' The petitioner Dr. Gulab Sher, resident of Mohmand Agency of the Federally Administered Tribal Area, had applied for one of the three scholarships reserved for doctors in. Medicines, domiciled in FATA for higher studies abroad, in response to an advertisement published on behalf of Director Education (FATA) in the National Press on 10-9-1993. As required by the advertisement, the petitioner applied through the Divisional Commissioner before the target date of 30-9-1993. The High Powered Selection Committee headed by the Additional Chief Secretary, Government of N.- W.F.P. Constituted for the purpose of selecting candidates for the scholarships, examined the applications alongwith the testimonials of the candidates and selected the petitioner for the grant of scholarship for study of M.R.C.P. (Medicine), Dr. Abdul Jalil for study of F.R.C.S. (General Surgery) and Dr. Ruqqiya Khan for study of M.R.C.P. (General Medicine). The selection was recommended through a summary for approval of the Governor of N.-W.F.P. Who approved the selection on 16-2- 1994 and the approval so accorded was communicated by the FATA Development Section of the Planning Environment and Development Government of N.-W.F.P. To the petitioner and other concerned departments and official by a letter dated 2-3-1994, the opening sentence of which reads as follows:-- "I am directed to convey the approval of the Government of N.-W.F.P. To the selection of the following Tribal Students for award of foreign scholarship in the field noted against each."
' The name of Dr. Gulab Sher appears at Serial No, 2 of the letter. As the contents of this letter are of considerable importance for the disposal of this writ petition, for the sake of facility the concluding sentence thereof is also reproduced, which reads: "Academic certificates, testimonials, bonds etc. In respect of the above nominees as well as the remaining candidates are returned herewith to the respective commissioners."
' A copy of this letter was also forwarded to the Director of Education (FATA) N.-W.F.P., Peshawar (hereinafter referred to as the Director). The Director advised the petitioner through a letter dated 9-3-1994, routed through the Commissioner Peshawar Division, to contact him for further processing of the scholarship. The petitioner accordingly approached the Director who issued a certificate certifying the grant of foreign scholarship to the petitioner and further undertaking to provide the petitioner with tuition fee, maintenance allowance, books allowance and air fare through the High Commission of Pakistan, United Kingdom. A communique dated 18-7-1994 to that effect was addressed by the Director of Education to the High Commission of Pakistan, United Kingdom and Air Ticket covering the journey from Peshawar to London through P.I.A. Was also provided by the Director to the petitioner.
2. As the petitioner was employed as Medical Officer in the Health Department of Government of N.-W.F.P. At the time his scholarship came through on 9-3-1994 he applied for No-Objection Certificate and Study Leave with pay for the period of his studies abroad. Failing to get any response to his application, the petitioner made another application on 7-6-1994 wherein he requested that as the processing of his previous application might take a long time and that the M.R.C.P. Classes at London were to start soon, he be granted leave without pay in order to pursue his studies abroad. This application was responded to by a notification dated 13-7-1994 issued by the Health Department Government of N.-W.F.P. Wherein it was stated that the Governor N.-W.F.P.
Had accorded sanction to the grant of 730 days extraordinary leave without pay (Ex-Pakistan) with immediate effect to Dr. Gulab Sher. The said notification also gave N.O.C. To the petitioner and directed him to report to the Director General Health Services N.-W.F.P. For further posting on the expiry of his leave. Equipped with this N.O.C. And the Air-ticket the petitioner left for London on 16-7- 1993. He got admission at Whittington Post-Graduate Centre and was paid Pound 682.66 by the High Commission of Pakistan at London through a cheque dated 27-7-1994 for his maintenance allowance for one month. Subsequently, on 7-9-1994, the petitioner was also paid one year expense of Pound 12250 by the High Commission. The petitioner at the time of filing the writ petition was in London and still is.
3. While the petitioner was busy in finalizing the arrangements for his studies abroad, the Health Department communicated to the Finance Department the approval of the grant of the scholarship to the petitioner by a letter dated 29-3-1994 and requested for its concurrence to the terms and conditions of deputation specified in the letter. Instead of according its concurrence, the Finance Department made a query from the Health Department as to whether the petitioner had completed 3 years service with the Government, the answer to which was in the negative.
