P L D 1980 Peshawar 128 (PLP)

MUHAMMAD SARDAR KHAN; J.-Petitioner is an employee of the Gomal University, D. I. Khan. Formerly he was a Lecturer in the Institute of Education and Research. During the pendency of the writ petition, however, he seems to have been transferred to the administration side and is now posted as Assistant Registrar there.

2. It appears that the Faculty of Shariah, Quaid-e-Azam University, Islamabad invited applications for admission in LL. M. and Ph. D. Courses from candidates possessed of the requisite qualifications. Similarly, Institute of Education and Research, University of Punjab also invited applications for admission in the course of Ph. D. in Education. Petitioner-applied for admission both in the Quaid-i-Azam University, Islamabad as well as in the Institute of Education and Research, University of the Punjab and both these applications were submitted, as they should have been, through the Vice-Chancellor, Gomal University, D.1. Khan (respondent No.1) Both the applications were recommended by the Vice-Chancellor. Petitions consequently appeared in the tests and was selected for admission in the Institute of Education and Research, Lahore to the Ph. D. Programme 1979-82 and was duly informed of this by the said Institute vide their letter dated 2Cth of August, 1979 (Annexure 1) and told that the Ph. D. courses will begin on the 5th of January, 1980 and he should report for registration at the Institute on 2nd and 3rd of January at 9-00 a.m. His admission was also approved to the LL. M. course in the Faculty of Shariah and Islamic Studies, Quaid-i-Azam University, Islamabad. However before the admission notice could have been sent to him for joining the course, the recommendations earlier made by respondent No. 1 were withdrawn by him without any information to the petitioner. This came to his knowledge on receipt of a letter dated 12-11-1979 from the, said University in response to his application dated 10-11-1979 in which he was informed that :- "Your application for admission was received from the Registrar, Gomal University, D.

1. Khan with his letter No. 2190/91/GU/Estt ; dated 11-4-1979. The application was processed alongwith others and your admission to the LL. M. course was approved. Before the admission notice could be issued to you for joining the course, the Registrar, Gomal University, D.

1. Khan withdrew his earlier letter forwarding your application for admission. In view of the said withdrawal, your admission to LL. M. course had been cancelled. It may further be informed that the semester for the LL. M. course had already commenced with effect from 20-10-1979."

3. The application dated 10-11-1979 by the petitioner to the Vice-Chancellor, Quaid-e-Azam University seems to have been sent due to another communication (Annexure 11) from Prof. Col. (Retd.) K. U. Qureshi, Director of the Institute of Education and Research, University of the Punjab, Lahore dated 13th October, 1979 to the petitioner informing him that recommendation made in his favour for admission to Ph. D. class of the Institute had been withdrawn by his (i.e. Gomal) University. We have been told by the learned counsel for respondent No. 1 that the recommenda?tions were made by his client on the petitioner's application to the Institute of Education and Research, Punjab on 6-3-1979 and Faculty of Shariah, Quaid-e-Azam University, Islamabad on 11-4-1979, respectively and they were withdrawn by him simultaneously on 12-9-1979. Be that as it may, the fact remains that the recommendations as regards the Institute of Education and Research were withdrawn after the petitioner had qualified the requisite tests appeared in the interview and had been selected for admission to the Ph. D. Programme of the Institute and of which he had been duly informed in writing vide letter dated 20-8-1979. However similar recommendations seem to have been withdrawn as regards Faculty of Shariah, Quaid-i-Azam University, Islamabad after approval of petitioner's admission there but before despatch of any communication to him. It was in these circumstances that petitioner invoked the jurisdiction of this Court under Article 199 of the Constitution for declaring withdrawal of recom?mendations by respondent No. 1 to be without lawful authority and of no legal effect..

4. The action of the Vice-Chancellor has been challenged on the grounds that-(1) once petitioner's applications were forwarded by him and acting upon the said recommendations, petitioner was granted admission a right had become vested in him. Respondent No. 1 had no authority to withdraw the same both under the principle of `locus poenitentiae' as well as general principles of law; and (2) that it was motivated by "mala fides". It is said that petitioner is the elected President of the Academic Staff Association, Gomal University D. I. Khan and in this capacity he had to represent his electorate on quite a few occasions particularly when members of the association encountered difficulties as a result of which a calculated policy of harassment and intimidation was unleashed against him so much so that he was ultimately withdrawn from the Teaching Staff. And petitioner has tried to demonstrate this by giving various instances of alleged mala fides on the part of respondent No.

1. But we do not propose to enter into this controversy and feel that the decision of this petition can be made on other ground as well.

