' The petition raises a question of bona fide and validity of order of respondent No,
1. Whereby nomination of the petitioner made in the light of the decision of respondent No, 1, on October 13, 1985, was recalled and instead, respondent No, 2 was recommended for admission in Fatima Jinnah Medical College, Lahore against the seats of District Mirpur, allocated out of the reserved seats for Azad Jammu and Kashmir in Pakistan Colleges (Medical).
2. Azad Jammu and Kashmir Nomination Board invited applications for admission to medical colleges of Pakistan against the reserved seats for Azad Jammu and Kashmir students, through a proclamation published in the National Dailies on September 10, 1985, with the direction that the candidates desiring admission in the Medical Colleges should submit their applications alongwith the requisite documents and the applications must reach the office of respondent No, 1 by September 24, 1985. The publication contained the list of documents required to be accompanying the applications and documents were :---
(i) State Subject Certificate issued by the Deputy Commissioner/ District Magistate of the concerned District ;
(ii) domicile certificate issued by the Deputy Commissioner/District Magistrate of the District where the applicant resided ;
(iii) academic certificates, including the detailed marks list ;
(iv) character certificate ;
(v) medical fitness certificate ; and
(vi) N. C. C. Women Guard Certificate, in addition to photographs and admission fee.
' It also contained direction that incomplete applications shall not be considered. Here, it is relevant to mention that the notice published at the instance of respondent No, I was strictly in accordance with the conditions contained in the Notification of the Government issued on October 13, 1980.
Section 1 of the said Notification postulated, among others, that the applications of the candidates shall reach the office of the Secretary, Nomination Board, on or before the date fixed in that behalf and shall be accompanied by
(i) State Subject Certificate signed and issued by the Deputy Commissioner of the concerned District ;
(ii) domicile certificate ;
(iii) academic certificate, including the detailed marks list ;
(iv) character certificate ; and
(v) nomination fee.
' It was further provided that incomplete applications shall not be considered. The Notification of 1980 was issued by partial amendment Notification of the Notification of 1972.
3. It is accepted that the petitioner and respondent No, 2 applied well in time but the application of Miss Asifa Qureshi, respondent No, 2 was unaccompanied by domicile certificate. This factual aspect is admitted by Miss Asifa Qureshi in her written statement who, according to her defence, stated that the domicile certificate could not be appended with the application within time as the same was not issued to her. The explanation advanced by Miss Asifa Qareshi, is partly supported by the recoid as the requisite certificate was issued in her favour on September 29, 1985. There is also a certificate issued by the S. D. M. Bhimber wherein it was mentioned that the domicle certificate requested by Miss Asifa Qureshi was under process. Be as it may, the admitted position is that the application of Miss Asifa Qureshi was not accompanied by the domicile certificate and the said certificate was despatched after the final date of applications. This position finds corroboration from the working paper or merit list prepared by the Nomination Board.
4. Miss Uzma Ishaque and Miss Asifa Qureshi are domicile of District Mirpur. According to the reserved seats, the candidates from District Mirpur (women seats) were allocated only 3 seats.
Miss Asifa Qureshi was placed in 6th position, whereas Miss Uzma Ishaque was placed in 7th position in the merit list. Miss Asma Khan, Miss Rozi Rafique, Miss Atya Bhatti and Miss Sehar Jamil were placed in second, third, fourth and fifth positions, respectively. The applications of Miss Asma Khan, Miss Sehar Jamil and Miss Asifa Qureshi were not co sidered for want of domicile certificates, whereas the application of Miss Rozi Rafiq was dropped for want of State Subject Certificate. Thus, on exclusion of Miss Asma Khan, Miss Rozi Rafique, Miss Sehar Jamil and Miss Asifa Qureshi Miss Uzma Ishaque was considered eligible for admission in Medical College against the reserved seats for District Mirpur. The decision of the Board was taken in a meeting held on October 13, 1985. The decision was conveyed to the Secretary Health, Punjab through Kashmir Affairs Division who conveyed the same to the Principal, Fatima Jinnah College, Lahore. In consequence thereof, Principal, Fatima Jinnah College, Lahore sent a call letter for admission, to the petitioner, vide No, 11420 dated December 3, 1985. In the call letter, the petitioner was apprised of her nomination for admission in the College and was directed to report alongwith the requisite documents and admission fee. At the bottom it was entered that the classes shall start from December 10, 1985.
Meanwhile, the Board changed its decision and informed the Health Secretary, Punjab and College Principal accordingly. When the petitioner reported in the College for admission, under the changed situation, admission was refused to her. It was in this background of the circumstances that the petitioner invoked special jurisdiction to seek redress of her grievance.
