' The brief facts out of which the present writ petition arises are that the petitioners were appointed as Senior Registrar in BPS-18 in the year 1985. Subsequently they were promoted as Assistant Professors on regular basis by the respondents vide Notification dated 6-6-1995. In the year 2001 A three posts had fallen vacant in view of the following circumstances:-
(i) Dr. Muhammad Sarfraz Ahmad and Dr. Muhammad Iqbal, Associate Professors were promoted as Professors by the respondents vide Notification, dated 17th May, 2001.
(ii) Professor Dr. Shameem Jaffery had expired after sometime in May, 2001 ' The learned counsel of the petitioners submits that there are two methods to fill the vacant posts of Associate Professors which are as follows:-
(i) By way of initial appointment.
(ii) (ii) By way of promotion.
' The quota is also reserved with regard to the aforesaid categories by the competent authority at the ratio of 33% by way of promotion and 66% by way of initial appointment. The respondents issued public notice in Daily Nawa-i-Waqt dated 15th of July, 2001 for initial appointments for different categories including the posts of Associate Professors. The petitioners being aggrieved filed Writ Petition No,15181 of 2001 on the ground that according to the rules of the respondents, the respondents have to promote the petitioners first in their quota reserved tor promotion and then issue advertisement for fresh/initial recruitment with regard to the posts in question which was disposed by this Court vide order dated 15-8-2001 and copy of the writ petition was sent to the respondent No,1 who was directed to decide the application of the petitioners within 15 days after receiving the order of this Court. Petitioners were directed to appear before respondent No,1 in his office on 20-8-2001 at 11 a.m. Who was directed to pass an appropriate order strictly in accordance with law within 15 days till 4-9-2001. The learned counsel of the petitioners submits that respondent No,1 failed to redress the grievance of the petitioners as directed by this Court vide order dated 15- 8-2001. The respondent No,1 envisaged a change in the criteria and had not yet finally decided and notified. He further submits that on account of the inactions of the respondents, the petitioners are penalized in case the fresh teaching staff is inducted by the respondents before the promotion of the petitioners then the petitioners would stand alighted in seniority. He further submits that action of the respondents is hit by Article 25 of the Constitution as the fresh recruitments are being conducted on the basis of the old rules whereas the criteria qua the petitioners for promotion is under review. In support of his contention he relied upon the case of Water and Power Development Authority v. Irtiqa Rasool Hashmi and another (1987 SCMR 359). He further submits that petitioners are highly qualified persons and fulfil the criteria published by the respondents in the advertisement in Daily Nawa-i-Waqt dated 15th July, 2001. The petitioners have legitimate expectations for promotion in support of his contention, he relied upon Al-Jehad Trust v. Federation of Pakistan (PLD 1996. SC 324). He further submits that criteria was not notified by the respondents, therefore, petitioners stood qualified to be promoted as Associate Professors. In support of his contentions, he relied upon Sarwar Ali Khan's case (1994 PLC (C.S.) 411). He further submits that there is no adverse remarks in the Annual Confidential Reports of the petitioners till date, therefore, petitioners are entitled to be promoted in the next higher post in terms of the rules of the respondents. In support of his contention, he relied upon the case of Muhammad Ahsan-ul-Haq v.
Secretary to Government of Pakistan, Ministry of Interior Islamabad and 11 others (1997 PLC (C.S.)
127.) He further submits that it is the duty and obligation of the respondents to treat officers of all groups fairly, justly and equitably and petitioners are promotees to be considered for promotion with effect from the dates when vacancies in their quota have become available. In support of his contentions, he relied upon Government of N.W.-F.P and others v. Buner Khan and others (1985 SCMR 1158) and Hameed Akhtar Niazi v. Government of Pakistan through Secretary Establishment Division, Islamabad and 14 others (2000 PLC (C.S.) 600).