5. In the written statement, filed on behalf of respondent No. 1, withdrawal of recommendations by the Vice Chancellor is not denied. It is asserted, however that this was done before the petitioner had actually joined either course and there existed more than sufficient justification for the same. Allegation of mala fides has been vehemently refuted. It is alleged that the petitioner had held two press conferences in May 1979, one at D.

1. Khan and the other at Peshawar in which he had made statements critical of University Administration inclusive of matters which were then as now sub judice; that he was proceeded against for `misconduct' on this account under the N.-W. F. P. Government Servants (Efficiency and Discipline) Rules, 1973 (the said Rules are stated to have been adopted by the University for its employees) and "verdict of guilty" was returned against him by the authorised officer appointed by the Vice-Chancellor under the said Rules. It is said that it was thereafter that recommendations earlier made in his favour were withdrawn. It is further alleged 'that it came to light after recommendations were made in his favour that petitioner had mis-conducted himself in a variety of ways and quite a few instances of his alleged mis?conduct have been given in the written reply which, as stated above, need not be reproduced here. The action of respondent No. 1 is justified on the ground that petitioner's admission was contingent upon the recommenda?tions of the Vice Chancellor and if respondent No. 1 was competent to recommend him for admission to the two courses, he was equally competent to withdraw his recommendations before he had actually joined either of the two courses. It is added that petitioner cannot claim admission to either course as a matter of right.

6. We have heard both the learned counsel. They have canvassed the same points as given above. Learned counsel for the petitioner submits that respondent No. 1 had the authority to withdraw his recommendations but he could not do so after they had been acted upon and petitioner had been selected for admission and communication to this effect 'had been received by him. He contends that it was immaterial whether petitioner had joined either of the courses or not. But the important consideration is that the petitioner had acquired a right to claim the benefit of this selection for admission granted by the Institute, thus the "decisive step" had been taken and, therefore, there was left no power with the Vice Chancellor to recede. Learned counsel has placed reliance on the following cases :- (1) Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farrukhi P L D 1969 S C 407. (2) Lt: Col. G. L. Battacharya v. .The State and others P L D 1964 S C 503. (3) Pakistan and another v.. S. Hussain Ali Shah A. Fazalani P L D 1960 S C 310. (4) Sheikh Muhammad Nawaz v. The Secretary, Irrigation & Power Government of Baluchistan, Quetta and another P L D 1973 Quetta 14. (5) Munir Ahmad v. University ~y-Baluchistan and another P L D 1979 Quetta 131.

7. On the other hand, learned counsel for respondent No. 1, Mr. Jalaluddin Akber Jee contends that Vice Chancellor, being the principal executive and academic Officer of the University under section 13(1) of Gomal University Act, 1974 (Act X of 1974) was empowered under clause (vi) of subsection (3) of the said section to "direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he may consider necessary for the purpose of the University". It is submitted that although Act X was enforced as early as 2-12-1974, such Authorities as the Senate, the Syndicate etc. had not been constituted till now. Thus respondent No. 1 was repository of all powers under the said Act and he could have lawfully taken the impugned action in the interest and for the purpose of the University. It is next urged that petitioner had not yet actually joined either course at Lahore or Islamabad thus no "decisive step" had yet been taken, therefore, respondent No. 1 is not barred either under the General Clauses Act or the principle of "locus poenitentiae" to withdraw his recommendations. According to the learned counsel, all rulings from the case of Shahbaz v. The Crown (P L D 1956 F C 46) onwards were unanimous that the power to recede was available to an authority until "decisive step" is taken and in this case that stage had not reached, therefore, respondent No. I had, in the circumstances of this case, committed no illegality in withdrawing the recommendations. He adds that it was a case of "closed and past transaction" as held in the case of The Province of East Pakistan v. Muhammad Yaseen Qureshi and another (P L D 1964 S C 438). Thus no exception can be taken to the action of the Vice-Chancellor. The learned counsel has also sought support from the judgments in cases of Dr. Mahboob Rabbani. v. Government of West Pakistan (P L D 1963 Lah. 53) and Farid Khan v. The State (P L D 1665 Pesh. 31).

