Brief facts of the case are that petitioner, or pursuant to the advertisement made by respondent No. 2, applied for the post of Junior Clerk BPS-7. According to the award list prepared by the recruitment committee, petitioner stood at Serial No. 2, securing 89 Marks. The candidate whose name was at Serial No.1 was appointed but he did not report for duty till 18.08.2009 therefore his appointment was cancelled. Later department converted the position of petitioner from Serial No. 2 to Serial No. 3. Even the second one at the merit list also did not join duty. Petitioner filed numerous applications before respondents, but the same were not considered, as a result of which petitioner was constrained to file W.P. No. 6346/2009 before this court, which was disposed of with the following observations:- "In view of the above, a copy of this petition along with all its annexures is transmitted to District Coordination Officer, Muzaffargarh, who shall treat it as an application filed by the petitioner and, after giving an opportunity of hearing to the petitioner, decide the same strictly in accordance with the prevalent policy."
Ultimately, respondent No. 1, vide order dated 05.12.2014, dismissed the application of petitioner on the ground that his name stood at Serial No. 3 of the merit list for the said post advertised for Khan Garh, which had already been filled up after re-advertisement. In view of this background, petitioner has filed the instant petition with the following prayer:- "Under the above submissions, it is prayed that the instant writ petition may very kindly be accepted and the respondents may very graciously be directed to issue the appointment letter of the petitioner as Junior Clerk keeping in view the merit list and superior rights of the petitioner as well as in compliance of the order of this Hon'ble Court dated 02.06.2014 passed in W.P.
No.6346/2009."
2. Learned counsel for the petitioner contends that name of petitioner was mentioned at Serial No. 2 as the petitioner had secured 89 marks, but respondents with malafide intention and ulterior motive changed his marks from 19 to 09, just to disturb the position of petitioner from Serial No. 2 to Serial No. 3, which infact can be calculated from the perusal of merit list. He further contends that the position of petitioner at Serial No. 2 had already been admitted by respondent No. 3 in his report which was called by respondent No. 1 upon earlier application of petitioner. He adds that the head note of respondent No. 3 dated 12.09.2009 was blinking upon the surface of the application of the petitioner; that name of petitioner was at Serial No. 2 in merit list, therefore, petitioner had legal right of his appointment for the said post. He further submits that even the person who fell at Serial No. 2 did not join duty and, thereafter, petitioner became entitled to be considered for the said post in terms of policy / notification dated 19.03.2000 issued by Govt. of the Punjab which clearly laid down that if a person failed to join duty, the next person in merit was to be offered the post.
3. On the other hand, learned A.A.G. contends that respondent No. 1 constituted a committee consisting of respondents No. 2 to 4, whereupon it transpired that petitioner stood at third position in the merit list while in the earlier report he was erroneously shown at second position, owing to a clerical mistake. The candidate of the first position got 25 marks in interview and secured 89 marks in total, and the candidate of second position got 20 marks in interview and secured 79 marks in total, which is admitted by the petitioner in Para No. 3 of his earlier petition (W.P. No.6346/2009). He insists that the petitioner got only 9 marks in interview and secured 78 marks in total and was, therefore, placed on the third position in merit list. The petitioner, having third position in merit list, was not eligible for recruitment. However, admittedly, first and second candidates in merit list did not join the post and competent authority re-advertised the said post, whereupon petitioner again applied for the said post, but failed to appear in interview and typing test. He adds that the competent authority, after going through the legal process of recruitment, appointed successful candidate for the said post and recruited employee is working on the said post for the last four years. He also invoked the doctrine of acquiescence against the petitioner in facts and circumstances.
4. Heard and record perused with assistance of the learned counsel for parties.
5. Perusal of the policy / notification dated 14.03.2009 issued by Govt. of the Punjab clause (xi) of Para No.3 in sub-para (VII) reads as under:- "if a person to whom offer of appointment has been issued, fails to join the post within the period of specified in the said offer of appointment or where a written refusal is received from a selectee, his / her selection shall stand cancelled and next person on the merit list may be offered the job."
