KHAWAJA MUHAMMAD SAEED, J.- Through the above captioned writ petition, filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, the petitioner has invoked the constitutional jurisdiction of this Court to seek redress of his grievance caused by an order of Director Health Services of Azad Jammu and kashmir Governemnt.
2. Admitted facts briefly stated are that one seat is allocated for the nationals of Azad Jammu and kashmir in National Institute of Cardiovascular Diseases karachi (hereinafter to be called the Institute). The nomination against this Institute of Cardiovascular Diseases, Karachi, under intimation to this office immediately.
3. Thereafter, the Director of Health Services Azad Jammu and kashmir Government through a formal letter dated September, 5, 1992, forwarded the original application of the petitioner for further necessary action to the Health Division Government of Pakistan. Copy of this letter was sent to the petitioner whereby he was advised to contact the institute for further information etc. In the light of this letter, the petitioner submitted another application before the Minsister for Health Government of Pakistan whereby the previous progress made on the application of the petitioner submitted before the Prime Minister of Azad Kashmir, was mentioned therein and in the closing paragraph he made the following request:- "Dr. Muhammad Yousaf is nominated for admission at N.I.C. V.D. By the Federal Health Ministry already nominated by the Azad Kashmir Government for the same course at Punjab Institute of Cardiology Lahore and presently working at Mayo Hospital Lahore.
Therefore, kindly nominate me for the above mentioned course at N.I.C.V.D. Karachi instead of Dr.Muhammad Yousaf as I was nominated by the Health Department of Azad Kashmir. I shall be highly thankful for your kind act."
4. In the meantime, the respondent No. 2 in his capacity as Secretary Health, Azad Government wrote a letter to the Director General Health services Ministry of Health Government of Pakistan on August 3, 1992 wherein while admitting that one additional seat was allocated by the institute on the recommendation of the Prime Minister of Azad Kashmir, specifically for the petitioner, therefore, the petitioner may be admitted in the said institute for training as nominee of Health department of Azad Kashmir. This letter has been placed on the file as annexure 'E'. It being relevant for the resolution of the controversy at issue, is reproduced below:- "Azad Kashmir Govt, is allocated one vacancy for the above course for the session 1992-93 and Dr. Aurangzeb has been nominated against this vac.
In additional to the above said vacancy, one seat has been allocated by the institute on the recommendation of Prime Minister Azad Jammu and Kashmir, specifically for Dr.Raza Ahmad, Medical Officer DHO Hospital Kotli. Health Secretariat has also initiated a letter to that effect to the Executive Director NICVAD Karachi (Copy attached).
It is however reliably learnt that Dr. Raza Ahmed has been adjusted against additional vacancy which is not understood.
In view of above please advise NICVA Karachi to accept Dr. Raza Ahmed who is the nominee of Health Department Govt, of AJ&K against the additional vacancy demanded by Prime Minister of Azad Jammu and Kashmir, Government"
5. In the meantime, the Additional Secretary Health Division Azad Kashmir Government, wrote a further letter to the following effect. It is also relevant which is reproduced below:- J* j jtf us- o-v jijr tff f J* -<-6* J* ijYjCf " ffvfy fiSjfJXiij
6. In the light of this correspondence, ultimately the petitioner, Dr.Raza Ahmed Gorsi was releaved by D.H.O. Kotli on September 7,1992 whereby he was posted as C.M.O and was directed to report to the institute forthwith. The petitioner in the light of the above referred steps taken by the respondents finally submitted his joining report in the institute on 14th of September, 1992.
Thereafter, suddenly through a telegram the Director of the said institute was informed that the petitioner was not nominee of the Azad Kashmir Government as such he may be directed to report back to the department. Instead of the petitioner, Dr. Khalil Ahmed be admitted in the institute. This telegram has been impugned in this writ petition.
7. In the written statement, it is specifically pleaded that the writ petition is not maintainable as the petitioner is not an aggrieved person and further that the petitioner being junior amongst his colleagues doctors was not entitled to get preference over them in the matter of nomination for further education. On facts, it was pleaded that the petitioner was granted admission against the reserved seat for Azad Kashmir and the petitioner being junior most amongst his colleagues was not entitled to seek nomination. It was further pleaded that as Government has withdrawn his nomination, the petitioner was not entitled to any relief.
