' SH. IJAZ NISAR, J.---Leave to appeal is sought against the judgment, dated 6-7-1998, of the Lahore High court, passed in I.-C.A. No,234 of 1998.
2. The relevant fact are that the C.S.S. Competitive Examination, 1996, was conducted by the Federal Public Service Commission to fill certain posts in various occupational groups. Miss Nusrat Batool, petitioner herein, appeared in the said Examination. According to her, the total number of posts against which the appointments were to be made was 186 and as per the result declared on 9-5- 1997, she was placed at serial No,18 in the final merit list. As per recruitment policy of the Federal Government, 10 percent vacancies were reserved for open merit and the remaining posts were to be shared by the candidates belonging to various provinces/areas of Pakistan and Azad Jammu and Kashmir in accordance with the prescribed quota.
' Writ. Petitions Nos. 25431 and 25093 of 1997 were filed in the Lahore High Court by certain candidates challenging the quota system, which were disposed of on 3-3-1998, on the categorical submissions by the learned Deputy Attorney-General that the appointments were to be made strictly in accordance with the law at the time of appointments and the decisions of the superior Courts.
3. Aggrieved by the judgment of the learned Single Judge, Ahmed Yar Chowhan, respondent No,3 herein, filed an Intra-Court Appeal, which came up for hearing before a Division Bench of the Lahore High Court, on 6-7-1998 and was accepted so as a result the order, dated 3-3-1998 passed by the learned Single Judge was set aside and the writ petition filed by F.A Hashim Raza was dismissed. The Federal Government was permitted to make appointments on the basis of C.S.S., Examination in accordance with law and the recruitment policy.
4. The aforesaid judgment of the Division Bench was challenged by Anita Dorab Ali in C.P.L.A.
'No,1211-L of 1998, which was disposed of by this Court as withdrawn on 26-8-1998. Thereafter, Miss Nusrat Batool petitioner herein, who was neither party to the writ petition filed before the learned Single Judge of the High Court nor in I.-C.A, petition to this Court directly, impugning the judgment, dated 6-7-1998 passed by the learned I.-C.A., Bench.
5. The petitioner's grievance is that since she has been deprived of her right to be considered for appointment on merit by virtue of the judgment, dated 6-7-1998, she has not other remedy but to approach this Court.
6. Learned counsel appearing on behalf of the petitioner contended that the appointments made on the quota basis are repugnant to the injunctions of Islam and also ultra vires of the fundamental rights guaranteed by Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 and on this premises pleaded for setting at naught the entire C.S.S., Examination conducted by the Federal Public Service Commission in 1996, or alternatively a direction be issued to the Federal Government/Federal Public Service Commission to make appointments on the basis of merit in which case she expected to be appointed against any of the posts.
7. Hafiz Tariq Nasim, learned counsel for respondent No,3 caveator, has raised certain preliminary objections to the maintainability of the petition. According to him, with the issuance of appointment letters to the successful candidates and the commencement of their training in the Academy, a right has vested in them to be heard before the passage of any order adversely affecting their rights, but the petitioner, according to him, has failed to implead all of them, nor has she furnished the details of those who have suffered or gained by filling up vacancies on the quota basis. The eligibility of the petitioner to challenge the system of examination had also been seriously challenged because of her having acquiesced in it by appearing in the examination held under the quota system.
' He adds that the principle laid down in the case of Mushtaq Ahmed Mohal and others v. The Hon'ble Lahore High Court, Lahore and others (1997 SCMR 1043) was prospective in operation and not retrospective. In support of his submissions, the learned counsel has referred to the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) as affirmed by the Supreme Court of Pakistan in Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) dealing with the case of separation of Judiciary from the Executive the Constitutional period provided for which had expired before the pronouncement of judgment by the Court.
