' Briefly stated facts of the case out of which this writ petition has arisen are that Miss Rubia Ibrar daughter of Major (Retd.) Sh. Abrar Ahmad, passed her F.Sc. Pre-Medical examination in the year 1992 and secured 770 marks. The petitioner applied for grant of admission in the medical colleges of the Punjab and was offered admission in Fatima Jinnah Medical College, Lahore as against one of the seats reserved for the subjects of Azad State of Jammu and Kashmir. The intimation of the said offer of grant of admission in the said college was received by the petitioner on 13-12-1992. The petitioner had also applied for grant of admission in Army Medical College, Rawalpindi as a paying cadet in accord with the provisions of paying cadets scheme. The petitioner was nominated and allowed admission in the Army Medical College, Rawalpindi as a paying cadet vide order/intimation dated 13-1-1993. Thereafter the petitioner surrendered her seat in the Fatima Jinnah Medical College, Lahore and was formally admitted to Army Medical College, Rawalpindi on 31-1-1993. The respondent vide order, dated 2-2-1993 cancelled the nomination of the petitioner which order was conveyed to the petitioner vide letter dated 3-2-1993. The order/letter of withdrawal of the nomination of the petitioner is reproduced as under:--- To Miss Rubia Ibrar d/o Maj. Sh. Abrar Ahmad (Retd.)
Abrar Surgery, Peshawar Road, Rawalpindi.
Subject: Joining Instructions for Candidates nominated as pa in Cac./_j.lasfr1-M-113.B. B.B.S. Course at Army Medical College, Rawalpindi.
Your nomination made vide G.H.Q. Itr No,7703/526/PC/WR-4 dated 13-1-1993 in Army Medical College, Rawalpindi as a paying cadet is hereby cancelled. Sd/- Adjutant General (Muhammad Nasrullah Khan)"
' The petitioner filed a representation against the aforementioned order which was strongly recommended by the Principal, Army Medical College vide letter, dated 2-2-1993. However, ultimately, this representation was rejected by the respondents. The order/letter of cancellation of nomination of the petitioner dated 2-2-1993 and the order of rejection of the representation by the respondents has been challenged through this Constitutional petition by the petitioner.
3. This writ petition was taken up on 13-2-1992 and the respondent No,4 was directed to depute a responsible officer to appear in this Court on 15-2-1993. Ultimately under direction of this Court, respondents filed written comments. A rejoinder thereto has been filed by the petitioner.
4. Mirza Anwar Baig, Advocate has appeared on behalf of the petitioner whereas Mr. Mansoor Ahmad, Advocate, learned Standing Counsel, has appeared on behalf of the respondents alongwith Col. M. Nasrullah and Muhammad Ramzan on behalf of respondents Nos.3 and 4. Major Sibt-e-Hadi has produced record.
5. Learned counsel for the petitioner in support of this writ petition has raised the following contentions:
(1) That the petitioner having once been nominated and having obtained admission in pursuance of the said nomination, the principle of locus poenitentiae did not authorise the respondents' to cancel the nomination of the petitioner as a decisive step has been taken. In support of this contention, learned counsel has placed reliance on cases of Liaquat Ali v. Chairman, Town Committee, Qila Sobha Singh 1983 PLC (C.S.) 831; Miss Kashif v. Board of Intermediate and Secondary Education, Hyderabad and others 1985 CLC 2549; Stephen v. Controller of Examination, University of Sindh and 4 others 1989 CLC 336; Muhammad Zargham Eshaq Khan v. University of Engineering PLD 1988 Lah. 191; Muhammad Bilal v. The Principal, National College of Textile Engineering, Faisalabad 1991 MLD 1605; Inayatullah and others v. Principal, Balochistan Agriculture College and others PLD 1991 Quetta 63.
