' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel this constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly. In 1997 petitioners were selected for training of Tapedars Course at Tapedar's Training College Hyderabad. However, no order was issued to them and as a result, it is contended in the petition, their training was cancelled without notice to them. Constitution Petition No,341 of 2003 was filed by the petitioners.
This Constitution Petition was dismissed vide judgment dated 16-9-2004. Operative part of the judgment reads as under:-- "Petitioners counsel was asked to explain the laches. The counsel merely stated that the petitioners have been privately contacting the respondents. No documentary evidence or any material has been filed by the petitioners to explain the laches. It is settled law that the parties, coming for discretionary relief under constitutional jurisdiction have to approach the Court at the earliest time and if any delay in approaching the Court is made, the same has to be explained with cogent reasons. No reason whatsoever has been given in the present case by the petitioner for not approaching the Court in the year . . . When the new Selection Committee was constituted. No law has been cited at the bar from the side of the petitioner on the ground of lathes. Petition is therefore dismissed as barred by lathes."
2. Some other persons filed C.P. No,905 of 2004 at Sukkur Bench. That Constitution petition was allowed vide order dated 28-3-2006. Operative part of the judgment reads as under:- "We have heard the learned counsel as well as learned Additional Advocate-General. We are of the opinion that as admittedly the petitioners have been selected to undergo training in question vide letter dated 29-12-1997, certain vested rights have accrued in their favour which cannot be trampled by forcing them to undergo another.. For selection procedure. We would hence dispose of the petition by directing that the petitioners are eligible to undergo Tapedars training at such training college Hyderabad and would thereafter be appointed as Tapedars as per Government policy. Petition stands disposed of along with listed application."
3. After the petition was allowed at Sukkur, order dated 25-10-2008 was issued by the Administrative Officer of Director of Settlement (Survey Record) Sindh. In the order names of petitioners were mentioned and District Officers Revenue were directed to direct 8 persons named therein including the three petitioners to report along with original documents and payment of fee of Rs,3,300. Subsequently vide order dated 17-11-2008 the petitioners were restrained from Tapedar's Training College. Order reads as under:- "It is to inform you that Board of Revenue Sindh Hyderabad vide their communication hearing Letter No,16.16.1979 Estt-11 dated 15-11-2008 addressed to the Director of Settlement Survey and Land Records Sindh Hyderabad received by this office vide Director of Settlement Survey and Land Records Sindh Hyderabad letter No,A.E/ITC/- 2698 dated 15-11-2008, have cancelled your selection/offer letter/admission and enrollment.
' Therefore, in compliance of the orders of Board of Revenue Sindh you are hereby restrained from this College with immediate effect. You are also informed to receive the cheque amounting to Rs,3300 of the fees deposited by you and return the Identity Card issued to you immediately in person on receipt of this rustication letter."
' Learned counsel for the petitioners submitted that the order dated 17-11-2008 has been passed without issuing show-cause-notice to the petitioners and without conducting an inquiry. Learned counsel referred to Riaz Ahmed and 2 others v. Province of Sindh through Secretary, Government of Sindh, Board of Revenue at Hyderabad and 3 others 2010 PLC (C.S.) 894 in support of his contention that earlier judgment of the Bench of the High Court is binding on the second bench.
5. Mr. Adnan Karim, learned Additional Advocate-General submitted that first petition of the petitioners was dismissed on 16-9-2004 and therefore the petition is barred by principle of res judicata. Learned A.A.-G. Extensively read from the comments filed by the department. It is stated that for Tapedars Training Course 1998-99, the Board of Revenue allocated 100 seats to various districts and offices and invited applications through newspapers in 1997. Selection was made by the Deputy Commissioners. However in February 1998 the then Minister of Revenue and Land Utilization, Government of Sindh received complaints of irregularities in the selection of Tapedars and it was decided that final test of the Tapedars would be held by the Board of Revenue through a Committee. Since this decision was challenged in the High Court, the matter was not proceeded further. In 2004 Government of Sindh changed the method of recruitment of Tapedars. In view of revised method of recruitment, 278 candidates were imparted training therein. In compliance with the orders of the Sukkur Bench those petitioners were also included and that training concluded in November, 2009. It is further stated that the petitioners hiding fact of earlier dismissal of their petition have come to this Court again. It was further stated that petitioners were called for the course again but when it was pointed out that their Constitution petition has already been dismissed and their names had been wrongly included, letter dated 15-11-2008 was cancelled and the petitioners were rusticated. It was further submitted that now there is a system of test and examination through IBA and there is prescribed procedure and therefore petitioners could not be accommodated any more.
