1991 PLP 1605 (MLD)

Date of hearing: 18th March, 1991. The, petitioner through this Constitutional petition has called in question cancellation of his admission to National Textile College, Faisalabad.

2. The relevant facts are that the' petitioner was given admission to the College on the basis of nomination by the Minister for Industries, Ministry of Industries, Government of Pakistan. It is submitted that the petitioner thereafter deposited the dues of the College and Roll No. was issued. The grievance of the petitioner is that the respondent vide impugned order dated 20-2-1991 proceeded to cancel the admission of the petitioner on the pretext that the Minister for Industries has decides to forego his admission quota and that the Executive Committee of the College has decided in its meeting dated 20-2-1991 to cancel the admission of the petitioner. The petitioner has impugned this order in its Constitutional Petition, which was admitted to, regular hearing and notice was issued to the respondent who has entered appearance through Mr. Faqir Muhammad Khokar learned Deputy Attorney-General and contested the petition.

3. The learned counsel for the petitioner in support of the petition argued that the recommendation for admission to the College, was accepted and acted upo9n the moment the respondent informed the petitioner as to the admission to the College and directed him to deposit the dues of College. The dues were accordingly deposited and he was allocated roll number therefore decisive steps have been taken and the respondent cannot recall the admission as he has lost locus poenitentlae. In this behalf learned counsel has referred to the case of Lt. Col. G.L. Battacharya v. The State etc. PLD 1964 SC 503 Muhammad Aslam Khakhi v. Vice-Chancellor, Gomal University D.I. khan and 2 others PLD 1980 Pesh. 128 Muhammad zargham Eshaq Khan. V. University of Engineering and Technology Lahore and 2 others PLD 1988. Lah 191 and Inspector-General of Police, Punjab Lahore v. Muhammad Ameer Abdullah Khan and others 1990 SCMR 1414. It is added that in the last year 28 students were granted admission on similar recommendation but 27 out of them joined the College while this year only 24 students have been admitted. The arguments are summed up with the submission that this is a casa of mistaken assumption of law and facts. The respondent was only in formed as the future policy but lie has proceeded to give it retrospective effect is maintained that the, executive orders cannot be given retrospective effect In this, behalf, learned counsel has referred, to the case of Ghulam Mustafa, v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056. 4.On the other' hand learned' Deputy Attorney General has 'argued that the background of this issue' `is that `a Writ `Petition No.1916 of..1990'was filed in. this Court. It was decided`' on 11-12-1990. It was held that admission to the College should be granted in accordance with the latest policy, of the Government and, the Government is not supposed to violate its own policy, It is added that the decisive-steps have not yet been taken as the classes have not started therefore, the` principle of locus poenitentiac is not applicable in the present case. In this behalf learned Deputy Attorney-General has referred to the case of Shabaz v. Crown PLD 1956 FC

46. He summed up the arguments with the submission that in view of the provisions of section 21 of the General Clauses Act the respondent is well within his authority to rescind the order.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. The foremost question for determination is whether the respondent has lost right to repent: It 'is settled law by this time that the determining factor is whether the decisive steps 'have been taken: In other words whether the; order sought to' be recalled was acted upon and in this behalf reference many be made to the, cases of Muhammad Zargham, Eshaq Khan and, Muhammad Aslam Khakhi ibid. In the present writ petition learned counsel for the petitioner has rightly argued that the recommendation, made by the Government was acted upon the moment the respondent decided to grant admission to the petitioner and asked him to deposit dues of the College. He further added that the moment the petitioner complied with the requisition as to the deposit as held at the authority issuing order power of rescinding till decisive step is 'taken. It as held in base of` Ghulam Mustafa Supra that till the change-cannot take away the vested rights which have accrued in favour off candidate If look from this, angle the present case is on much strong and better footings than the case of an Ghulam Mustafa. The learned Deputy Attorney General has argued that the policy has been changed in view of the judgment of my learned brother Malik Muhammad Qayyum, J. This is appreciable but at the same time the respondent should have been careful not to open matters of past and closed transactions. The other contention raised on behalf of the respondent was that the respondent has proceeded in accordance with the direction of the Government. It is submitted that the directions of Federal Government are binding in view of section 25 of National College of Textile Engineering (Order), 1983. The learned Deputy. Attorney-General while raising this argument failed to' keep in mind that the petitioner was granted admission at the behest of the Government. Once the recommendation was accepted by the respondent and the, petitioner was granted admission there was nothing for the Government to withdraw its recommendations or issue direction contrary to the earlier direction conveying the order of the Minister. The telegram appended as Annexure `D', which reads as under:-- "AS PER RECENT ORDERS OF THE GOVERNMENT THE MINISTER FOR INDUSTRIES HAS DECIDED TO FOREGO HIS QUOTA FOR ADMISSION IN THE NATIONAL COLLEGE OF TEXTILE ENGINEERING. ALL ADMISSIONS MAY BE MADE ONLY ON THE BASIS OF MERIT. REGARDS MISS NAJMA SIDDIQUI, DEPUTY SECRETARY DEVELOPMENT. MINISTRY OF INDUSTRIES, ISLAMABAD." It is clear from the telegram that it deals with the future policy. Even otherwise executive orders cannot be for retrospective effect. The respondent while cancelling the admission gave two reasons as already noted. Firstly, that the Minister has decided to forego his admission quota and secondly, that since the classes have yet not started, therefore, Executive Committee of the College has decided to cancel the admission of the petitioner. The Executive Committee has no authority to override the direction of the Federal Government.

6. There is yet another aspect of the matter which cannot be lost sight of. The same was in fact pointed out by the learned counsel for the petitioner on last date of hearing. The submission was that the petitioner was granted admission a couple of months back and for this reason he did not make any effort for seeking permission in any other institution. Now if the respondent is allowed to cancel the admission of the petitioner without any fault of his, then it will amount to depriving him from education facilities. The admitted position is that at this time of the year the petitioner will not be in a position to secure admission in any other institution, therefore, it will be unfair, unjust and too harsh to cancel his admission. The result is that this petition is allowed. . The order of cancellation of the admission of the petitioner is declared illegal and without jurisdiction. However, there is no order as to costs. H.B.T./M-2865/L Petition allowed.