(2) That on the basis of the order whereby the petitioner was nominated for admission as a paying cadet in the Army Medical College, Rawalpindi, the petitioner had surrendered her seat in Fatima Jinnah Medical College, Lahore and, therefore, applying the principle of "promissory estoppel, respondents are estopped to withdraw the nomination of the petitioner inasmuch as it is nowhere laid down either in the prospectus or in the admission form or anywhere in the scheme or rules framed by the respondents that a person who wants to be nominated in the Army Medical College as a paying cadet if admitted in some other medical college, shall be under duty to inform the authorities about his selection/nomination in the other college, therefore, according to the learned counsel the order passed by the respondents is without jurisdiction. In support of his contention learned counsel has placed reliance on the cases of Sodawaterwala v. Messrs Volkart Brothers AIR 1923 Sindh 25; Abdul Kader Chaudhry v. Upendra Lal Barua and others AIR 1936 Cal. 711; Sher Khan and another v. Akhtar Din AIR 1937 Lah. 598; Stephen v. Controller of Examination, University of Sindh and 4 others 1989 CLC 336 and Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652.
(3) That the case of the petitioner is not governed by the provisions of Special Pakistan Army Order dated 27-4-1986 inasmuch as it relates to the case of students who get admission against reserved seats and not to the cases of admission of paying cadet. Similarly the petitioner is not disqualified to get admission in the college even as per the provisions of the paying cadet scheme inasmuch as the petitioner was not granted admission in Fatima Jinnah Medical College in open merit but was grant admission as a nominee of the Government of State of Azad Jammu and Kashmir and, therefore, it cannot be said that the petitioner is ineligible to get admission under the paying cadet scheme. At any rate according to the learned counsel the Special Pakistan Army Order as well as paying cadet scheme and the rules for admission in Army Medical College do not have the force of law as well as statutory rules and, therefore, any order passed in violation thereof could not have been rescinded by the respondents when it had been acted upon. Learned counsel has placed reliance on cases of Muhammad Sharif v. The Secretary to the Government.of the Punjab, Basic Democracies, Social Welfare and Local Government Department, Lahore and 3 others PLD 1973 SC 497 and Khalid Sher v. Principal and Chairman, Academic Council, Selection Board and others PLD 1987 Kar.
255.
That as per principle of policy as contained in Article 37 of the Constitution of Islamic Republic of Pakistan, the professional education is to be encouraged and therefore while interpreting the scheme or rules and examining the impugned order an effort should be made in aid of the principle of the above policy which requires that the professional education should be encouraged.
Reliance has been placed on case of Shri Krishan v. The Kurukshetra University, Kurukshetra AIR 1976 SC 376 and PLD 1993 Kar.
93.
6. Elaborating his arguments on the question of applicability of principle of locus poenitentiae, learned counsel for the petitioner has contended that unless and until it was the duty of the petitioner to inform the authorities about her admission in another college, as laid down in the scheme or otherwise proved from any other circumstance, it cannot be said that the petitioner is guilty of concealment of fact, from the authorities who had passed the order of nomination of the petitioner as a paying cadet, therefore, according to the learned counsel even if it is held that the petitioner was ineligible to get admission as a paying cadet as she had been offered admiSsion in Fatima Jinnah Medical College, it being not her duty to inform the authorities, she cannot suffer if the order of nomination has been passed in violation of the scheme.
7. As against the arguments Mr. Mansoor Ahmad, Advocate, learned standing counsel for the respondents has opposed the writ petition and has argued that the principle of locus poenitentiae is available to the respondents to cancel the nomination inasmuch as the petitioner being ineligible to get admission as a paying cadet as per scheme under which she had applied for admission, the respondents were well within their right to rectify the mistake and withdraw the nomination as and when it came to the notice of the respondents that the petitioner who is ineligible to get admission has succeeded in getting a nomination by suppression of material fact which was definitely and positively within her knowledge. Learned counsel has placed reliance on case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and others v.
