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Petitioner: Syed MUNEEB NAZIR SHAH VS Respondent: AZAD KASHMIR GOVERNMENT THROUGH ITS CHIEF SECRETARY AND ANOTHERs
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Akram Khan Title:Syed MUNEEB NAZIR SHAH vs AZAD KASHMIR GOVERNMENT THROUGH ITS
CHIEF SECRETARY AND ANOTHERs Case No.:Writ Petition No, 17 of 1984 Writ Petition No, 20 of 1978 Writ Petition No, 45 of 1983 Date of Judgment:1984-07-07 Reported As: PLD 1985 Azad J& K 17 Result: N/A Judgment ORDER ' This is a writ petition under section 44 of the Interim Constitution Act of 1974 whereby the petitioner seeks a writ of prohibition or any other appropriate writ for restraining the respondents from withdrawing the nomination for the admission of the petitioner from Ayub Medical College, Abbottabad. ' Khawaja Muhammad Saeed, the learned counsel for the petitioner, has submitted that the petitioner is a First Class State subject whose mother has been serving in the Health Department of Azad Jammu and Kashmir as a Lady Doctor for the last 19 years. The petitioner passed his F. Sc. Examination in the First Division in 1983 obtaining 683 marks. 3. The petitioner was the only candidate against one seat reserved for the children of doctors. After fulfilling the necessary formalities, he got his admission in the Ayub Medical College, Abbottabad on the receipt the telegram Annexure 'C' given to him by Secretary of the Nomination Board of Azad Jammu and Kashmir, Muzaffarabad whereby he (the petitioner) was directed to join the Medical College Abbottabad before 20-12-1983. The telegram is reproduced below :- "0193 A E 257 15 35 ' Syed Muneb Nazir C/o Additional Secretary, Education Muzaffarabad Azad Kashmir report Principal Ayub Medical College, Abbottabad for admission in M. B., B. S. Along with your Parent/Guardian with original certificates before 20th December Secretary Nomination 80, Board Muzaffarabad Camp Rawalpindi."
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4. There is no other claimant of this category and ' the petitioner was the only candidate for the admission in the M. B., B. S. Class against this seat reserved for the children of the Doctors. The petitioner did not only join the said Medical College on the basis of the Telegram reproduced above but also has been studying in the said institution for more than 6 months. 5. It appears that the Secretary of the Ministry of 'Kashmir Affairs cancelled or omitted the name of the petitioner from the list of candidates entitled to the seats to the said Medical College and substituted the name of one Muhammad Anwar who is not a son, of Doctor at all and who did not join the said Medical College. In para. 10 of the writ petition, it is mentioned :- "That now on the direction of Secretary Kashmir Affairs the Nomination Board of Azad Jammu and Kashmir Non-petitioner No, 2 wants to cancel the Nomination of the petitioner, against the seat reserved in Ayub Medical College for the children of doctors serving in Azad Kashmir for the last ten years." ' The petitioner has prayed that a writ of Prohibition or any other appropriate writ may be issued in his favour for prohibiting the respondent from withdrawing the nomination and admission of the petitioner from Ayub Medical College, Abbottabad as a very valuable right has accrued to him. 6. The respondents have filed their written statements on 14-5-1984 and mostly admitted the contents of the writ petition. In the written statement, it has been prayed that the writ petition may be rejected because the Secretary Kashmir Affairs did not accept the nomination of Syed Muneeb Nazir Shah, the petitioner and that the petitioner' nomination will not be considered valid until and unless the same is rectified by the Ministry of Kashmir Affairs. The respondents have admitted the Telegram Annexure `C' and also the fact that there is a seat reserved for the children of the serving doctors. 7. The learned counsel for the petitioner Khawaja Muhammad Saeed Advocate, has raised the following points in support of the writ petition :- (i) That the petitioner joined the Ayub Medical College, Abbottabad on 19th of December, 1983, as it is evident from the perusal of the documents D, D/1, D/2 and D'3. He has been studying in the said Institution for more than six months and as such, a vested right has accrued to him which cannot be now taken away from him arbitrarily and capriciously ; (ii) that the Nomination Board of the Azad Jammu and Kashmir Government has got no locus poenitentiae left now to withdraw the Nomination because the petitioner got admission in the Medical College, Abbottabad on the basis of the telegram which was duly sent to him by the Nomination Board and received and acted upon by him ; (iii) The Secretary of the Ministry of Kashmir Affairs cancelled the name of the petitioner from the list of the seats to the College and substituted