' This is a writ petition under section 44 of the Interim Constitution Act of 1974 whereby the petitioner seeks a writ of prohibition or any other appropriate writ for restraining the respondents from withdrawing the nomination for the admission of the petitioner from Ayub Medical College, Abbottabad.
' Khawaja Muhammad Saeed, the learned counsel for the petitioner, has submitted that the petitioner is a First Class State subject whose mother has been serving in the Health Department of Azad Jammu and Kashmir as a Lady Doctor for the last 19 years. The petitioner passed his F. Sc.
Examination in the First Division in 1983 obtaining 683 marks.
3. The petitioner was the only candidate against one seat reserved for the children of doctors. After fulfilling the necessary formalities, he got his admission in the Ayub Medical College, Abbottabad on the receipt the telegram Annexure 'C' given to him by Secretary of the Nomination Board of Azad Jammu and Kashmir, Muzaffarabad whereby he (the petitioner) was directed to join the Medical College Abbottabad before 20-12-1983. The telegram is reproduced below :- "0193 A E 257 15 35 ' Syed Muneb Nazir C/o Additional Secretary, Education Muzaffarabad Azad Kashmir report Principal Ayub Medical College, Abbottabad for admission in M. B., B. S. Along with your Parent/Guardian with original certificates before 20th December Secretary Nomination 80, Board Muzaffarabad Camp Rawalpindi."
4. There is no other claimant of this category and ' the petitioner was the only candidate for the admission in the M. B., B. S. Class against this seat reserved for the children of the Doctors. The petitioner did not only join the said Medical College on the basis of the Telegram reproduced above but also has been studying in the said institution for more than 6 months.
5. It appears that the Secretary of the Ministry of 'Kashmir Affairs cancelled or omitted the name of the petitioner from the list of candidates entitled to the seats to the said Medical College and substituted the name of one Muhammad Anwar who is not a son, of Doctor at all and who did not join the said Medical College. In para. 10 of the writ petition, it is mentioned :- "That now on the direction of Secretary Kashmir Affairs the Nomination Board of Azad Jammu and Kashmir Non-petitioner No, 2 wants to cancel the Nomination of the petitioner, against the seat reserved in Ayub Medical College for the children of doctors serving in Azad Kashmir for the last ten years."
' The petitioner has prayed that a writ of Prohibition or any other appropriate writ may be issued in his favour for prohibiting the respondent from withdrawing the nomination and admission of the petitioner from Ayub Medical College, Abbottabad as a very valuable right has accrued to him.
6. The respondents have filed their written statements on 14-5-1984 and mostly admitted the contents of the writ petition. In the written statement, it has been prayed that the writ petition may be rejected because the Secretary Kashmir Affairs did not accept the nomination of Syed Muneeb Nazir Shah, the petitioner and that the petitioner' nomination will not be considered valid until and unless the same is rectified by the Ministry of Kashmir Affairs. The respondents have admitted the Telegram Annexure `C' and also the fact that there is a seat reserved for the children of the serving doctors.
7. The learned counsel for the petitioner Khawaja Muhammad Saeed Advocate, has raised the following points in support of the writ petition :-
(i) That the petitioner joined the Ayub Medical College, Abbottabad on 19th of December, 1983, as it is evident from the perusal of the documents D, D/1, D/2 and D'3. He has been studying in the said Institution for more than six months and as such, a vested right has accrued to him which cannot be now taken away from him arbitrarily and capriciously ;
(ii) that the Nomination Board of the Azad Jammu and Kashmir Government has got no locus poenitentiae left now to withdraw the Nomination because the petitioner got admission in the Medical College, Abbottabad on the basis of the telegram which was duly sent to him by the Nomination Board and received and acted upon by him ;
(iii) The Secretary of the Ministry of Kashmir Affairs cancelled the name of the petitioner from the list of the seats to the College and substituted the name of Muhammad Anwar who is not a son of a Doctor and who refused to join the College as it is evident from para. 5 of the Writ Petition which was presented before the High Court of Peshawar. Photostat copy of the writ petition which was presented before the High Court of Peshawar has been placed on the file. The petitioner has obtained a stay order from the High Court, Peshawar in Writ Petition No, 1/84 entitled Syed Nazir Shah v. Government of Pakistan on 2-1-1984 and as such he cannot be legally withdrawn from the Ayub Medical College, Abbottabad ;
(iv) that the withdrawal of the Petitioner's Nomination was made arbitrarily and without affording the petitioner an opportunity of being heard ;
(v) that the respondents cannot withdraw the nomination now as the doctrine of estoppel goes against them ; and
(vi) that the Nomination Board has done everything that was necessary or possible and for that reason now the said Board has become functus officio. Therefore, the Board is now incompetent to with-draw or cancel the nomination made earlier and communicated to petitioner."
8. The learned Advocate-General has raised the following points :-
(i) That this writ petition is not competent as no law has been violated in this case and that no order has been passed as yet against the petitioner who has come to this Court prematurely.
Reference as made to 1968 SCMR 317 and PLD 1980 SC A J K 1 and
(ii) that the Government is competent under section 21 of the General Clauses Act to withdraw the nomination made in favour of the petitioner.
9. I have given my due consideration to the argument addressed at the Bar and have also gone through the record made available to me in the Writ Petition.
10. Three facts are obviously admitted in this case :-
(1) That the petitioner was nominated against a seat reserved for the children of the doctors. This fact is evident from para. 11 of the written statements produced by the learned Advocate-General which is reproduced as under :- {{URDU TEXT}} that the petitioner was directed by the Telegram Annexure 'C' to join the Ayub Medical College, Abbottabad on the verbal instructions of the Ministry of Kashmir Affairs para. 6 of the written statement is reproduced below :- {{URDU TEXT}} (The underlining is mine)
(iii) It is also admitted and the petitioner, in compliance with the telegram Annexure joined the Ayub Medical College and has been studying there since then. It is now approximately more than 6 months, that the petitioner has been studying in the Ayub Medical College, Abbottabad.