Jalaluddin PLD 1992 SC 207. Learned counsel has contended that neither under the availability of the principle of locus poenitentiae, decisive step having been taken nor under the principle, of `promissory estoppel' the petitioner is entitled to any relief inasmuch as he order of nomination being itself illegal, could have been withdrawn at any time by the respondents and, therefore, the writ petition is liable to be dismissed. Learned counsel has further contended that as admittedly the petitioner had been selected for admission in Fatima Jinnah Medical College earlier to the passing of the order of her nomination as paying cadet in the Army Medical College, she was ineligible to get nomination and, therefore, the order of nomination itself being illegal has validly been withdrawn and similarly the representation after having duly been considered has been rejected by the respondents in exercise of their discretion which cannot be interfered with in exercise of the writ jurisdiction of this Court.
8. I had beard the arguments in this case on 13-3-1993 and had asked the learned counsel for the respondents as well as the officials who appeared in Court to seek instructions from the respondents as to whether they are ready to consider the request of the petitioner for fresh nomination in peculiar facts and circumstances of this case as it is definitely a case of hardship and career of student who wants to acquire professional education is involved, in case certain seats are still available in the college. Today learned counsel for the respondent has made a statement that the authorities are unable to accommodate the petitioner. I have asked the learned counsel for the parties to address further arguments, if they so like but the learned counsel for the parties have relied upon the arguments addressed on the last date of hearing.
9. I have considered the arguments addressed by the learned counsel for the parties and have perused the record, relevant scheme and rules on the subject and the case-law cited by the parties' counsel. In order to appreciate the arguments addressed by the learned counsel for the parties it will be necessary to reproduce a relevant portion of the Special Pakistan Army Order as well as the Paying Cadet Scheme which have been appended as Annexures `B' and 'C' with the writ petition. The above referred reproduction is as under:--- "SPECIAL PAKISTAN ARMY ORDER BY General Muhammad Ziaul Haq Chief of the Army Staff GENERAL The Federal and Provincial Governments have reserved some seats in different Universities and Professional Colleges/Institutions for admission of the children of Shaheed, disabled and serving personnel of the Army.
OPEN MERIT ' It is mandatory for the eligible candidates to apply to the University College/Institution of their respective Provinces for competition against open merit seats and render a certificate alongwith the G.H.Q. prescribed application form. Those who fail to comply, will become ineligible for consideration against Army Seats Nomination against the reserved seats is made purely on merit and in accordance with the ratio mentioned in para. 2 above. Names of those candidates who are granted/offered admission against open merit/any other quota, in any subject in any University/Colleges, are not considered for allotment of Army Quota seats and their names are deleted from the merit list of W&R Dte.
Sub: Paying Cadet Scheme---Rules for Admission in Army Medical College.
(1) Rules for admission into Army Medical College as paying cadets alongwith photo copy of min duly approved by the COAS are placed below for implementation.
SUB: PAYING CADET SCHEME---RULES FOR ADMISSION INTO ARMY MEDICAL COLLEGE.
COAS (then CGS and COAS designate) discussed the matter of admission in the Army Medical College in respect of paying cadets with DGPA. The COAS directed that PA Dte should frame rules for admission of these cadets. These rules have been framed and are placed below for COAS' perusal.
PAYING CADET SCHEME.
RULES FOR ADMISSION IN ARMY MEDICAL COLLEGE.
Gen. An intake of 100 med cadets (reg and paying) will be inducted into Army Med College each year. There will be 80 reg cadets and 20 paying cadets. Further distr is as under:--
(a) Male _reg cadets 70
(b) Female reg cadets 10 (Presently suspended due to surplus female doctors in the Army. It will be reviewed in 1993. These seats will be utilized by paying cadets for the time being).
(c) Paying cadets 20
(2) Selection of paying cadets will be approved by the COAS. Eligibility criteria and terms and conditions are given in the succeeding paras.
(3) CONDITIONS OF ELIGIBILITY. a.
Eligible
(1) Children of Shaheeds.