2. Mr. Maqbool Elahi Malik, Advocate-General Punjab submits that in obedience of the advertisement, petitioners submitted their applications, therefore, writ petition liable to be dismissed on the well-known principle of waiver and estoppel. He further submits that petitioners in fact challenged the vires of the rules through this writ petition and this Court has no jurisdiction to take the cognizance of the matter by virtue of Article.212 read with section 4 of the Service Tribunal Act as the matter pertains to the terms and conditions of the petitioners. In support of his contentions, he relied upon Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). The learned counsel of the respondent submits that matter pertains to the terms and conditions of the petitioners and the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution. In support of his contention, he relied upon the following judgments:- - ' Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280).
' Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, (PLD 1997 SC 351).
' Haji Muhammad v. Federation of Pakistan and others (2000 SCMR 1555).
' Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another (2001 PLC (C.S.) 907).
' Muhammad Ashraf Chaudhry v. Chairman Central Board of Revenue and another (2001 PLC (CS)
781) and ' S. Baqar Zaheer Rizvi v. Secretary Housing and Works Division, and 3 others (2000 PLC (C.S.) 1151).
' Tne learned counsel of the petitioner In rebuttal submits that petitioners tiled this writ petition with the prayer that respondents be directed to act in accordance with law and law laid down by the superior Courts. He further submits that judgment of the Honourable Supreme Court is binding on each and every organ of the State by. Virtue of Articles 189 and 190 of the Constitution. The action of the respondents is in derogation of the principle laid down by the Honourable Supreme Court, therefore. Writ petition is maintainable. In support of his contention, he relied upon the following judgments : ' Dr. Ahmad Salman Waris Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others, (PLD 1997 SC 382), ' Dr. Amanul Haq v. Government of Punjab (2000 PLC (CS) 123), Government of Punjab v. Dr. Amanul Haq (2000 PSC 599) and ' Tahir Latif Sheikh v. Federation of Pakistan and another (2000 PLC (CS) 582).
' Mr. Javaid Shaukat Malik, Advocate in supplement of the argument of Hafiz Tariq Naseem, Advocate added that no final order has been passed by the respondents, therefore, petitioners have no alternative remedy to file appeal before the Punjab Service Tribunal. He further submits that matter pertains to the promotion of the petitioners, therefore, petitioners have no right to file appeal before the Punjab Service Tribunal by virtue of proviso of section 4 of the Service Tribunal Act. The matter pertains to the eligibility of the petitioners, therefore, the petitioners have only remedy to file Constitutional petition. In support of his contention, he relied upon Muhammad Raziq v. Secretary Establishment Division (2000 PLC (CS) 994) and Dr. Shaheen Afzal v. Member (Admn)
Capital Development Authority Islamabad and 19 others (2000 PLC (CS) 633). He summed up his argument that action of the respondents is hit by Articles 2, 2-A and 3 of the Constitution, therefore, action of the respondents is liable to be set aside.
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
4. Without adverting to the contentions of the learned counsel of the parties. I intend to decide writ petition on the sole question of law that writ petition is not maintainable in view of the conduct of the petitioners as the petitioners submitted their applications in obedience of the advertisement of the. Respondents. It is better and appropriate to reproduce the brief resume from the report and parawise comments tiled by respondent No,2 which are as under:-- "Applications from eligible candidates for recruitment to five posts of Associate Professor Surgeon (BS-19) on all Punjab basis in the Punjab Health Department were invited by the respondent No,2 (Commission) through Advertisement in the Press. In response to the advertisement 25 applications were received, out of which 4 applications including petitioner No,2 rejected and remaining 21 including petitioners Nos.1 and 3 were called for interview on 15, 16, 17-10-2001.
Petitioner No, 1 was called for interview on 17-10-2001 but he remained absent. Application of petitioner No,2 was rejected for lack of requisite research work and he was informed accordingly.
Petitioner No,3 was called for interview on 16-10-2001 and he appeared in the interview.
Result/recommendation is pending due to Court Orders dated 5-10-2001 in instant Writ Petition No,18173 of 2001."