11. The learned counsel for the petitioner, Khawaja Muhammad Saeed, Advocate has vehemently argued that some interested persons have put some considerable pressure on the Ministry of Kashmir Affairs, therefore, the non-petitioners are bent upon withdrawing the nomination of the petitioner. It is, therefore, that he has invoked the extraordinary jurisdiction of the High Court and prayed for a writ of prohibition. It is not necessary for a prayer of writ of prohibition that the mischief actually should have been caused or have been done by the respondents. On the other hand, according to the submission of the learned counsel for the petitioner, whenever there is a threat to a vested right of a person or whenever his valuable rights are in danger of being snatched away from him, the petitioner can knock at doors of the High Court and pray for a writ of Prohibition. This is a sufficient reply to the objection raised by the learned Advocate-General that the petitioner has come to the Court prematurely (before any violation of his right).
12. In this case, the important questions that fall for determination are :--
(a) whether the non-petitioners are competent to withdrew the nomination of the petitioner from the Ayub Medical College, Abbottabad or not. This is the pivotal law point the decision whereof is sufficient to decide this writ petition ?
(b) whether the writ of Prohibition lies because the learned Advocate-General has argued that the writ of Prohibition does not lie in this case. I shall discuss both these points and leave the other points because they are not important for the decision of this writ petition?
13. As regards to point (a), I would like to reproduce the section 21 of the General Clauses Act which reads as follows :-
21. Power to make, to include power to add to, amend, vary or rescind orders, rules or bye-laws.- Whereby any (Central Act) or Regulation a power to (issue notifications), orders, rules, or bye-laws is conferred, then that power includes power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend vary or rescind any (notifications), orders, rules or bye-laws so (issued),"
14. Whether the non-petitioners have got a locus poenitentiaeor not is an important consideration in this case. The Federal Court of Pakistan has defined locus poenitentiae in the famous case of Shah' v. Crown (1).
"Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken we see no reason to restricts the power to modify or cancel".
15. The first case in this connection is entitled Venkatesh Veshwent Deshpande v. Emperor (2) wherein it was observed at page 518 "I do not say that an order of remission is never open to recall. It may be in certain circumstances ; fraud and mistake for example might justify such action. But I am clear that it cannot be done arbitrarily.
(1) P L, D 1956 FC 46 (2) AIR 1938 Nag. 513 ' The matter vitally affects the liberty of the subject, and so, if such exists at all, it can in my opinion only be exercised in circumstances which a Court of justice would uphold on general grounds of justice, equity and good conscience, and of public policy".
' Then again at page 519 it was observed :- "An order of this kind which has been acted upon to the extent of altering the history ticket, to the extent of informing the Legislature of the remission, can not be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of the Central Jail a memorandum 'telling the Superintendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended and it is not the way that this order was amended because the amending order is dated the 28th May whereas the above memorandum is dated 14th April. The trouble about the amending order, even assuming a power in Government to rescind such an order, is that it was passed eight days after this application had been launched and one month and 12 days after the prisoner was entitled to be released under the order of 24th February, 1958. Any possible locus poenitentiae was clearly at an end when the amending order was passed.
In the circumstances we have no doubt at all that the application must succeed".
' In this case, for the first time, point arose whether the Government having granted unconditional remission could recall that order. The Full Bench ruled that the Government could not rescind the remission as the same had become effective and any locus poenitentiae was clearly at an end when the amending order was passed.
16. This question was again considered in Shahbaz v. Crown (1) and it was laid down that if the previous order had been given effect to, no locus poenitentiae is left and there will be no occasion for the exercising of the power mentioned in section 21 of the General Clauses Act.
17. This case went upto the Federal Court and the Federal Court also in the appeal case I. e.
Shahbaz v. Crown observed that the order could not be withdrawn or cancelled subsequently in exercise of the powers under section 21 of General Clauses Act, only when not communicated. The learned Federal Court observed at pages 47 & 49 :- "But in the present case the order of the cancellation was passed before the date of release and in the order under appeal it has been made clear by the High Court that a locus poenitent'qe will be left only if the order has not been carried into effect. Mr. Mahmud Ali's contention that it is not appropriate to speak of a locus poenitentiae in the case of Government is not supported by the very decision on which he relies, where it was observed that there might be a locus poenitentiae in such a case, but that it was at an end when the order of cancellation was passed in that case.
Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken after considerations would arise, but if that step is yet to be taken we see no reason to restrict the power to modify or cancel. Reasons for the cancellation in the present case are not before us but no allegations of mala fides or arbitrariness have been made. In the circumstance we think that the
(1) PLD 1955 Lab. 65 ' Government of Punjab must have had good reasons to recall the order of remission".
18. In the case of Lt.-Col. G. L. Bhattacharya v. State who delivered the judgment of the Full Bench observed (1), Murshed-J "The criterion as to whether there is a locus poenitentiae is not dependent upon the fact whether the prisoner' has or has not been released. The crux of the matter is whether the order has been acted upon, that is, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. It, therefore, follows that the subsequent order of cancellation dated the 3rd of September, 1962, can have legally no effect whatsoever."
19. In the case of Dr. Mehboob Rabbani v. Government of West Pakistan, (2) a D. S. Of the Lahore High Court was pleased to accept the Writ Petition and issue a Writ of Mandamus that the respondent should implement the decision of the Government notified in the Government Gazette as the order had already become operative and as sush could not be withdrawn or cancelled subsequently in exercise of the power under section 21 of the General Clauses Act.
' The para. 4 of this judgment is reproduced as under :- "We have made it clear to the learned counsel for the respondent that there is no force in his contention that the Government could, in the exercise of the powers contained in section 21 of the General Clauses Act, cancel the order which it had passed and had been notified in the Gazette of the 27th of September, 1957. The order, in our opinion, had already come into operation as laid down in Shahoaz v. The Crown (PLD 1956 FC 46), the power under section 21 could be exercised only if the order, which is said to be cancelled, had not been carried into effect. Since the order became operative with effect from the 13th of September, 1957, the order could not be withdrawn or cancelled subsequently on the 1st of June, 1959, in the exercise of the powers under section 21 of the General Clauses Act."
