' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:- "In view of above, it is very humbly prayed that by accepting this writ petition the advertisement in Daily "Khabraitz" dated 8-10-2011 up to the extent of serial No,2 the post of Chief Officer B-17 may kindly be declared against the law and judgment of the Hon'ble Court and the respondents may kindly be directed to conduct test and interview on the basis of advertisement dated 4-1-2009.
Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be granted."
2. The petitioner is first class state subject who is domicile holder of District Kotli and serving as Chief Officer Municipal Committee, Sehnsa, B-17 on ad hoc basis. The disputed post of Chief Officer was advertised in Daily "Pakistan" dated 4-1-2009. The petitioner applied for the same, however, without completing selection process his ad hoc appointment was set at naught and one Sardar Arshad Mehmood was appointed on ad hoc basis. The petitioner filed a writ petition before this Court which was accepted in the manner that Local Government Board-respondent was directed to conduct test and interview within 60 days on the basis of advertisement dated 4-1-2009, with further direction that till then ad hoc appointment of petitioner would continue, vide judgment dated 10-9-2009. Against the judgment supra the latter ad hoc appointee Sardar Arshad Mehmood filed Civil P.L.A. No,263/2009 which was dismissed by the apex Court vide order dated 27- 7-2010. The respondents, however, failed to conduct test and interview on the basis of advertisement dated 4-1-2009 as directed by this Court vide judgment dated 10-9-2009. After pretty long time the respondents, inter alia, re-advertised the disputed post in Daily "Khabrian" dated 8-10-2011. The petitioner has challenged vires of the above advertisement with direction to the respondents to conduct test and interview on the basis of earlier advertisement dated 4-1- 2009 through the instant writ petition.
3. The respondents were directed to file parawise comments vide order dated 13-10-2011. After obtaining numerous opportunities comments were filed on 14-5-2013. It is stated that on the basis of judgment of this Court in case of Asim Mehmood and others v. Azad Government and others, dated 25-9-2012, upheld by the apex Court vide order dated 12-10-2012, test and interview of the posts of Chief Officer B-17, including the disputed one, were conducted in accordance with the impugned advertisement dated 8-10-2011. The petitioner also participated against the advertised posts that appeared in written examination and interview before the concerned selection committee. However, on the basis of test and interview supra conducted by the respective selection committee, the petitioner could not be placed in the list of successful candidates, therefore, could not be succeeded, hence, was not appointed against the disputed post.
4. The writ petition was yet at the stage of preliminary arguments when intervener Afraz Hamza moved an application, for allowing opposing the writ petition, on 6-5-2013. It is stated in the application that all the posts of Chief Officer B-17 were advertised in daily News on the basis of direction given by this court through judgment dated 25-9-2012 and after due process he was appointed on recommendation of selection committee vide order dated 12-4-2013. However, due to stay order granted by this Court in favour of petitioner, the intervenor was not allowed by the concerned authority to join the post. It is urged that petitioner participated in test and interview conducted by the selection committee who failed, therefore, could not be appointed against the post in question and craved for dismissal of writ petition.
5. The petitioner, Muhammad Waqas appeared before the Court in person on 16-5-2013 and admitted that he applied for the disputed post of Chief Officer Municipal Committee B-17 and participated in test and interview, however, merit list was not issued, therefore, representative of Local Government Board was directed to produce relevant record vide order dated 16-5-2013. The record pertaining to merit list was accordingly produced which was examined in presence of both the learned counsel for parties in open Court. A perusal of the same reveals that petitioner obtained 91.43% marks and placed at Serial No,19 vis-a-vis to intervener who obtained 111.11 marks and placed at serial No,5 of the merit list.
6. The learned counsel for petitioner, Mr. Sadaqat Hussain Raja, vehemently argued that the respondents .Were directed by this Court to obtain test and interview within 60 days, by maintaining stop-gap arrangement, vide judgment dated 10-9-2009, which was upheld by the apex Court vide order dated 27-7-2010. However, the official respondents deliberately violated Judgment and order supra while re-advertising the disputed post, therefore, quashment of the impugned advertisement dated 8-10-2011 will serve the ends of justice and submitted for admission of writ petition.
7. The, learned counsel for respondents, Mr. Mushtaq Ahmed Janjua, strenuously argued that petitioner on the basis of advertisement dated 8-10-2011 applied for the post in question, participated in test and interview consequently failed, therefore, admission of writ petition will be futile exercise.
8. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, examined appended documents and award list produced by the representative of Department with utmost care.