8. Now it is clear that the learned counsel do not dispute the power of the Vice Chancellor to withdraw his recommendations. They also seem to be in agreement that this power remains with him until a "decisive step" is taken. But they are in disagreement with each other as to the time this is to be reckoned with. According to the learned counsel for the petitioner the "decisive step" was taken when acting upon the recommendations of the Vice Chancellor petitioner was called for interview and he appeared in the tests and was ultimately selected and information to this effect was conveyed to and received by him. The learned counsel for the res?pondent No. 1, however, is of the view that this "decisive step" could only be said to have been taken if the petitioner had been actually admitted in the Institute of Education and Research or for that matter in the Faculty of Shariah, Islamabad, but since this stage had never reached, therefore, there was no question of taking any exception to the withdrawal of recom?mendations as till then no right had vested in the petitioner. To resolve this controversy it is, therefore, necessary to determine as to what does a "decisive step" mean and when it is really reached because on this would depend the decision of the larger issue as to whether the power to recede had been lawfully exercised in ibis case by respondent No. 1 or not. It must, however, be said that determination of this stage in each case would depend upon its own facts.

9. Let us, therefore, examine some of the cases cited at the Bar. In point of time Shahbaz v. The Crown' seems to be the first case brought to our notice from Pakistan Jurisdiction. Shahbaz was convicted for murder and sentenced to death. His sentence was reduced to transportation for life by the High Court in appeal. On an application of his brother, the Government of Punjab passed order in early August, 1954 remitting his sentence unconditionally directing that he should be released on the Independence Day, i.e. 14th August, 1954. But before this order could be given effect it was cancelled on 13thAugust, 1954 with the result that he was not released on the Independence .Day. On this an application was filed in the high Court on his behalf for the issuance of a writ of `habeas corpus' but the same was dismissed. His appeal in the Federal Court met the same fate because the order of cancellation by the Government had been passed before the date of release i.e. the power .to recede what is otherwise known as "locus poenitentiae" had been exercised before the taking of the `decisive step'. `Decisive step' in the circumstances of the case, was thus considered to be the stage where the order has been carried into effect. Since this stage had not reached there existed no reason to restrict the power of the Govern?ment to modify or cancel its earlier order.

10. The decision in Shahbaz v. The Crown again came tinder considera?tion of the Supreme Court in appeal against the judgment of the Full Bench of East Pakistan High Court in the case of Lt. Col- G. L. Battacharva. The Full Bench had come to the conclusion that by communicating the Provincial Government's order of remission to the Superintendent of the Central Jail, the Superintendent receiving the order and recording it in the prisoner's history ticket, a `decisive step' had been taken with regard to the order of remission of which the petitioner was entitled to claim the benefit. The Full Bench rejected the plea raised before it by the Advocate?-General, based upon certain observation, in the case of Shahhaz that until the actual date of release, as fixed by the order of remission, it had not become effective. The Full Bench distinguished the decision in the case of Shahbaz on the ground that the right of release in that case was fixed to take effect upon a particular date, and could not be claimed until that date arrived, so that the order could be withdrawn by a fresh order of the Provincial Government before that date. Their Lordships of the Supreme Court endorsed the view of the Full Bench that "It was immaterial if the prisoner had been actually released or not and that the important consideration was that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government".

11. Next in line is the case of Pakistan through the Secretary, Ministry of Finance v. Aliihammud Himayatullah Farrukhi. In this case an order was made by the then President of Pakistan, on 1-10-1959 fixing basic salary of Himayatullah Farrukhi at R-. 1,000 pet mensem with effect from 8th of June, 1948 nothwithstanding that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The order of the President was duly communicated to the Ministry of Communication and Mr. Himayatullah and its implementation thus ensured became a part of the terms and conditions of the service of Himayatullah Farukhi. But an order was made by the President subsequently on 26-8-1962 withdrawn his earlier order of 1st of October, 1959. This was held by the High Court of West Pakistan, Karachi to be without lawful authority. An appeal was preferred by the Government by special leave in the Supreme Court against this decision. It was held that:- "There can hardly be any dispute with the rule that apart from the provisions of section 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 eject, and in pursuance thereof certain rights have been created in FAVOUR of any individual, such an order cannot be withdrawn or rescinded to the determent of those rights."