20. The case of Lt. Col. Bhattacharya v. The State (3) went upto the Supreme Court of Pakistan. In this case, the Supreme Court of Pakistan considered the earlier cases of Desh Pande and the case of Shahbaz v. Crown and dismissed the appeal of S. L. Battacharya. The Full Bench of the High Court had refused the writ of habeas corpus to the appellant Lt.-Col. Battacharya who was under going a sentence of imprisonment awarded by a Special Military Court. It was held by the Supreme Court of Pakistan that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail.
21. In the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatulluh Farukhi (4) the principle of locus poenitentiae (power of receding till a decisive step is taken) was considered. It was observed that although the authority competent to make an order has got the power to undo it, yet the order cannot he withdrawn or
(1) PLD 1969 Dacca 422 (2) PLD 1963 (W. P.) Lah. 53
(3) PLD 1964 SC 5Q3 (4) PLD 1969 SC 407 rescinded once it has taken legal effect and certain rights have been granted in favour of any individual. Sajjad Ahmed, J (as he then was) observed at page 412 :- "The argument of Mr. Shah Jamil Alam, that since the order of the President was not communicated to the respondent locus poenitentiae i. e. the power of receding was available to the President to revoke the order, was based on two decisions of this Court from which he sought to derive support.
The first is the case of Sahbaz v. The State (PLD 1955 FC 46) in which the Government had ordered the remission of the prison sentence of Shahbaz with effect from the 14th of August, 1954, before the order was acted upon, it was rescinded on the 13th of August, 1954. It was held that the order cancelling the remission was not open to any objection. In the case of Lt. Col. G. L. Bhattacharya v.
The State and 2 others (PLD 1956 FC 46), which was also in case of remission of sentence under section 401 of the Criminal Procedure Code, it was held that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail, who is duly bound to give effect to it in accordance with the Prisoners' Act.
' There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of sections 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 affect, 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."
22. In the case of Pakistan v. Muhammad Himayat Ullah, it was observed by Sajjad Ahmed J. (as he then was) that the power of-receding till a decisive step is taken, .Is of course available to the Government or to relevant authorities 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.
23. It was held in Collector of Central Excise v. Azizud Din Industries, (1) that it is a settled rule that an executive authority cannot in exercise of the rule-making power o- the power to amend, vary or rescind an earlier order, take away the right vested in the citizens by law. It was a case where a vested right of exemption from the levy of excise duty on all goods produced or manufactured by it for a period of four years under a certain Notification of the Central Government had accrued and, therefore, a subsequent Notification being completely distractive of the right already vested was held to be without lawful authority and of no legal effect by the learned Yaqub Ali, J. (as he then was).
24. In Messrs M. Afzal & sons and 2 others v. Federal Government of Pakislan (2) section 2i,1' of the General Clauses Act was discussed and
(1) PLD 1970 S r3 439 (2) PLD 1978 Lab. 468 it was reiterated that section 21 of the General Clauses Act does not empower the subordinate legislative authority to take away vested rights by recalling or amending a previous notification. I would like to re-produce para. No, 9 :- "The applicability of section 21 of the General Clauses Act has also been discussed in the judgment referred to above and it is quite clear that it does not empower the subordinate legislative authority to take away vested rights by recalling or amending a previous notification. It can only regulate as held in the Mardan Industries case referred to above. The above position of law was also laid down by the Federal Court in leading case of Shahbaz v. Crown (PLD 1956 FC 46) in view of the above, the petitioner did acquire a vested right to import their paper free from payment of duty as they had acted on the notification and taken all the steps to import that paper."
25. The Supreme Court of Azad Jammu and Kashmir has also discussed this principle in the case of Sattar Muhammad v. Chief Conservator of Forests and others (1) para. 17 whereof reads as follows :- "In our view, the authority that has the power to make an order has also the power to undo it to retrace the step. Of course, 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 an individual, such an order cannot be withdrawn or recalled to the detriment of those rights. In such cases, the doctrine of locus poenitentiae i. e., power of receding till the decisive step is taken, is always available to the Government or the relevant authorities apart from the provision of section 21 of the General Clauses Act."
26. In Writ Petition No, 20, date of Institution : 24-7-1978, date of decision : 15-1-1979 entitled Habib Ullah Lone v. A. K. Government and others, a Division Bench of our own High Court considered this very point, accepted the writ petition of Habib Ullah Lone and issued a writ of Mandamus to the respondent to pay the outstanding amount to the petitioner to which he was entitled to under a Government order. I reproduce the following observations of the High Court from pages 2 and 3 of the judgment :- "The learned counsel for the petitioner argued that the Government was not legally competent to cancel its order dated 9-2-1976 which had already taken effect and vested rights had accrued to the petitioner. The learned counsel also cited PLD 1970 SC 439. It was held in PLD 1970 SC 439 that executive power cannot be exercised to amend vary or rescind earlier order taking away the vested rights of the citizens. In PLD 1964 SC 503 it was held that order remitting the sentence of the petitioner could not be withdrawn or cancelled because it had already taken effect and once an order had taken effect it could not be rescinded or cancelled to the detriment of the interested party. Again in PLD 1956 Sind 101 while interpreting section 21 of the General Clauses Act more or less the same principle has been enunciated. The upshot of the above discussion is that an order cannot be altered or rescinded if an immediate fixed right of present or future enjoyment
(1) PLD 1980 SC (A J & K) 46 has accrued to a party because such a right is a fixed right in contradiction to being expectant or contingent right. In instant case the respondent had accepted the escalation claim of the petitioner and the order had taken effect and a part payment had also been made to the petitioner in pursuance the Government order. The learned Advocate-General have argued that the petitioner's case is in nature of a contractual of obligation and as such it cannot be enforced by way of a writ, It has been pleaded by the respondents in their written statements that escalation claim did not form a part of agreement between the petitioner and the Government and therefore the petitioner was not entitled to any remedy by way of writ. Contrary to what has been pleaded, the respondents cannot be allowed to turn down and say that this was a contractual obligation.
