1997 PLP 2030 (CLC)

AMANULLAH KHAN, J.‑‑‑The petitioner alongwith the respondents Nos.3 and 4 applied for admission in the Engineering College/Universities of Pakistan against reserved seats of District Jafarabad for the session 1995‑

96. All of them were given admission on merit by the Selection Committee vide Notification dated 12‑2‑1997. Petitioner and respondent No.3 were given admission in Electrical and Mechanical Technology respectively in the Engineering University, Khuzdar while respondent No.4 was given admission in Dawood College of Engineering and Technology, Karachi in Metallurgy. It is the case of the petitioner that after being selected for the said technology he duly deposited his dues and was issued a Roll No. in Electrical Technology in Engineering University of Khuzdar and after studying for about 2/3 months respondents Nos.1 and 2 are trying to change the Notification whereby the petitioner is being sent to Mechanical Engineering or Metallergy and respondent No.3 or 4 is being sent in his place. H2 has challenged the intended act of the official respondents and has prayed that they be restrained from changing his technology. Respondents 1 and 2 have filed their parawise comments and respondents 3 and 4 have also filed counter‑affidavit .opposing the petition.

2. We have heard Mr. Riaz Ahmad, Advocate for petitioner, Mr. Noor Muhammad Achakzai, Additional Advocate‑General for official respondents and Mr. Goher Yakub Yousufzai, Advocate for respondents 3 and 4.

3. Mr. Muhammad Riaz Ahmad learned counsel for petitioner raised the following contentions:‑‑ (i)???????? That since the petitioner has deposited his fees in Electrical Engineering and a Roll member has been allotted to him and he has started attending the classes; as such valid right has accrued to him which cannot be snatched away; the petitioner is entitled to carry on his studies in Electrical Engineering on the principle of locus poenitentiae. (ii)??????? That the intended act of official respondents by changing the technology of the petitioner at a belated stage is unwarranted and against the admission policy. (iii)?????? That the Notification dated 12‑2‑1997 issued by the official respondents granting admission to the petitioner and respondents has not been challenged either by the official or private respondents‑‑ The learned counsel relied on the following case‑law:‑‑ (a)??????? Pakistan through the Secretary of Defence v. Muhammad Himayatullah Farooqi and 4 others PLD 1969 SC 407. (b)??????? Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zameer Ahmad and another 1997 SCMR 15.

4. Mr. Noor Muhammad Achakai, Additional Advocate General opposing the petition stated that as per merit list the petitioner was entitled to admission in Metallergy as he had lesser marks than respondents 3 and 4 but due to interference of Mir Zafarullah Khan Jamali the then Care‑taker Chief Minister the technology of the petitioner was changed from Metallergy to Electrical. The learned counsel further drew our attention to the Notification dated 12‑2‑1997 wherein at page 59 of the petition at section No. 13 below the name of respondent No.3 the following note has been written:‑‑ "Note as per instructions contained in D.O. letter of honourbale Mir Zafarullah Khan Jamali his technology goes to Abdul Ghaffar son of Sultan Ahmad, Round No.4, Section No. 11." Similarly at page 61 of the petition at section No. 11 below the name of the petitioner it has been observed:‑‑ "Note as per instructions contained in D.O. letter of honourbale Mir Zafarullah Khan Jamali he has obtained Electrical Technology."

5. Mr. Noor Muhammad Achakzai learned Additional Advocate‑General candidly conceded that Mir Zafarullah Khan Jamali had no jurisdiction to have issued directions for changing of the technology of petitioner and the respondents. He further admitted that the said instructions issued by the then Chief Minister are in excess of authority.

6. Mr. Goher Yakub Yousufzai learned counsel for respondents 3 and 4 adopted the arguments of learned Additional Advocate‑General and further stated that writ cannot be issued to perpetuate illegality.

7. We have perused the record and have given our anxious thought to the arguments advanced by the learned counsel for the parties. From the perusal of the record it reveals that prior to allotting technology to students the petitioner approached Mir Zafarullah Khan Jamli, the then Care‑taker Chief Minister who in turn issued instructions to the official respondents to grant Electrical Technology to the petitioner instead of Mechanical or Metallurgy. Thereafter, on such instructions the official respondents while deviating from rules granted electrical technology to respondent No.3 and metallurgy to respondent No.4. Admittedly the petitioner had lesser marks and he was not entitled to the said technology on merits and Mr. Zafarullah Khan Jamali had no jurisdiction to issue directions to the official respondents to give the technology of Electrical Engineering to the petitioner. Such directions were not according to rules and in excess of authority. The arguments advanced by Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner that since the petitioner is entitled to carry on his studies in the Electrical Technology on the principle of locus poenitentiae has no force, is thus repelled. We do not agree with the said contention of the learned counsel for the petitioner. The case‑law relied by him is distinguishable. The principle of locus poenitentiae is not applicable to the case in hand as the petitioner had obtained the Electrical Engineering through the interference of the then Care‑taker Chief Minister who had no authority to direct official respondents to change the technology of the petitioner, as he obtained the same illegally and through manipulation as such principle of locus poenitentiae would not be applicable. Reliance is placed on Dr. Amanul Haq and 2 others v. Punjab Public Service Commission and another PLD 1989 Lahore 196 and The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin) PLD 1992 SC

207. In the former case it was observed as under:‑‑ "A person having recourse to the discretionary and equitable constitutional jurisdiction of this Court cannot reasonably pray to this Court to come to his aid and to grant his desire to thrive through a strange set of intentional or unintentional errors at the cost of legal right of another individual. In my humble view, the plea of locus poenitentiae is not available to a person in case where the order or the action relied upon may be found to but without jurisdiction or in excess thereof. No right can be claimed or superstructure of rights built upon orders which are void or complete nullities in law." In the latter case the Honourbale Supreme Court observed as‑under:‑ "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order." It is an established principle of law that Constitutional jurisdiction cannot be exercised in favour of retention of ill‑gotten gains and it is further observed that the object of writ jurisdiction is to foster justice and not to perpetuate an illegality, reference is made to S.K. Masood and. 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation) and Secretary to Punjab Government and others) 1990 CLC 1174 and Munjri Khan and others v. Faridoon and 5 others 1995 SCMR

678. For the foregoing reasons we see no merits in the petition, the same is dismissed leaving the parties to bear their own costs. H.B.T./646/Q ????????????????????????????????????????????????????????????????????????? Petition dismissed.