P L D 1999 Lahore 187 (PLP)

2. This Court directed Mr. Shahid Waheed, Advocate for respondent Board to obtain instructions and to assist this Court.

3. In today's hearing Mr. Shahid Waheed, Advocate has urged that the petitioners having already exhausted all the chances admissible under the Calendar of the Board, could not have been granted the permission in law. It is submitted that the permission granted by Controlling Authority assumed scandalous proportion and were duly published in the press with the result that Chief Minister had to take notice and intervene in the case. He has stated that the Controlling Authority has no power to pass the order such as is contained in Annexure 'D'. In any case even if the power was there the same having been exercised without prior notice and hearing to the Board, the direction is void in law.

4. In reply Mr. Noor Muhammad Awan, Advocate appearing for the petitioners denied that the Controlling Authority passed the order without hearing the Board. I, therefore, directed the learned Assistant Advocate‑General to contact Secretary Education and to obtain instructions in this regard. When the case was taken up later in the day learned Assistant Advocate‑General informed the Court that the Secretary, Education passed the order, without notice and hearing to the Board.

5. Mr. Noor Muhammad Awan, Advocate relied on sections 12(1), 12(5) and 12(6) of the Act to submit that the order passed by the Controlling Authority is covered by the above‑noted provisions. For ready reference the same are reproduced:‑‑ Section 12.‑‑(1) The Controlling Authority shall have the .power to inspect and cause an inspection to be made, by such person or persons as it may direct, of the offices, activities and funds of and the conduct of examinations by a Board, and to cause an enquiry to be, made in respect of any matter concerning a Board, or the discharge of functions by the members, officers and employees of the Board. (2) ... ... ... ... ... , .... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... . (3) ... ... ... . . ...... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... . (4) ... ... ... ... ... ...... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... . (5) If the Controlling Authority is satisfied that any proceeding of a Board or a Committee is not in conformity with the provisions of this Act, or Regulations or Rules framed thereunder, or in public interest, the Controlling Authority may, without prejudice to the foregoing provisions of this section, by order in writing, annul such proceedings: Provided that before making any such order, the Controlling Authority shall, through the Chairman, call upon the Board or the committee, as the case may be, to show cause why such an order should not be made. (6) The Controlling Authority may, from time to time, direct a Board to conduct its affairs and to perform its functions in such manner as may be specified. Mr. Noor Muhammad Awan, Advocate further relied on Controlling Authority, N.‑W.F.P. Board of Technical Education, Peshawar and another v. Abdul Salam, Secretary, N.‑W.F.P. Board of Technical Education PLD 1993 SC 200 in support of the proposition that the Controlling Authority, in the circumstances could have legally granted extra chance to the petitioner.

6. An analysis of section 12 would show that this section grants a power to the Controlling Authority to hold inspection or to order enquiry into the offices, activities and funds and the conduct of the examination by a Board. Under subsection (5) if the Controlling Authority (presumably on the basis of inspection and enquiry held under subsection (1) is satisfied that any proceedings of the Board or a Committee is not in conformity with the provisions of the Act or Regulations or Rules framed thereunder or in public interest, the Controlling Authority may annul such proceedings after hearing the Board through its Chairman. Under subsection (6), the Controlling Authority is empowered to A give general directions to the Board to conduct its affairs and perform its functions in such manner as may be specified. It will be appreciated that section 12 in terms confines itself to general and policy matters. Assuming, however, that a direction could also be issued in an individual case, this could only be done under subsection (5). The Controlling Authority cannot do it without notice and hearing of the Board. Subsection (5) further preconditions the exercise of power of annulling any proceedings, on the satisfaction of Controlling Authority that the proceedings of a Board or a Committee is not in conformity with the provisions of the Act, Regulations or Rules or in public interest. No annulment of any proceedings can take place in any other case.

7. The contention of Mr. Noor Awan, Advocate that the direction given by the Controlling Authority for the grant of additional chance to the petitioner is covered by subsection (1) is incorrect on the bare reading of subsection (1) and is, therefore, rejected. Such a direction at best could be given under subsection (5). This could only be done after hearing the Board through its Chairman. As admitted by the learned Assistant Advocate‑General, no notice was given to the Board prior to the issuing of direction nor the point of view of the Board was considered. The direction, therefore, suffers from patent illegality and being void in nature could have been ignored .by the Board,, The direction is otherwise illegal as the Controlling Authority did not specify as to how the refusal of the Chairman to grant extra chance to the petitioners was not .in conformity with the provisions of the Act, or Regulations, or Rules or was against public interest. In the absence of any such finding the power exercised by the Controlling Authority was patently arbitrary and cannot be blessed by a judicial decision. The reliance of Mr.Noor Awan, Advocate on the case of Haji Jannat Gul Khan (supra) does not advance his case as the facts of the case were different. In the reported case the upgradation of the post of Secretary of the Board to Grade‑19 was not approved by the Controlling Authority and the Supreme Court, disagreeing with the view of the High Court, allowed the appeal on the ground that under section 15 of the North‑West Frontier Province Board of Technical Education Ordinance, 1972 the upgradation had to be approved by the Controlling Authority. Section 15 of the Ordinance was almost similarly worded as section 12 of the Act and the arguments on behalf of the' Secretary that the Controlling Authority did not issue the show‑cause notice was not accepted by the Supreme Court on the ground, that the provisions of section 15 for approval of the upgradation by the Controlling Authority was specific and had to prevail over the general provisions of section

12. In fact the analysis of the judgment would show that the reported case confirms the view being taken by me in this judgment that prior hearing to the Board in case of annulment of any proceedings is absolutely necessary and valid. The failure would render the order void.

8. It has also been argued by Mr. Noor Awan, Advocate that having agreed to implement the direction of the Controlling Authority vide letter dated 16‑2‑1998 and having accepted the admission forms of the petitioners, the Board could not' have retraced the steps and refused to implement the direction of the Controlling Authority. In other words it has been argued that the Board was left with no locus poenitentiae in the matter.

9. The arguments have no force and have to be rejected. The principle of locus poenitentiae is that the Authority can retrace the steps or withdraw the order/action till a decisive step has taken place. What is a decisive step always D depends upon facts and circumstances of the case. I do not agree with Mr. Noor Awan, Advocate that the Board in this case by initially agreeing to implement the direction of the Controlling Authority and by accepting the forms had lost the power to refuse to implement the directive. It will be seen that the acceptance conveyed to. the petitioner in Annexure 'E' was not unconditional but was dependent on the declaration of the Controlling Authority that this relaxation would not be taken/quoted as a precedent in future. At no stage the Controlling Authority conveyed that its order was subject to that condition. Besides in my view, the decisive step in this case would have been taking of examination by the petitioners. Once this had happened, a right could have been claimed to have accrued estopping the Board from retracting its steps. 10 For all the above reasons conclude that the directions issued by the Controlling Authority in this case was without lawful authority and as such respondent‑Board has validly refused to implement the same. This petition is 1E dismissed without any order as to costs. M.B.A./N‑127/L Petition dismissed.