Irrespective of the pleadings of the respondents. We are of the opinion that this is not a case to enforce as contractual obligation, rather it is a case of cancellation of an order of Government which had created vested rights in favour of the petitioner. On this view of the matter accepting the writ petition we hold that impugned Order No, 1105-11, dated 21-6-1978, cancelling the Government Order dated 9-2-1976 is illegal and without lawful authority and subsequent Order No, 1391-94, dated 6-7-1978 calling upon the petitioner to refund Rs, 14,000 is also void. We further issue a writ of maudamus to the respondents to pay the outstanding amount to the petitioner to which he is entitled under Government Order No, 265-260 dated 9-2-1976".
27. In the case of Muhammad Aslam Khaki v. Vice-Chanceller, Gomal University D. I. Khan (1) this principle was again considered at length and after referring to earlier authorities : PLD 1969 SIC 407, PLD 1964 SC 503, PLD 1960 SC 310, PLD 1973 Quetta-14, PLD 1979 Quetta 131, PLD 1956 FC 46, PLD 1964 SC 438, PLD 1963 Lah. 52 and PLD 1965 Pesh. 31, the learned Muhammad Sardar Khan, J.
Accepted the writ petition of Muhammad Aslam Khaki. I would like to reproduce paras. 6 to 12, 14 and 17 :-
(6) "We have heard both the learned counsel. They have canvassed the same points as given above. Learned counsel for the petitioner submits that respondent No, 1 had the authority to withdraw his recommendation but he could not do so after they had been acted upon and petitioner bad been selected for admission and communication to this effect had been received by him. He contends that it was immaterial whether petitioner had joined either of the courses or not. But the important consideration is that the petitioner had acquired a right to claim the benefit of this selection for admission granted by the Institute, thus the "decisive step" had been taken and, therefore, there was left no power with the. Vice-Chancellor to recede.
Learned counsel has placed reliance on the following cases:- (1)Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farrukhi PLD 1969 SC 407.
(2)Lt.-Col. G. L. Battacharya v. The State and others PLD 1964 SC 503.
(1) PLD 1980 Pesh. 128 (3)Pakistan and another v. S. Hussain Ali Shah A. Fazelani PLD 1960 SC 310.
(4)Sheikh Muhammad Nawaz v. The Secretary, Irrigation and Power Government of Baluchistan, Quetta and another PLD 1973 Quetta 14.
(5)Munir Ahmad v. University of Baluchistan and another PLD 1979 Quetta 131.
(7) On the other hand, learned counsel for respondent No, 1 Mr. Jalaluddin Akbar Jee contends that Vice-Chancellor, being the principal executive and Academic Officer of the University under section 13 (1) of Gomal University Act, 1974 (Act X of 1974) was empowered under clause (vi) of subsection (3) of the said section to "direct teachers, officers and other employees of the University to take up such assignments in connection with teaching, research, examinations, administration and such other activities in the University as he may consider necessary for the purpose of the University". It is submitted that although Act X was enforced as early as 2-12-1974, such authorities as the Senate, the Syndicate etc. Had not been constituted till now. Thus, respondent No, 1 was repository of all powers under the said Act and he could have lawfully taken the impugned action in the interest and for the purpose of the University. It is next urged that petitioner had not yet actually joined either course at Lahore or Islamabad thus no "decisive step" had yet been taken, therefore, respondent No, 1 is not barred either under the General Clauses Act or the principle of locus poenitentiae to withdraw his recommendations. According to the learned counsel, all rulings from the case of Shahbaz v. The Crown PLD 1956 FC 46 onward were unanimous that the power to recede was available to an authority until "decisive step" is taken and in this case that stage had not reached, therefore respondent No, 1 liad, in the circumstances of this case, committed no illegality in withdrawing the recommendations. He adds that it was a case of "closed and past transaction" as held in the case of The Province of East Pakistan v. Muhammad Yaseen Qureshi and another PLD 1964 SC 438. Thus no exception can be taken to the action of the Vice-Chancellor.
The learned counsel has also sought support from the judgments in cases of Dr. Mahboob.
Rabbani v. Government of West Pakistan PLD 1983 Lah. 53 and Farid Khan v. The State PLD 1965 Pesh. 31
(8) Now it is clear that the learned counsel do not dispute the power of the Vice-Chancellor to withdraw his recommendations. They also seem to be in agreement that this, power remains with him until a "decisive step" is taken. But they are in disagreement with each other as to the time this is to be reckoned with. According to the learned counsel for the petitioner the "decisive step" was taken when acting upon the recommendations of the Vice-Chancellor petitioner was called for interview and he appeared in the tests and was ultimately selected and information to this effect was conveyed to and received by him. The learned counsel for the respondent No, 1, however, is of the view that this "decisive step" could only be said to have been taken if the petitioner had been actually admitted in the Institute of Education and Research or for that matter in the Faculty of Shariah, Islamabad, but since this stage had never reached, therefore, there was no question of taking any exception to the withdrawal of recommendations as till then no right had vested in the petitioner.
' To resolve this controversy it is, therefore, necessary to determine as to what does a "decisive step" mean and when it is really reached because on this would depend the decision of the larger issue as to whether the power to recede had been lawfully exericsed in this case by respondent No, 1 or not. It must, however, he said that determination of this stage in each case would depend upon its own facts.