9. A contemplate perusal of record reveals that petitioner was appointed as Chief Officer Municipal Committee, Sehnsa, on ad hoc basis, vide order dated 4-12-2007. His appointment was thereafter extended on 25-8-2008. Meanwhile, the disputed post was advertised for permanent induction through daily Pakistan dated 4-1-2009. The petitioner applied for the same. A summery for his further, extension as ad hoc appointment was moved, on 24-1-2009. However, contrary to recommendations of department, another candidate Sardar Arshad Mehmood was appointed on ad hoc basis, vide order dated 7-4-2009. The petitioner was constrained to file a writ petition before this Court on 15-4-2009, which after hearing was accepted, vides judgment dated 10-9- 2009. The Local Government Board-respondent was directed to conduct test and interview of disputed post on the basis of advertisement dated 4-1-2009 and then make appointment of suitable candidate on the basis of merit and recommendation of appropriate selection authority within 60 days. The ad hoc appointment of petitioner till regularization of the post was also directed to remain intact. It appears from record that despite elapsing more than two years, the petitioner continues his ad hoc appointment who failed to make any attempt for implementation of judgment dated 10-9-2009. Meanwhile, inter alia, the disputed post was advertised by Local Government Board through proclamation dated 8-10-2011. The vires of the above mentioned advertisement was challenged before this Court through Writ Petition No,1784 of 2012 in case titled Asim Mehmood and 4 others v. Azad Government and others which were decided vide judgment dated 25-9-2012. Through the Division Bench judgment supra the respondents were directed to fill in all the posts on the basis of merit and recommendations of respective selection authority. The respondents, therefore, initiated selection process. It is an admitted fact that petitioner also applied for disputed post, appeared in A written test and interview before the concerned selection authority. After obtaining test and interview, a merit list was prepared in which petitioner was placed at serial No, 19 while intervener was inserted at serial No, 5 of the same. As the petitioner himself applied for the post in question and participated in the selection process, therefore, lie cannot claim that the post in question be filled in on the basis of earlier advertisement dated 4-1- 2009, as directed by this Court vide judgment dated 10-9-2009. By participating in subsequent selection without protest of any kind, the petitioner must be deemed to have waived his rights in respect of selection likely to be held on the basis of earlier advertisement dated 4-1-2009. The petitioner treated the matter of selection on the basis of previous advertisement as past and closed transaction by unconditionally taking part in the second selection. An identical point came under consideration before the apex Court of Pakistan in case reported as Dr. Habibur Rehman v.
The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144). At page 150 of the report, it was held by their lordships as follows:--- "By participating in this selection without protest of any kind, the appellant must be deemed to have waived his rights and grievances in respect of the first selection held by the Commission in 1965. It is signtficant that in Writ Petition No,955-S of 1968, as originally instituted, only Dr. Agjee was cited as a respondent from among the successful candidates, and the names of Dr. Fazal Elahi and Dr. Gardezi were added much later only for the reason that the method of selection adopted by the Commission was also being challenged, but no relief was sought against them. In these circumstances, we are inclined to hold that this writ petition was not maintainable as the appellant had treated the matter of the first selection as past and closed by unconditionally taking part in the second selection."
I respectfully follow the view laid down in.The precedent case supra, that by participating in subsequent selection process, that too without any protest and against the judgment of this Court, dated B 10-9-2009, the petitioner has waived his rights, if any, of selection on the basis of previous advertisement, therefore, not entitled for discretionary relief of extraordinary constitutional jurisdiction.
10. The petitioner was admittedly appointed as Chief Officer Municipal Committee on ad hoc basis vides order dated 4-12-2007. The post was advertised for permanent induction on 4-1-2009. The direction was given by this Court in writ petition filed by the petitioner that the post in question be filled in within 60 days vide judgment dated 10-9-2009. The petitioner did not bother to file any application despite elapsing more than 2 years period for implementation of the above judgment.
It appears that he had determined to continue his ad hoc appointment against command of the Court. However, after pretty long time when the disputed post was re-advertised through impugned proclamation dated 8-10-2011 he invoked jurisdiction of this Court with unclean hands. It is settled principle of law that constitutional jurisdiction is discretionary in nature. He who seeks equity must come with clean hands. The petitioner Muhammad Waqas, has not approached the Court with clean hands. The selection process and appointment of intervener E have also not been challenged through regular proceedings. Therefore, I am not inclined to exercise discretionary constitutional jurisdiction in favour of petitioner. The same point came under consideration before the Hon'ble Supreme Court in case titled Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.)
141. At page 144 of the report it was held as follows:--- "This is well settled principles of law that a person seeking redress of his grievance by resorting to the writ jurisdiction, must come with clean hands. If it is found that the person seeking relief by way of writ petition has no legal or moral case, then irrespective of the fact that the Chief Secretary or, for that matter, any other departmental authority is bound to obey the orders of the Prime Minister, the High Court may refuse to issue a writ of mandamus in exercise of its discretionary powers vested in it. As the order which was sought to be implemented by the appellants was passed in violation of the principle of 'audi alteram partem', the High Court could rightly refuse to issue a writ of mandamus for the implementation of the same irrespective of the fact as to whether the Secretary Works was bound to carry out the same or not. The writ jurisdiction cannot be exercised in perpetuation of an illegal order."
' The similar view was expressed by the Lahore High Court, in case titled Iqtedar Hyder v. Bank of Punjab through its Chairman and another (2001 MLD 1537). At page 1540 of the report it was observed as under:--- "It is also settled principle of law that he who seeks equity must come to the Court with clean hands. It is pertinent to mention here that decree was passed against petitioner on 12-9-1998 and petitioner did not agitate the same before this Court by way of appeal nor filed any objection petition before the executing Court. In this view of the matter I am not inclined to exercise my discretion in favour of petitioner as the law laid down in Nawabzada Ronaq Ali's (PLD 1973 SC 236)."
' The aforesaid view was reiterated by the Lahore High Court, in case titled Khalid Bashir Bhatti Secretary General, Pakistan Amateur Basketball Federation v. Pakistan Sports Board through Director-General, Pakistan Sports Board Complex, Aabpara, Islamabad and 2 others (2002 CLC 1017). At page 1021 of report it was held as follows:--- "It is settled principle of law that Constitutional jurisdiction being equitable jurisdiction cannot be exercised in favour of a person who has come to Court with gross negligence."
11. For the reasons enlisted above the admission of writ petition will IF be futile exercise, hence, finding no force, the same is hereby dismissed in limine.