Abdus Sattar Asghar, J.--This order will dispose of instant Writ Petition No, 11495/2012 (Neelam Khan etc vs. University of Health etc), as well as Writ Petition No, 11721/2012 (Ayesha- Sajid etc vs. University of Health and Sciences etc) and Writ Petition No, 11818/2012 (Aatka Ali Khan vs. University of Health Sciences, Lahore etc) involving common question of law and facts.
2. Brief facts leading to the above captioned writ petitions are that petitioners were allowed admission in Multan Medical and Dental College, Multan/Respondent No, 5 in BDS Course in October, 2011 and are attending the classes regularly; that each of the petitioners has deposited the fees to the tune of Rs,5,50,000/- through pay orders; that Respondent No, 5 had allowed admission to 90 students in BDS Course Session 2011-12; that after completion of the educational year it has come to the knowledge of the petitioners that Respondent No, 5. has decided to send list of 51 students to the University of Health Sciences, Lahore/Respondent No, 1 for annual examination 2012 scheduled to be held on 17.9.2012; that it has also come to the knowledge of the petitioners that the Respondent No, 5, had admitted 90 students in BDS Class for the Session 2011-12 instead of sanctioned strength of 50 students allocated by Respondent No, 1; that without any fault at their end the petitioners and other remaining students are, being denied registration by the University of Health Sciences as well as issuance of Roll Number Slips to participate in the forthcoming annual examination scheduled to be held on 17.9.2012, hence this Constitutional petitions seeking a direction to the Respondent Nos, 1 and 3 to register the petitioners as students of BDS Session 2011-12 and to allow them to sit in the said Examination. They have further sought direction to the effect that the respondents be restrained from interrupting in the study plan of the petitioners in future without any victimization and that Respondents No, 1 and 3 may be directed to take appropriate action against Respondent No, 5 in accordance with law.
3. Respondents No, 5 and 8 in their parawise comments have categorically admitted that petitioners were allowed admission in BDS Course for the session 2011-12. It is further explained in the comments that as many as 90 students were allowed admission in BDS Course for the Session 2011-12 as against 50 allocated seats for the Session and 40 available seats under the drop-out scheme; that registration fee to the tune of Rs,96000/- for 90 students of BDS Course along with list was paid through Cheque No, 92344883 dated 9.5.2012 vide letter dated 10.5.2012 addressed to the Register, PM&DC/Respondent No, 3 which was got encashed by the respondent after scrutiny of the record; that 'simultaneously registration fee to the University of Health Sciences/Respondent No, 1 pertaining to 90 students of BDS Course and 102 MBBS for the Session 2011-12 have also been paid through Cheques which were got encashed by the said respondent after due scrutiny of the record; that the answering respondents tried their level best to get the students registered with the University of Health Sciences, Lahore/Respondent No, 1 and PM&DC/Respondent No, 3 by providing relevant details and registration fees but the matter of registration was kept pending by Respondents No, 1 and 3 without any cogent reason; that the petitioners and other students are competent to appear in the forthcoming Annual Examination, 2012 scheduled to be held on 17.9.2012,
4. Respondents No, 1 to 3 have submitted their parawise comments with the contentions that demands made by the Respondent No, 5 in view of 41 students under drop-out scheme from the preceding sessions could not be entertained in view of Regulation No, 12 of the Conditions for Admission in MBBS/BDS Courses and Conditions for House-Job Regulations 2010; that the matter was clarified to the College vide letter dated 30.7.2011 well before admissions for the Session 2011-
12. Receipt of list of 90 students along with registration fee and encashment by the University of Health Science/Respondent No, 1 and PM&DC/Respondent No, 3 however, is not denied.
5. Arguments heard. Record perused.
6. It may be expedient to reproduce hereunder the provision of Regulation No, 12 of the Admission in MBBS/BDS Courses and Conditions for house job/internship/foundation year Regulations 2010, which reads below:-- "12. In lieu of dropout students/vacant seats in the first two years, the institution may admit students in subsequent admission so as to maintain total admission strength allowed to the institution in the first two years only. The failures/detained students shall be counted in the strength of the class in this connection. A dropout student will be a registered student of the college, admitted after due process and all dropped out students shall be reported to the Council with evidence. The dropouts will also be those students who are expelled after failure to succeed in four attempts in the professional Examination. Details of all failures/detained students and dropout students shall be submitted to the PM&DC office. Once the PM&DC office gives permission and defines the number of admissions which can be done in lieu of dropouts/vacant seats after study of record and upon satisfaction that vacancies existed as per seat allocation after deduction of retained students, only then new students can admitted till 30th January each year and the office shall register the new students. New students admitted without permission or over and above total allowed strength of first two years shall not be registered by Council office. A final report shall then 'be, placed before the Executive Committee for information.
Example:--If a college is allowed admission of one hundred seats annually but only eighty students remain including retained failures or only that many were admitted then the college can admit one hundred and twenty students in the next year and this will make two hundred students in these first two years. Vacancies in the third year cannot be filled in a new admission."
7. The student registration state of Dental Section Multan Medical and Dental College, Multan is reproduced below:- Seat Allocation Year No, of No, of Over StudentStudentAdmitted admittedregisteredstudents by college.by PM&DCnot registered Seat Allocation: 502008- 200911 11 and the decision2009- 201019 19 convoyed on dated 6th2010-201183 50 33 October 2009, vide letter No, PF.12-F-2011-201290 2009(Multan/BDS) /140199.
