The petitioner was called for written test, he qualified the same, then he was called for interview , and then he was recommended on 12-8-2000 for the post of Civil Judge and his merit came at Serial No,43. Being a legitimate expectant, the petitioner was waiting for the final notification of his appointment but the ill-luck would have been the petitioner received a letter from the Punjab Public Service Commission in the form of show-cause notice alleging that he had provided wrong date of birth, so why his candidature should not be cancelled. The show-cause notice was responded to by the petitioner, however, dissatisfied with his explanation, recommendations were withdrawn by the Punjab Public Service Commission through order dated 117-10-2000. The petitioner tried his luck before different forums and finally he moved before the Honourable Supreme Court of Pakistan for the redressal of his grievance, where his petition was disposed of through order, dated 10-5-2005 in the following words:--- "listed petitions are disposed of with the observation that first of all petitioners may avail remedy before learned High Court under Article 199 of the Constitution and thereafter if need be they may approach this Court under Article 185(3) of the Islamic Republic of Pakistan according to law." ' and after that the petitioner has filed this writ petition.
5. Learned counsel for the petitioner submits that:---
(i) P.P.S.C. Withdrew the recommendations of 12-8-2000 on wrong assumption despite the fact that the petitioner's date of birth was already corrected as 6-6-1965 much prior to inviting the applications; and
(ii) Original order of Lahore High Court declining to correct the petitioner's date of birth when reviewed through order, dated 17-4-2003, no justification rested with the respondent P.P.S.C. To withhold the recommendations and that too on wrong premises.
6. On the other hand, learned Assistant Advocate-General as well as learned counsel for the P.P.S.C.
Opposed the contentions raised by the learned counsel for the petitioner and their emphasis revolves around the point of laches, contending that the petitioner is not entitled for the relief as he slept for a considerable long time and did not agitate promptly.
7. Arguments heard. Record perused.
8. There are certain facts which are not disputed even today by the respondents and those are:---
(i) Petitioner's corrected date of birth as 6-6-1965 was endorsed in the revised Matric certificate by Board of Intermediate and Secondary Education, Sargodha, through order, dated 11-12-1999;
(ii) Applications for the post of Civil Judges were invited by the P.P.S.C. On 16-1-2000;
(iii) Petitioner while applying in pursuance of the advertisement dated 16-1-2000 recorded his date of birth as 6-6-1965;
(iv) Petitioner was called for written test and interview by the P.P.S.C., he cleared the test and was recommended for the post of Civil Judge by the P.P.S.C. On 12-8-2000;
(v) Petitioner being an employee of the Lahore High Court applied for the correction of date of birth in his service record before the Registrar on 14-7-2000, his request was firstly declined, however, later on the then Honourable Chief Justice, Lahore High Court, accepted the said request and correct date of birth as 6-6-1965 was recorded in his service record;
(vi) Correction of date of birth by the Lahore High Court is the result of petitioner's application dated 14-7-2000;
(vii) By the time of withdrawal of recommendations of P.P.S.C. On 11-10-2000, the petitioner's date of birth dated 6-6-1965 was confirmed by the relevant quarters through different endorsements.
9. These factual aspects which are not disputed even today when put in juxtaposition to the withdrawal of recommendations by the P.P.S.C., it shall be crystal clear that practically the petitioner was non-suited with no fault of him rather the petitioner's lawful rights which had already been accrued in his favour were recalled without any justification whatsoever.
10. Virtually after the correction of date of birth in the Matric certificate, after recommendations by the P.P.S.C. In favour of the petitioner for the post of Civil Judge in the year 2000, a lawful right was C accrued in favour of the petitioner which otherwise could not be rescinded or recalled on the strength of well-settled principle of locus poenitentiae.
11. It is now well-settled that a party cannot be made to suffer or to be prejudiced by the act of commission or omission of the public I functionaries. Reference may be made to the observation of late Mr. Justice B.Z. Kaikaus (as his Lordship then was) in the case of Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382.
12. Almost similar situation was dealt with by this Court in case of Fakhar-ul-Islam v. Additional Chief Secretary and others (Writ Petition No,19138 of 1998) decided on 10-3-1999. The writ petition was accepted in the following terms:--- "For the foregoing reasons, the impugned action of the respondents refusing to include the name of the petitioner as one of the selectees of the Punjab Public Service Commission for the post of Extra-Assistant Commissioner is declared to be without lawful authority and of no legal effect. The respondents are directed to process and finalise the case of the petitioner for the post of Extra- Assistant Commissioner with due regards of seniority, etc."
' This judgment was assailed in I.C.A. No,245 of 1999 and the learned Division Bench confirmed the judgment of the learned Single Judge. Dissatisfied with the same Punjab Public Service Commission filed C.P.L.A. No,799/L of 1999 where the leave was refused and the judgment passed by the learned Single Judge/Division Bench of this Court was confirmed, thus, taking strength from these judgments, it is held that writ can be issued in the instant case too.
13. It is also to be noted that if at all it is assumed that at the time of P.P.S.C.'s recommendations the petitioner's employer i,e, Lahore High Court, Lahore did not correct the date of birth as submitted by the petitioner, the fact remains that the wrong was rectified later on, meaning thereby that the basis of non-suiting the petitioner when washed away from the field, no justification rests with the respondents to insist on an action which otherwise cannot sustain in the eye of law.
14. Even in case of dismissal from service on the charges of registration of a criminal case, if the employee is acquitted later on, then the dismissal cannot be insisted to be retained in field as per law laid down by the Honourable Supreme Court in the cases reported as Muhammad Sardar Khan v. Senior Member (Establishment, Board of Revenue Punjab, Lahore 1985 SCM R 1062 and Shmas- ud-Din Khawaja v. Government of Pakistan through Secretary Establishment, Islamabad and 2 others PLD 2003 SC 187. So far the question of laches is concerned, practically the petitioner remained vigilant in pursuing his claim and there is no question of any delay/laches on the part of the petitioner, however, to answer the objection of the learned counsel for the respondents, suffice it to refer the judgment reported as Member Board of Revenue, Lahore v. Khuda Bakhsh and others 2008 SCM R 1189, wherein the matter was resolved in the following terms:-- "we are of the opinion that had Lahore High Court proceeded to examine the merits of the case, then probably fate of the petitioner would have been different."
Relying on this judgment, I myself examined the letter in dispute minutely and have reached at a conclusion that the withdrawal of recommendations by the P.P.S.C. Of dated 11-10-2000 is a nullity in the eye of law and is declared illegal.
15. Now it is to be seen that how the petitioner can be accommodated and for that reliance can be placed on the judgment passed by a Division Bench of this Court in I.C.A. No,143 of 1989 titled as Ghulam Hussain and others v. Province of Punjab and others, which is also confirmed by the Honourable Supreme Court of Pakistan in C.P. No,66-L of 1991, thus following the same, the respondent Punjab Public Service Commission is directed to recommend the petitioner's case for appointment as Civil Judge to the competent Authority, who shall adjust the petitioner with due regard of seniority etc. Against one of the future vacancies which have already been advertised through press in daily "Jang" dated 21-9- 2008 in respect of 99 vacancies of Civil Judges.