(9) Let us, therefore, examine some of the cases cited at the Bar. In point of time Shahbaz v. The Crown seems to be the first case brought to our notice from Pakistan Jurisdiction. Shahbaz was convicted for murder and sentenced to death. His sentence was reduced to transportation for life by the High Court in appeal. On an application of his brother, the Government of Punjab passed order in early August, 1954 remitting his sentence unconditionally directing that he should be released on the independence Day, i. e. 14th August, 1954. But before this order could be given effect it was cancelled on 13th August, 1954 with the result that he was not released on the Independence Day. On this an application was filed in the High Court on his behalf for the issuance of a writ of habeas corpus but the same was dismissed. His appeal in the Federal Court met the same fate because the order of cancellation by the Government had been passed before the date of release i. e. The power to recede what is otherwise known as locus poenitentiae had been exercised before the taking of the "decisive step". `Decisive step' in the circumstances of the case, was thus considered to be the stage where the order has been carried into effect. Since this stage had not reached there existed no reason to restrict the power of the Government to modify or cancel its earlier order.
(10) The decision in Shahbaz v. The Crown again came under consideration of the Supreme Court in appeal against the judgment of the Full Bench of East Pakistan High Court in the case of Lt.-Col. G. L. Battacharya. The Full Bench had come to the conclusion that by communicating the Provincial Government's order of remission to the Superintendent of the Central Jail, the Superintendent receiving the order and recording it in the prisoner's history ticket, a 'decisive step' had been taken with regard to the order of the remission of which the petitioner was entitled to claim the benefit.
The Full Bench rejected the plea raised before it by the Advocate-General, based upon certain observation in the case of Shahbaz that until the actual date of release, as fixed by the order of remission, it had not become effective. The Full Bench distinguished the decision in the case of Shahbaz on the ground that the right of release in that case was fixed to take effect upon a particular date, and could not be claimed until that date arrived, so that the order could be withdrawn by a fresh order of the Provincial Government before that date. Their Lordships of the Supreme Court endorsed the view of the Full Bench that "It was immaterial if the prisoner had been actually released or not and that the important consideration was that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government".
11. Next in line is the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farrukhi. In this case an order was made by the then President of Pakistan on 1-10- 1959 fixing basic salary of Himayatullah Farrukhi at Rs, 1,000 per mensem with effect from 8th of June, 1948 notwithstanding that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The order of the President was duly communicated to the Ministry of Communication and Mr. Himayatullah and its implementation thus ensured became a part of the terms and conditions of the service of Himayatullah Farukhi. But an order was made by the President subsequently on 26-8-1962 withdrawing his earlier order of 1st of October, 1959. This was held by the High Court of West Pakistan, Karachi to be without lawful authority. An appeal was preferred by the Government by Special leave if the Supreme Court against this decision. It was held that :- "There can hardly be any dispute with the rule 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 purauance 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".
12. The position in the case of Sheikh Muhammad Nawaz was in no way different. Petitioner was appointed Overseer in Quetta Region in 1958, was charge-sheeted on 12-6-1958 for misconduct and corruption and after necessary proceedings under the relevant rules, was dismissed from service by the Chief Engineer on 18-6-1969. He preferred an appeal against this order to the Secretary, Irrigation and Power Department. The Secretary accepted his appeal on 18-4-1970 ordering his re-instatement subject to certain conditions. Subsequently on 9-6-1970, however, he cancelled his earlier order dated 18-4-1970 withdrawing the order of re-instatement of the petitioner. This order was challenged by him in writ petition before the High Court of Sind and Baluchistan at Quetta and it was contended on the authority of the two cases of the Supreme Court "Pakistan v. Himayatullah Farrukhi" and Lt.-Col. Battacharya v. The State" that the order dated 18-4-1970 by which petitioner's appeal had been accepted and his re-instatement ordered had come into affect and created a vested right in his favour, which the Government was not competent to revise or cancel subsequently".
13. The question upon what point or stage can the power of recall be exercised by Government came up for consideration before Full Bench of the High Court of West Pakistan, Peshawar Bench in Farid Khan v. The State. Reference was made before the Full Bench to Full Bench judgment in Venkatesh Vashwent Deshpande v. Emperor AIR 1938 Nag. 513 and to the decision of the Full Bench of East Pakistan High Court in Lt.-Col. G. L. Battacharya v. The State. And this is how their Lordships of the Peshawar Bench expressed their views :- "It will be seen that the test for determining whether there is locus poenitentiae or not is to ,ascertain whether a decisive step has been taken in pursuance of the earlier order waich is sought to be recalled or rescinded. Now, can it be said that the mere entry of the grant of a remission in the prison documents of a convict is a decisive step in the implementation of the order of remission ? Their Lordships of the East Pakistan High Court seem to think that it is, as, in their view the entry of the grant of remission in the prison documents, is all that is required to be done under the order of remission passed by. The Government, and it is immaterial whether the prisoner has or has not been released in pursuance of that remission. With great respect to the learned Judges, who decided Bhattacharya's case, we are unable to adopt this view. It seems to us that the phrase "taking a decisive step" or the alternative phrase "carrying an order into effect", as used in respect of an order capable of physical implementation, cannot mean mere documentation, but must connote the taking of an active physical step by which alone the order could be effectively implemented. This meaning becomes clear with reference to the observation contained in the last paragraph in the judgment of their Lordships of the Federal Court in the case of Shahbaz. While discussing the theoretical case of a condemned prisoner whose sentence is commuted into one of transportation for life, their Lordships have clearly stated that a decisive step would be taken when the prisoner would be removed from the condemned cell to that part of the prison where the ordinary sentences of imprisonment are to be undergone. It is clear to us that if in the view of their Lordship their mere entry of an order of commutation in the prison documents was enough, then they would not have stated that the removal of the prisoner from the condemned cell to the other part of the Jail was a decisive step in such a case. Thus an order of remission of sentence can be said to have been carried into effect only when as a result of that remission the convict has been released from custody. It is only then that a decisive step is taken in pursuance of the order of remission. Until that stage is reached, the order remains, to use the words employed by their Lordships of the East Pakistan High Court, "an inchoate order" For these reasons, with the utmost respect we venture to differ from the view taken in Bhattacharya's case, and find ourselves in agreement with the view expressed by the Division Bench of this Court at Lahore in Writ Petition No, 780 of 1962 that an order of remission cannot be said to have been carried into effect until such time as the prisoner is released from custody in pursuance of that order, with the result that until that decisive step is taken, locus poenitentiae exist for the Government to recall or rescind that orders".