12. The position in the case of Sheikh Muhammad Nawaz was in no way different. Petitioner was appointed Overseer in Quetta Region in 1958, was charge-sheeted on 12-6-1968 for misconduct and corruption and after necessary proceedings under the relevant rules, was dismissed from service by the Chief Engineer on 18-6-1969. He preferred an appeal against this order to the Secretary, Irrigation and Power Department. The Secretary accepted his appeal on 18-4-1970 ordering his re-instatement subject to certain conditions. Subsequently on 9-6-1970, however, he cancelled his earlier order dated 18-4-1970 withdrawing the order of re-instatement of the petitioner. This order was challenged by him in writ petition before the High Court of Sind & Baluchistan at Quetta and it was contended on the authority of the two cases of the Supreme Court "Pakistan v. Himayaiullah Farrukhi" and "Lt.-Col. Battacharya v. The State" that the order dated 18-4-1970 by which petitioner's appeal had been accepted and his re?instatement ordered had come into effect and created a vested right in his favour, which the Government -was not competent to revise or cancel subsequently. It was urged on behalf of the Government that the order of Secretary, Irrigation dated 18-4-8970 had not taken effect, as the petitioner had not been re-instated and as appeared from his petition, he was still seeking his re-instatement. It was held that :-- "The dictum laid down by their Lordships of the Supreme Court thus appears to be that as soon as an order of the competent authority is communicated to an agency or officer which or who is required to carry it out, the order is deemed to have become effective. In the instant case, the order of the Secretary, Irrigation having been communicated to the Chief Engineer, who was bound to carry it out, the petitioner and the Accountant-General, is deemed to have become effective when it was so communicated. (ii) Since the two impugned orders of the Secretary Irrigation, dated 25-4-1970 and 9-6-1970 first staying and then withdrawing his order dated 11-4-1970 were passed in purported exercise of the rule laid down in section 21 of the General Clauses Act that an authority competent to pass an order has also the power to vary or revise that order, or the right of locus poenitentiae, i.e., the power of receding till a decisive step is taken available to Government, that power could only be exercised, as laid down by the Supreme Court in the aforesaid two reported cases, before the order of 18-4-1970 had taken legal effect and certain rights had been created in pursuance thereof. We have already indicated that the said order of 18-4-1970 had become effective and created a right to the petitioner to be re-instated in service."

13. The case of Dr. Mahboob Rabbani also proceeds more or less on the same premises. He was a Professor of Pharmaceology in the King Edward Medical College, Lahore. He was to superannuate on 13-9-1957. On 12th of September 1957, a day earlier than his retirement, he applied to the Director of Health Services that he should be granted his earned leave to be enjoyed by him after his retirement as provided under the relevant rules. The Government sanctioned his earned leave for 28 days with effect from 13th of September 1957. This order was duly notified in the official Gazette dated 27-9-1957 and the petitioner became entitled to enjoy his leave as from that date. The Government again by its letter dated the 7th of August, 1958, cancelled the leave granted to the petitioner. The petitioner challenged this order in writ jurisdiction. The order impugned was defended on behalf of the Government on the ground that "though the Governor granted the leave to the petitioner after the date of retirement he could cancel it by virtue of the provisions contained in section 21 of the General Clauses Act". The plea was rejected. It was held that Government had no power to cancel, under section 21 of the General Clauses Act, its order, which had already come into operation.

14. The question upon what point or stage can the power of recall be exercised by Government came up for consideration before Full Bench of the High Court of West Pakistan, Peshawar Bench in "Farid Khan v. The State". Reference was made before the Full Bench to Full Bench judgment in Venkatesh Yeshwant Deshpande v. Emperor (A I R 1938 Nag. 513) and to the decision of the Full Bench of East Pakistan High Court in "Lt: Col. G. L. Battacharya v. The Staff". And this is how their Lordships of the Peshawar Bench expressed their views :- "It will be seen that the test for determining whether there is locus poenitentiae or not is to ascertain whether a decisive step has been taken in pursuance of the earlier order which is sought to be recalled or rescinded. Now, can it be said that the mere entry of the grant of a remission in the prison documents of a convict is a decisive step in the implementation of the order of remission? Their Lordships of the East Pakistan High Court seem to think that it is, as, in their view, the entry of the grant of remission in the prison documents, is all that is required to he done under the order of remission passed by the Government, and it is immaterial whether the prisoner has or has not been released in pursuance of that remission. With great respect to the learned Judges, who decided Bhattacharya's case, we arc unable to adopt this view. It seems to us that the phrase "taking a decisive step" or the alternative phrase "carrying an order into effect", as used in respect of an order capable of physical implementa?tion cannot mean mere documentation; but must connote the taking of an active physical step by which alone the order could be effectively implemented. This meaning 'becomes clear with reference to the observation contained in the last paragraph in the judgment of their Lordships of the Federal Court in the case of Shahbaz. While discussing the theoretical case of a condemned prisoner whose sentence is commuted into one of transportation for life, their Lordships have clearly stated that a decisive step would be taken when the prisoner would be removed from the condemned cell to that part of the prison where the ordinary sentences of imprisonment axe to be undergone. It is clear to us that if in the view of their Lordships the mere entry of an order of commutation in the prison documents was enough, then they would not have stated that the removal of the prisoner from the condemned cell to the other part of the Jail was a decisive step in such a case. Thus an order of remission of sentence can be said to have been carried into effect only when as a result of that remission the convict has been released from custody. It is only then that a decisive step is taken in pursuance of the order of remission. Until that stage is reached, the order 7emains, to use the words employed by their Lordships of the East Pakistan High Court, "an inchoate order". For these reasons, with the utmost respect, we venture to differ from the view taken in Bhattacharya's case, and find ourselves in agreement with the view expressed by the Division Bench of this Court at Lahore in Writ Petition No. 780 of 1962 that an order of remission cannot be said to have been carried into effect until such time as the prisoner is released from custody in pursuance of that order, with the result that until that decisive step is taken, locus poenitentiae exist for the Government to recall or rescind that order."

