1989 PLP 2279 (CLC)

3. 1 sent for the record of the Punjab Public Service Commission for discovery of truth and in order to be satisfied that no unfair practice had crept into the proceedings. The record on being produced has been perused by the Court and counsel for both sides.

4. A scrutiny of the record shows that the petitioner Irfanullah's result sheet is scored out. This according to the Secretary of the Punjab Public Service Commission proves the fact that the candidate had not qualified. This is further corroborated by the fact that he has secured a total of 46 marks with a split up of 23 marks each in academic and viva voce. He thus failed to qualify because he secured in the viva voce less than 30 marks which is the prescribed minimum for passing the test. The petitioner's result is duly initialled. The Secretary and the Deputy Director of the Punjab Public Service Commission who are fully conversant with the signatures of the Member of the Commission, Mr. Iqbal Ahmad Khan, in the ordinary course of their business, identified these to be of the aforesaid Member of the Commission. There is no dispute between the parties regarding this aspect of the matter. On the reverse of this sheet there exists an entry in respect of Irfanullah son of Hashmatullah who secured in the aggregate 63 marks out of which 28 marks were obtained on the basis of academic qualifications and 35 on the basis of viva voce. It has to be mentioned that the name of Irfanullah son of Hashmatullah whose name was to be recommended for appointment on his own merit was totally omitted from the list of successful candidates recommended for appointment to the Government. He has not been impleaded as a respondent to this Constitutional petition. .

5. In this factual background, the learned counsel for the petitioner argued that on the principle of locus poenitentiae, that is, power of receding till a decisive step is taken, the declaration of the petitioner as recommendee of the Punjab Public Service Commission could not have been rescinded. In support of his submission, the learned counsel placed reliance on a decision of the Supreme Court in re: Pakistan v. Himayatullah Farukhi PLD 1969 SC 407 for the legal proposition that power of receding till a decisive step is taken was not available to the Punjab Public Service Commission because the order had taken legal effect and in pursuance thereof certain rights had accrued in favour of the petitioner. He, therefore, prays for declaring the amendment brought about to the list published by the Public Service Commission to be without lawful authority and of no legal effect.

6. One cannot help observing that such like errors even if they creep into the result lists without proven mala fides are an unfortunate event. The serious consequences and set‑back which a candidate hit by a undetected error would perpetually suffer need not be over emphasised. I am desisting from making any comment on the working of the Public Service Commission or the manner in which the matter was dealt with because learned counsel submits that such an observation, if made, may prejudice the petitioner in the intended suit for damages.

7. During the hearing, as already noticed Irfanullah son of Hashmatullah who indisputably secured 63 marks as against 46 secured by the petitioner has not been impleaded as a party. This by itself is a fatal defect.

8. It remains to deal with the judgment cited by the learned counsel for the petitioner on the principle of locus poeitentiae in re: Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and in particular observations occurring in the judgment of Sajjad Ahmad, J. in the following terms:‑ "There can hardly be any dispute with the rule as laid down in these cases 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 effect, and in pursuance thereof certain rights have been created m favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." 9. 1 have given my serious consideration to the arguments of the learned counsel for the petitioner in the light of cited precedent. Firstly, it must be observed that the accrual of a legal right cannot be claimed by the petitioner by usurpation of the rights to the utter ruination of a third person who has been wronged. Secondly, the words an order having taken legal effect' need to be construed. It may be observed that an order which is without or in excess of jurisdiction or a total nullity or ab initio void is devoid of legal effect. Issuance or non‑issuance of such an order would not be able to bring about any legal change in its original character. In the present case, it is not disputed before this Court that the Punjab Public Service Commission lacked competence to grant the marks of Irfan son of Hashmatullah to the petitioner who had clearly failed. If such contrivance is to be allowed to prevail, the principle of locus poenitentiae is likely to be misused to the extent that the rightful persons would stand deprived of what belongs to them and wrong‑doers through usurpation would thrive. Such a course is neither sanctioned by law nor by equity or good conscience.

10. This rule of locus poenitentiae, in my view, cannot be stretched to those cases where the, authority concerned has no power to make an order of the type complained against and yet this principle is pressed into service as a bar to rectification of the mistake or patent error which has the effect of seriously prejudicing an innocent person and depriving him of his legal right based upon merit. Justice is not to be dispensed through a process of legal gimmicks and a Court is not to decide a case in vaccum or divorced from the realities of a particular case. There errors on the part of the Office of Punjab Public Service Commission pointed out above to say the least may be reprehensible. The precedent cited, therefore, is distinguishable and cannot be pressed into service by the petitioner for obtaining annulment of the order impugned before this Court and for a direction in the nature of mandamus requiring the respondent Punjab Public Service Commission to issue a further corrigendum declaring the petitioner to be a successful candidate while in fact he is one of those who have failed.

11. The essential ingredients necessary to lay foundation for grant of writ in the nature of mandamus are thus conspicuous by their absence in the present case. It is difficult to appreciate with what face the petitioner, a failing student, r could demand, as of right from the Punjab Public Service Commission the marks of another student who had passed with a high merit. The plea of the petitioner for such a demand being unjust,. unfair and unconscionable must be repelled.

12. The learned counsel was given ample opportunity to satisfy the Court that the petitioner on account of this process of substitution and deprivation of another qualified doctor could properly claim accrual of any rights. The learned counsel was unable to justify usurpation of rights which properly belong to another deserving person. The doctrine of locus poenitentiae, therefore, in my considered view cannot be of any avail to the petitioner who is approaching this Court in the exercise of its Constitutional jurisdiction for the purpose of helping him in depriving another deserving person of his legal rights which undoubtedly belonged to him. This aspect need not be further elaborated or over emphasized.

13. In exercise of the discretionary Constitutional jurisdiction of this Court on the basis of no conceivable, principle I have felt persuaded to come to the aid of the petitioner in order to help him thrive at the cost of a deserving person by snatching away his lawful rights.

14. For the reasons stated, I find no merit in this petition and it is dismissed. Since both the parties have been heard in extenso, the case is disposed of as notice case. There shall be, however, in the circumstances no order as to costs. AA./1‑141/L Petition dismissed,