the name of Muhammad Anwar who is not a son of a Doctor and who refused to join the College as it is evident from para. 5 of the Writ Petition which was presented before the High Court of Peshawar. Photostat copy of the writ petition which was presented before the High Court of Peshawar has been placed on the file. The petitioner has obtained a stay order from the High Court, Peshawar in Writ Petition No, 1/84 entitled Syed Nazir Shah v. Government of Pakistan on 2-1-1984 and as such he cannot be legally withdrawn from the Ayub Medical College, Abbottabad ; (iv) that the withdrawal of the Petitioner's Nomination was made arbitrarily and without affording the petitioner an opportunity of being heard ; (v) that the respondents cannot withdraw the nomination now as the doctrine of estoppel goes against them ; and (vi) that the Nomination Board has done everything that was necessary or possible and for that reason now the said Board has become functus officio. Therefore, the Board is now incompetent to with-draw or cancel the nomination made earlier and communicated to petitioner." 8. The learned Advocate-General has raised the following points :-
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(i) That this writ petition is not competent as no law has been violated in this case and that no order has been passed as yet against the petitioner who has come to this Court prematurely. Reference as made to 1968 SCMR 317 and PLD 1980 SC A J K 1 and (ii) that the Government is competent under section 21 of the General Clauses Act to withdraw the nomination made in favour of the petitioner. 9. I have given my due consideration to the argument addressed at the Bar and have also gone through the record made available to me in the Writ Petition. 10. Three facts are obviously admitted in this case :- (1) That the petitioner was nominated against a seat reserved for the children of the doctors. This fact is evident from para. 11 of the written statements produced by the learned Advocate-General which is reproduced as under :- {{URDU TEXT}} that the petitioner was directed by the Telegram Annexure 'C' to join the Ayub Medical College, Abbottabad on the verbal instructions of the Ministry of Kashmir Affairs para. 6 of the written statement is reproduced below :- {{URDU TEXT}} (The underlining is mine) (iii) It is also admitted and the petitioner, in compliance with the telegram Annexure joined the Ayub Medical College and has been studying there since then. It is now approximately more than 6 months, that the petitioner has been studying in the Ayub Medical College, Abbottabad. 11. The learned counsel for the petitioner, Khawaja Muhammad Saeed, Advocate has vehemently argued that some interested persons have put some considerable pressure on the Ministry of Kashmir Affairs, therefore, the non-petitioners are bent upon withdrawing the nomination of the petitioner. It is, therefore, that he has invoked the extraordinary jurisdiction of the High Court and prayed for a writ of prohibition. It is not necessary for a prayer of writ of prohibition that the mischief actually should have been caused or have been done by the respondents. On the other hand, according to the submission of the learned counsel for the petitioner, whenever there is a threat to a vested right of a person or whenever his valuable rights are in danger of being snatched away from him, the petitioner can knock at doors of the High Court and pray for a writ of Prohibition. This is a sufficient reply to the objection raised by the learned Advocate-General that the petitioner has come to the Court prematurely (before any violation of his right). 12. In this case, the important questions that fall for determination are :-- (a) whether the non-petitioners are competent to withdrew the nomination of the petitioner from the Ayub Medical College, Abbottabad or not. This is the pivotal law point the decision whereof is sufficient to decide this writ petition ? (b) whether the writ of Prohibition lies because the learned Advocate-General has argued that the writ of Prohibition does not lie in this case. I shall discuss both these points and leave the other points because they are not important for the decision of this writ petition? 13. As regards to point (a), I would like to reproduce the section 21 of the General Clauses Act which reads as follows :- 21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.- Whereby any (Central Act) or Regulation a power to (issue notifications), orders, rules, or bye-laws is conferred, then that power includes power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend vary or rescind any (notifications), orders, rules or bye-laws so (issued)," 14. Whether the non-petitioners have got a locus poenitentiaeor not is an important consideration in this case. The Federal Court of Pakistan has defined locus poenitentiae in the famous case of Shah' v. Crown (1).