Thereafter the Finance Department refused to allow to the petitioner the terms and conditions proposed by the Health Department unless the condition of 3 years service was relaxed. The 3 years service condition has been imposed by the Federal Government through instructions to the Provincial Government that a Government servant shall not be qualified to be nominated for foreign training unless he has completed 3 years of Government service. Summary was thus prepared for the Governor proposing relaxation of the rule for the petitioner. The said summary also sought the approval of the Governor for nomination/selection of the petitioner for higher studies abroad. The Chief Secretary, N.-W.F.P. Did not agree with the recommendations and the Governor N.-W.F.P. Concurred with the Chief Secretary and thus the 3 years rule was not relaxed for the petitioner. The Governor further observed that instead of relaxing rules the scholarship be granted to other qualified doctor like Dr. Sarfaraz respondent No, 5 herein who was earlier recommended by the Selection Committee on compassionate ground in that the grant of scholarship would enable him to remain in England and serve as an attendant to his brothers who are undergoing treatment there for some fatal disease. Consequently, another summary was moved by the Health Department wherein it was proposed that the scholarship granted to the petitioner be withdrawn and the same be granted to Dr. Sarfaraz, respondent No, 4 herein. The summary was approved by the Governor and the scholarship of the petitioner was cancelled and granted to respondent No, 5 by a memo. Dated 31-7-1994 issued by the FATA Development S Section of Planning and Development Department, Government of N.-W.F.P. The said memo. Thus stated: "Dr. Sarfaraz Khan Afridi's case for foreign scholarship for tertiary specialization (Paediatrics) has been approved as a special case on compassionate grounds in replacement of the 1993-94 facility originally allocated to Dr. Gulab Sher."
' The petitioner has by this Constitutional petition questioned the legality of the cancellation of the scholarship earlier granted to him.
4. Mr. Yahya Khan Afridi, Advocate, for the petitioner advanced twofold arguments; firstly, that valuable right has accrued to the petitioner and the Authorities could not retrace their steps and the petitioner's scholarship could not be withdrawn and secondly, that the rule of 3 years service is not applicable to the petitioner. In support of his first argument, the learned counsel submitted that the petitioner's scholarship was approved by the Governor and the approval admittedly duly communicated to him whereafter air-travel ticket was provided to him by the Director. Ex-Pakistan Leave and No-Objection Certificate were granted to the petitioner by the Provincial Government.
The petitioner has gone to England, has undertaken the course for the first semester of Part I of M.R.C.P. Allowances have been paid to him by the High Commission of Pakistan. In these circumstances, the valuable right to retain the scholarship has accrued to the petitioner. Reliance was placed on the cases reported as Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407), Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University, D.I. Khan (PLD 1980 Peshawar 128) and Ghulam Mustafa v. Islamic Republic of Pakistan (1982 CLC 1665). Substantiating the second argument, the learned counsel argued that the scholarship was not reserved for Government servants and was open to all doctors domiciled in FATA and that the petitioner at the time of submission of his application for the scholarship was not a Government servant for he has been appointed as a Medical Officer on 1-1-1994. On 19-10-1994 when the case was being finally argued, the learned counsel for the petitioner produced a copy of the letter dated 18-10-1994 addressed by the petitioner to Secretary Health, Government of N.-W.F.P. Whereby the petitioner has resigned from his. Government service. The letter of resignation has been sent by fax to the Secretary. It was submitted that if his Government service was an impediment in the grant of scholarship the same has been removed by the petitioner's resignation from service. It was further argued by the learned counsel for the petitioner that respondent No, 5 was not qualified for the grant of the scholarship in question as according to the Government Policy, a Government servant who avails a foreign scholarship cannot be granted another such scholarship within 3 years and that respondent No, 5 has availed of such a scholarship within the preceding 3 years. It was also urged that the scholarship could not have been otherwise granted to respondent No,5 as he had not even applied for the same in terms of the advertisement.
5. The learned counsel for the respondent controverting the arguments addressed on behalf of the petitioner contended that the petitioner knew all along about the objection raised against the grant of scholarship to him but procured the necessary documents to facilitate the finalisation of his scholarship with a view to create a right for himself before the scholarship could be cancelled.
The learned counsel referred to his two applications for grant of leave and N.O.C. And argued that the petitioner after he had submitted his first application for leave with pay had learnt about the impediment in his way and thus without waiting for response thereto submitted the second application for leave without pay. It was stated that this was done to enable the petitioner to leave the country quickly so as to make it difficult for the Government to re-call his scholarship. The learned counsel pointed out that the query about the non-eligibility of the petitioner had started on 29-3-1994 soon after the petitioner's scholarship was approved. It was thus argued that no vested right had accrued to the petitioner as he had procured the relevant documents fully aware that an objection had been raised against the grant of scholarship to him. Reliance was placed on the case reported as Wali Muhammad v. Sakhi Muhammad (1974 SCMR 106) in support of his argument that the petitioner shall not be given the discretionary relief in writ jurisdiction to retain his ill-gotten gains.
6. In response to the second argument on behalf of the petitioner, the learned counsel for respondent No, 5 submitted that the relevant date was the date on which the scholarship was granted to the petitioner on which date the petitioner was a Government servant and for that reason the rule against the grant of scholarship to Government servant with less than 3 years service was applicable to him and the petitioner being not a Government servant at the time of making his application or his subsequent resignation, are immaterial. Additionally, it was contended that the petitioner had no locus standi to file the writ petition in that he was not qualified to be nominated for the scholarship under the Government Policy.
