' ABDUL LATIF KHAN, J.--- Sumaira Umar Awan, petitioner seeks the indulgence of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:-- "In wake of above submission it is respectfully prayed that on acceptance of this writ petition the appointment order of respondent No,5 may kindly be declared as illegal and void and petitioner may kindly be appointed on the post of Game Supervisor. "
2. Learned counsel appearing on behalf of the petitioner contended that the Registrar, Gomal University, D.I.Khan floated an advertisement in daily Ausaf dated 22-7-2011 for filling of various posts in different pay scales and the last date for submission of applications was 19-8-2011. He contended that the petitioner applied for the post of Game Supervisor (BPS-11) as she was eligible both in qualification and experience for the post. He contended that the test and interview held for the post was qualified by the petitioner and stood first as per the merit list prepared after screening test and. after the viva voce held on 25-1-2012, another merit list was prepared wherein she has been shown at serial No,2 and one Miss. Farhana lqbal was shown to be at the top of the list. He contended that the said Miss. Farhana lqbal did not join the service and the petitioner being on the top is entitled to be appointed against the post applied for.
3. Mr. Akbar Ali Khan Barakzai, Advocate appeared on notice in C.M.No,108-D of 2012 on behalf of the respondents and contended that the petitioner had submitted certificate with regard to her experience with effect from 17-9-2006 to 14-7-2011 which is not correct, for the reason, that she remained student of the University during that period, however, he was unable to meet the situation as to why the petitioner has been ignored despite her top position due to the relinquishment of seat by the topper, Miss. Farhana lqbal.
5. We have given our deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.
6. The perusal of the record shows that the petitioner stood first in the screening test as per the list, pro forma for evaluation/marking system for selection of lower staff BPS-5 to 16, prepared by the respondents University. She has been shown at serial No,l. However, after the viva voce held on 25- 1-2012, a subsequent merit list was prepared on the basis of test and, interview for the post of came Supervisor (BPS-11) which reveals that the petitioner was shown at serial No,2. However, one Miss. Farhana lqbal shown at serial No,1 had opted not to join the service, therefore, in such eventuality, the petitioner substituted her and became the topper of the merit list.
7. The successful candidate, being topper, did not join and the seat became vacant which entitled the next candidate as per waiting list to be offered the post and the same cannot be kept waiting and the department is under the obligation to consider the runner candidate for appointment against the post. The contention of the learned counsel for the respondents that the selection made with regard to the appointment of a candidate, shown at serial No,1, topper of the list, in case of non-joining, would not entitle the next candidate for appointment as the merit list stands exhausted, does not hold water. The hectic drill of subsequent requisitions in ordinary course to re- advertise the vacancy would on one hand frustrate the procedure adopted and on the other, would deprive the successful candidate appearing at serial No,2, in favour of whom a vested right has been accrued.
' In case titled Government of N.-W.F.P through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCM R 382), the honourable apex court observed that:--- "We are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts. Such posts cannot be kept vacant till the next process of recruitment, if some of the selected candidates were still available on the waiting list. In this view of the matter i.e, four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of seats."
8. The respondents have admitted the positions of the petitioner being at serial No,1 and serial No,2 in both the merit lists respectively, however, could not justify as to why the petitioner has not been offered being topper, after the relinquishment of post by the one who topped in final list. The argument of the learned counsel for the respondent with regard to the correctness or otherwise of the experience certificate of the petitioner stands rebutted through the comments filed by them wherein the petitioner has been held as qualified for the post of Game Supervisor and was placed in second position in the merit list. Her good academic career has also been accepted by them.
The claim of the petitioner is that a candidate shown at a lower pedestal than her has been appointed against the post which is liable to be cancelled as the petitioner is meritorious than any of the candidates in field including the one illegally appointed.
9. For the aforestated reasons, we, therefore, admit the instant petition and allow the same with the direction to the respondents to appoint the petitioner against the post applied for in the light of merit list prepared by them, being meritorious amongst the candidates, with immediate effect.