SAIYED SAEED ASHHAD, C.J.--In this Constitutional petition, the petitioners have sought the following reliefs:
(a) That it be declared that the orders dated 21-9-1994 and the orders dismissing the review application, as communicated vide Ministry of Health, Government of Pakistan Letter No,F.15-4/94- MER, dated 22-1-1995. Have been passed by the respondent No,2 without lawful authority and are of no legal effect.
(b) Directing the respondents Nos.1 and 2 above named not to entertain any complaint with regard to the affairs of the college, conduct of various examinations by the college and prescribing minimum qualifying marks.
(c) Any other relief which under the circumstances of this case, this Hon'ble Court may deem fit and proper.
(d) Cost of the petition. The brief facts as stated by the petitioners in their memo of petition are as under: The respondent No,1 was established under Ordinance XX or 1962 being an autonomous corporate body, the affairs of which are vested in the council consisting of 20 members appointed from amongst the fellows of the college. The council of college holds examinations for grant of Diplomas and admission of the fellowship of the college, admissions as fellows the persons who have passed fellowship examination, signed the prescribed pledge and elected as fellows in the prescribed manner from amongst distinguished medical graduates having not less than 20 years standing. In November, 1993 respondent No,3 appeared in "Periodontology Examination" conducted by the petitioners, wherein respondent No,3 obtained 43 marks out of total 80 marks in theory and was declared eligible for Oral and Practical/Clinical Examination inasmuch as a candidate would be entitled for Oral and Practical/Clinical Examination only if he obtained 55% aggregate marks. It was further submitted that the Examination Committee constituted by the Council in its meeting held on 3-10-1993 had decided that the pass percentage for M.C.P.S. (Essay) theory shall be raised to 55%. The petitioners further submitted that it was not obligatory for them to intimate to candidates the decision taken by the Examination Committee whereby the minimum pass percentage was raised from 50% to 55% and all the candidates appearing for various examinations conducted by the college were bound by the decision taken by the Examination Committee. The petitioners also stated that this was done to maintain high standard of Post-Graduate Medical Qualification and the rules did not make it obligatory for the petitioners to intimate the candidates of raising the pass percentage of various papers. The grievance of respondent No,3 is that while appearing in the M.C.P.S. Examination under dentistry he was required to obtain 50% marks in theory paper to make him eligible for appearing in Oral and Practical/Clinical Examination as per the provisions contained in the prospectus but the petitioners refused him permission to appear in the Oral and Practical/Clinical Examination on the ground that he had not secured 55% marks as per requirements of the decision taken by the Examination Committee in its meeting dated 3-10-1993. Respondent No,3 further submitted that the decision of the Examination Committee to raise pass percentage from 50% to 55% allegedly made by it in exercise of its powers would have become applicable to him only if it was conveyed or brought to his knowledge. It was further submitted that it was obligatory of the petitioners to convey or inform the candidates of the decision to raise the pass percentage from 50% to 55% without which they could not declare the candidates to be ineligible for Oral and Practical/Clinical Examination on failing to secure 55% marks in theory papers. Respondent No,3 feeling aggrieved and dissatisfied with the decision of the petitioners approached the Wafaqi Mohtasib who entertained the complaint in spite of vehement objection by the petitioners relating to, his jurisdiction to entertain the same and decided it in favour of respondent No,3 holding that it would have been fair to inform respondent No,3 of the raise in pass percentage in pursuance of the Examination Committee's decision dated 3-10-1993 but in the prospectuses of 1993 and 1994 the pass percentage continued to be mentioned as 50% and not 55%. The Wafaqi Mohtasib further held that it would be unfair to apply pass percentage of 55% and directed that respondent No,3 should be treated as having passed theory paper. The petitioners feeling aggrieved and dissatisfied with the above order of the Wafaqi Mohtasib filed a review application for reviewing the order dated 21-9-1994. This review application was dismissed by order dated 22-1-1995 on the ground that no new grounds or facts were stated by the petitioners permitting review of the order with further direction that the order dated 21-9-1994 be implemented. The petitioners submitted that as there was no other forum or authority to which they could approach for redress of their grievance, they were forced to invoke the Constitutional jurisdiction of this Court by filing the above Constitutional petition. We have heard the arguments of Mr. Khalil-ur-Rehman, Advocate for the petitioners Mr.Sajjad Ali Shah, the learned D.A.-G. For official respondents Nos.1 and 2 and have also perused the material on record. None appeared on behalf of respondent No,3. The question for determination in this Constitutional petition is whether petitioners were justified in declaring respondent No,3 to have failed to clear the theory paper after securing 50% marks and not eligible to appear in the oral and practical/clinical examination in view of enhancement of pass percentage from 50% to 55% by the Examination Committee vide its decision dated 3-la 1993 or that the petitioners were under a legal obligation to declare respondent No,3 to have cleared or passed the theory paper on securing 50% marks ac per the provisions of the prospectus of 1993, wherein the pass percentage for clearing theory paper was mentioned as 50% in spite of the fact that the Examination Committee had raised the same to 55% vide its decision dated 3-10-1993.