' Children of disabled Army pers with C1 A disability in case of JCOS/OR and 60% to 100% disability in case of offrs due to wars/ops.
' Children of serving Army pers.
' Children of retd. Army pers who have rendered pensionable svc.
' The COAS in his discretion, may allot a seat to a ward of any deserving civ in recognition of his contribution to the State. b. Ineligible
(1) Children of those ex-servicemen who have not rendered pensionable svc. This condition is not applicable to those who died while in svc or boarded out.
(2) Adopted/dependent children and other relatives.
(3) Those who have qualified for admission in the open merit of civ med colleges and as AMC cadets.
(4) Those who have been altd seats in civ med colleges by W&R Dte.
(5) Those who have been rel/wdr from the Army Med. College."
10. A resume of the case-law cited by the learned counsel for the petitioner is to the effect that an order once passed and having been acted upon cannot be withdrawn or rescinded inasmuch as the principle of locus poenitentiae is not available to the authority passing the order in case where the order has been acted upon and further that the scheme and prospectus governing the admission in college do not have the force of statutory rules and regulations. However, in order to understand the correct scope of the applicability of the principle of locus-poenitentiae as well as the principle of "promissory estoppel" the following two latest judgments are relevant for the decision of the matter in issue in this case.
' In case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and others v.
Jalaluddin PLD 1992 SC 207 at page 210 of the report it has been held as under:--- "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case."
' Similarly in case of Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 at page 1693 of the report it has been held as under:--- "It may also be observed that at the same time, it was also highlighted that the doctrine of promissory estoppel was subject to the following limitations:--
(i) the doctrine of promissory estoppel cannot be invoked against the legislature or the law framed by it because the legislature cannot make a representation;
(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invokingit; and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."
11. It is clear from the law declared in the aforemdtioned two judgments that if an order is illegal, is based upon the basis of incorrect information or is based upon fraud, then even if has been acted upon, can be withdrawn and that in such cases the principle of "promissory estoppel" as well shall not be attracted.
12. Considering the present case on the touchstone of the law declared in the aforementioned latest pronouncement of the Hon'ble Supreme Court it has to be seen as to whether the order of cancellation of nomination of the petitioner by the respondent is lawful. Admittedly the petitioner applied for admission to the Army Medical College, Rawalpindi as a paying cadet under the scheme referred to above. This scheme has been framed as a measure of welfare and in fact amounts to grant of concession, in certain special cases which is the sole prerogative of the respondents. Under this scheme as per paragraph 3, clause , sub-para. 3, students who get admission in the civil medical colleges or as A.M.C. cadet are ineligible to get admission as a paying cadets. The word "open merit" as used in this clause, shall definitely cover the case of students who get admission even on the basis of nomination by the Government of AJ&K inasmuch as the said nomination is also made on the basis of merits. It is the intention of the scheme which is to be seen, which is very clear that the nomination by way of concession cannot be granted to a student who gets admission in other colleges. The petitioner admittedly having been offered admission in Fatima Jinnah Medical College, Lahore as a nominee of the Government of AJ&K and the offer having been conveyed to her on 13-12-1992 was ineligible to get admission as a paying cadet in the Army Medical College on 13-1-1993. The factum of her getting admission in Fatima Jinnah Medical College being within her knowledge and not within the knowledge of the respondents, it was her duty to have brought it to the notice of the respondents so that they could have taken decision as to whether under the circumstances she could be nominated in accord with the relevant scheme or not. She suppressed this information and as the suppression of the information goes to the benefit of the petitioner, it shall be presumed that the suppression was intentional. Law declared in the cases of "Sodawaterwala", "Abdul Kabir Chaudhary", "Sher Khan and another" referred to by the learned counsel for the petitioner supra to the effect that as it was not the duty of the petitioner to have disclosed the information about her getting admission in Fatima Jinnah Medical College, hence, the petitioner cannot be said to have concealed the fact is not applicable to this case and at any rate cannot be followed in view of the provision of Article 2-A of the Constitution of Islamic Republic of Pakistan as well as the recent pronouncement of the Hon'ble Supreme Court of Pakistan wherein it has been held that while interpreting the law it is not the common law principles but the principles of Islamic Law which have to be followed. Reference can be made to the case of Commissioner of Income Tax Peshawar Zone, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368, wherein at pages 372 and 373 of the report, it has been held as under:--- "In this regard there is yet another important aspect which needs serious consideration. All the questions being examined in this case are relatable to interpretation of a Statute rather than admitted and direct statutory command. It was held in the case of Haji Khan by the Lahore High Court PLD 1976 Lah. 930; and subsequently affirmed in several legal fields, including criminal and fiscal, that so long as existing statutes are not brought in conformity with Injunctions of Islam (Article 227 of the Constitution), their interpretation, application and enforcement wherein discretionary judicial elements are involved, only that course would be adopted which is in accord with the Islamic philosophy, its common law and jurisprudence. (See also the case of Muhammad Bashir PLD 1982 SC 139 and the case of Mian Aziz A.Shaikh PLD 1989 SC 613).