' Para. B of report and para. 2.6 of the parawise comments tiled by respondent No, I are as under:-- "A requisition for initial recruitment to the five posts of Associate Professor (Surgery) BS-19 in the Punjab Health Department was placed to Punjab Service Commission in July, 2001. The Punjab Service Commission made consolidated advertisement on 15-7-2001 in this regard. The applications were received by the P.P.S.C: According to authorities of P.P.S.C. 25 applications were received, out of which 4 applications including the petitioner No,2 were rejected and remaining 21 including the petitioners Nos.1 and 3 were called for interview. The details of the petitioners is as under:-- ' Petitioner No,1:---Dr. Muhammad Amjad Ameen was called for interview but he remained absent.
' Petitioner No,2:---The application of Dr. Yawar Saeed was rejected by the P.P.S.C. For lack of requisite research work.
Petitioner No,3:---Dr. Anwar UI Haq was called for interview. He appeared before the Board.
(2.6) As already explained in para. 2.4. It is pertinent to observer that all the three petitioners in the instant writ petition have applied to P.P.S.C. For recruitment as Associate Professor. Details have already been submitted in para.8 of report."
' It is pertinent to mention here that petitioners tiled this writ petition on 4-10-2001 and all the petitioners submitted their applications for direct recruitment qua the posts in question. According to the advertisement Annexure- D attached with the writ petition, applications must be received in the office of the Secretary of Punjab Public Service Commission before 13-8-2001. This fact was concealed by the petitioners in the contents of the writ petition. It is admitted fact that the petitioners did submit their applications, therefore, writ petition is liable to be dismissed on the well-known principle of approbate and reprobate as per principle laid down by the Honourable Supreme Court in Ghulam Rasool's case (PLD 1971 SC 376). The principle of estoppel and waiver is attracted in the present case. I am fortified by reported Judgment of D.B. Of Karachi High Court in Abdul Sattar Yousuf s case (1984 CLC 194) and the relevant observation is as follows:- "I also find substantial force in the contention of learned counsel for the respondents that the petitioners having taken part as share-holder of the Company in the extraordinary general meeting of the company held on 22-2-1979 and having elected petitioner No,2 and one Hamid A.
Ghani as Director of Board of Director of Company Constitution, under the provisions of P.0.1. 1972 and having consistently taken part in the management of the Company, completely acquiescenced in the action taken by the Federal Government and rather, therefore, debarred from objecting to the same. For the aforesaid reasons we dismissed all the above three writ petitions on the ground of acquiescence on the part of the petitioners in the action of Federal Government."
' 1 am also fortified by the judgment of Honourable Supreme Court in Suleman's case (1970 SCMR 574) and the relevant observation is as follows:-- "In any case, by doing so, they had acquiescenced in the impugned order through petition clearly suffer from (aches 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 Zainab Tiwanas's case (PLD 1967 Lah 977) and laid down the principle that a party which has acquiescence in erroneous order or irregular proceedings even defective jurisdiction is not entitled to question it subsequently by invoking a high prerogative jurisdiction." Reference can also be made Riasat Ali Azad's case (PLD 1968 Lah. 561) and Malik Muhammad Din's case (PLD 1968 Lah. 544). It is also settled principle of law that Constitutional jurisdiction is equitable jurisdiction which cannot be exercised in favour of a person who has come to Court with gross negligence. I am fortified by the judgment of Honourable Supreme Court in Mohsin Khan's case (1969 SCMR 306) and Suleman's case (1970 SCMR 574).
5. The learned counsel of the petitioners pointed out that respondent No,1 failed to redress the grievance of the petitioners as directed by this Court in order dated 15-8-2001 in Writ Petition No,15181 of 2000.The learned Advocate-General was directed to produce the original file which was produced before me at 3-00 p.m. After perusing the original tile, I do not initiate contempt proceedings against respondent No,
1. However, he is directed to finalize the matter as early as possible in terms of the order of this Court dated 15-8-2001 in Writ Petition No,15181 of 2001. He is further directed to submit report the Deputy Registrar (Judicial) of this Court.
6. In view of what has been discussed above, the writ petition is disposed of with the aforesaid observations.