From perusal of the objections filed on behalf of respondent No,3 in reply to the memo. Of petition it transpires that the case of respondent No,3 is that by virtue of the contents of the prospectus a candidate would be declared to have passed theory paper in any subject on securing 50% marks and would be eligible for Oral and Practical/Clinical Examination. It was also stated by respondent No,3 that though the petitioners had powers and authority to raise the pass percentage for clearing the theory paper but the same would not apply to a candidate unless it was brought to his notice. It was further stated by respondent No,3 that the petitioners not only did not bring the decision of raising the pass percentage from 50% to 55% for passing the theory paper but also misinformed and misguided him by continuously mentioning in the prospectuses for the years 1993 and 1994 that the pass -percentage for clearing theory paper would be 50%. Had it been brought to his notice that the pass percentage had been raised to 55% then he would have worked harder and put in more efforts for appearing in the theory paper so that he could secure 55% marks. The case of the petitioners is that the petitioners being an autonomous body created by a statute had full authority and power to lay down, modify, amend and alter any of the existing provisions relating to the admissions, pass percentage and other allied matters with a view to improve the standard of the education as well as that of the candidates appearing in various examinations and in pursuance thereof it was thought fit to raise the pass percentage in theory papers for the candidates qualifying for M.C.P.S. From 50% to 55%. There is no dispute with this contention of the petitioners. The question to be decided is whether such could have been done without informing and bringing to the notice of the concerned persons, i,e,, the candidates who had been admitted to the college for M.C.P.S. Studies. There is no dispute with the fact that petitioners had the authority to modify, amend or alter any of the existing provisions relating to the admissions, conduct of examinations, pass percentage and other allied and connected matters or to introduce new rules and regulations/provisions for imparting studies and conducting examinations but the principle of natural justice required that such modifications, amendments or alterations and/or introduction of new rules and policies should have been brought to the notice of the candidates who had been admitted to M.C.P.S. Studies and who were to appear in the examination conducted for clearing M.C.P.S. The contention that the pass percentage of 55% could not be mentioned in the prospectuses for the years 1993 and 1994 on account of inadvertence and omission on the part of the concerned persons responsible for publication/printing of the prospectuses would not absolve the petitioners of their obligation to inform the candidates appearing in the theory paper that the pass percentage had been raised from 50% to 55% appearance in Oral and Practical/Clinical Examination. After the decision of the Examination Committee to raise the pass percentage in theory paper from 50% to 55%, the petitioners published/printed two prospectuses for the years 1993 and 1994, wherein it was categorically mentioned that the pass percentage in theory paper would be 50%. The petitioners by their such act had given a clear and unequivocal understanding to the candidates that they would be required to secure 50% marks for clearing the theory paper for their eligibility to appear in the oral and Practical/Clinical Examination. Inadvertence, negligence or mistake on the part of the petitioners to mention the pass percentage as 55% in the prospectuses issued subsequent to the decision of the Examination Committee could not be allowed to adversely affect a candidate who had appeared in the theory paper on the assumption that he would clear the same on securing 50% marks. For the above proposition reliance is placed on the principle of estoppel as enumerated in Article 114 of the Qanun-e-Shanadat Order.