7. With regard to the objections raised by the learned counsel for the petitioner that respondent No, 5 was not himself qualified for the scholarship within the preceding 3 years, it was contended that although there was no specific mention about this disqualification in the summary prepared for the Governor for approval of the scholarship to respondent No, 5 but para. 6 of the summary would cover the removal of this hurdle. Para. 6 reads: "In light of the submissions at the preceding paras. Approval of the Governor is requested, in relaxation of the procedure (Guidelines) for selection for FATA scholarships issued under the Executive Order of PE & D Department."
' It was argued that approval of para. 6 meant implied relaxation of the rule against grant of second scholarship within 3 years.
8. We shall deal with the arguments in the sequence in which they were addressed. Taking up the question as to whether decisive steps have been taken by the Government so as to prevent it from recalling the scholarship from the petitioner. The petitioner was communicated the approval of the scholarship by the Government through a letter dated 2-3-1994 aforementioned. The approval appears to be unequivocal with no condition attached, and on the strength of this approval, the petitioner had approached the Director who not only issued a certificate confirming the grant of the scholarship to the petitioner but also provided him with air-ticket and simultaneously sent a communique to the High Commission of Pakistan in United Kingdom advising payment of allowances to the petitioner. Before leaving the country, the' petitioner had according to the rules obtained study leave and N.O.C. Duly approved by the Governor, N.-W.F.P. On his arrival at London, the petitioner was paid one month's allowance by the High Commission of Pakistan at U.K. I on the directives of the Director and was subsequently paid a substantial amount of Pound 12250 as yearly allowance. The petitioner has now completed his first term of Part-I of M.R.C.P. Course. It will thus be seen that the decision granting scholarship to the petitioner has been given effect to and decisive steps have been taken thereby creating valuable right in favour of the petitioner. In Pakistan v. Muhammad Himayatullah, ibid, the Supreme Court explaining the provision of section 21 of the General Clauses Act and the principle of locus paenitentiae held: "There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus paenitentiae, 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."
9. The argument that the petitioner had manipulated the finalisation of the scholarship although he was aware about his disqualification has not been substantiated. This argument has been advanced only by the learned counsel for respondent No, 5 for this is not the case of the Government as in the written statement submitted by respondents Nos. 1 to 4 no assertion to that effect has been made. It will also be seen that there had been no official communication to the petitioner regarding the said impediment although the objection was raised by the Finance Department as early as March 1994. The Director did not bring the disqualification to the notice of the petitioner while providing him with an Air Ticket and issuing him a certificate about the grant of scholarship. Likewise, the Health Department when granting Ex-Pakistan Leave to the petitioner did not inform him about the objection although in the application for leave it was clearly stated that the petitioner was proceeding abroad on a foreign scholarship. The petitioner thus left the country after fulfilling all the formalities which he was officially required to fulfil. There has been no misrepresentation or suppression of any material fact by him. He is not to be penalised for any administrative hurdle of which he was unaware. In Ghulam Mustafa v. Islamic Republic of Pakistan, ibid, it was held that departmental authorities did not possess locus paenitentiae to re-call the orders when the same had taken effect due to an error made by the Department and when the petitioner was not in any manner guilty of mis-representation or suppression of material facts.
10. In these circumstances when no indication whatsoever was given to the petitioner about his disqualification and decisive steps were taken by the Government functionaries by issuing relevant documents and payment of airfare and allowance and the petitioner now having completed his semester, it was too late in the day for the Government to re-call the scholarship granted to the petitioner.
11. As for the second argument is concerned, admittedly, the scholarships were not reserved for Government servants but were open for all doctors who were domiciled in the FATA. It is also not disputed that at the time when the petitioner applied for the scholarship he had not joined the Government service and thus he did not apply as Government servant. The instructions relied upon by the respondents regarding the 3 years rule, are contained in the letter dated 6-7-1988 issued by Government of Pakistan addressed to Chief Secretary, Government of N.-W.F.P. And others. The subject of the letter is; "Nomination of Government Servants for Foreign Training under Technical Assistant Programme". The rules mentioned in the said letter would thus apply to the Government servants who have been granted scholarships as such Government servants. The petitioner was not considered for the scholarship on the basis that he was a Government servant as on the day he applied for the scholarship he was eligible for the same. That also explains the reason why the three years rule was not invoked by the Department of Health, Government of N.-W.F.P. When it prepared the summary for the approval of the scholarship to the petitioner although on the day of his selection the petitioner was in Government service.
12. To further strengthen his case regarding non-application of the rule, the petitioner has now resigned from Government service. Thus, not only that the petitioner did not apply for the scholarship as a Government servant nor was it awarded to him in that capacity but now he does not remain in that service. The rule against grant of scholarship to a Government servant who has not completed 3 years service thus does not apply to the petitioner.
13. As both the contentions of the petitioner have been accepted there is no necessity to dilate upon the objection raised by the learned counsel for the petitioner that respondent No, 5 was not qualified for the grant of scholarship as he had already availed another foreign scholarship within the preceding 3 years. Above are the reasons in support of our short order dated 19-104994.