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"Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken we see no reason to restricts the power to modify or cancel". 15. The first case in this connection is entitled Venkatesh Veshwent Deshpande v. Emperor (2) wherein it was observed at page 518 "I do not say that an order of remission is never open to recall. It may be in certain circumstances ; fraud and mistake for example might justify such action. But I am clear that it cannot be done arbitrarily. (1) P L, D 1956 FC 46 (2) AIR 1938 Nag. 513 ' The matter vitally affects the liberty of the subject, and so, if such exists at all, it can in my opinion only be exercised in circumstances which a Court of justice would uphold on general grounds of justice, equity and good conscience, and of public policy". ' Then again at page 519 it was observed :- "An order of this kind which has been acted upon to the extent of altering the history ticket, to the extent of informing the Legislature of the remission, can not be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of the Central Jail a memorandum 'telling the Superintendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended and it is not the way that this order was amended because the amending order is dated the 28th May whereas the above memorandum is dated 14th April. The trouble about the amending order, even assuming a power in Government to rescind such an order, is that it was passed eight days after this application had been launched and one month and 12 days after the prisoner was entitled to be released under the order of 24th February, 1958. Any possible locus poenitentiae was clearly at an end when the amending order was passed. In the circumstances we have no doubt at all that the application must succeed". ' In this case, for the first time, point arose whether the Government having granted unconditional remission could recall that order. The Full Bench ruled that the Government could not rescind the remission as the same had become effective and any locus poenitentiae was clearly at an end when the amending order was passed. 16. This question was again considered in Shahbaz v. Crown (1) and it was laid down that if the previous order had been given effect to, no locus poenitentiae is left and there will be no occasion for the exercising of the power mentioned in section 21 of the General Clauses Act. 17. This case went upto the Federal Court and the Federal Court also in the appeal case I. e. Shahbaz v. Crown observed that the order could not be withdrawn or cancelled subsequently in exercise of the powers under section 21 of General Clauses Act, only when not communicated. The learned Federal Court observed at pages 47 & 49 :- "But in the present case the order of the cancellation was passed before the date of release and in the order under appeal it has been made clear by the High Court that a locus poenitent'qe will be left only if the order has not been carried into effect. Mr. Mahmud Ali's contention that it is not appropriate to speak of a locus poenitentiae in the case of Government is not supported by the very decision on which he relies, where it was observed that there might be a locus poenitentiae in such a case, but that it was at an end when the order of cancellation was passed in that case. Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken after considerations would arise, but if that step is yet to be taken we see no reason to restrict the power to modify or cancel. Reasons for the cancellation in the present case are not before us but no allegations of mala fides or arbitrariness have been made. In the circumstance we think that the (1) PLD 1955 Lab. 65 ' Government of Punjab must have had good reasons to recall the order of remission".