8. The learned Division Bench in the impugned judgment had dealt with the points in controversy at length and referred to certain celebrated judgments delivered by this Court on the interpretation of the Constitutional provisions. The relevant paragraphs of the impugned judgment may be reproduced below:- "Article 1 of the Constitution clearly states that Pakistan shall be a Federal Republic. One of the salient features of the Constitution is the Federal structure as recognised in the case of Mahmood Khan Achakzai and others v. Federation of Pakistan and others (PLD 1997 SC 426). The provisions of the Constitution are to be so interpreted that the legitimate rights and interests of the Federating Units are safeguarded in juxtaposition with the Federation as far as possible. The structure of Federation can be preserved by taking practical steps. A genuine feeling of deprivation of the Federating Units may adversely affect the national unity. The figures/break-up of the posts of C.S.S. Would clearly point to startling consequences if the allocation of the seats on the basis of Provincial quota is not adhered to while appointing duly qualified candidates. All out efforts should be made to remove the disparities and inequalities in the society.
' It would be against the concept of equality if the unequals are treated as equals. The equality can be enforced only among the citizens who are similarly placed. Equality is for equals. Equality of opportunity may be absolute or relative. Absolute equality of opportunity exists where all the contestants are required to overcome the same difficulties, as for example, in a high jump contest the bar is placed at the same height for all the competitions. Relative equality takes into account the 'varying capacities and situations of the contestants' and the difficulty of the task is varied so that the same effort is required of each of the contestants to take benefits of the opportunity; for example, in a handicap race the faster man has to run a longer distance. The circle of inequality cannot be broken by shifting the inequities from one man to his neighbour, The white collared jobs for which the reservations exist are concentrated in intellectual spots. Their availability is meagre and even if adequate do not reach the vulnerable sections of the society. Reservations, after all, seek to mitigate effects of social disadvantages, not to eliminate its causes. .
' The administration of social, economic and political justice is one of the objectives of the Constitution as envisaged by Articles 2A and 37 of the Constitution. The appointments to the All Pakistan Service have always been made having regard to the representation of the Provinces/Regions. Article 36 of the Constitution makes it obligatory on the State to safeguard the legitimate rights and interests of minorities including their due representation in the Federal and Provincial Services. Similarly by Article 37 of the Constitution the State is required to promote with special care, the educational and economic interest of the backward classes or areas. The National Assembly of Pakistan has passed Resolution on 30-6-1998 that the quota system in the country should be extended for another 20 years on a fair and equitable basis and rights of under developed areas and minorities may be protected. Similar provisions are made in the Objectives Resolution which is now a substantive part of the Constitution. The provisions of Article 27 are to be construed in the context of the scheme of the Constitution. It is now well-settled that the personal fundamental and other rights of individuals have to yield to the national interest, collective rights and welfare of the society. Reference may be made to the case of Karachi Building Control Authority and another v. Saleem Akhtar and 2 others (1993 SCMR 1451) and Messrs Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582 at 694).
' We do not consider it necessary to decide another question as to whether the judgment in the case of Mushtaq Ahmed Mohal (supra) would operate retrospectively or not. We may, however, refer the case of Muhammad Akram Sheikh v. Federation of Pakistan (PLD 1989 SC 229). The Hon'ble Supreme Court of Pakistan took the view that notwithstanding the declaration of law by it, the appointments already made in the superior judiciary without advice of the Prime Minister would hold good and its judgment was intended for the future guidance."
9. In the instant case the examinations were held in 1996 before the judgment in the case of Mushtaq Ahmed Mohal (supra) was delivered by this Court. It would be pertinent here if a reference is made to the case of Professor Wiqar Ahmed and others v. Government of Balochistan and another (1990 SCMR 1508), where the effect of the judgment of this Court as reported in the PLD 1987 SC 304, in the service matter, was held to have prospective effect and not relevant to the case already concluded or decided. The substance of observations in Sharaf Faridi's case on the point of separation of Judiciary from the Executive was also to the same effect. According to the petitioner, appointments are being made illegally as the quota system stood abolished since 1993.
