2005 PLP 1066 (CLC)

Iqbal Mehmood Awan for Respondent No.3. Muhammad Hanif Khatana, Addl. A.‑G. Date of hearing: 6th April, 2005. CH. IJAZ AHMAD J.‑‑‑We intend to decide the following Constitutional petitions by one consolidated judgment having similar facts and law: (1) Writ Petition No. 195 of 2005 and (2) Writ Petition No. 196 of 2005.

2. The brief facts out of which the aforesaid Constitutional petitions arise are that Zahra Hanif petitioner appeared in F.Sc. 1st Professional Examination, 1998 held by the concerned Board secured 578 marks out of 1100 and secured admission in Medical College on 19‑12‑1998. Muhammad Ejaz‑ul‑Hassan petitioner appeared in F.Sc. 1st Professional Examination, 1997 held by the concerned Board, secured 595 marks out of 1100 and secured admission in Medical College on 9‑3‑1999. Noman Jamshed petitioner appeared in F.Sc. 1st Professional Examination, 1998 held by the concerned Board; examination and secured certificate from the concerned University. Respondent No.1 did not allow them to practice as Doctors on the ground that they secured less than 60% marks in F.Sc. examination. Therefore, they were not eligible to secure admission in Medical Colleges. The petitioners being aggrieved filed the aforesaid Constitutional petitions.

3. Learned counsel of the petitioners submits that petitioners secured admission in the concerned Medical Colleges but respondent No.1 did not agitate the matter at relevant time with the concerned University and did not issue any letter to the petitioners that the petitioners were not eligible to continue their studies in Medical Colleges. Therefore, the petitioners are penalized by the inaction of the public functionaries. He further submits that regulation was approved by respondent No.1 in the meeting, held on 29th and 30th April, 2003 as is evident from reply of respondent No.1 in ground

2. As such impugned order of respondent No. 1 is not sustainable in the eyes of law.

4. Learned Law Officer submits that nobody should be penalized by the act of the Court as the petitioners were allowed to continue the studies in the Medical Colleges by the order of the Court. Respondent No. 1 did not challenge the order of this Court before any higher forum. Therefore, the same is final.

5. Learned counsel of respondent No.3 submits that petitioners have passed the examinations and secured the certificates. Therefore, it is not in the interest of justice that they should not be allowed to do practice.

6. Learned counsel of respondent No.2 submits that University has allowed the petitioners to appear in the examination under the direction of this Court.

7. Learned counsel of respondent No. 1 submits that impugned regulation was passed on 7‑8‑1.998 as is evident from the impugned order of respondent No. 1 dated 11‑10‑2004.

8. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.

9. It is better and appropriate to reproduce reply of ground 2 of respondent No. 1 to resolve the controversy between the parties: "The Council approved these Regulations in its (92nd) Session held on 29th and 30th April, 2003. Therefore, the petitioner cannot be registered because in F.Sc. (Pre‑Medical) marks less than 60%." It is pertinent to mention here that petitioners secured admission in F.Sc. in the years 1998 and 1999. The Regulation in question was approved by the respondent in the year 2003 as the stand taken by respondent No. 1 in the report and parawise comments, as mentioned above. It is settled principle of law that parties are bound by their pleadings as the law laid down by the Honourable Supreme Court in Mst. Murad Begum's case PLD 1974 SC

322. It is also settled principle of law that nobody should be allowed to approbate and reprobate. Therefore, keeping in view the stand of the respondent before this Court in report and parawise comments the impugned order is not sustainable in the eyes of law as respondent No. 1 has no lawful authority to take away the vested right of the petitioner through a regulation by giving a retrospective effect which is not in consonance with the law laid down by the Honourable Supreme Court in the following judgments:‑‑ Pakistan through Secretary v. Salahuddin PLD 1991 SC 546 and Messrs Army Welfare Sugar Mills v. Federation of Pakistan 1992 SCMR 1652. In views of what has been discussed above, these writ petitions are allowed and impugned order is declared to be without lawful authority and is set aside. S.A.K./Z‑86/L Petitions accepted.