(17) Thus necessity and existence of the power to vary or recall the wrong steps taken in case of all authorities empowered to pass orders is recognised by all. There also seems to be a consensus of judicial opinion that apart from the provisions of section 21 of the General Clauses Act, the power of receding i. e. "locus poenitentiae" is available to such authorities till the order (being rescinded) has taken legal effect. But where the order has taken legal effect, and in pursuance thereof certain rights have been created in any individual, "decisive step" will be deemed to have been taken and thereafter the order cannot be withdrawn or rescinded to the detriment of those rights. Then the authority issuing such order would be precluded from doing so. Nor it is necessary in all cases that "locus poenitentiae" or the power to rescind or recall an order that exist until a thing intended by the order has actually happened, such as a prisoner in pursuance of an order of remission is released from custody. And in the words of Full Bench of East Pakistan High Court which I borrow with reverence, it is immaterial if the prisoner has been actually released or not. The important consideration is "that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government."
28. I would also like to refer to the case, Writ Petition No, 45 of 1983, date of Institution 23-11-1983, date of decision 1-12-1983, decided by a Division Bench of our own High Court. This case is entitled Khawaja Mumtuz Hussain student of M. S. C. Forestry institute, Peshawar v. A. K. Government and others, which writ petition was accepted by our own High Court. I would like to reproduce the following observations of the Division Bench in this connection from pages 5 to 6 ;- "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 esclation of rates. The matter remained under active consideration of the authorities, but after the completion of the work, the Government granted requisite esclation 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 as supported through various decisions reported in 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 PLD 1980 Pesh.
128. The consensus 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 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.
' Para. 8 of this judgment is also relevant which is given below :- ' A perusal of the impugned order reflects that it was passed without providing the petitioner an opportunity of hearing. The previous order, of nomination was recalled telegraphically. The impugned order was telegraphic in letter and spirit. The respondents failed to assign 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, had 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.
29. So the law is very clear that an authority which possesses an order is competent to vary, rescind or cancel the order passed by it and that power vests in it by virtue of section 21 of the General Clauses Act. But this power is not absolute as it is subject to certain limitation. The most important limitation is that when the order sought to be varied, rescinded, or cancelled is communicated to the other party and/or subsequent to that communication, that party acts upon it, .a very valuable right accrues to that party and therefore the authority under such circumstances becomes incompetent to vary rescind or cancel its previous order because the law does not allow volte face to the authority. Thus the petitioner succeeds and deserves a writ of prohibition as prayed for.
30. Therefore, I hold that the respondents cannot take away the vested right of admission which has already accrued to the petitioner and therefore, cannot withdraw his nomination for a seat of M. B., B. S. In the Ayub Medical College, Abbottabad.
31. As regards to the second point which falls for determination as to whether the Writ of Prohibition lies in this case or not, it appears that there is much misunderstanding about the Writ of Prohibition.
I think, this is the first Writ of Prohibition filed in Azad Kashmir, therefore, I would like to throw some light as to what is the scope and the object of this type of writ and as to when it is issued.
32. The High Court of Azad Jammu and Kashmir has got powers to issue writs under section 44 of the Interim Constitution Act of 1974 which is reproduced as under :-
44. Jurisdiction of High Court.-(1) The High Court shall have such jurisdiction-as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court (may) if it is satisfied that no other adequate remedy is provided by law.
(a) on the application of any aggrieved party, make an order.
(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do ; or
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect ; or
(b) on the application of any person, make an order, (i)directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner ; or
(ii) requiring a person holding or purporting to hold a public office (in connection with the affairs of Azad Jammu and Kashmir) to show under what authority of law he claims to hold that office ; or
(c) On the application of any aggrieved person, make an order giving such directions to the person or authority including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act.
(3) An order shall not be made under subsection (2) of this section on application made by or in relation to a person in the Defence Services in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action in relation to him as a member of the Defence Services.
(4) Where-
(a) application is made to the High Court for an order under clause (a) or clause (c) of subsection
(2) ; and
(b) The Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim order unless the Advocate-General has been given notice of the application and the Court, after the Advocate-General or any officer authorised by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in clause (b) of this subsection.
(5) In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the (Supreme Court of Azad Jammu and Kashmir), the, High Court or a Court or Tribunal established under a law relating to the Defence Services".
(Underlining**is mine).
' The writ of prohibition is not specifically mentioned in the section 441D but section 44 (2)(a) covers it
33. All writs are intended to control public bodies and their main object is to foster justice. Justice Lindley has well said :--- "I know of no duty of the Court which is more important to observe and no power of the Court which it is more important to enforce
(1) Omitted by Act IX of 1975 *[Here in italics] than its power of keeping public bodies within their rights. The moment public bodies exceed their rights they do so to the injury and oppression of private individuals, and those persons are entitled to be protected from injury arising from such operations of public bodies".
(Roberts v. Gwyrfai District Council, 1899)
34. A writ of prohibition, as the name indicates, is issued to an inferior or tribunal from continuing an act which is beyond relation to a matted' and its authority or jurisdiction.
Prohibition is, therefore, a preventive writ which prevents a tribunal possessing judicial or quasi- judicial powers from exercising jurisdiction over G matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance. Prohibition is remedial incidentally in the sense of giving relief and is as old as the common law itself. The writ is so ancient that forms of it are given in Glanville (Seams' Trans. Pp. 56, 97) the first book of English Law, written in the year 1189). In the next century Section discussed it as an established part of English Common Law. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical Courts.
Prohibition has been defined by Bouvier-as the name of a writ issued by a superior Court, directed to the judge and parties to a suit in an inferior Court, commending them to cease from the prosecution of the same, upon a suggestion that the cause originally or some collateral matter arising therein does not belong to that jurisdiction, but to the cognizance of some other Court. (Law Dictionary).
