' Brief facts out of which the present writ petition arises are that respondent No,2 invited applications for the post of Homoeopathic Doctor, BS-15, through advertisement in Daily Khabrain.
In obedience of the advertisement he submitted his application for the said post on 24-10-1994. 73 candidates submitted applications for the said posts. Out of which 42 candidates appeared for interview and 31 candidates were absent or not eligible for appointment. The Recruitment Committee selected petitioner. Director Health Services submitted his case for approval to the Minister of Health on 18-12-1994. The Minister did not approve the appointment of the petitioner. In the meantime, Recruitment Committee was changed by the -S & GAD Department vide- letter, dated 15-3-1995 under which the Commissioner of the Division was appointed as Chairman of the Recruitment Committee. According to the new Recruitment Policy posts were again advertised and interviewed on 18-3-1995. Petitioner was not selected by the Recruitment Committee. However Bashir Nawaz was appointed as Dr. Homoeopathic against the seat of Chief Minister's Quota verbally directed by the Chairman, Recruitment Committee.
2. Learned counsel for the petitioner stated that in merit list in the last column heading remarks, the following remarks are mentioned against respondent No,3. He has been recommended by the MNA Ch. Abdul Sattar and Muhammad Abdul Aziz, Private Secretary to the Chief Minister. He has also been recommended by Muhammad Rashid, M.P.A. The Chief Minister issued a directive for consideration on compassionate grounds vide letter, dated 11-4-1995. He stated that there is no Quota of the Chief Minister, therefore, appointment of respondent No,3 is in violation of provisions of Civil Servants Act and Rules framed thereunder.
3. Learned Additional Advocate-General contended that petitioner appeared in obedience of the first advertisement but his name was not approved by the Minister. Therefore, no vested right occurred to the petitioner. He further stated under instructions that there are still 6 vacancies in the District which cannot be filled due to ban imposed by the competent authority.
4. Learned counsel for respondent No,3 stated that the writ petition is liable to be dismissed on the ground of laches as respondent No,3 was appointed on 30-1-1996 and the petitioner filed writ petition on 26-11-1996. He further stated that petitioner in obedience of the second advertisement of the respondent appeared before the Recruitment Committee and failed. Therefore, he acquiesced to file' this writ petition. Petitioner has submitted the application for the appointment of Homoeopathic Doctor on 10-3-1997 as is evident from Annexure-R/8. He further stated that although recommendations were made by the politician but the petitioner was appointed in accordance with rules and regulations of the respondents as the respondents appeared before the Recruitment Committee who selected him. He further stated that petitioner concealed the material facts from this Hon'ble Court as he also participated in the interview and test conducted by the respondents Nos.1 and 2, second time in which the respondent No,3 was selected. Therefore, he is not entitled to any discretionary relief. He relied upon PLD 1997 SC 304 and PLD 1964 SC 829.
5. Learned counsel for the petitioner in rebuttal stated that appointment order of the respondent No,3 is without lawful authority as he was appointed in violation of the rules and regulations under the directions of MNA. The technicalities cannot be hindered in the way of justice.
6. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record. It is admitted fact as is evident from Annexure-K/1 that respondent No,3 was appointed under the directions of the local polo ',Aar, therefore, his appointment is not in ranee with law laid down by the superior Courts. The Supreme Court of Paki Aim has taken a serious note of such type of appointments in Human Rights Case No,104 of 1992 (1996 SCMR 1349) and in the following judgments: 1993 SCMR 1287 (Munawar Khan's case)
