KHAWAJA MUHAMMAD SAEED, C.J.--- As identical proposition of law is involved in both' these petitions, these, therefore, are disposed off through this single order.
2. The facts farming backgrounds of the Constitutional Petition No. 108 of 1999, briefly stated are that the petitioner was granted admission in the Post Graduate College for Women, Bagh and allotted Roll No. 33 on 5.10.1998. In the meantime due to transfer of her father from Rawalakote to Muzaffarabad, she applied on the prescribed form for migration/transfer from the Government Post Graduate College, Bagh to the University of Azad Jammu and Kashmir, Department of English, Muzaffarabad. In pursuance of this application, she was directed to deposit the prescribed fee which was deposited by her on 1.2.1999. In this regard a certificate dated 2.2.1999 was issued in her favour. Despite this transfer certificate issued in favour of the petitioner, Samia Rashid, she was not enrolled in the Department of English. She moved an application to the President/Chancellor of the Azad Jammu and Kashmir University which was allowed by respondent No. 1 and with the consent o respondent No. 4, she was allotted Roll No. 38.
3. The facts giving rise to Petition No. 129 of 1999 brief stated are that the petitioner passed her B.A.
Examination from the Azad Jammu and Kashmir University under Roll No. 2315. In order t improve her division, she applied to the respondent No. 1 wh declined her request made for this purpose vide his letter date 22.9.1998. She, ` thereafter, applied for admission in the Pos Graduate College for Wqmen, Bagh. Alongwith her application, sh: appended her B.A. Degree. The admissions was granted to her September, 1998. Since then, she is studying in this College.
4. On 24.2.1999, a Notification was issued by the Assistan Registrar, Azad J&K University, Muzaffarabad whereby under th directions of the Vice-Chancellor. Of the University, all the admission given in M.A. English to those students, who had obtained Thir Division in their B.A.
Examination, were cancelled. The petitioner feeling aggrieved have assailed this Notification through these: Constitutional petitions.
5. In their written statement, the respondents have pleaded that under the standard laid down by the Board of Studies, only thos students were eligible to obtain admission in the M.A. English wh had passed their B.A. Examination in Second Division. The Pos Graduate College for Women, Bagh is associated with the Aza'
Jammu and Kashmir University, therefore, it was incumbent for this College to follow the Rules and Regulations laid down by the Azad Jammu and Kashmir University: The admission were granted to certain female students in the M.A. English who had passed their B.A. Examination in Third Division.
All these admissions being contrary to the directions and standard laid down by the Azad Kashmir University, were cancelled.
6. In the background of these facts, it was argued by the learned counsel for the petitioners that to obtain education is the fundamental right of every citizen. His clients had disclosed all the particulars to the Principal, Post Graduate College for Women, Bagh, at the time when they seeked their admissions in, the M.A. English. After granting admission, the respondents have got no legal competence to cancel the admissions of those students who were granted admissions. He further argued that the admission could be refused only if the seats were not available in that Institution.
As very few students had been admitted in the College, therefore, the Principal granted the admissions even to those who had qualified their B.A. Examination in Third Division. After obtaining admission, the petitioners alongwith other students, are continuously studying in the College for the last six months, therefore, they cannot be deprived from the vested right which had accrued to them.
7. The learned counsel for the respondents argued that under the policy laid down by the Board of Studies, those students who had obtained Third Division in their B.A. Examination, were not entitled to admissions in the M.A. English. According to him, the Principal, Post Graduate College for Women, Bagh granted admissions to some female students in the College as few students had obtained Second Division in their B.A. Examination and number of seats were vacant. However, as the admissions were granted contrary to the spirit of the settled policy, the same were bad and liable to be set aside.
8. I have heard the learned counsel for the parties and gone through the record made available with these petitions.
9. The petitioners had disclosed all the particulars to the Administrative body of the Post Graduate College for Women, Bagh at the time when they moved applications seeking admissions in the M.A.
English. They were given admissions by the College Administration having competence in respect of the admissions. Since their admissions in the Post Graduate College for. Women, Bagh which were granted to them in September, 1998, they are studying in it, therefore, a valuable right has accrued to them. The respondents due to this reason have got no competence to cancel their admissions in the light of the conditions laid down by the Board of Studies. In support of this proposition, the reliance can be placed on a case titled 'Shahbaz v. The ,State", (P.L.D. 1956 F.C. 46).
In this case the Government had ordered the remission of the sentence of Shahbaz convict w.e.f.
14.8.1954. This order was rescinded on 13.8.1954 by the Government. 1 'ne matter when came before the Supreme Court of Pakistan, the Apex Court held that the order of remission was not open to any objection as a valuable right had accrued to the convict, Shahbaz.
10. Identical question of rescinding or recalling earlier passed order came into consideration before the Supreme Court of Pakistan in a case titled 'Pakistan through the Secretary Ministry of Finance v.
