1997 PLP 497 (CLC)

‑‑‑‑ Notification does not act retrospectively and cannot take away vested rights. Nishat Ahmed Siddiqui for Petitioner. Mian Mushtaq Ahmed for Respondent. Date of hearing: 13th November, 1994. This judgment will dispose of Writ Petition No. 1757/94 entitled Mst. Shazia Shabbir v. The Chairman, Board of Intermediate and Secondary Education, Multan, etc. and Writ Petition No.1836/94 entitled Mst. Farhana Andleeb v. The Chairman, Board of Intermediate and Secondary Education, Multan, etc. as common question of law is involved. In both the cases the petitioner joined the college as first year student in the year 1992. Mst. Shazia Shabbir had Psychology and Statistic as the subjects while Mst. Farhana Andleeb had Psychology and Health and Physical Education as the subjects. The two petitioners pursued their study as casual students in the respective colleges. Their forms for Intermediate Examination to be held in 1994 were forwarded as private students duly accompanied by certificate from the respective Principals that they had attended the practical classes in their respective subjects. The respondent‑Board did not permit them to take the Intermediate Examination on the ground that they being private students, cannot be permitted to take in subjects in which practicals are involved. For this purpose the notification No.RG (General)‑18/Meeting/93 dated 22‑11‑1993, Petition No.1757/94 was admitted to regular hearing on 21‑4‑1994, after hearing the Board and its counsel. By an interim order, the respondent/Board was directed to issue roll number to the petitioner but the result of the examination was made subject to the decision of this writ petition. Writ Petition No. 1836 of 1994 was also admitted on 23‑4‑1994 and was ordered to be heard alongwith Writ Petition No.1757/94. Similar interim order was also passed in Writ Petition No. 1836/94.

2. It is correct that the Notification relied upon by the respondent‑Board does debar the private candidates of arts and other groups from taking examination in the subjects which involve practicals. Such subjects have also been stated in the Notification and there is no dispute that the petitioner's subjects are so stated. The Notification further states that this decision shall be implemented from the Annual Examination of 1994. This itself does not decide the fate of these two petitions.

3. The real question is whether this Notification can be given retrospective effect so as to take away the vested rights, if any of the two petitioners. It is admitted that when the petitioners chose their respective subjects and commenced the study of the same, no such embargo existed. Had such an embargo existed and the students made aware of the same, the two petitioners may have either changed the subjects or would have taken appropriate steps at the relevant time. When the petitioners had almost completed the, prescribed study of the subjects and as indicated by the certificates of the respective principals also conducted the practicals, the respondent‑Board in its wisdom has turned around and placed an embargo which adversely affects the rights of the petitioners to be examined in the subjects and to pass the examination in the same. In my judgment the permission available to the petitioners in the year 1992 to study these subjects and to be examined in the same after completion of two years' course of study cannot be revoked.. A Notification never acts retrospectively and can never take away the vested rights. The decision of the Board that the rule laid down in Notification dated 22‑11‑1993, shall apply to the Annual Intermediate Examination of 1994, cannot be given effect to so as to deprive the two petitioners from the permission available, to them at the beginning of their studies in 1992. The principle of promissory estoppel as explained in 1991 SCMR 2300 shall also apply against the respondent‑Board.

4. Learned counsel appearing for the respondents has also placed before me a copy of Notification dated 10‑6‑1991 and has attempted to argue that under para. No. 10 of this Notification the two petitioners cannot be permitted to take the examination in their respective subjects. The argument is mis‑conceived and is hereby rejected. Para. No. 10 is relatable to the facility of part system and it is in that connection that allowing/disallowing the facility of part system to private candidates appearing in subjects involving practicals is laid down. It is obvious that this question is not involved in these two petitions nor the petitioner's learned counsel has requested for the facility of part system.

5. These two petitions are allowed. The action of the respondent‑Board in disallowing the petitioners to take the Annual Intermediate Examination, 1994 in their respective subjects is hereby declared as without lawful authority and of no legal effect. No order as to costs.

6. Needless to add that the Board shall now declare the result of the two petitioners and proceed further in the matter according to the question of law as decided herein. A.A./F‑191/L Petitions accepted.