' ABDUL MAJEED MALLICK, C. J.-The petitioner has invoked special jurisdiction of this Court to seek redress of his grievance caused by an order of the respondents, dated 15th of November, 1983.
2. The leading facts of the case are that the Government-respondent sent a requisition to the Public Service Commission for selecting three candidates for training and higher education in M.
Sc. Forestry Courses to be undertaken in Pakistan Forest Institute, Peshawar. In consequence thereof, applications were invited and the petitioner, being one of the candidates, was considered suitable for nomination. On receiving recommendation of the Public Service Commission, respondent No, 2, vide order dated 31st of October, 1983, directed the selected candidates to join the Institute forthwith. The petitioner, in compliance with the direction of respondent No, 2, joined the Institute on the 3rd of November, 1983. The recommendation of the Public Service Commission was affirmed by the Government and an order to that effect was issued on 13th of November, 1983.
Vide this order, selection and nomination of the petitioner and his admission for training and education in M. Sc. Forestry was approved. On 15th instant, respondent No, 2 informed, through a telegram, the Director-General, Pakistan Forest Institute, Peshawar that the nomination of the petitioner for M. Sc. Forestry was cancelled and the petitioner may be directed to report back to his Department. The petitioner has challenged the vires of the order of cancellation of his nomination on the grounds :-
(i) That the impugned order was passed without providing an opportunity of hearing to the petitioner. Thus, it was hit by the principle of audi alteram partem, and
(ii) that the respondents Nos. 1 and 2 were incompetent to cancel the nomination as, the affirmation of the recommendation of Public Service Commission and communication of such order and thereafter joining of the petitioner's the Forest Institute, Peshawar, created a vested right in him. The respondents were deprived of jurisdiction to recall the order after accrual of the right to the petitioner.
3. The respondents, in their written statement, denied the contention of the petitioner and pleaded that in presence of adverse Annual Confidential Reports of the petitioner, he was ineligible to seek nomination for higher training and education in M. Sc. Forestry. It was further pleaded that on return of the petitioner from the Institute, he reported back to his Department. This act of the petitioner was shown as tantamount to reversing of the position.
4. After filing the written statement, respondents filed an amended written statement in the manner of preliminary objection and pointed out that this Court was excluded to examine the impugned order. The preliminary objection was sought to be supported by the reason that the petitioner, being a civil servant, was deprived of his right to invoke special jurisdiction of this Court, for his redress.
5. It may be stated that the petitioner was a Senior Range Officer. He applied for the selection to M.
Sc. Forestry Course along with other candidates and was selected by the Public Service Commission as he possessed the requisite qualifications. The service record of the petitioner, including his Annual Confidential Reports, was also considered by the Public Service Commission and it was available with the Government at the time of relevant selection of the petitioner. The Government has not claimed that any record or material particulars relevant to the requisite qualifications of the petitioner were suppressed or otherwise kept aside and the same escaped the scrutiny of the Government nor it has pleaded misrepresentation or deception. Its case is that on the representation of the rival candidate, the Government reached a different conclusion and in consequence thereof, felt advised to recall the nomination of the petitioner. At present, we are least concerned with the factual position taken by the Government in its defence. The fact remains that that the Government accepts that the service record, including Annual Confidential Reports of the petitioner, was considered both by the Public. Service Commission and the Government and it was deemed fit to nominate the petitioner for training in higher education.
6. As pointed out earlier, the preliminary objection raised by the learned Additional Advocate- General pertains to the jurisdiction of this Court. Our attention was invited to the fact that the petitioner, being a civil servant was incompetent to approach this Court and this Court too was excluded to scrutinize the impugned order. We have considered the objection raised by the learned Additional Advocate-General and have come to the concluson that the objection is not sustainable. The fact of the matter is that the petitioner has not challenged anything pertaining to his service or its terms and conditions. The point at issue is independent of the terms and conditions of service and allied matters controlled by law relating to services.