6. Mr. Nawaz Shaikh, learned counsel for the petitioners submitted that notification dated 19-4- 2004 by which Intermediate 'B' Grade has been prescribed as qualification is only prospective and cannot be given retrospective effect to 1997 when the petitioners were selected in the first place. As to the ground of laches learned counsel submitted that they are claiming rights on the basis of letter dated 25-10-2008 which has been withdrawn vide order dated 17-11-2008. Both these orders occurred after first petition had been dismissed therefore they were not subject matter of the previous litigation. Learned counsel relied upon Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 and submitted that it is settled law that if rule of law or point is determined by the Court the benefit must be given to those might not have litigated. Learned counsel relied upon Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another, 1997 SCMR 15 to contend that their vested rights had been guaranteed and they could not have been deprived of vested rights without due process of law.
7. We have considered the submissions made by the learned counsel and have also gone through the record.
8. Question of res judicata and laches may be taken up first. Contention of Mr. Adnan Karim was that since the petition by the petitioners for same relief had been dismissed vide order dated 16-9- 2004 they could not agitate for the same in the second round and therefore second agitation is barred by res judicata. Contention must be rejected. Petition No,341 of 2003 was dismissed as barred by laches. Had the matter rested there this petition should have been dismissed. However, the things did not stop where they were in 2004. In 2008 the petitioners were called for training and were required to pay Rs,3,300 as fee. This fee they duly paid and duly reported for training.
Thereafter on 17-11-2008 they were restrained in terms of letter, quoted above. In this petition the following prayers have been made:-- "(a) That this honourable court may be pleased to declare that the petitioners stands duly selected for the training of the Tapedars for the year 2008-09, and their selection cannot be questioned, nullified, or cancelled on the basis of the order passed earlier to their selection
(b) To direct the respondents to re-call order/letter 15-11-2008, issued by the respondent No,2 Special Secretary Revenue, Board of Revenue, and order/letter No,42, dated 17th November, 2008, issued by the respondent No,4 (Principal Tapedar's Training College, Hyderabad), and allow the petitioners to continue their training of Tapedars Course."
9. Letter dated 15-11-2008 and 17-11-2008 were not in existence when the petition was dismissed for laches. It may be pointed out that petition was not dismissed on 16-9-2004 on merits but on the ground of laches. Therefore as far as merits is concerned that order does not operate as res judicata and as far as merits are concerned a new lease of life was given to the claim of the petitioners by order dated 25-10-2008 and thereafter abrupt termination by order dated 17-11- 2008. Therefore, contention of Mr. Adnan Karim that the petition is barred by res-judicata and laches does not appear to be correct.
10. On the other hand, Mr. Nawaz Shaikh relied upon Hameed Akhtar Niazi's case (supra). This case does not help Mr. Nawaz Shaikh because the dicta of the Hameed Akhtar Niazi's case is that benefit of a judgment of the Court must be given to the persons "who may not have litigated". The petitioners had litigated and therefore are governed by the principles laid down by the Supreme Court in Pir Bakhsh represented by his legal heirs and others v. Chairman Allotment Committee and others PLD 1987 SC 145.
11. Relying upon Wasif Zamir Ahmed's case (supra), Mr. Nawaz Shaikh submitted that once the petitioners had joined the training, vested rights had been created. Facts in Wasif Zamir's case were that he passed F.Sc. Examination and applied for admission to Medial College against a seat reserved for persons of a particular Tehsil. In view of the admission form a receipt was issued to him and he was selected against the seat. He was called to join the class and he deposited the fee.
He was also issued a roll, number. However, he was not allowed to join classes for no reason at all. It was disclosed later on that another person who had secured marks higher than those of Wasif had been selected. He filed writ petition. As an interim measure provisional admission was given to him.
Subsequently writ petition was allowed. In the Supreme Court it was argued by the Chairman Selection Committee that the respondent was selected due to a mistake by the Computer. The Supreme Court after relying upon case of Chief Secretary, Government of Sindh and another v.
Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 held as under:-- "We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No,1 was presumably given admission on merits by the competent College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join 1st year class of M.B,B.S. It is admitted that the respondent is likely to complete the second year course of M.B.,B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well settled that once a right is created in favour of a litigant, in due course of time, if cannot at all he taken back arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No,2 had been accommodated by giving admission instead of respondent No,
1. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission to the respondent No,1 was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners."
12. Case of Wasif Zamir Ahmed is applicable to the case of the petitioners. We also agree with Nawaz Sheikh that Rules are prospective in nature and cannot be given effect to cover case of the petitioners.
13. Result of the above discussion is that this Constitution Petition is allowed; order dated 15-11-2008 and 17-11-2008 are set aside and respondents are directed to allow the petitioners to complete the training course in accordance with the order dated 25-10-2008.