5. Raja Muhammad Siddique Khan, the learned counsel for the respondent, raised an objection to the jurisdicion of this Court and contended that in the light of dictum of the Supreme Court in Miss Nishat Saeed' s case (1), writ jurisdiction of this Court could not be invoked. In view of the proposition considered in Miss Nishat Saeed's case, in my opinion, the objection is not sustainable.
In that case, the controversy emerged from an order of cancellation of domicile certificate by District Magistrate, Poonch, due to failure of the respondent to appear before him in an inquiry undertaken on a complainant. The necessary facts of the case were that respondents 2 and 3 acquired domicile certificates in order to avail admission in Medical Colleges against the reserved seats of District Poonch. Subsequent to issuance of certificates, a complaint was made on which the District Magistrate issued notice to the certificate-holders to appear before him. On their failure to appear, the domicile certificates were cancelled. Nevertheless, the Nomination Board by holding independent inquiry ascertained the bona fide of the certificates and accepted the same for recommending admission of respondents in medical colleges. The order of the Board was challenged in a writ petition. The learned Judges of the High Court also examined the evidence in support of the certificates and arrived at the same conc usion. In appeal preferred by Miss Nishat Saeed, the learned Judges of the Supreme Court upheld the finding of the High Court and observed that in absence of definite law said domicile certificates were issued on the basis of a circular issued by the Nomination Board to the District Magistrates. In addition to that, the circular letter was issued by the Deputy Secretary (Home) for guidance of the District Magistrates to issue domicile certificates. In view of the learned Judges, the circular letter
(1) PLD T980 SC (A J & K) 1 in question, at the best, was an administrative order containing instructions for issuance of domicile certificates. As the said instructions had no statutory backing, the same could not be equated with law. Therefore, in their view, the Nomination Board was not deprived of scrutinizing the domicile certificates nor such instructions created a vested right in an individual to enable him to challenge the same by invoking writ jurisdiction. In the present case, the position is quite otherwise. The nomination scheme is visualised through a Notification issued by he Government. It contains a scheme for receiving applications from the candidates and settlement of priority on merit basis and finally recommending the same for admission in medical and other colleges of Pakistan against the reserved seats for the students of Azad Jammu and Kashmir. This is done by a Board constituted under section 5 of the Notification. Section 1 of th Notification prescribed necessary conditions for receiving application alongwith necessary certificates. The Notification, therefore, enjoys the force of law. The term "laws" has been defined through explanation (a) in section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is reproduced as under :- "(a) 'laws' includes Ordinance, Orders, rules, bye-laws, regulations and any notifications and other legal instruments having the force of law.
' In view of the explanation of section 51 of the Interim Constitution Act, 1974, the notification regulating the scheme of nomination of students from Azad Jammu and Kashmir for admission in medical and other colleges of Pakistan, against the reserved seats, has full force of law. Article 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 confers special jurisdiction of writ on the High Court. Subsection (2) (a) (ii) of section 44 of the Act empowers the High Court that on its satisfaction that no other adequate remedy was provided by law, on the application of any aggrieved party, it was authorised to make an order declaring that any act done or proceedings taken in Azad Jammu and Kashmir by a person performing functions in connection with the affairs of the State or local authority, was done or taken without lawful authority and was of no legal effect.
The relevant provision is reproduced below :- "(2) Subject to this Act, the High Court, 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)2 . s
(it) declaring that any act done or proceedings taken in Azad Jammu and Kashmir by a person performing functions in connection with the affairs of State or a local authority has been done or taken without lawful authority, and is of no legal effect."
In presence of relevant provision of section 44(2) (a) (ii), it is not available to say that when an illegal order or unlawful action of an authority or Government is brought to the notice of the High Court by any aggrieved person having no other adequate remedy provided by law, the High Court cannot act to redress the grievance. The objection is, therefore, not found sustainable.
6. Mr. Basharat Ahmad Sheikh, the learned counsel for the petitioner, argued that in the Notification the Nomination Board was authorised to receive applications in a prescribed manner and to make recommendations strictly in the spirit of the said notification. In view of the learned counsel, as once decision was made in favour of the petitioner, the Board was not empowered to review or recall or change its decision in absence of specific powers contained under the notification. In other words when the notification provided no power of review or authority to change the decision, the action of the Board whereby its previous decision made on October 13 by which the petitioner was recommended for admission in Fatima Jinnah College, subsequently, on production of domicile certificate by Miss Asifa Qureshi, could not be changed. Therefore, according to him, action of the Board was without jurisdiction, He cited PLD 1965 SC 69.