Muhammad Himayatullah Farukhi' (P.L.D.. 1969 SC 407), in the light of the following facts:- Muhammad Himayatullah Farukhi, a Member of Madrass Civil Service on migration to Pakistan, was appointed in the General Administrative Reserve. He joined service in the Ministry of Economic Affairs, on the assurance that he would get. Starting salary per mensem in the time scale applicable to the G.A.R. Service. Subsequently, a formal order was issued fixing. His initial pay at Rs.620/- per mensem. It was specifically mentioned that it was without prejudice to his representation for the fixation of his initial pay at a higher level. His representation was turned down by the Prime Minister of Pakistan. He, however, continued to press his representation which was finally accepted by the President of Pakistan. The Secretary to the President conveyed him the favourable order passed by the President. But when this order was not implemented, he filed a writ petition in the High Court. While answering this writ petition, it was contended that the order of the President was withdrawn by him through a subsequent order. The petition was allowed by the High Court. An appeal was filed by the Government before the Supreme Court of Pakistan: While dismissing the :same Mr. Justice .Sajjad Ahmed, expressed the view of the Court in the following words:- "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, locus penitentiae, 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."
The proposition in question came under consideration in case titled "Muhammad Aslam Khaki v.
Vice-Chancellor, Gomel University, D.1. Khan and 2 others', (P.L.D. 1980 Peshawar 128), in the light of the following facts:-
11. The faculty of Shariah, Quaid-e-Azam University, Islamabad invited applications for admission in LL.M. And Ph.D. Courses. Similarly, Institute of Education and Research, University of Punjab also invited applications for admission in the course of Ph.D. In Education. Muhammad Aslam Khaki, petitioner applied for admissions in both the Institutions through the Vice-Chancellor, Gomal University, D.I. Khan where he was serving as Lecturer. The Vice-Chancellor recommended his applications. The petitioner appeared in the test and interview which was conducted for making selection for admission. He was given admission in the Institute of Education and Research, Lahore for the Ph.D. Programme 1979-82. He was informed about his admission vide letter dated 20.8.1979.
Subsequently, he was also approved for admission to the LL.M. Course in the Faculty of Shariah and Islamic Studies, Quaid-e-Azam University, Islamabad. On account of mis-behaviour of the petitioner, the recommendations made by the Vice-Chancellor, Gomal University, D.I. Khan, were withdrawn by him, and he was refused admission in the above-referred Courses by both the Universities. The petitioner was constrained to invoke the Constitutional jurisdiction of the Peshawar High Court. The learned Court while allowing his petition, held that the petitioner had been informed about his ,admissions in the Universities, therefore, a right has vested to him, he cannot be deprived from the same. The relevant observation appearing in the concluding para 18 of the judgment is reproduced for the convenience of reference:- "18. Viewed in the light of what has been stated above, there is left hardly any doubt that petitioner having been selected for admission in the Institute of Education and Research, University of the Punjab, Lahore and duly informed of the same, there was left no authority with the Vice-Chancellor to recall his recommendations unless it could be shown that they were secured from him by fraud, which, indeed has never been his case. The application for admission was forwarded by him to enable the petitioner to seek admission in the said Institute. Acting on those recommendations, petitioner was called for interview and tests. He appeared and was apparently successful and was consequently selected for admission and asked to join his Course there on 2nd and 3rd of January, 1980, Thus a valuable right to claim benefit of admission in the pursuit of higher knowledge was granted to him and this, as stated above, could not have been withdrawn by respondent No. 1. His order withdrawing recommendations, after petitioner had been selected for admission and invited to join his studies is, therefore, set aside, being without lawful authority and of no legal effect. Since LL.M. Course in the Faculty of Shariah and Islamic Studies, Quaid-e-Azam University, Islamabad had commenced as far back as 20.10.1979, no useful purpose would be served to give any findings in that respect for it would not be possible for the petitioner to join that Course now. The costs of this petition shall be borne by respondent No. 1."
12. The report of the above-referred cases, is very clear that the principle of locus poenitentiae can be invoked by the competent authority till the time the decisive stage is not reached. If it is proved that the order was conveyed and acted upon, then in such cases the consensus of case-law developed over the years is that a valuable right is accrued to the party and such party, cannot be deprived from such vested right.
13. In the present case, the petitioners have not concealed their third Division in the B.A. Examination from the Administrative Staff of the Post Graduate College for Women, Bagh. Despite this fact, they were allowed admission in the M.A. English. They in the light of their admissions are continuously attending their Classes. A valuable right, therefore, has accrued to them. By virtu of these admitted facts, the respondents, therefore, have no legal competence to deprive them from their vested rights.
14. In view of above, while allowing these. Writ petitions with costs , the impugned Notification No. 5- 216/General/1999, dated 24.2.1999, issued by respondents is held to be without lawful authority as such ineffective and inoperative against the present petitioners.