1997 PLP 15 (SCMR)

‑‑‑‑Art. 185(3)‑‑‑General Clauses Act (X of 1897), S.20 ‑‑‑ Locus poenitentiae, principle of‑‑‑Application‑‑‑Educational institution‑‑‑Admission in M.B.B.S. class of Medical College against one of reserved seats‑‑‑Respondent was given admission on merits by Competent Authorities after considering his case‑‑ Requisite fee was accepted by College Authorities and respondent was allocated Roll Number and was asked to join M.B.B.S. Ist year class‑‑‑Subsequent withdrawal of admission and act of giving his seat to another candidate on the pretext that respondent was given admission due to mistake of computer was not warranted‑‑‑Respondent could not be deprived of vested right which he had earned on basis of act of Authorities‑‑‑Principle of locus poenitentiae was although available to Authorities whereby any order which was made by mistake could be undone yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual‑‑ Respondent having been granted admission and Roll Number issued to him after acceptance of requisite dues, had created vested right in his favour which could not be undone subsequently‑‑‑Respondent was thus, found entitled to continue his studies for which he was granted admission by Authorities‑‑‑ Leave to appeal was refused in circumstances.‑‑[Locus poenitentiae, principle of]. Miss Safia Hameed v. Chairman, Selection Committee Medical College, Quetta and 6 others PLD 1979 Quetta 12; Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh PLD 1969 SC 407 and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 ref. Ch. Ehsan Sabir, Asstt.‑A.G. with Rao Muhammad Yousuf Khan, Advocate‑on‑Record for Petitioners. Malik Rab Nawaz, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No.

1. Date of hearing: 7th October, 1996. RAJA AFRASIAB KHAN, J.‑‑In the year 1994, Wasif Zamir Ahmad, the respondent herein passed his F.Sc. examination with 809 marks including N.C.C. training marks from Gordon College, Rawalpindi. He gave an application to the petitioner, Chairman Selection Committee/Principal, King Edward Medical College, Lahore for his admission in first year of M.B.B.S. in Rawalpindi Medical College, Rawalpindi against a seat reserved for the people of Tehsil Kahuta, District Rawalpindi. In lieu of the admission form, receipt No.240 dated 12‑12‑1994 was issued to him. The respondent was, accordingly, selected against the aforesaid seat. He was called upon to join his Ist year M.B.,B.S. class in Rawalpindi Medical College, Rawalpindi vide registered letter No.4739/RMC dated 18‑5‑1995 for the Session 1994‑

95. A sum of Rs.853 and Rs.600 was deposited by the respondent on 23rd of May 1995 in the National Bank of Pakistan, Rawalpindi Medical College Branch, Rawalpindi. He was issued Roll No.247. by the petitioners Nos.2 and

3. Despite the above, the respondent was not allowed to join his class for no reasons at all. It was disclosed at the later stage that the respondent No.2, Miss Farkhanda Akhtar Abbasi who had secured 815 marks, had been accommodated against the above-said reserved seat in place of the respondent No.1 without hearing him. Writ Petition No. 673 of 1995 was instituted by the respondent to call in question the action of the petitioners refusing admission to him. As an interim measure, provisional admission was given to the respondent. After hearing the learned counsel for the parties, a learned Judge of the Lahore High Court Rawalpindi Bench, Rawalpindi accepted the Constitutional petition on 28th of February, 1996 holding that the respondent had a vested right to continue his study in the Medical College. Nonetheless, it was observed that the respondent No.2, Miss Farkhanda Akhtar Abbasi would not be affected because of admission of respondent No.

1. The learned High Court relied upon Miss Safia Hameed v. Chairman, Selection Committee, Medical College, Quetta and 6 others (PLD 1979 Quetta 12) and a judgment of this Court reported as Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukh (PLD 1969 SC 407). The main thrust of the reasoning of the learned High Court was that the petitioners, could not be allowed to disown their earlier action whereby respondent No. 1 was accommodated by giving him admission. The validity of the aforesaid judgment has been challenged by the Chairman Selection Committee/Principal, King Edward Medical College,, Lahore etc. through this petition for leave to appeal.

2. The point urged by the learned counsel is that on account of a computer mistake, the name of the respondent No. l was shown on the list of students who had been given admission. It was added that the moment the aforesaid mistake, was found by the authorities, it was rectified by giving admission to the respondent No.2 instead of the respondent No. 1.

3. We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No: 1 was presumably given admission on merits by the competent College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join Ist year class of M.B.B.S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well‑settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission` was given to respondent. No. l by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No. 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No. l to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No.2 had been accommodated by giving admission instead of respondent No.l. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission to the respondent No. l was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners. See Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) wherein it was observed:‑‑‑ "It is quite apparent that restrictions imposed in para.4 of the Revenue Department's Notification mentioned above, pertain to the appointment as Mukhtiarkar and in the cases under consideration will have no bearing for the reason that respondents were granted exemptions in accordance with circulars, requirements of which were duly fulfilled by them and not only that but exemptions were implemented and they received necessary training, as such valuable rights had accrued to them which could not be interfered with. In this context, reference can be made to section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukh (PLD 1969 SC 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. It appears that Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent reasons in support thereof. View taken by the Service Tribunal is correct and we find no reason whatsoever to interfere with the impugned judgment, which is hereby upheld and leave is refused. In the circumstances, petitions are dismissed. " This principle laid down in the cases of Muhammad Himayatullah Farukh and Sher Muhammad Makhdoom, supra was applicable to the facts and circumstances of this case. In these circumstances, this petition is dismissed and leave to appeal is refused by upholding the well‑reasoned judgment of the learned High Court. A. A. /C-177/S Leave refused