According to the principle of estoppel when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief then neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. While applying this principle to the facts of this case it is to be noted that the petitioners by making a declaration of the pass percentage as 50% in the prospectus made a certain representation regarding the existence of a fact. Even presuming that such declaration/representation was on account of inadvertence, mistake or negligence, it would be immaterial as a representation even when made innocently or mistakenly could operate as an estoppel. Respondent No,3 and other candidates appearing in the theory paper for clearance of M.C.P.S. Examination believed the representation to be true in pursuance whereof they appeared in the theory paper. It has also not been established that respondent No,3 was aware of the fact that pass percentage for clearing theory paper was raised to 55%. In the circumstances, respondent No,3 could not be denied the benefit of the representation made by the petitioners in the prospectus which was available to respondent No,3 and other candidates for gathering information regarding the various aspects of the examination including the pass percentage to be secured by him. Respondent No,3 by securing 50% marks in the theory paper should have been declared to have passed the theory paper and eligible to appear in the Oral and Practical/Clinical Examination. Mr.Khalil-ur-Rehman, Advocate for the petitioners vehemently objected to the orders of the Wafaqi Mohtasib dated 21-9-1994 which was the order in original and dated 22-1-1995 which was passed on the review application of the petitioners on the grounds; firstly, that the petitioner's establishment was not covered by the definition of "Agency" as defined in Article 2(1) of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order of 1983 (hereinafter referred to as the Ombudsman Order of 1983) due to which the Wafaqi Mohtasib had no jurisdiction to entertain a complaint. In this connection he submitted that petitioners establishment was a creature of an Ordinance and was an independent autonomous corporate body, the affairs of which were managed and run by a Council consisting of 20 members as per the requirement of section 6 of the Pakistan College of Physicians and Surgeons Ordinance, 1962 (hereinafter referred to as the Ordinance of 1962); secondly: that the complaint filed by respondent No,3 was barred by the provisions of Article 9(2) of the Ombudsman Order of 1983; and thirdly that even assuming for the sake of arguments that the Wafaqi Mohtasib could exercise jurisdiction in the matter then his jurisdiction or power did not extend to decide the issue in question and at best what he could have done was to issue directions to the petitioners to decide the representation/application of respondent No,3 on the ground of maladministration as provided in Article 2(2)(ii) of the Ombudsman Order of 1983. Taking into consideration the objection raised by Mr.Khalil-urRehman relating to the jurisdiction of the Wafaqi Mohtasib to investigate the issue on the hash of complaint on the ground that the petitioner's Establishment did not fall within the definition of "Agency" as defined in Article 2(1) of the Ombudsman Order of 1983, it is to be observed that the contention raised by Mr. Khalil-ur-Rehman is without any substance. Article 2(1) of the Ombudsman Order of 1983 defines "Agency". To mean a Ministry, Division, Department, Commission or Office of the Federal Government or a statutory corporation or other institution established or controlled by Federal Government but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court.
Petitioner's Establishment was established by the Federal Government by the Ordinance of 1962. On this ground alone the petitioner's Establishment will be covered by the definition of "Agency" as a statutory corporation or other institution established by the Federal. Government is included in the definition of "Agency". Mr.Khalil-ur-Rehman's submission was that according to Article 2(1) of, the Ombudsman Order of 1983 an Establishment was required to be controlled by the Federal Government besides its creation by a statute for falling within the scope of the definition of "Agency". He further submitted that admittedly the petitioners were not controlled by the Federal Government as the control and management of the petitioners lay with the Council constituted by section 6 of the Ordinance of 1962 the members of which except for the first Council are elected by the Fellows admitted by the petitioners. There is no dispute with the contention advanced by Mr.Khalil-ur-Rehman that The petitioners are not managed or controlled by the Federal Government as the Council of the petitioners which is the controlling authority is a body consisting of non-governmental persons/members. However, Mr.Khalil-ur-Rehman has failed to advance convincing arguments in support of his contention that petitioner's Establishment would fall within the scope of definition of Agency only if it was also controlled or managed by the Federal Government on the ground that the word "or" appearing between the words "established" and "controlled" is to be read as "and". In support of his above contention he argued that if every organisation constituted by a statute was to be covered by the definition of Agency then virtually every