' Coming to the specific Islamic Rule of interpretation as was briefly discussed in connection with another fiscal question in the case of Mian Aziz A. Shaikh a fundamental principle, is established that when two contracting parties agree to do something by a mutual valid contract or intend doing so, and it is not prohibited by Islam, a third party, like the Income Tax Department or for that matter the Court has no power to modify either the contract or with what they intended to do with it.
' The most important relevant Injunctions of the Quran are contained amongst others in Chapter Maida Verse (i) and Chapter Alisraa, Verse (34)---to the effect that the contracting parties are bound to fulfil their contracts. And that they would remain liable for any contraventions--- obviously both here and hereafter. These are very strong Commands and have been enforced in various legal fields. Recently a major contravention regarding the law of pre-emption was resolved by the Supreme Court and this principle was also applied---See the case of Said Kamal Shah PLD 1986 SC 360 at 381 and 418 et seq. What was emphasized regarding prohibition against third party intervention in mutual contracts in the well-established Sunnah Injunction is that: People be left alone in their mutually agreed transaction; "so that they be blessed by Allah through free circulation of ( ) (wealth) amongst themselves: (Bokhari; Kitabul-Baua No,3709, Abu Daud; Kitabul- Ajara No,3442). When parties by mutual free consent enter into a valid contract, then the third parties have no right to intervene either to frustrate the contract or to change its nature--- (Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 at 442). The question relating to exceptions has been dealt with separately on the basis of Islamic Principles of Zaroorat, Zarar, public interest as such, State policy, State necessity etc. in the case of Land Reforms (Qazilbash Waqf v. Chief Land Commissioner PLD 1990 SC 99).
' As a necessary conclusion drawn from the foregoing, it can be safely held in this case also that on the touchstone of Islamic Rules of interpretation, which unless excluded otherwise, under the present Constitutional set up the Courts are bound to apply in preference to the contrary so-called accepted rules of interpretation under the other jurisprudential concepts (and the fiscal laws as are no exception in this behalf), the income-tax authorities cannot change the nature of the contract intended by the parties thereto, under the pretext that the rule of interpretation of a fiscal law in this behalf, is different.
13. Applying the principle of Islamic as the petitioner has to get a concession from the respondents and as she was disqualified to get that concession after offer of admission from Fatima Jinnah Medical College, Lahore she being a Muslim it was her bounden duty to have informed the authorities about the offer. Consequently, I hold that the petitioner had procured the order of her nomination by suppression of material facts which if brought to the notice of the respondents, would definitely have gone against the petitioner and the respondents would not have nominated her as she became ineligible by getting the offer of admission in civil medical college.