7. It is accepted by the respondents that the petitioner joined the Pakistan Forest Institute, Peshawar in compliance with the orders date 31st of October, and 13th of November, 1983. Both the orders were issued by the respondents. It is also evident from the impugned orders that the petitioner was recalled from the Forest Institute. This state of facts, obviously, suggests that the nomination of petitioner was made validly by the respondents. Making of nomination of the petitioner and its corn medication to him vested a right in the petitioner to undertake training in higher education in M. Sc. Forestry. Once the right in favour of the petitioner was created, the respondents were deprived of jurisdiction to divest the petitioner of such right in arbitrary fashion.
The Government was confronted with the position that it made nomination of the petitioner communicated the same to him and in compliance with the nomination order, the petitioner joined the Institute. Thus, after joining the Institute, the position of the petitioner was further strengthened. The rule of law is that a person vested with a right cannot be deprived of such right in absence of due course of law. Mr. Rafique Mahmood Khan, the learned Additional Advocate- General was unable to controvert the legal right already accrued to the petitioner in the present case. In an identical situation, jurisdiction of this Court was invoked by one Khawaja Habibullah Lone. In that case, the petitioner acquired contract for the construction of road. On account of increase in prices of Road materials, the petitioner applied for escalation of rates. The matter remained under active consideration of the authorities, but after the completion of the work, the Government granted requisite escalation in the sum of Rs, 40,000. The petitioner was paid part of the amount when order of escalated amount was withdrawn. This order was challenged in a writ petition. An objection was raised to the effect that the point at issue having arisen out of contractual obligation, this Court was deprived of jurisdiction to decide the matter. The objection was overruled with the observations that in opinion of the Court, that was not a case to enforce the contractual obligation rather it was a case of cancellation of an order of the Government, which had created a vested right in favour of the petitioner. This view was supported through various decisions PLD 1956 Sind 101, PLD 1964 SC 503 and PLD 1970 SC 439. The aforesaid authorities were cited at the bar, in support of the present proposition. Khawaja Muhammad Saeed, the learned counsel for the petitioner also sought support from M. Aslam Khaki's case (1). The concensus is that principle of "locus poenitentiae" is attracted in a case where the decisive step in pursuance of an order was yet to be taken. Contrarily, when an order of a competent authority was fully complied with and nothing was left to be done for complete accomplishment of its object, such an authority C was deprived of its power to recall, modify, rescind or recede its previous order.
The -dictum of the Supreme Court was fully attracted in the present case.
8. A perusal of the impugned order reflects that it was passed without providing the petitioner an opportunity of hearing. The previous /3 order of nomination was recalled telegraphically. The impugned order was telegraphic in letter and spirit. The respondents failed to assign
(1) PLD 1980 Pesh. 128 ' reason for their retrieving. On our inquiry, Mr. Rafique Mahmood Khan who represents the respondents, disclosed that the respondents, on the representation of the rival candidates, bad a second thought and thereby cancelled the nomination of the petitioner. It was admitted that the respondents were not possessed with fresh material against the petitioner so as to convince them to change their mind. All the material, considered adverse to the petitioner, was already available and the same was considered both by the Public Service Commission and the Government and it was after full deliberation that the nomination of the petitioner was finalized. In the circumstances, the respondents are not found competent to reverse their previous decision arbitrarily. The petitioner has also raised an objection against the Annual Confidential Reports and claimed that such reports were mala fide inasmuch as that the Officer who recorded the Annual Confidential Reports, deliberately did so to help the rival candidate in consideration of their relationship. Be as it may, we do not propose to go into the alleged mala fide, as we are primarily asked to determine the vires of the impugned order. Thus, the objection raised by the petitioner finds full support. It is, therefore, held that the impugned order was also hit by the rule of aud alteram partem.
9. We have, therefore, come to the conclusion that the respondents,' after accrual of the right of training in the higher education in M. Sc. Forestry, in favour of the petitioner, were divested of their jurisdiction to recall, withdraw or cancel the nomination of the petitioner. The impugned order is quashed with the direction that the petitioner shall be sent back to join the Pakistan Forest Institute at Peshawar, for training and higher education in M. Sc. Forestry, in the light of the conditions of the order of the Government, dated 13th of November, 1983. The petition, therefore, succeeds with costs.