1995 SCMR 999. 1996 SCMR 1349.
' Therefore, his appointment cannot be protected to remain in the field as his appointment is repugnant to Articles 4 and 18 of Constitution of Islamic Republic of Pakistan. The Hon'ble Supreme Court has laid down guidelines for the public functionaries to act within the framework of Constitution and law in Zahid Akhtar's case PLD 1995 SC 530. The Hon'ble Supreme Court has also laid down the principle that even the Chief Executive of the country is duty bound to act in accordance with law and Constitution in Ch. Zahoor Elahi's case PLD 1975 SC 383. The Recruitment Committee did not apply their independent mind as is evident from Annexure-K/1. Therefore, appointment of respondent No,3 is not valid as the principle laid down by the Hon'ble Supreme Court in Ghulam Mohy-ud-Din's case PLD 1964 SC 829. The Hon'ble Supreme Court has considered discretionary power of the Governor under section 23 of the Punjab Civil Servants Act in Muhammad Iqbal Khokhar's case PLD 1991 SC 35 and observed as under: "In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another."
' The Hon'ble Supreme Court, thereafter, re-affirms the aforesaid view in PLD 1992 SC 184 and observed as under:--- "As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair ur curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the Constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of redressed, of providing a relief and not of impairing statutory rights of anyone."
' In view of what has been discussed above, the discretion exercised by the Chief Minister through the Chairman of the Recruitment Committee i,e, Commissioner is not in accordance with law laid down by the Humble Supreme Court in case of respondent No,3. It is settled proposition of law that judgment of the Humble Supreme Court is binding on each and every organ of the State by virtue of Article 189 of the Constitution.
' It is also admitted fact that respondent No,3 was appointed on 30-1-1996 and the petitioner filed writ petition on 26-11-1996. It is also admitted fact that the petitioner participated in obedience of the 2nd advertisement. Therefore, petitioner is not entitled any discretionary relief on account of his own conduct. I am fortified by the judgment of the Humble Supreme Court in Suleman's case 1970 SCMR 574 and the relevant observation is as follows: "In any case, by doing so, they had acquiesced in the impugned order through petition clearly suffer from laches and the High Court perfectly justified in dismissing it on that ground."
I am also fortified by the reported judgment of this Court in Begum Zanab Tiwana's case (PLD 1967 Lahore 977) and laid down the principle "that a party which has acquiesced in erroneous order or irregular proceedings even defective jurisdiction is not entitled to question it subsequently by invoking a higher prerogative jurisdiction". Reference can also be made Riyasat Ali Azad's case (PLD 1968 Lahore 56) and Malik Muhammad Din's case (PLD 1968 Lahore 544). It is also settled principle of law that Constitutional jurisdiction having equitable jurisdiction cannot be exercised in favour of a person who has come to Court with gross negligence. I am fortified by the judgment of Humble Supreme Court in Mohsin Khan's case (1969 SCMR 306) and Suleman's case (1970 SCMR 574). The aforesaid principle has also been considered by the Humble Supreme Court in Khiali Khan's case PLD 1997 SC 304, There is another aspect of the case that the petitioner appeared in the examination and got first position but the policy was changed only to damage the petitioner as there was only one vacancy at that time for the benefit of respondent No,3 as is evident from Annexure-K/1 that respondent No,3 was appointed under the active support of the local MNA. The respondents stated that there are still 6 posts vacant in the Division in the following hospitals:--="
(i) D.H.Q. Hospital, Shakkargarh District Narowal.
(ii) R.H.C. Zafarwal, District Narowal.
(iiii) RHC Tanda, District Gujrat.
(iv) RHC Sokekhi, District Hafizabad.
(v) RHO Lesrkalan, District Narowal;
(vi) RHC Mong, District M.B. Din.
Petitioner cannot be accommodated against any vacant post due to ban. It is admitted fact that petitioner as mentioned above appeared in the test and interview before the Recruitment Committee and stood first out of 73 candidates. Therefore, respondents are directed to consider his case for appointment against one of the vacant posts as and when he appeared first time in the interview and test there was no ban at that time. Therefore, present ban imposed by the competent authority does not hinder in the way of respondent to consider the petitioner against one of the aforesaid vacancies.
' In view of what has been discussed above, the writ petition is disposed of in the aforesaid terms.