If her plea is accepted, the appointments made between the years 1973 to 1996 will also be open to a challenge which may cause chaos and lead to serious complications. In this context a reference may be made to the Multiline Associates' case, PLD 1995 SC 423, wherein it was observed that in exercise of the Constitutional jurisdiction the Court has to see that discretion is exercised in such a way that mischief and chaos is prevented and it should be exercised only when absolutely necessary, for injudicious exercise of this power might result in grave and serious consequences.
10. Now coming to the competency of the petitioner to invoke the Constitutional jurisdiction after appearing in the examination conducted under the quota system, reference may be made to Maqbool Ahmed Maqbool v. The Province of Punjab and others (1971 SCMR 727) wherein a person impugning authority of single Members of the Public Service Commission to hold interview of candidates was not considered to be an aggrieved person, so as to entitle him to seek Constitutional remedy because he himself voluntarily appeared before him and had made no objection then regarding his competence. Hafeezud Din v. Khadim Hussain (PLD 1965 (WP) Lahore 439) is another authority on the point wherein it was observed:-- "It is a wholesome doctrine of law that a party cannot be allowed to play fast and loose; blow hot and cold and approbate and reprobate to the detriment of his opponent. Where a person knowingly and wilfully invites the Court to adopt a procedure, he cannot be permitted to turn round and blame the Court for the very same procedure which he himself invited the Court to follow.
When the conduct of the applicant has been such as to disentitle him to the assistance of this Court no writ can be issued at his instance even though the impugned order may in fact be found to have been passed by the authority concerned without any jurisdiction. It is not that the order under attack has been clothed with any legality but because of the fact that the mouth of the person who has acquiesced in it is shut against it and in equity he cannot be heard to say anything against it. The Court will refuse to exercise its discretion in his favour in those circumstances. A person can be said to have acquiesced when he was aware or could have been aware of the defect of jurisdiction in the Tribunal with the exercise of due diligence but did not object to the usurpation of the power by the Tribunal and invited it to exercise the jurisdiction which it lacked."
' Begum Zainab Tiwana v. Aziz Ahmed Waraich (PLD 1967 Lah. 977) may also be usefully referred to wherein it was observed that a party acquiescing in erroneous order, irregular proceedings, or defective jurisdiction, is not entitled to question such order, proceedings, or jurisdiction.
' The ratio decidendi of the case titled Malik Muhammad Din v. Fazal Karim (PLD 1968 Lah. 544) also disentitles a person to invoke the Constitutional jurisdiction of the Court if he is found acquiescing in irregular proceedings. It was observed by Anwarul Haq, J., as he then was in this case that:- "In the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it finds that the petitioners himself stood by at the time in the hope that he might achieve a favourable result by participating in the alleged irregular proceedings."
11. There is yet another serious legal flaw in the petition by not impleading all the necessary parties.
The case of Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423) may be cited in this behalf wherein it was observed that a litigant could not be allowed to pick and choose and hold grievance against one particular party.
12. Admittedly, the petitioner had been placed at 186th position amongst the successful candidates as against the total of 185 available posts. She would not have challenged the examination on the basis of quota system, had she been placed at some better position with chances of selection. We are told that in accordance with the judgment of the High Court, the first 185 candidates have been called for training, which is currently in progress and the process of their absorbtion in service has since been started. If the petitioner's plea is accepted now, the training programme would come to a grinding halt and the money which the Government has so far incurred in completing this task would go waste. She may have been well within her rights to challenge holding of the examination on the quota system, had she raised her objection before appearing in the examination.
' It is pertinent to note that the Federal Government is reported to have recently decided to introduce a bill in the Parliament to restore the quota system in order to ensure that no part of the country remains unrepresented in the services. The National Assembly of Pakistan, as mentioned in the impugned judgment has already passed a resolution recommending to the Federal Government to restore the quota system. Keeping in view all these facts, it would not be fair to restrain the respondents from proceedings with the training programme of the successful candidates or appointing them against the posts for which they had been selected.
15. For the foregoing reasons, we do not find any substance in the petition and dismiss the same.