2001 PLP 600 (CLC)

"It is prayed that the Principal, Bolan Medical College may be directed , not to cancel my admission for nothing or on mere desire of the Governor, Balochistan. Such stay orders have already been issued by the Honourable High Court on identical petitions in C.Ps. Nos.358, 393, 394, 395 and 396 of 2000. That the Government should accept the payment already made by the then Chief Minister as valid, just final and as per policy then in vogue." Besides the instant petition, other petitions were also filed wherein the notice issued by the Principal, Bolan Medical College, has been challenged. The other petitions were not pressed on merits, and it was prayed, that the students be allowed to deposit the amount in installments, The request so made by the students in other petitions, was accepted and they have been allowed to deposit the amount in five yearly equal installments. commencing from 30th November, 2000, and last installment is to be paid by them, before commencement of the final examination. However, only the petitioner, contested the notice issued by the Principal, Bolan Medial College, Quetta, Mr. Muhammad Aslam Chishti, learned counsel for petitioner contended; that a vested right has been created in favour of the petitioner thus, on the principle of locus poenitentiae, the amount cannot be claimed by the Government. Learned counsel further contended that the amount was paid by the then Chief Minister from the discretionary fund and the same was duly approved by the Provincial Assembly. Thus, it had attained finality and the same cannot be refunded. Learned counsel further stated that the order of depositing the amount is discriminatory in nature, as many other students were also given the grants, but the same has not been claimed from them. Mr. Ashraf Khan Tanoli, learned Advocate‑General emphatically contended, that the then Chief Minister had no authority to grant the funds, and the seats were allocated to petitioner and other students, on the basis of Self‑Finance Scheme, therefore, they were under obligation to pay the amount, as per the object of said scheme. However, after admission, the father of petitioner had been writing letters to the then Chief Secretary and the then Chief Minister, that petitioner may be allowed to deposit the amount in yearly installments. Inasmuch as, a letter was also written to the Governor, after issuance of impugned notice, dated 4‑5‑2000, wherein it was requested that the petitioner be allowed to deposit the amount in installments. Thus, the petitioner now cannot be allowed to approbate and reprobate stands. Learned Advocate‑General further contended that no discrimination has been done, as some of the students were only granted scholarship, on their getting admission in different Educational Institutions of the Country. Adverting to the contention of Mr. Muhammad Aslam Chishti, Advocate, that a vested right has been created in favour of petitioner, learned counsel to substantiate his argument, contended that, the then Chief Minister, deposited the amount out of his discretionary fund towards the educational expenses of petitioner and after two years, the same cannot be reclaimed. Learned counsel stated that on the principle of locus poenitentiae, the amount cannot be claimed by the Government as the then Chief Minister was competent to deposit the same from his discretionary fund, which has also been approved by the then Assembly. Thus, the transaction has attained finality. In support of its contention, learned counsel relied on PLD 1969 SC 407 and 1997 SCMR

15. Learned Advocate‑General, while opposing the petition vehemently argued that the then Chief Minister had no authority to deposit the amount from his discretionary fund, as admissions were granted on the basis of "Self‑Finance Scheme" and, therefore, the petitioner was under obligation to deposit the amount. Besides the learned Advocate‑General contended, that the authority which can pass an order, is also competent to vary, amend and rescind the same. He further pointed out that the principle of locus poenitentiae, is not a settled principle of law on the analogy that once the order passed becomes irrevocable. We have heard the learned counsel for parties and also perused the record of case and the case‑law with their assistance. It may be observed that for the Academic Session 1997‑98, certain seats were reserved for students, who could pay the expenses incurred on their studies from their own resources. The petitioner alongwith other students filed application form and undertook to pay the expenses from his own personal resources. Record shows that after admission, the then Chief Minister was approached, who acceded to the request of petitioner and deposited the amount from the secret fund/discretionary grant. It may be noted that the learned counsel for petitioner, failed to point out, that as to how the Chief Minister was competent to deposit the amount in lump sum on behalf of each student, which obviously was an extra burden on the public exchequer. It may be pointed out that under section 21 of the General Clauses Act, an Authority which can pass the order, is also competent to vary, amend 8 or rescind the same. As observed hereinabove, the then Chief Minister had no authority to make payment of Rs.7,50,000 out of the discretionary fund, thus, the competent Authority has rightly ordered for the refund of said amount. The contention of learned Advocate‑General has substance that it is not a principle of law that order once passed becomes irrevocable and it is said to be a past and closed transaction. If the order is illegal and without lawful authority, then perpetual rights cannot be claimed on such illegal order. In this regard, reference is made to PLD 1992 SC 207, wherein the Honourable Supreme Court has made following observations:‑‑ "The order under which the payment was made to the respondent had no sanction of law. 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. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade‑II, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field. Learned counsel for appellants had submitted that the appellants had drawn Rs.12,890.86 (Rupees Twelve thousand eight hundred ninety and paisa eighty‑six only) during this period but the Engineer‑in- Chief had directed the recovery of Rs.1,860 only (Rupees one thousand eight hundred sixty and paisa nil only). We consider that as far as the recovery of the amount in question is concerned, the principle of locus paenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made." In view of the above, the petitioner cannot claim the amount on the principle of locus poenitentiae, as the then Chief Minister, who paid the expenses on behalf of the petitioner without any lawful authority. Even otherwise, it may be observed, that petitioner had yet not concluded the course of his M.B.,B.S., and has only studied for a period of two years, therefore, it cannot be said to be past and closed transaction and as such, the earlier action of the then Chief Minister, in depositing the amount on behalf of petitioner is reversible, especially when the same has no legal footing and is totally against the object of the Scheme; announced by the Authorities of Bolan Medical College. The very purpose of the Scheme was to raise extra funds for the college. Adverting to the next contention of learned Advocate‑General, that the petitioner is estopped to challenge the notice, dated 4‑5‑2000, learned Advocate‑General, referred to the letters written by the father of petitioner, soon after her admission. It may be noted that first letter was written by the father of petitioner on 21st May, 1999, to the Chief Secretary, wherein request was made to allow the petitioner to deposit the amount in yearly installments. Thereafter, a letter was also written to the then Chief Minister, wherein similar request was made, that the petitioner be allowed to deposit the amount in five equal yearly installments of Rs.1,50,

000. Inasmuch as after receiving the notice, dated 4‑5‑2000, a representation was made to the Governor, wherein request was made, that the amount so deposited by the then Chief Minister may not be ordered to be withdrawn or in alternative, the petitioner be allowed to deposit the amount in installments. In our opinion, the contention of learned Advocate‑General has substance; that after making a request for deposit of amount in installments, the petitioner is estopped under the law to challenge the notice, dated 4‑5‑2000, issued by‑ the Principal, Bolan Medical College, Quetta and she cannot be allowed to approbate and reprobate, simultaneously. In view of the above discussion, we see no merits in petition, which is accordingly dismissed, with no order as to costs. However, since the other students have been allowed to deposit the amount in five equal installments, commencing from 30th November, 2000, and the last installment has to be deposited before commencement of the final examination, therefore, such concession is extended to the petitioner as well. Q.M.H./M.A.K./55/Q Petition dismissed,