SHAKEEL AHMAD, J.---Nafeesullah petitioner herein through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks direction in the nature of mandamus to the respondent No.3 to appoint him as Junior Clerk in BPS-5 and also to declare the refusal of the respondent No.3 in this behalf as illegal, without lawful authority , without jurisdiction and void ab-initio.
2. The facts, in brief, giving rise to this petition are that pursuant to the public advertisement appeared in the Press, the respondent No. 3 invited applications for appointment as Junior Clerk BPS-5 on the terms and conditions mentioned therein. It is pertinent to mention here that number of posts were 05. The petitioner having requisite qualifications applied for the same, competed with others, and secured 6th positio n as is reflected from the merit list prepared by the respondent No.3, appended with the writ petition at page-19. One of the successful candidate namely-Shahid Rasul whose name appeared at Serial No.5 of the merit list, did not join the service and the petitioner being at Serial No.6 is entitled to be appointed against the post left vacan t by the said Shahid Rasul, and such post remained vacant, and he has refused appointment for no cogent reason, which necessitated to file the present petition.
3. It has been argued by the learned counsel for the petitioner that the successful candidate at Serial No.5 of the merit list did not join the service and left the post vacant, thereafter , petitioner being at Serial No.6 is entitled to be appointed against the post applied for .
4. Conversely , the learned Addl: A.G appearing on behalf of the respondents contended that no doubt the candidate at serial No.5 Shahid Rasul relinquished the seat, however , the vacant post is to be re-advertised to be filled through open competition, he failed to answer as to why the petitioner has been refused appointment being next on merit.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record with their able assistance.
6. Perusal of the record reveals that, the petitioner secured 6th position in the open competition held by the respondents for appointment as Junior Clerk (BPS-05). However , one Shahid Rasu l whose name appears at Serial No.5 of the merit list did not join the service; in such a situation the petitioner substituted him being next on merit.
The contention of the learned Addl: A.G representing the respondents that candidate, Shahid Rasul at serial No.5 of the merit list, in case of non-joining, would not entitle the next candidate for appointment once the selection is made from the merit list stands exhausted and for fresh appointment the post is to be re-advertised, has not impressed us as it negates the most cherished objective of meritocracy . The petitioner being next on merit list, has earned legitimate expectancy and is entitled to be appointed which could not be denied to him. If the respondent No.3 is permitted to fill the post afresh through fresh advertisement, it would on one hand deprive the petitioner from his acquired right and on the other , would defeat the golden principles of fairness, reasonableness and justness. In this behalf reference can be made to the case reported as Government of NWFP through Secretary Education Department Peshawar and others v. Qasim Shah (2009 SCMR 382) wherein the Hon'ble Supreme Court of Pakistan observed as follows:- "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."
7. In this respect reliance can also be placed on the case reported as Sumara Umar Awlan v. Chancellor Gomal University , D.I. Khan and 4 others (2014 PLC (CS) 526 ), wherein it was held as under:- "Constitution of Pakistan-----Art.199---Constitutional petition---Civil service---Appointment---Non-joining of service by successful candidate--Effect ---Right of appointment of runner up candidate (came at Serial No.2)--- Scope---Petitioner applied for the post of Game Supervisor ---Merit list was prepared on the basis of test and interview---Petitioner came at Serial No.2 on merit list---Candidate shown at Serial No.1 did not join the service--- Petitioner claimed herself as topper of the merit list and claimed appointment---Authorities refused to appoint petitioner ---Contention of the Authorities was 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 stood exhausted---V alidity--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 could not be kept waiting and the department was under the obligation to consider the runner candidate for appointment against the post---Hectic drill of subsequent requisition in ordinary course to re-advertise the vacancy would on one hand frustrate the procedure adopted and on the other , would deprive successfu l candidate appearing at serial No.2, in favour of whom a vested right had been accrued--- Department was directed to appoint the petitioner , in circumstances---Constitutional petition was allowed"
8. The view, that, when a person comes on merit list through a selection process, he acquires a right to be entitled for appointment is further supported by the pronouncements of superior Courts in the cases reported as Muhammad Ismail and others v. Secretary Education Government of Punjab and another (2000 PLC (C.S.)
112 LHC), Secretary of Government of NWFP C&W Dorm: and 3 others v. Jamal Abdul Nasir (2003 PLC (C.
S.) 977 Supreme Court of Pakistan), Muhammad Naeem Sadiq v. Board of Intermediate and Secondary Education Gujranwala through Chairman and others (2003 PLC (C. S.) 1309 LHC) and Ikramullah Saeed v.
Chief Secretary Government of NWFP Peshawar and 3 others (2004 PLC (C. S.) 626 PHC) .
9. The whole edifice of governance of the society has its genesis in the constitution and laws, aimed at to establish an order inter-alia ensuring the provision of Socio Economic Justice, so that the people may have the guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. It may be stated here that the Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973, the principles and provisions positioned in the objective resolution have been made substantive part of the Constitution of Islamic Republic of Pakistan, 1973. Fundamental rights .guaranteed under chapter-1, principles of policy mentioned in Chapter-2 of the Constitution read with Article-4 have such a rationale and objective. Principles of policy hold the same place as the principle of equity , justice and good conscience. This Court being creation of the Constitution is under obligation to administer and dispen se justice to all be it an ordinary citizen or Government Department. It is duty of the Court to decide the cases, adhering to the provisions of the Constitutio n and law applicable thereto. It will be advantageous to reproduce Article-18 of the Constitution of Islamic Republic of Pakistan, 1973, which reads as under:-
18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful trade or business: Provided that nothing in this Article shall prevent-
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Gover nment or a Provincial Government, or by a corporation controlled by any such Government, or any trade business, industry or service, to the exclusion, complete or partial, of other persons.
In the context of this case, since the petitioner fulfilled the requisite qualification, criteria and had successfully passed through all the stages of selection and had come on merit he acquired a right entitling him to appointment.
10. Thus, examining the matter from any angle we are led to the conclusion that petitioner has been deprived of the appointment to the post applied for by him on untenable grounds and having secured 6th position; he was entitled to be appointed against the post left vaca nt by one. Shahid Rasul, who had secur ed 5th position. Resultantly , this writ petition is admitted and allowed, the action of the respondent No.3 refusing to appoint the petitioner as Junior Clerk (BPS-5) is declared as illegal and of no legal effect and direct the responden t No.3 to consider the petitioner for appointment against the post applied for , with immediate ef fect.