8. Learned counsel for PM&DC/Respondent. No, 3 vehemently argued that the Principal/Respondent No, 8 submitted his request for BDS registration of students against drop-out scheme/vacant seats; that the case was heard by Executive Committee on 08.9.2012, however, minutes of the Executive Committee are awaited; that Principal/ Respondent No, 8 had appeared before the Executive Committee and was given a detailed personal hearing and that violation of regulations was pointed; that as per Regulation No, 12 ibid Respondents No, 5 to 8 were not authorized to admit more than prescribed limit of 50 students in BDS Course for the year 2011-2011 Session, therefore, over-admitted 40 students could not be registered with the Council.
9. Learned counsel for the University of Health Sciences, Lahore/Respondent No, 1 endorsed the arguments advanced by learned counsel for Respondent No, 3 on behalf of the Council.
10. Parawise comments furnished by Council/Respondent No, 3 reveals that in the Session 2010-2011 the college had admitted 83 students as against sanctioned strength of 50 students and out of the remaining 33 students 31 students were also allowed registration under the drop-out scheme while calculating the vacant vacancies pertaining to the year 2008-2009 and 2009-2010.
It is also evident on the record that the College/Respondent No, 5 has deposited the prescribed registration fee to the tune of Rs,96,000/- for 90 students of BDS Course. along with list of said students through Cheque No, 92344883 dated 9.5.2012 vide letter dated 10.5.2012 addressed to the Register, PM&DC/Respondent No, 3, which was got encashed by the said respondent after scrutiny of the record. Simultaneously the prescribed registration fee pertaining to the 90 Students along with list was also paid to the University of- Health Sciences/Respondent No, 1 through Cheques which have been got encashed by the said respondent after due scrutiny of the record. The encashment of the cheques pertaining to the registration fee of 90 students is not denied by both Respondents No, 1 and 3. Acceptance of registrgion fee by Respondents No, 1 and 3 pertaining to the 90 students for BDS Session 2011-2012 as against Regulation No, 12 ibid certainly fall within the ambit of principle of locus poenitentiae. Keeping in view the above referred table furnished by Respondent No, 3 in his parawise comments it is obvious that as against 200 sanctioned seats @ 50 per year the College/Respondent No, 5 allowed admission to 201 students. It, therefore, reflects over admission of only one student. It is pertinent to mention that if University of Health Sciences, Lahore/ Respondent No, 1, Council/Respondent No, 3 and College/Respondent No, 5 had indulged in some sort of correspondence with regard to the difference of calculation of seats, the same was neither brought to the knowledge of the petitioners nor their parents throughout the academic year. The negligence and failure on the part of Respondents No, 1, 3 and 5 in this case cannot be termed as a bona fide mistake. It is hard to believe that all the three institutions acted bonalide in the absence of - due care and diligence. It is important to notice that annual allocation of seats for BDS course to the College/Respondent No, 5 was neither furnished in the prospectus published for the Sessions 2011-2012 nor advertised in the newspaper by any of the above three institutions, therefore, with no stretch of imagination petitioners and other students could be held responsible for the willful negligence of the said institutions.
12. Certainly petitioners and the other students who were allowed admission in the Session 2011- 2012 cannot be punished on account of willful negligence of all the three institutions engaged in the business of education. It is an established principle of law as enunciated in Section 21 of the General Clauses Act that the power conferred to amend, vary, or rescind any notification, order, rule or by-law can only be exercised before any decisive step has been taken. Reliance be made upon Pakistan through the Secretary Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). The relevant extract whereof is reads below: "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 in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
13. In view of the above quoted dictum of the Hon'ble Apex Court, Respondents No 1 and 3 having accepted the registration fee of 90 BDS students for the Session 2011-2012 cannot decline the registration of those students at 11th hour i,e, just a couple of weeks before commencement of their annual examination scheduled to be held on 17.9.2012. In the peculiar circumstances of this case since the petitioners and other students have successfully completed their academic year without being apprised of any technical dispute among three institutions, therefore, refusal to grant the writ petitions will certainly cause them an irreparable loss and severe hardship. It would rather amount to spoil their academic career without any fault of them. Certainly the students kept in dark about any technical dispute among the Respondents No, 1, 3 and 5 cannot be condemned at this stage.
Besides it is also noteworthy that registration of the petitioners and other students allowed admission under the drop-out scheme does not effect the right of any third party, therefore, deserve one time dispensation in relaxation of Regulations. Their academic career cannot be put at stake for the acts- and omissions of all the three institutions. Reliance be made upon Pakistan Medical and Dental Council Vs. Ziauddin Medical University and others (PLD 2007 Supreme Court 323) and Tahmasub Faraz Tayyab and 13 others Vs. Vice-Chancellor, University of Health Science, Lahore and 3 others (PLD 2005 Lahore 261).
15. For the above reasons we allowed all the three captioned writ petitions by short order on 13.9.2012 as follows:-- "For the reasons to be recorded later through a detailed order, all the three captioned writ petitions are allowed with a direction to Respondents No, 1 and 3 to register all the 90 students of BDS Course including the petitioners and allow them to sit in the forthcoming Annual Examination 2012 scheduled to be held on 17.9.2012 by issuing Roll Number Slips immediately. Respondents are further directed not to interrupt in the study plan of the petitioners in future by way of any sort of victimization. Respondents No, 1 and 3 however may take appropriate action against Respondent No, 5 for causing delay in initiating the registration process of the admitted students if so