organisation/establishment would be subjected to the jurisdiction of the learned Wafaqi Mohtasib, which was not the intention of the Legislature. He submitted that the object or the intention of Legislature was to bring only those organisations/establishments within the scope of jurisdiction of the Wafaqi Mohtasib which were being controlled or managed by the Federal Government so that maladministration, inefficiency, nepotism, etc. Prevailing in such organisations/establishments could be checked and set right by the Wafaqi Mohta'sib. The arguments advanced by Mr.Khalil-ur-Rehman do not merit consideration. It is a settled principle of interpretation of statute that the words appearing in a statute are to be assigned their normal and original meaning unless assigning the normal meaning of the words will lead to absurdity. Use of words "and"and "or" in statute are interchangeable but such is to be done to implement the intention of the Legislature. From the preamble of the Ombudsman Order of 1983 it cannot be assumed that the intention of the Legislature was to restrict or limit the jurisdiction of the Wafaqi Mohtasib to diagnose, investigate, redress and rectify injustice done to a person through maladministration only in establishments or organisations controlled or managed by the Federal Government. In the circumstances, there appears no ground to use the word "or" above as "and". As the word "or" is disjunctive, therefore, for an establishment/organisation to fall within the definition of "Agency" it will not be necessary that besides its constitution by the Federal Government it should also be controlled or managed by the Federal Government. By assigning the ordinary meaning of the word "or" and not reading it as "and" no absurdity or ambiguity is likely to he caused which is an essential requirement for interchanging the words "or" and "and". For the above reliance is placed on the case of Abdul Razak v. Karachi Building Control Authority and others, reported in PLD 1994 SC 512. With regard to the second objection raised by Mr.Khalil-urRehman, it will be appropriate to reproduce sub-Article (2) of Article 9 of the Ombudsman Order of 1983, which is as under: "9. (2) Notwithstanding anything contained in clause (2), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein." From a bare perusal of the above Sub-Article, it is to be observed that the Wafaqi Mohtasib has been barred from entertaining any complaint for investigation by or on behalf of a public servant or functionary concerning any matter relating to the agency in which he is or has been working in respect of any personal grievance relating to his service therein. From perusal of the material on record it cannot be established that respondent No,3 was working or performing functions as a public servant in the petitioner's Establishment or that his grievance related to any matter concerning his service in petitioner's Establishment. Such bar will be applicable to the persons employed, working or performing functions as employees in an agency and not to the persons who had joined an agency for the purpose of appearing in any examination conducted by such agency. This objection also is without any substance. The last objection raised by Mr.Khalil-ur-Rehman that even if it be assumed that the Wafaqi Mohtasib had jurisdiction to entertain the complaint filed by respondent No,3 then the jurisdiction, functions and powers conferred on him by section 9 of the Ombudsman Order of 1983 did not permit him to decide the issue in question and what he could have done at best was to have issued directions to the petitioner's Establishment to decide the application/representation made by respondent No,3 for being declared passed in theory paper on securing 50% marks. Mr.Khalil-ur- Rehman, however, was unable to advance cogent and plausible reason in support of his above objection. It will be pertinent to note that Article 11 of the Ombudsman Order of 1983 relates to the recommendations which the Wafaqi Mohtasib can issue for implementation and it will be appropriate to reproduce clauses (a) to (g) of Sub-Article (1) of Article 11, which is as under: "11(1). (a) to consider the matter further;
(b) to modify or cancel the decision, process, recommendation, act or omission;
(c) to explain more fully the act or decision in question;
(d) to take disciplinary action against any public servant of any Agency under the relevant laws applicable to him;
(e) to dispose of the matter or case within a specified time;
(f) to take action on his findings and recommendation to improve the working and efficiency of the Agency within specified time; or
(g) to take any other step specified by the Mohtasib." From a bare perusal of clause (b) of Article 1(1), it is absolutely clear that if the Wafaqi Mohtasib was satisfied that the matter amounted to maladministration then he could modify or cancel the decision, process, recommendation, act or omission. In the circumstances, it is difficult to accept the version of Mr.Khalil-ur-Rehman that at best the Wafaqi Mohtasib could have issued directions to the petitioner's Establishment for deciding the application/representation made by respondent No,3 and he himself could not have made or taken decision declaring respondent No,3 to have passed theory paper on securing 50% marks. Mr. Sajjad Ali Shah, the learned Standing Counsel relying on the judgment dated 27-5-2003 in C.P.
