I. MAHMUD, J.-Constitutional Petitions Nos. D-137, 148, 173, 176 to 195 and 198 of 1978 have been filed on behalf of 36 female medical students, who have challenged the cancellation of the orders for their migration passed by the Government of Sind, respondent No. 1. As these petitions raise common questions of law, they have been heard together and will be disposed of by this judgment.
2. The petitioners are Third and Fourth-year female medical students of the Peoples Medical College, Nawabshah for girls. On respective dates, the petitioners applied individually for their migration to any medical college in Karachi, on prescribed forms alongwith the prescribed fee of Rs. 200 for reasons of personal and/or financial hardships. These applications were forwarded by the Principal of the Girls' College to the Health Department Government of Sind, Karachi, who in due course, allowed the same and informed the Principal individually in each case by a separate letter that the concerned petitioner was allowed migration to the Sind Medical College. Karachi, after observing the required formalities under rule in force. A copy of such letter was endorsed to the concerned petitioner as well as to the Princi--p.I, Sind Medical College, Karachi, for information and necessary action. On receipt of this letter, the Principal of the Peoples Medical College. Nawabshah, issued individval Office Order allowing the concerned petitioner to migrate to Sind Medical College, Karachi, with effect from 8-10-1977, and again, a copy of this Office Order was endorsed to the concerned petitioner and also to the Principal, Sind Medical College, Karachi as well as to other authorities concerned. Upon receiving the Office Order, the petitioners wound up their studies and took back their documents and certificates which they had deposited at the time of their admission, and on arrival at Karachi, they reported to the Principal, Sind Medical College, Karachi, for admission. It is the case of the petitioners that they were admitted to the Sind Medical College, Karachi and have even been allowed to attend both theory and clinical classes. However, this fact is disputed by the respondent Government.
3. It appears that the news relating to the migration of these and other students of the Chandka Medical College, 1arkana, was announced on the Radio. T.V., and through press, sometime on l0thNovember 1977 to the effect that the Chief Martial Law Administrator had allowed the migration of these students on compassionate grounds, but it has been decided that no further migrations would be allowed until new migration rules were framed by the Government. This news created dissatisfaction among the girl students of the Peoples Medical College, Nawabshah, who felt that the decision to close the door for their future migration was unfair and especially as it was alleged that the cases of poor and deserving students were being ignored while those of influential students were cleared for migration. Therefore, they started an agitation and went on strike demanding that the college should be closed down and they should all be migrated to Karachi or the migrations recently granted to the petitioners should be cancelled. A report of the strike was also forwarded to the Government by the District Magistrate Nawabshah, in which it was recommended that if the migrations recently granted by the Government are cancelled and the students directed to come back to continue their studies in the Peoples Medical College, it would not only restore confidence of the students but also uphold the prestige of the institution. It is the case of the respondent Government that upon consider--ation of this report and as directed by the Martial Law Administrator, Zone `C', the migration orders were cancelled. The order cancelling the migrations was communicated by registered post by the Principal, Sind Medical College, Karachi, to the individual petitioner through a general cyclostyled notice dated 12-1-78. The notice reads at follows "Subject : Migration of Students from Peripherical Medical Colleges to Karachi.
It has been decided by the Government that in the cases of migration of students from peripheral medical colleges to Karachi Medical Colleges which were being considered all students will report back to their parent colleges for continuation of their studies, immediately.
You are, therefore, directed to report to your parent college, without any delay."
4. Being aggrieved by the action of the respondent Government cancelling their migration orders, the petitioner have challenged the aforesaid notice as being without lawful authority and of no legal effect and have prayed for an order prohibiting the respondents from giving effect to the same.
5. A counter affidavit dated 9-2-78 of Dr. Abdul Rahim Hingorjo, Section Officer in the Department of Health, Government of Sind was filed on behalf of the respondent Government, wherein it was deposed that the order for migration of the petitioners had not taken effect as the petitioners had not, in fact, been allowed admission to the Sind Medical College, Karachi, and, therefore, the order could be revoked. It was also deposed that the petitioners had no vested right to migration which was allowed to them as a matter of grace. It was further deposed that it became necessary to cancel the migration orders because of the difficulty expressed by the Principal, Sind Medical College, Karachi, in his letter dated 19-9-77 for absorbing any more students in the classes and requesting the Government not to send. Any more students to the college. Finally, it was deposed that the orders of migration had also to be cancelled in order to avoid a law and order problem among the girl students left behind in Nawabshah which may possibly lead to the closure of the medical college itself to the detriment of the other students.
6. We have heard Mr. Nasim Faruqi and Mr. S. A. Wadood learned counsel appearing on behalf of the petitioners and Mr. Zahoorul Haq; learned Advocate-General on behalf of the respondents. It was conceded that the petitioners were governed by the migration rules contained in Chapter III of the Prospectus issued by the Health Department, Government of Sind, for the academic year 1976-
77. The relevant migration rules may conveni--entry be reproduced:- "(1) Applications for migration can only be made on prescribed form obtainable from College Office.
(2) These requests shall be forwarded through the Principal of the College where a student studies.
(3) The fee for the application of migration is Rs. 200. No application shall be entertained without the payment of migration fees.
(4) Migration shall be allowed only under the Government orders.
(5) Normally migration shall not be allowed in the first two years of study unless the First Professional M. B. B. S. Examination has been passed except on very exceptional grounds to be determined by Govern--ment.