7. The reading of the notification clearly suggests that the Board enjoyed no powers to reconsider its decision by review or otherwise, nor it was authorised to condone or relax the qualifications applicable to candidates for their eligibility and consideration for recommendation of their admission in medical and other colleges of Pakistan, against the reserved seats. On strictly construing the provisions of the notification, one has to agree that the notification does not enable the Board to entertain an application of a candidate unless it was complete in all respects meaning thereby that it was accompanied by the requisite documents and was received in the office of the Secretary, Nomination Board on or before the fixed date. But in my view, the contention was not wholly correct, as it was open to the application of rule of locus poenitentiae (the power of receding till a decisive step is taken). It is by now well-acknowledged that an authorty or Government is empowered to recall, withdraw, cancel or reverse its action till in consequence of such order or action, a decisive step was taken. Under section 21 of the General D Clauses Act, it was provided that the power conferred on an authority by an Act, Regulation, Notification, Orders, Rules or bye-laws, included a power exercisable in the like manner and subject to like sanction and conditions to add to, amend, vary or rescind any notification, order, rule or bye-laws so issued.
Under the general rule of locus poenitentiae as well as under the the provisions of section 21 of the General Clauses Act, the consensus is that an action or order of the Government or authority cannot be retrieved or recalled provided in consequence of such order or action, a decisive step was yet to be taken. In the present case, as well in my view, the Board by virtue of rule of locus poenitentiae, was vested with power of receding or changing its decision till a decisive step was taken in that direction. This view finds support from Lt.-Col. G. I. Battacharya's case (1) wherein order of remission of four years was recalled by the Government and the same was subject of dispute before the Supreme Court. Mr. Justice Cornelius, C. J. As he then was, while analysing the proposition, in view of the facts of that case, observed : - "It is clear that the order made on the 3rd September, 1962, by the Provincial Government, cancelling the remission granted by the earlier order of the 26th June, 1962, was wholly misconceived. It was also entirely ineffective for the simple reason that effect had already been given to it in respect of the sentence which the prisoner was undergoing i,e,, that the unserved balance of that sentence at once stood reduced by a period of four years on the date on which that order was received and effect was given to it in proper form by the Jail Superintendent in the "history ticket" of the
(1) PLD 1964 SC 503 prisoner. It should be mentioned that in the "history ticket", the note of the 12th September, 1962, made in consequence of the second order of Provincial Government, is merely to the effect that the remission already granted "has actually been allowed by the President". The Jail Superintendent did not purport to replace the previous order of remission by a fresh order, or to incorporate a fresh order of remission. The words he used are precisely apt to indicate that there was only a difference in the source, and that the remission to which he had given effect in the 'history ticket' on the 2nd July, 1962, qua the sentence to be undergone by the prisoner remained factually unaffected."
' In Muhammad Himayatullah Farukhi's case (1), wherein the order of cancellation of basic salary of Rs, 1,000, fixed in the light of the previous order of the President of Pakistan, was challenged for lack of jurisdiction, the learned Judges of the Supreme Court restored the previous order as in their opinion, subsequent order was passed at the time when by virtue of previous order a decisive step was already taken. In that case, even payment of arrears was also ordered. On examining the proposition Mr. Justice Sajjad Ahmed who spoke for the Court, observed : "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, it 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."
8. In the present case, the Nomination Board was empowered to consider various applications of candidates and to take decision in the light of their merits, and to recommend their admission through Kashmir Affairs Division. This was the only function of the Nomination Board. The Kashmir Affairs Division and Secretary Health, Punjab were just a channel for forwarding the recommendation to the concerned College Principals. It was seen that in the present case the recommendation of the Board was sent to the Principal and by virtue of the recommendation, a call letter was issued to the petitioner. In my opinion, on completion of process of recommendation by the Board and in its consequence issuance of call letter, finalized the course of action. In other words, in view of the recommendation of the Board, issuance of call letter by the Principal of the College was a decisive step and thereafter the Board was not left with power of receding.