Short and Mellor-as a judicial writ, issuing out a Court of superior jurisdiction and directed to an inferior Court for the purposes of preventing the inferior Court from usurping a jurisdiction with which it was not legally vested, or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction.
(Crown Practice page. 252)
' Stroud.-as a judicial writ, issuing from a Court of superior jurisdiction and directed to a Court of inferior jurisdiction for the purpose of J preventing it form usurping a jurisdiction with which it is not legally vested. (Judicial Dictionary of Words).
' Blackstone-as a writ issuing properly out of the Court of King's Bench, being the King's prerogative writ ; but for the furtherance of justice it may also be had in some cases out of the Court of Chancery, Common Pleas or Exchequer, directed to the Judge and parties of a suit in any inferior Court, commanding them to cease from the K prosecution thereof, upon a suggestion that either the case originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court. (3 commentaries III).
' Halsbury-as a prerogative writ, issuing out of the High Court of Justice, and directed to an ecclesiastical or inferior temporal Court, which forbids such Court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. (Laws of England Vol. IX, p.
819).
35. Now, I refer to the "Constitutional Law" by Wade and Phillips (pages 665-667) - Prohibition, like the better known writ of habeas corpus, appears to have been issued on the application of subject (citizens) from the earliest times.
An order of prohibition issues out of a superior Court (Queen's Bench Division) primarily to prevent an inferior Court from exceeding it jurisdiction, or acting contrary to the rules of natural justice, e. g.
To restrain a judge from hearing a case in which he is personal interested. It does not matter that the inferior Court administer a different law from that of the High Court ; thus it lies against, ecclesiastical Courts and lay against the old Admiralty Courts prior to the Judicature Acts. For many years past it has also been granted against Ministers of the Crown and Public authorities in general to control the exercise of judicial or quasi-judicial functions. It does not lie against non- statutory bodies, such as a social club, e. g. In relation to the expulsion of a member. It will not lie unless something remains to be done which a Court can prohibit, e. g. a continuing excess of jurisdiction.
Scope of Remedy It is not clear what are the precise limitations of the order ; it is certain that it will lie against a body exercising public functions, but it cannot be used to restrain legislative powers or those powers which cannot be challenged in a Court of law because they are purely executive in character. An attempt to invoke prohibition (together with certiorari) against the National Assembly of the Church of England and its legislative committee to restrain that body from proceeding with the Prayer Book Measure 1928 was unsuccessful, on the ground that neither the Assembly nor the committee was empowered to act, or did in fact attempt to act, judicially in matters affecting the interests of the subject. Nevertheless in this as in other spheres of judicial review, the Courts have generally interpreted in a wide sense their power of controlling anybody of persons to whom has been entrusted a "judicial" power of imposing obligations upon others. The case of The King v.
Electricity Commissioners, Ex parte London Electricity Joint Committee (1924) 1 K B 171, 205 is of particular interest in this connection ; ' The Commissioners possessed statutory powers enabling them to draw up schemes for improving the existing organisation for the supply of electricity in districts. A scheme was not to become operative until a public inquiry had been held and the scheme confirmed by the Minister of Transport and approved by resolution of each House of Parliament. A writ of prohibition was granted to prevent the holding of an inquiry on the ground that the scheme to be presented at the inquiry was ultra wires. In discussing the scope of certiorari and prohibitory, Atkin, L. J. Said : "Wherever any body of persons, having legal authority to determine the rights of subjects and having the duty to act judicially. Act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division, exercised in these writs". (1924) 1 K B 171, 205. In this case the Electricity Commissioners were not exercising the powers of a Court of law ; their functions seem rather to have been those of inquiry and recommendation prior to the exercise of delegated legislative powers. Nevertheless the Court decided that for the purpose of judicial review the Commissioners could be regarded as acting judicially in considering a scheme which if confirmed would affect the rights of the private companies responsible for the existing supply of electricity. Clearly in this sense judicial has a wide meaning not referable exclusively to what is done within the jurisdiction of a Court of justice. The judgment of Atkin, L. J., as he then was, deserves careful study as affording many illustrations of the circumstances in which the Courts have granted the writ in the past. It is also made clear that the common requirement of confirmation by a higher authority, even where the approval has to be that of the Houses of Parliament, does not put an order of a local authority outside the category of a judicial proceeding which can be restrained by means of prohibition. Atkin, L. J., said : ' In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioners themselves are to act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits.
(Constitutional Law - Wade and Phillips - 7th Edition - 1965).
36. The main difference between Prohibition and Certiorari is that Certiorari is a means of quashing an order or decision already given, and Prohibition is a means of preventing an order or decision being made which if made would be subject to Certiorari. This distinction was brought V out in two Housing Act cases, arising out of housing schemes prepared in terms which were not authorised by the Housing Act of 1925. I refer only to :- ' In the Kind v. Minister of Health, ex parte Davis (1929) 1 K B 619 (646, ante) a property owner in the area affected by the proposed scheme successfully applied for a writ of Prohibition to prevent the Minister proceeding to consider the scheme with a view to confirmation. The scheme contained provisions ultra vires the Housing Act, and, therefore, it would not have been within the jurisdiction of the Minister to confirm it .
37. In the case of Hong Kong and Shanghai Banking Corporation v. Bhaidas Praijivandas (1), Shah, J.
Of the Bomby High Court also remarked that the difference between Certiorari and Prohibition was one merely of the stage at which the writ may be effected ; writ of prohibition is designed to prohibit inferior tribunal from proceeding any further if it can be shown that it was assuming a jurisdiction that was not vested in it by law, but the writ of Certiorari lies to remove the decision or the order recorded by such a Tribunal with a view to having quashed.
The crux of the matter is that a writ of Certiorari is remedial whereas a writ of Prohibition is preventive.