(6) Migration in the next three years of study may be allowed only in exceptionally deserving cases on the grounds to be determined by Government.
(7) Government can also migrate a student without assigning any reason or on request of Principal concerned.
(8) Migration shall not be considered in case of those students who have been admitted against reserved seats."
7. The main submission of Mr. Nasim Faruqi for the petitioners is that the orders of migration of the petitioners had already taken effect and had been acted upon and therefore could not be cancelled or recalled by the Government who had no room left for any locus poenitentiae. In support of his submission, he cited the case of Shahbaz v. The State (PLD 1956 FC 46), Lt.-Col. Bhattacharya v. State and others (PLD 1964 SC 503) and Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). In the Shahbaz's case, an order for remission of the appallant's sentence was to take effect on a. Particular date but a day before that the order was cancelled. As the remission order had not taken effect, appellant's appeal was dismissed by the Federal Court.
The Court observed that although Government must, in the nature of things, possesses power to recall its own orders, which was necessary in the case of all authorities empowered to pass orders under a statute or regulation, the power of residing or locus poenitentiae comes to an end when a decisive step is taken and the order has been carried into effect.
8. In the Bhattacharya's case, the order of' remission passed by the Provincial Government was communicated to the Superintendent of the Central Jail, who, upon receiving the order, recorded it in the prisoner's history ticket. It was held that a decisive step had been taken and the order given effect to and a revocation of it later by the Government was invalid. The Shahbaz case was distinguished by the Supreme Court. These two cases were considered in the third cited case of Pakistan v. Muharnmad Himayatullah Farukhi. In that case, an order of the President of Pakistan fixing the basic monthly salary of the respondent was withdrawn some 3 years later by a similar order. The decision of the High Court declaring the revoca--petition of the order as being without lawful authority was upheld by the Supreme Court. The Supreme Court applied the statement of the law laid down in the Shahbaz's and Bhattacharya's cases, above-mentioned and observed that "where the order has taken legal effect and in pursuance thereof certain rights had been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. It was held that the order of the President was duly communicated to the Ministry concerned as well as to the respondent and its implementation thus became part of the terms and conditions of service of the respondent relating to his remuneration.
9. The submission of the learned Advocate-General, on the other hand, is that the migration orders had not taken effect as the cases of the petitioners were pending and were "being considered" as mentioned in the impugned notice reproduced above. It was submitted that the petitioners had not been admitted to the Sind Medical College, Karachi, nor had they completed the required formalities under rules in force relating to their admission. Hence the Government had room for locur poenitentiae and the cancellation of the migration orders was without exception. Yet it is difficult to accept this submission of the learned Advocate-General because, in my opinion, the orders of migration were duly communicated to the petitioners by both the principals of the respective Colleges under orders of the respondent Govern--ment and decisive steps had been taken and the orders were given effect to. On the faith of the said orders, the petitioners actually wound up their studies. Took back their admission documents and finally returned to Karachi, where they reported to the Principal, Sind Medical College for admission. Even if the remaining admission procedure had yet to be completed by the petitioners, it was a mere formality.
10. It was next submitted by the learned Advocate-General that the rule laid down by the Supreme Court lastly, in the Bhuttacharya's case, relied on by Mr. Nasim Faruqui, was distinguishable in the case of the petitioners as, even if the migration orders had taken effect, no rights had been created in their favour by allowing to them. According to counsel, not only a student has no vested right to claim migration to another medical college, but the Government also has power under rule 7, reproduced above to migrate a student at any time without assigning any reason. Therefore it was contended that the petitioners could be migrated back to their original college and the migration orders could be withdrawn at any time without assigning any reason I regret, I am unable to accept this submission of the learned Advocate---General. In any opinion, rights were created in favour of the petitioners after their migrations had taken effect. It is true that as applicant, each of the petitioners had no right to migration, it being a matter in the discretion of the Government. But after the application for migration was granted and the petitioner concerned was directed to join the Sind Medical College, A Karachi, he acquired a vested right to be admitted to that College, after observing the required formalities under rules in force, and also a right to receive Medical education therein, subject to the rules of the prospectus governing his discipline and conduct and subject also to his being liable to be migrated to another medical college in accordance with the migration rules. The rules contained in the prospectus have been held to have the force of law and rights conferred thereunder would be protected from unlawful interference, as much as vested rights, benefits, or advantages, conferred by a statute. 1 am, therefore, unable to accept the submission of the learned Advocate-General that in the circumstances no. Rights had been created in favour of the petitioners by allowing their migrations to the Sind; Medical College, Karachi.
11. Finally, the learned Advocate-General submitted that the impugned notice was a fresh order passed under rule 7 of the migration rules for migrating the petitioners back to their original college in Nawabshah. The impugned notice, however, belies this submission. It purports to recall "the cases of migration of students from peripheral medical colleges to the Karachi Medical College which were being considered." The counter-affidavit filed on behalf of the respondent Government also admits that the orders of migration were cancelled by the Government at the instance of the Martial Law authorities and the reason assigned for it was the strong protests and the law and order problem created by the petitioners' co-students, who were left behind in Nawabshah, threatening the closure of college, as mentioned in the report of the District Magistrate, Nawabshah. Therefore, the submission of learned Advocate-General has no force.
12. In the result, for the foregoing reasons, I would set aside the impugned notice and direct the respondents not to give effect to the same. The petitions are accordingly allowed with no order as to costs.