8. I have heard the arguments of the learned Counsel for the parties and have perused the record made available with the writ petition.
9. The learned Counsel for the petitioner argued that the petitioner was recommended by the Prime Minister of Azad kashmir and ultimately was given admission in the institute, as such a vested right has been created in him after joining of the institute. 1 he respondents were not entitled to recall the order. In this connection he relied on P.L.D. 1985 AJK 17, P.L.D. 1956 F.C. 46 and P.L.D. 1970 S.C. 439.
10. In P.L.D. 1985 AJK 17, the proposition arose in the light of the following facls:-
11. The petitioner in that case, was the only candidate against one seat reserved for the children of doctors. He was recommended by the Azad Kashmir Government for admission and was accordingly admitted in Ayub Medical College Abbottabad. Later on, the Secretary of the Ministry of Kashmir Affairs Division cancelled his nomination and substituted the name of one Muhammad Anwar. The question, therefore, arose as to whether non-petitioners were competent to withdraw the nomination of the petitioner. This pivotal law point after survey of numerous other authorities on the subject including other two cases, referred to by the learned Counsel for the petitioner was finally resolved as under:-- So the law is clear that an authority which passes 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 accurse 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."
12. As against this, the learned Counsel for the respondents argued that the Ministry of Health Government of Pakistan has given admission to the petitioner against the reserved seat for the Azad Jammu and Kashmir nationals. As the petitioner was junior doctor as such was not entitled to get preference over the senior doctors serving in the department. He is this connection, relied on Rules framed for nomination of the employees of Health Department for various courses wherein under Sub-Clause (i) of Rule 1 of the said Rules, it is provided as under:- j: ^ ^ M ji* k tfV */ y > & f'J 'fa#3*** ^ ^ ^ u7i/ {{URDU TEXT}}
13. I have considered the respective contentions of the learned Counsel for the parties.
14. It has not been contended anywhere in the written statement that the petitioner's service in the Health Department was less than three years or he was not fulfilling the requirements laid down by Sub-Clause (i) of Rule I of the above referred Rules, as such I wonder how this Rule is applicable in the present case for the resolution of the controversial issue. Precisely the case of the respondents is that the petitioner should not have been recommended as there were senior doctors awaiting their terms for nomination to obtain admission in various institutes outside Azad Kashmir. This is an accepted principle of law that a fact must be pleaded specifically so that the other party is not condemned unheard on that particular point of fact. Neither it is pleaded that how many doctors were senior to the petitioner nor any material including seniority list has been appended with the written statement to justify the application of Sub-Clause (i) of Rule of the Rules. The telegram whereby the nomination of the petitioner was cancelled was sent to the Director of the institute at the back of the petitioner without providing him an opportunity of hearing. Thus, it was bad in law and liable to be set aside purely as being hit by the celebrated principle of 'audi alteram partem.'
15. Secondly, in the light of the admitted facts of this case, the admission of the petitioner was solicited in the institute by the Prime Minister of Azad Jammu and kashmir vide his letter dated May 19, 1992. This letter was honored by the Health Minister of Government of Pakistan and the petitioner, by his name, was given admission. In this respect, the correspondence brought on the file of this Court has been reproduced in the early part of this order. These documents clearly prove this fact that the petitioner by name was recommended for the course in the institute and was given admission by the institute on the recommendation of the respondents. Therefore, in my opinion the respondents were incompetent to cancel the nomination of the petitioner. Because nomination of the petitioner and his admission in the institute created a vested right in him, therefore, the respondents were deprived of jurisdiction to recall the admission particularly after accrual of the right of the petitioner. The impugned telegram did not assign any reason why the petitioner's nomination was cancelled. However, Raja Muhammad Hanif Khan, the learned Counsel for the respondents argued that respondents have cancelled the nomination of the petitioner on the representation of senior doctors. Copy of any such representation has not been brought on the file which compelled the respondents to have a second thought. Therefore, under these circumstances, I hold that the respondents had got no jurisdiction to take away the vested right of admission which had already accrued to the petitioner.
16. In the light of the above observations, while accepting this writ petition with costs, it is held that the impugned order annexure 'I' is bad in law as such it is set aside with the direction that the petitioner shall be sent back to join the National Institute of Cardiovascular Diseases Karachi for requisite course under the previously issued nomination order.