38. The object and purpose of prohibition is to confine Courts of peculiar, limited or inferior jurisdiction within their bounds ; to prevent them from encroaching upon the jurisdiction of other Tribunals ; to restrain them from exercising jurisdiction where they do not properly possess jurisdiction at all, or else to prevent them from exceeding
(1) AIR 1951 Born. 158 their limits in matters of which they have cognizance. Prohibition is primarily and principally a preventive rather than a remedial corrective remedy, its office being rather to arrest proceedings than to undo them. It is directed to the Court or tribunal below and commands it to cease from the exercise of a jurisdiction to which it has no claim or to prevent it from exceeding its limits in matters of which it has cognizance so that it may not proceed to encroach upon the vested rights of a person or do any thing contrary to law or natural justice, so it lies not only for excess or absence of jurisdiction but also for the contravention of some statute or the principle of common law or natural justice.
39. In the case of Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (1), their Lordships of the Privy Council dealt with the propriety of issuing writ of prohibition in a case where the steps that exhibited the quasi-judicial character of the proceedings had been gone through and all that remained to be done was to get the approval of the declaration made under section 57 of the Singapore Improvements Ordinance, 1927. Despite the difficulty that the Governor-in Council was not a party to the proceedings, their Lordships issued a writ of prohibition to the respondents not to require the appellants to demolish the building under section 61 which was a discretionary power to be exercised by the respondent after the approval of by the Governor in Council. Their Lordships' concluded the consideration of this question by a significant remark (at page 271 )
"It must not be forgotten in considering the technical aspect of the case that on the conclusion at which their Lordships arrived, the declaration was ultra vires and that if the respondents were to attempt to exercise their powers under section 61 they would be relying on an order which, if challenged in time by suitable proceedings, could not have been made."
' The appeal was allowed.
40. As to the question, when the writ of prohibition lies, the case of Muhammad Tufail v. Abdul Ghafoor (2) H & I, is a valuable authority wherein learned Muhammad Sharif, J (as he then was) was pleased to observe :- "Halsbury's Laws of England, Second Edition, Volume IX, para. 1397 defines the cases where a writ of Prohibition may issue. It says : prohibition lies not only for excess of or absence of jurisdiction, but also for the contravention of some statute, or the principles of the common law. In Farquharson v.
Morgan (1934) 1 Q B 552 it was held that where total' absence of jurisdiction appear on the face of the proceedings in an inferior Court, the Court is bound to issue a prohibition, although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior Court. The R reason why, notwithstanding such acquiescence, a prohibition is granted where the want of jurisdiction is apparent on the face of the proceedings, is explained by Lord Derman in Bodenham v. Ricketts (6 M & M 170) to be for the sake of the public, lest, the case might become a precedent if allowed to stand without impeachment, and to this dictum Lord Lopes, L. J. Added : "because it is a want of
(1) AIR 1937 P C 265 (2) PLD 1958 SC (Pak.) 201 jurisdiction of which the Court is informed by the proceedings before it, and which the Judge should have observed, and of which he himself should have taken notice." ' It may be remarked that no question of lathes or acquiescence ever arose in this case."
41. In the case of Abdul Latif v. Government of Pakistan and others (1), a writ of Prohibition was issued to enforce the principle of natural justice. In that case a show-cause notice was not issued and the Supreme Court of Pakistan issued a writ of Prohibition to the Collecte; so that she may not proceed any further with that matter. It was a case of a treasury contractor who was required to pay a certain sum of money pressing into operation the coercive provisions (section 69) of the Punjab Land Revenue Act, without serving any show-cause notice on the appellant Abdul Latif.
42. The Supreme Court accepted the appeal, reversed, the order of the High Court of West Pakistan at Peshawar and prohibited the Deputy Commissioner, Peshawar from further proceeding with his order.
43. I therefore, hold that the writ of prohibition lies, in this case.
44. One Khalid Mahmood, son of Muhammad Kherat Caste Janjua, resident of House No, 319-C, 4- Mirpur (A. K.) has applied for being impleaded as a party in this writ petition. I am afraid, he cannot be impleaded as a party because he is not a son of a doctor. This seat is reserved for the children of the doctors serving in Azad Jammu and Kashmir and as such he has got no locus standi. His application merits no consideration and is therefore, dismissed.
45. As far as Anwaruihaque. Son of Abdul Ghafar Khan is concerned, his good name occurs in the written statement of the learned Advocate General in para. 8 which is reproduced as under :- {{URDU TEXT}} but he is also not the son of a doctor and, therefore, has got no valid claim to contest for this seat which is reserved for the children of the doctors serving in Azad Jammu and Kashmir. Moreover Anwaruihaque did not apply to be impleaded as a party in this Writ Petition and I can safely conclude that he should not feel himself aggrieved by the nomination of the petitioner for this seat.
46. I am fortified in my view by 1970 SCMR 681, wherein it was laid down that a person who is not a party before the Tribunal below, has got no right to be impleaded as a party in writ proceedings. In T this view of the matter, neither Khalid Mahmood nor Anwarulhaque are entitled to this seat which was rightly allotted to the petitioner by the Nomination Board earlier.
Under these circumstances, I see a great force in this writ petitione which succeeds and, therefore, I hereby issuing a writ Prohibition, direct,
(1) PLD 1962 SC 384 the non-petitioner (respondents) that they shall not cancel the nomination of the petitioner (Syed Muneeb Nazir Shah) and the petitioner shall continue to study in the Ayub Medical College, Abbottabad under the nomination order made earlier in his favour and communicated to him by the Telegram Annexure 'C.' The non-petitioner (respondents) are prohibited to interfere and cancel the nomination of the petitioner at the stage when the petitioner has already joined the said Institution and has been studying in it for more than six months. It will be against the needs of justice to unseat and upset him and thus deprive him of a valuable vested right which accrued to him by the earlier order passed by the Nomination Board and duly conveyed to him under the instructions of the Ministry of Kashmir Affairs by way of the telegram Annexure 'C'.
No order as to the costs.
Writ issued.