15. It seems that these views are opposed to the near unanmity of judicial opinion prevailing on this point. We have alluded to the decision of the Full Bench of East Pakistan High Court in the case of Lt. Col. G. L. Battacharya above (paragraph 10) which was assailed in appeal before the Supreme Court. And their Lordships of the Supreme Court approved the views of the Full Bench that it was immaterial if the prisoner had been actually released or not and that the important consideration was that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government. We cannot help referring to the observation of their Lordships contained on page 409 of the report :

"But it is clear that as from the date of the order of the Governor, which was expressed in proper form with due reference to the sentence awarded to the prisoner, and to the power under section 401, Cr. P. C., which was being exercised and which bore a valid official signature, the Jail Superintendent upon receipt of that order was obliged, as part of his duty under the Prisoners Act, immediately to give effect to it, so that the unexpired portion of the original sentence was immediately to be reduced by a period of four years."

16. There is left but one more Supreme Court case Pakistan and another v. S. Hussain Ali Shah A. Fazalani to be referred to. In that case an import licence for an Indian Cinema film was granted to the respondent in accordance with the declared policy of the Government. The licence was, however, later cancelled. But the authorities furnished no explanation to the respondent for their act of cancella?tion. At the hearing of the writ petition brought by him in the High Court the plea was put forward that respondent's application for import licence was not accompanied by a Bankers' certificate showing that the money earned by the film he exported had been repatriated and that he had no legal right to the grant of an import licence. The learned Judges in the High Court noted that it was only upon fulfilment of certain conditions by the petitioner that he became entitled to, and was granted, the import licence which was later cancelled, and observed :- "Having acted upon the invitation of the respondent and having fulfilled the conditions which involved financial commitments, he did acquire a legal right to an import licence of equivalent value." And their Lordships in the Supreme Court gave their full agreement to the views of the learned Judges.

17. Thus necessity and existence of the power to vary or recall the wrong steps taken in case of all authorities empowered to pass orders is recognised by all. There also seems to be a consensus of judicial opinion that apart from the provisions of section 21 of the General Clauses Act, the power of receding i.e. "locus poenitentiae" is available to 'such authorities till the order (being rescinded) has taken legal effect. But where the order has taken legal effect, and in pursuance thereof certain rights have been created in any individual, "decisive step" will be deemed to have been taken and thereafter the order cannot be withdrawn or rescinded to the detriment of those rights. Then the authority issuing such order would be precluded from doing so. Nor it is necessary in all cases that "locus poenitentiae" or the power to rescind or recall an order shall exist until a thing intended by the order has actually happened, such as a prisoner in pursuance of an order of remission is released from custody. And in the words of Full Bench of East Pakistan High Court, which I borrow with reverence, it is immaterial if the prisoner has been actually released or not. The important consideration is "that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government".

18. Viewed in the light of what has been stated above, there is left hardly any doubt that petitioner having been selected for admission in the Institute of Education and Research, University of the Punjab, Lahore and duly informed of the same, there was left no authority with the Vice-Chancellor to recall his recommendations unless it could be shown that they were secured from him by fraud, which, indeed has never been his case. The application for admission was forwarded by him to enable the petitioner to seek admission in the said Institute. Acting on those recommendations petitioner was called for interview and tests. He appeared and was apparently successful and was consequently selected for - admission and asked to join his course there on 2nd and 3rd of January, 1980. Thus a valuable right to claim benefit of admission in the pursuit of higher knowledge was granted to him and this, as stated above, could not have been withdrawn by respondent No.1. His order withdrawing recommendations, after petitioner had been selected for admission and invited to joint his studies is, therefore, set aside, being without lawful authority and of no legal effect: Since LL. M. Course in the Faculty of Shariah and Islamic Studies, Quaid-i-Azam University, Islamabad had commenced as far back as 20-10-1979, no useful purpose would be served to give any findings in that respect for it would not be possible for the petitioner to join that course now. The costs of this petition shall be borne by respondent No.

1. S. A. H.?????????? ??????????????????????????????????????????????????????????? Petition accepted.