FAZAL SUBHAN, J. Through this writ petition, the petitioners by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of. Pakistan, 1973, have prayed for the following relief:-- It is therefore, most humbly prayed that on the acceptance of this writ petition, this august Court may graciously be pleased to issue an appropriate writ thereby: I Declaring the acts of the Respondents by cancelling Advertisement No.2- 9/2018 and 2-10 of 2019 through 30th meeting of Syndicate of University is illegal, wrong and against the law and principle of merit.
II. Directing Respondents to act in accordance with Law, and direct Respondents to convene meeting of selection board and syndicate for the post of Assistant Professors under Advertisement No.2-9/2018 and 2-10 of 2019 with immediate effect in the best interest of justice.
III. Declaring the subsequent impugned advertisement No.2-5 /2022 as illegal, wrong and based on nepotism and colorful exercise of powers.
IV. Granting any other relief/remedy for which petitioner is deemed fit and proper in law, equity and justice.
2. Summary of the facts giving rise to this writ petition are that in the year 2009, the Higher Education Commission (HEC) launched a program i.e., The Interim Placement of Fresh Ph.Ds (IPFP) for creating opportunity for fresh Ph.D degree holders to gain academic experience and mentorship, for a period of one year. The program was introduced for Higher Education Institutions (HEIs), Federal/Provincial government post graduate colleges and public sector R&D. The IPFP was lastly revised in the year 2019. The petitioners being Ph.DS and having research articles, after going through the regular process were placed as Assistant Professors on contract basis for one year.
That the respondent No.1 floated advertisements. No.2-9/2018 and No.2-10/2019 for various posts of Assistant Professor and the petitioners being qualified and eligible applied for thee posts and were waiting for their appointment against the said posts and their requests made to the respondents to finalize the process of selection proved unsuccessful. That finally, in the 30th meeting of Syndicate, the above referred advertisements were cancelled without assigning any reason, and ignoring the cost of financial loss caused due to the advertisement of various posts, legitimate expectancy of the petitioners, their age factor including other administrative and academic factors. The respondents, however, in view of the decision made in the 30th meeting of Syndicate re-advertised the posts through advertisement No.2-5/2022 (impugned) without processing or considering the earlier applications made by the petitioners.
3. With these contentious points raised in the writ petition along with grounds taken in the petition, we have heard arguments of counsel for petitioners at length, and we are unanimous in our views that admittedly the respondent No.1 through advertisements Nos2-9/2018 and No.2-10/2019, advertised different posts of Assistant Professors, as well as other posts. A meeting of Syndicate of University of Swabi was held on 22.04.2022 and after discussion on the agenda item No.13, the Syndicate decided to cancel these advertisements. Under the doctrine of locus poenitentiae an authority issuing an order, rule or by-laws can rescind the same before taking any decisive step.
Section 21 of the General Clauses Act, 1897 in this respect is most relevant which is reproduced herein below for the sake of convenience and understanding:- "S.21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules, or bye-laws Where, by any (Central Act) or Regulations, a power to (issue notifications) orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and condition (if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so (issued)."
From the bare reading of this Section it is clear that Authority issuing an order, notification, rule or by-laws is vested with the powers to recall the same before any validly acquired right is accrued. In the case in hand no decisive stops were taken in pursuance to the two advertisements and thus no vested right is created or accrued to the petitioners by either rescinding and recalling the earlier advertisements or by issuing a fresh advertisement for the posts so advertised earlier. In the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi, reported as (PLD 1969 SC 407), it was held by the august Supreme Court of Pakistan that:-- "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."
In another case titled Director-General, Ordnance Services, General Headquarters, Rawalpindi v.
Muhammad Abdul Latif, reported as 2003 PLC (C.S) 262 (C), (Supreme Court of Pakistan), it was held that: "(C) Locus Poenitentiae, principle of-- --Applicability---Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual. (p.266) C"
4. It has not been averred in the petition that pursuant to the advertisements any steps were taken to create any right in favour of the petitioners therefore the respondents were competent under the ibid law to recall the earlier advertisements. As no infringement of rights is alleged or asserted in this petition, hence the same is dismissed in limine.