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18. In the case of Lt.-Col. G. L. Bhattacharya v. State who delivered the judgment of the Full Bench observed (1), Murshed-J "The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner' has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. It, therefore, follows that the subsequent order of cancellation dated the 3rd of September, 1962, can have legally no effect whatsoever." 19. In the case of Dr. Mehboob Rabbani v. Government of West Pakistan, (2) a D. S. Of the Lahore High Court was pleased to accept the Writ Petition and issue a Writ of Mandamus that the respondent should implement the decision of the Government notified in the Government Gazette as the order had already become operative and as sush could not be withdrawn or cancelled subsequently in exercise of the power under section 21 of the General Clauses Act. ' The para. 4 of this judgment is reproduced as under :- "We have made it clear to the learned counsel for the respondent that there is no force in his contention that the Government could, in the exercise of the powers contained in section 21 of the General Clauses Act, cancel the order which it had passed and had been notified in the Gazette of the 27th of September, 1957. The order, in our opinion, had already come into operation as laid down in Shahoaz v. The Crown (PLD 1956 FC 46), the power under section 21 could be exercised only if the order, which is said to be cancelled, had not been carried into effect. Since the order became operative with effect from the 13th of September, 1957, the order could not be withdrawn or cancelled subsequently on the 1st of June, 1959, in the exercise of the powers under section 21 of the General Clauses Act." 20. The case of Lt. Col. Bhattacharya v. The State (3) went upto the Supreme Court of Pakistan. In this case, the Supreme Court of Pakistan considered the earlier cases of Desh Pande and the case of Shahbaz v. Crown and dismissed the appeal of S. L. Battacharya. The Full Bench of the High Court had refused the writ of habeas corpus to the appellant Lt.-Col. Battacharya who was under going a sentence of imprisonment awarded by a Special Military Court. It was held by the Supreme Court of Pakistan that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail. 21. In the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatulluh Farukhi (4) the principle of locus poenitentiae (power of receding till a decisive step is taken) was considered. It was observed that although the authority competent to make an order has got the power to undo it, yet the order cannot he withdrawn or (1) PLD 1969 Dacca 422 (2) PLD 1963 (W. P.) Lah. 53 (3) PLD 1964 SC 5Q3 (4) PLD 1969 SC 407 rescinded once it has taken legal effect and certain rights have been granted in favour of any individual. Sajjad Ahmed, J (as he then was) observed at page 412 :- "The argument of Mr. Shah Jamil Alam, that since the order of the President was not communicated to the respondent locus poenitentiae i. e. the power of receding was available to the President to revoke the order, was based on two decisions of this Court from which he sought to derive support. The first is the case of Sahbaz v. The State (PLD 1955 FC 46) in which the Government had ordered the remission of the prison sentence of Shahbaz with effect from the 14th of August, 1954, before the order was acted upon, it was rescinded on the 13th of August, 1954. It was held that the order cancelling the remission was not open to any objection. In the case of Lt. Col. G. L. Bhattacharya v. The State and 2 others (PLD 1956 FC 46), which was also in case of remission of sentence under section 401 of the Criminal Procedure Code, it was held that the remission of sentence becomes
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effective when duly communicated to the Superintendent of Jail, who is duly bound to give effect to it in accordance with the Prisoners' Act. ' There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of sections 21 of the General Clauses Act, locus poenitentiae, i. e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal affect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." 22. In the case of Pakistan v. Muhammad Himayat Ullah, it was observed by Sajjad Ahmed J. (as he then was) that the power of-receding till a decisive step is taken, .Is of course available to the Government or to relevant authorities but this is subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. 23. It was held in Collector of Central Excise v. Azizud Din Industries, (1) that it is a settled rule that an executive authority cannot in exercise of the rule-making power o- the power to amend, vary or rescind an earlier order, take away the right vested in the citizens by law. It was a case where a vested right of exemption from the levy of excise duty on all goods produced or manufactured by it for a period of four years under a certain Notification of the Central Government had accrued and, therefore, a subsequent Notification being completely distractive of the right already vested was held to be without lawful authority and of no legal effect by the learned Yaqub Ali, J. (as he then was). 