Consequently, the order obtained by the petitioner flaying been obtained by misrepresentation and suppression of fact, could have been withdrawn by the respondents. Even otherwise on facts it stands established that as per policy/scheme/rules under which the petitioner has been granted admission she is ineligible, the order of her nomination cannot be said to be lawful. Consequently such like order has no sanctity and even if acted upon can be withdrawn in the light of law declared in the case of "The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another" referred to supra.
14. So far as the principle of promissory estoppel is concerned that also will not help the petitioner.
She is to blame herself for surrendering the seat inFatima Jinnah Medical College, Lahore. A judicial notice can be taken of the fact that the petitioner having applied for admission in Army Medical College must be aware of the Special Pakistan Army Order as well as the Paying Cadets Scheme and the rules for getting nomination for admission in the Army Medical College. The provisions with regard to the ineligibility shall also be presumed to be in her knowledge. She has also furnished bond that she will be bound by the rules relating to the admission in the college. Paragraph 11 of the Special Pakistan Army Order referred to above may not be strictly attracted in the case yet principles thereof shall stand attracted by force of the bond which she has furnished to the respondents. Consequently as per provisions of the Order as well as the scheme the petitioner was not entitled to get nomination and, therefore, the order of her nomination being illegal has rightly been withdrawn and the principle of "promissory estoppel" as well, shall not be attracted in the light of the law declared in the case of "Messrs Army Welfare Sugar Mills" referred to supra. Arguments of the learned counsel for the petitioner to the effect that Special Pakistan Army Order as well as the scheme under which the petitioner sought admission does not have the force of a statutory rule and, therefore, the force of law and, hence, the Order could not have been rescinded by the respondents rather goes against him. The scheme relatable to the admission at least has got the force of departmental instructions and as such the acts of the respondents have the backing of these instructions/policy and even if the argument of the learned counsel for the petitioner is conceded then the nomination of the petitioner made by the the petitioner will have no case to come to this Court for exercise of the respondents being a concession, could have been withdrawn at any time and Constitutional jurisdiction in her favour. At any rate I need not dilate much of this aspect of the case. As I have already held that the order of nomination was obtained by misrepresentation, suppression of fact, fraud and was illegal therefore, could have been withdrawn by the respondents even without notice to the petitioner. Even from another angle the petitioner is not entitled to the grant of any relief from this Court in exercise of discretionary jurisdiction. The petitioner being admittedly ineligible to be nominated as a paying cadet as per relevant scheme on the subject which is being followed by the respondents for the purpose of admission to the college a direction to allow her to continue as a student in the college would amount to issuance of a direction for perpetuation of illegality. This type of direction legally cannot be issued in exercise of writ jurisdiction of this Court. The defect of non-hearing, if any, that also stands, cured inasmuch as the facts are not disputed. Argument of the learned counsel for the petitioner to the effect that this Court while rendering a decision with regard to the validity of the order of cancellation of the nomination of the petitioner should consider the principles of policy as laid down under Article 37 of the Constitution of Islamic Republic of Pakistan and as interpreted in case reported in PLD 1993 Kar.
93 is also misconceived. In this case the authorities have not placed any embargo on the professional education. They have taken a decision in the light of scheme/rules for admission framed by them which could validity be framed for the purpose of regulation of the admission to the college. Consequently neither the provision of Article 37 nor the law declared in the judgment referred to above is relevant for the purpose of the decision of the controversy raised in this writ petition. Resultantly, I see no force in this writ petition. The same is dismissed in limine.
Before parting with this judgment I may, however, observe that the petitioner as a result of her own folly as well as misguidance of her well-wishers is going to suffer a serious loss in her educational career. It is definitely a case of hardship. It is observed, therefore, the petitioner if so advised, may approach the respondents again for fresh nomination against a vacant seat if any and in case such application is filed, I have no doubt in my mind that the authorities shall definitely give a sympathetic and parental consideration to the said application on compassionate ground, and if authorities like to nominate the petitioner afresh as a paying cadet and admit her to the Army Medical College, the order of dismissal of this writ petition shall not operate as a bar.