No,D-2155 of 1995 (Nazeer Ahmed v. Wafaqi Mohtasib and others) submitted that this Court has held the order passed by the learned Wafaqi Mohtasib reviewing his original order on a review application filed by the aggrieved party as a valid and proper order, thus implying that the learned Wafaqi Mohtasib had the power to review his orders if it was found to be illegal or in excess of jurisdiction or suffered from any other material irregularity. He further submitted that in view of the above proposition the learned Wafaqi Mohtasib ought to have reviewed his original order dated 21- 9-1994 as the same was in exercise of jurisdiction not conferred on him by Article 9 of the Ombudsman Order of 1983. We are not impressed by the arguments advanced by Mr.Sajjad Ali Shah. In the cited case the order passed by the learned Wafaqi Mohtasib on the review application was held to be a legal, valid and proper order not in exercise of his power of review as the Ombudsman Order of 1983 does not confer on the Wafaqi Mohtasib the power to review his own orders and jurisdiction to review an order of a Court/Tribunal/Authority can only be exercised if conferred on it by the statute as pronounced by the Supreme Court in the case of Hussain Bakhsh v. Settlement Commissioner. Rawalpindi and others, reported in PLD 1970 SC 1. The order of the learned Wafaqi Mohtasib recalling/rescinding his earlier order in the cited case was held to be a legal and valid order in view of the provisions of section 21 of the General Clauses Act which confers on a Court/Tribunal/Authority power to add, rescind, alter, modify or vary earlier order if the same was found to suffer from any illegality or was in conflict with any provision of a statute. It was held that though a review application was not maintainable but the learned Wafaqi Mohtasib in exercise of the powers conferred by section 21 of the General Clauses Act and the pronouncements made by the Supreme Court in the cases of (i) The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin, reported in PLD 1992 SC 207; and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others, reported in 2000 SCMR 907 that a party could not be allowed to gain perpetual rights, if the order was illegal, could rescind, add, modify or vary his original order on an application purporting to be review application and such order would not be an order in exercise of the power of review. In the present case the facts are not identical and similar to the facts of the cited case inasmuch as the learned Wafaqi Mohtasib in making the original order dated 21-9-1994 did not commit any illegality and the same was passed in exercise of the jurisdiction vested in him by Article 9 of the Ombudsman Order of 1983. As the Ombudsman Order of 1983 does not provide for a review application, the review application filed by the petitioners was not maintainable and ought to have been dismissed as such. The observations of the learned Wafaqi Mohtasib in dismissing the review application vide order dated 22-1-1995 that no fresh or new grounds were made out to warrant consideration of the review application was not a proper finding and it should have been dismissed as not maintainable. Mr. Sajjad Ali Shah further objected to the maintainability of the Constitutional petition on the ground that in exercise of the jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan this Court would not issue a writ against the judgments/orders of the Supreme Court, a High Court or a Court or Tribunal established under the law. For his above proposition he placed reliance on the cases of (1) Asghar Hussain v. Election Commission reported in PLD 1968 SC 387; and (2) Presiding Officer v. Sadaruddin Ansari, reported in PLD 1967 SC 569. This contention does not find force in view of the pronouncements made in the cases of (1) Messrs East and West Steamship Company v. Pakistan and others, reported in PLD 1958 SC (Pak.) 41; and (2) Shahban v.
The State, reported in PLD 1974 Lah.
44. It is settled principle that superior Courts have always the power to review the decisions of the administrative or executive or quasi-judicial Tribunals when their findings are in violation of law or rules, or, are based on misreading or insufficient or inadmissible evidence, or the findings are found to be arbitrary. For the above proposition reliance can be placed on the judgments in the cases of
(1) Imtiaz Bashir v. Special High Powered Committee and 4 others, reported in PLD 1978 Quetta 131 and (2) Dayal Singh College Trust Society v. The Custodian of Evacuee Property, West Pakistan, Lahore and others, reported in PLD 1962 Lah.
352. In the case of Messrs East and West Steamship Company v. Pakistan and others (supra), the Supreme Court pronounced that where a statutory body acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has ample power to grant relief to the aggrieved party. In view of the above pronouncements made by the Supreme Court and the High Courts of the West Pakistan and Balochistan we overrule the objection-raised by Mr.Sajjad Ali Shah relating to the jurisdiction of this Court to entertain a Constitutional petition against the order of the learned Wafaqi Mohtasib.
For the foregoing reasons and the discussions this Constitutional petition is found to be without any substance and does not merit consideration. Accordingly, it stands dismissed.