9. The other aspect of the case is that under the notification, an incomplete application was not deemed an application inviting its consideration for admission in the medical college. It was clearly contained in the notification as well as notice published in the newspaper that an incomplete application shall not be considered. In other words, an
(1) P L 0 1969 SC 407 incomplete application was not an application in the eye of law. It was for this reason that the members of the Board ignored the application of Miss Asifa Qureshi alongwith the applications of Miss Asma Khan, Miss Rozi Rafique and Miss Sehar Jamil. In its written statement, the Nomination Board explained that the admission of the petitioner was made conditional subject to production of domicile certificate by Miss Asifa Qureshi. This explanation finds no support from the decision of the Board made on October 13, 1985. It is correct that in the working paper at its page 5, the office made the following note :-- {{URDU TEXT}} ' But in its meeting the Board failed to consider the note as at page 4 of the minutes of the meeting of the Board, it recorded the following decision :- {{URDU TEXT}} ' It is evident from the aforesaid part of the decision of the Board that the application of Miss Asifa Qureshi alongwith the applications of Miss Rozi Rafique and Miss Sehar Jamil, was not considered.
The application of Miss Asma Khan was considered only in presence of certificate of Deputy Commissioner, Mirpur but she was dropped for want of requisite domicile certificate and instead the petitioner was recommended for 1 admission against the said reserved seat. Therefore, it was wrong to say that the recommendation for admission of the petiticner was conditional in the sense that in case domicile certificate was produced by Miss Asifa Qureshi, she had to avail the seat in question. The impugned order finds no factual support from the record of the Board itself.
10. It is pertinent to state that despite the fact that the Board recommended the petitioner for admission in the College, at the time o recalling the decision, it failed to provide her an opportunity of hearing. It was contended by Mr. M. Nisar Mirza, the learned Additional Advocate General, that as the previous recommendation of the 'Board was not communicated to the petitioner, it was not expedient to hear the petitioner at the time of concellation of the recommendation. The contention does not sound well. The state of affairs at the time of first decision was altogether different. At that stage, the Board in its deliberations, arrived at the conclusion that the petitioner was eligible for admission in the College. Subsequently, while considering the case of Miss Asifa Qureshi, on finding her domicile certificate, it became imperative to hear the H petitioner as by that time right of admission had already accrued to her. Failure on the part of the Board to provide an opportunity of formally hearing, rendered its decision invalid by operation of principle of `audi atterarn partem.'
11. It is noticed that the impugned decision was not taken by the Board itself. This is so as the record of the Board shows that the meeting of the Board to consider the application of Miss Asifa Qureshi was convened on December 18, whereas the recommendation on behalf of the Board was conveyed to Kashmir Affairs Division on December 1, 1985 and a copy of the same was sent to Miss Asifa Qureshi, photostat of which is appended with the written statement as Annexure R/3. Likewise, the letter of Director, Health Department, dated December 22, 1985, Annexure R/4, is shown to follow the letter of Secretary, Nomination Board, dated December, 1, 1985 and not the impugned decision of the Board. In other words, the recommendation made in favour of respondent No, 2 was not the recommendation of the Board in true legal sense.
12.In view of the explanation furnished by the Nomination Board, relating to displacement of domicile certificate of Miss Asifa Qureshi, I seems expedient to record that the Board entrusted with an importan assignment of allotting reserved seats to deserving candidates, on the basis of their merits, does not seem to be aware of the importance of its function. This is so as it is noticed invariably that the deserving students are deprived of their right of admission due to negligence and sometime by manoeuvrin of the subordinate staff of the Board. This was also observed in th case of Miss Musarrat Aziz, decided by this Court last year. It is high time that the members of the Board occupying high status in the executive, should take serious notice of the happenings in the Board and take appropriate step for its amelioration In present case, it has been stated in the written statement of the Board that the domicile certificat sent by Miss Asifa Qureshi was misplaced and was recovered much after the decision of the Board. Apart from the fact that an incomplete application was sent by Miss Asifa Qureshi, non-production of certificate by the concerned member of the staff at the time of decision of the Board, has landed the parties in difficulty. The initial omission of Miss Asifa Qureshi to send the domicile certificate coupled with the negligence of the staff, has, obviously deprived Miss Asifa Qureshi from her admission in the medical college. The negligence on the part of the Board is, therefore, likely to be rectified by providing admission to Miss Asifa Qureshi as well, though not as a right but on compassionate ground. This is to be done only by asking the Government of Punjab for providing a special seat ou of the quota of the Governor or the Chief Minister, or against a reserved seat unavailed so far, as the case may be, so that both the students are adjusted adequately. The Chairman of the Board can conveniently do so by requesting the President or the Prime Minister who enjoy high esteem to manage a seat for Miss Asifa Qureshi.
13. In view of the reasons listed above, the petition succeeds in the manner that the recommendation of the Board made in favour of the petitioner on October 13, 1985, having been made in a lawful manner, sustains. The subsequent action of the Board being without lawful authority, is invalid, as such it is of no legal effect. Costs shall follow the event.