The aforesaid provision clearly lays down that a person to whom offer for appointment has been issued, fails to join the post, then his selection will stand cancelled and next person on the merit list is to be offered the job. Reliance can be placed upon the following case law:- i. Govt. of N.W.F.P. through Secretary Education Department, Peshawar and others vs. Qasim Shah (2009 SCMR 382) ii. Shabana Akhtar Vs. District Coordination Officer, Bhakkar and 2 others(2012 PLC (C.S.) 366) iii. Mst. Fauzia Bano Vs. Secretary, Population Welfare Department, Lahore and 2 others(2011 PLC (C.S.) 226) iv. Afshi Ibrahim Vs. District Government, Khanewal through District Coordination Officer and 2 others(2015 PLC (C.S.) 646) v. Tibrak Masood and others. Vs. E.D.O.(E) and others. (2013 PLC (C.S.) 745) vi. Sumara Umer Awan Vs. Chancellor Gomal University, D.I. Khan and 4 others.(2014 PLC (C.S.) 526) vii. Tayyaba Komal Vs. District Coordination Officer, Sialkot and 4 others(2014 PLC (C.S.) 378)
6. In the case titled "Govt. of N.W.F.P. through Secretary Education Department, Peshawar and others vs. Qasim Shah" (2009 SCMR 382), Hon'ble Supreme Court of Pakistan observed in Para 4, as under:- "Having consider the matter from all angles, 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 selected candidates were still available on the waiting list."
In the instance case, admittedly, the candidates who stood first and second did not join duty and in terms of the aforesaid clause of policy / notification and the law laid down by Hon'ble Supreme Court of Pakistan in case of Qasim Shah (Supra), the petitioner was entitled to be considered for the said post, but needful has not been done.
The notification / instruction of the Govt. are to be strictly followed and they carry status of law, if they are not in conflict with any law or the constitution.
7. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 provides protection to the rights of a citizen and guarantees to enjoy protection to the rights and to be treated in accordance with law, which is an inalienable right of every citizen. Article 5 of the Constitution lays a fundamental duty of every citizen including the respondents that they have to obey constitution and law and it is an unavoidable obligation of every citizen. Article 3 of the Constitution clearly states that the State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his liability to each according to his work.
8. Learned A.A.G. argued that petitioner had applied for the post in re-advertisement process, therefore, principle of acquiescence is attracted in circumstances. Suffice to say that acquiescence, as legally understood, does not take place, and where its roots and basis are ignorance or unawareness of one's own rights and entitlements. Mere fact that petitioner had applied for the second time in readvertisement and did not appear in the test and interview, does not constitute acquiescence in the facts and circumstances. Reliance is placed on M/s. Globe Textile Mills Limited vs. Textile Commissioner, Ministry of Industries, Government of Pakistan, Karachi and 2 others.(1993 SCMR 900).
9. The next argument advanced by learned A.A.G. that seat had already been filled up, therefore, because the petitioner could not be recruited in the circumstances, has no force as the failure of the department to appoint the petitioner in the earlier process was not in accordance with the fair practice of recruitment and it is well established principle of law that a person cannot be left to suffer on account of acts of Authority. Reference can be made to the judgment of this Court titled as Tayyaba Komal Vs. District Coordination Officer, Sialkot and 4 others. [2014 PLC (C.S) 378, Para 9] of which reads as under:- "9. As far as the plea of the respondents the process of recruitment under Phase-I of the Recruitment Policy, 2011, having been over, the petitioner cannot be accommodated, is concerned, I am constrained to observe that the way of the justice cannot be allowed to be impeded on the basis of technicalities rather the same should allow to take its due course even the heavens may fall. Reliance in this regard is placed on the cases reported as Federation of Pakistan and others V.
Haji Muhammad Saifullah Khan and others (PLD 1989 Supreme Court 166.)"
10. This hearing of the writ petition has been treated as "Pacca Peshi" with the consent of the parties for the purpose of deciding it.
11. The upshot of above discussion is that this writ petition is hereby allowed and respondent is directed to issue appointment letter to the petitioner.