24. In Messrs M. Afzal & sons and 2 others v. Federal Government of Pakislan (2) section 2i,1' of the General Clauses Act was discussed and (1) PLD 1970 S r3 439 (2) PLD 1978 Lab. 468 it was reiterated that section 21 of the General Clauses Act does not empower the subordinate legislative authority to take away vested rights by recalling or amending a previous notification. I would like to re-produce para. No, 9 :- "The applicability of section 21 of the General Clauses Act has also been discussed in the judgment referred to above and it is quite clear that it does not empower the subordinate legislative authority to take away vested rights by recalling or amending a previous notification. It can only regulate as held in the Mardan Industries case referred to above. The above position of law was also laid down by the Federal Court in leading case of Shahbaz v. Crown (PLD 1956 FC 46) in view of the above, the petitioner did acquire a vested right to import their paper free from payment of duty as they had acted on the notification and taken all the steps to import that paper." 25. The Supreme Court of Azad Jammu and Kashmir has also discussed this principle in the case of Sattar Muhammad v. Chief Conservator of Forests and others (1) para. 17 whereof reads as follows :- "In our view, the authority that has the power to make an order has also the power to undo it to retrace the step. Of course, this is subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of an individual, such an order cannot be withdrawn or recalled to the detriment of those rights. In such cases, the doctrine of locus poenitentiae i. e., power of receding till the decisive step is taken, is always available to the Government or the relevant authorities apart from the provision of section 21 of the General Clauses Act." 26. In Writ Petition No, 20, date of Institution : 24-7-1978, date of decision : 15-1-1979 entitled Habib Ullah Lone v. A. K. Government and others, a Division Bench of our own High Court considered this
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very point, accepted the writ petition of Habib Ullah Lone and issued a writ of Mandamus to the respondent to pay the outstanding amount to the petitioner to which he was entitled to under a Government order. I reproduce the following observations of the High Court from pages 2 and 3 of the judgment :- "The learned counsel for the petitioner argued that the Government was not legally competent to cancel its order dated 9-2-1976 which had already taken effect and vested rights had accrued to the petitioner. The learned counsel also cited PLD 1970 SC 439. It was held in PLD 1970 SC 439 that executive power cannot be exercised to amend vary or rescind earlier order taking away the vested rights of the citizens. In PLD 1964 SC 503 it was held that order remitting the sentence of the petitioner could not be withdrawn or cancelled because it had already taken effect and once an order had taken effect it could not be rescinded or cancelled to the detriment of the interested party. Again in PLD 1956 Sind 101 while interpreting section 21 of the General Clauses Act more or less the same principle has been enunciated. The upshot of the above discussion is that an order cannot be altered or rescinded if an immediate fixed right of present or future enjoyment (1) PLD 1980 SC (A J & K) 46 has accrued to a party because such a right is a fixed right in contradiction to being expectant or contingent right. In instant case the respondent had accepted the escalation claim of the petitioner and the order had taken effect and a part payment had also been made to the petitioner in pursuance the Government order. The learned Advocate-General have argued that the petitioner's case is in nature of a contractual of obligation and as such it cannot be enforced by way of a writ, It has been pleaded by the respondents in their written statements that escalation claim did not form a part of agreement between the petitioner and the Government and therefore the petitioner was not entitled to any remedy by way of writ. Contrary to what has been pleaded, the respondents cannot be allowed to turn down and say that this was a contractual obligation. Irrespective of the pleadings of the respondents. We are of the opinion that this is not a case to enforce as contractual obligation, rather it is a case of cancellation of an order of Government which had created vested rights in favour of the petitioner. On this view of the matter accepting the writ petition we hold that impugned Order No, 1105-11, dated 21-6-1978, cancelling the Government Order dated 9-2-1976 is illegal and without lawful authority and subsequent Order No, 1391-94, dated 6-7-1978 calling upon the petitioner to refund Rs, 14,000 is also void. We further issue a writ of maudamus to the respondents to pay the outstanding amount to the petitioner to which he is entitled under…
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