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Before Syed Abdur Rehman and Ahmed All U. Qureshi, JJ
KHALID SHE R--Petitioner
Versus
PRINCIPAL AND CHAIRMAN, ACADEMIC COUNCIL,
SELECTION BOARD AND OTHERS-Respondents
Constitutional Petition No. D-103 of 1986, decided on 24th August, 1986.
(a) Pakistan- Citizenship Act (lI of 1951)-
--- S. 17-Pakistan Citizenship Rules, 1952, R. 23-Sind Permanent Residence Certificate Rules, 1971, R. 3-Prospectus for Admis sion in Medical Colleges of Sind 1985-86, Part 111, R. 1, Part IV, Rr. 3, 4 & 7(f) (g) & (h)-Constitution of Pakistan (1973), Art. 199-Educational Institution-Admission-Application of petitioner for admission in Medical College against seats reserved for resident boys of Khairpur District rejected on only ground that his mother's domicile was not that of Khairpur District--Petitioner's father who was born and had died in District Khairpur possessed domicile certificate and permanent residence certificate of Khairpur District-Petitioner also granted domicile certificate and permanent residence certificate of Khairpur District in 1984-Mother of petitioner having obtained divorce from his father in 1970 had remarried another person of Shikarpur District-Rules regulating admissions contained in pros pectus were neither statutory rules nor had any force of law but were simply administrative instructions-Prerequisite condition under R. 7(f ), (g), (h) of Prospectus for Admission in Medical College was permanent residence and domicile of the candidate only from District concerned and domicile certificates of parents were required only for ascertaining whether domicile and permanent residence certificates of the candidate were genuine or not-No condition in Prospectus that father or mother of candidate should also possess domicile and permanent residence certificates from same District before he could be admitted-Fact that petitioner's mother did not possess domicile certificate of Khairpur District would not deprive him of right to get admission against seats reserved for Khairpur District-Impugned decision of respondent and interpretation of rules, refusing admission to petitioner, held, to be unlawful, unjust, against principle of natural justice and, equity and, therefore, could not be sustained-Respondent directed to admit petitioner in first year M.B., B.S. Class of 1985-86 against a seat reserved for Khairpur District-Cancellation of admission of candidate given against such seat due to misinterpretation of rules would deprive him of one precious year for no fault on his part-Case of said candidate, however, left to be decided by respondent in accordance with principles of natural justice and equity.-[Educational institutions].
P L D 1975 Kar. 979 ref.
(b) Pakistan Citizenship Act (Il of 1951)-
-- S. 17-Pakistan Citizenship Rules, 1952, R. 23-Sind Permanent Residence Certificate Rules, 1971, R. 3-Educational Institution Admission-Prospectus for admission in Medical Colleges of Sind 1985-86-Words "domicile" and "residence", not defined in Prospectus - Domicile certificate is granted under Pakistan Citizenship Act, 1951 and permanent residence certificate is issued under Sind Permanent Residence Certificate Rules, 1971 Person possessing such certificates, held, would be deemed to be domicile and permanent resident of the District mentioned therein unless such certificates were cancelled by competent authority or were proved otherwise.-[Educational institutions].
(c) Constitution of Pakistan (1973
-- Art. 199-Writ jurisdiction-Educational Institution-Prospectus issued by Government of Sind and Rules regarding admission to Medical Colleges laid down therein were not statutory rules but only executive and administrative in nature-Application of such Rules, having no force of law, or interpretation thereof which militates against principles of natural justice, equity and even common sense, held, could not be sustained or upheld but shall be struck down by High Court in exercise of its writ jurisdiction.-[Educational institu tions-Interpretation of statutes].
Muhammad Hanif Mangi for Petitioner.
Zawar Hassain Jafferi, Addl. A.-G. for Respondents Nos. 1 and 2.
Respondent No. 3 in person.
Date of hearing : 3rd September, 1986.
AHMED ALI U. QURESHI, J.-The petitioner being aggrieved by the order of respondent No. 1 rejecting his application for admission in the First Year M. B., B. S. in the current Session of 1985-86 has filed this Constitutional petition seeking the following relief s :-
(a) Order that the rejection of the petitioner in First Year M. B., B. S. in the current session of 1985-86 by the respondent No. 1 is improper, illegal, mala fide without jurisdiction and bad in law.
(b) order that the admission of respondent No. 3 is illegal and his name shown at serial No. 40 of the merit list is without any legal and cogent reason as the said respondent No. 3 is not eligible for the admission in the said class.
(c) order the respondents Nos. 1 and 2 to admit the petitioner in First Year M. B., B. S. of the current year 1985-86 specifying his name at Serial No. 8 of the merit list and to allow him to continue study.
(d) order thb respondent No. 1 to cancel the admission of the other candidate whatsoever who is below in the rank/grade in marks of the petitioner.
The brief facts leading to this petition are that the petitioner is permanent resident of village Kandri, Taluka Gambat, District Khairpur. His father who was Government sevant and had died on 4-1-1986 was also born and had died in the said village and held the domicile of Khairpur District. The petitioner passed his Inter Science Examination (H. S. C. Part II) from Sukkur Board in the year 1985 and secured 772 marks out of 1100 viz. about 70.2 /o marks. He applied to respondent No. 1 for admission in the First Year M. B., B. S. class in Chandka Medical College, Larkana against the seats reserved for boys residing in Khairpur District. In the provisional merits list displayed by respondent No. 1 on the notice board he was placed in serial No. 7 and was thus eligible for admission. However, objection was raised as to his domicile and the petitioner was asked to produce domicile certificate of his mother as his father had died a few days earlier. The mother of the petitioner however, had obtained divorce from his father in the year 1970 and had remarried one Ali Asghar Jatoi, a resident of Shikarpur District and had obtained domicile certificate of Shikarpur District against the domicile of her second husband. The petitioner produced such domicile certificate of his mother. However, in the final selection list the name of the petitioner was dropped and instead the respondent No. 3 was selected for admission. Hence this petition.
The respondent No. 1 in pursuance of the direction of this Court has filed parawise comments. From the comments it transpires that the application form of the present petitioner was rejected only because his mother's domicile was not that of Khairpur District. The contention of A the respondent No. 1 is that the petitioner could have been granted admission against the seats reserved for boys from Khairpur District only when he as well as his mother had possessed the domicile certificate and P. R. C. of Khairpur District.
We have heard Mr. Muhammad Hanif Mangi learned counsel for the petitioner, Mr. Zawar Hussain Jafferi A. A.-G. for respondents Nos. 1 and 2 and respondent No. 3 in person.
The words "domicile" and "residence" are not defined in the prospectus issued by Government of Sind, Health Department for admission in Medical Colleges of Sind 1985-86. However, the domicile certificate is granted under Pakistan Citizenship Act, 1951 and Rules made there under and the P. R. C. (permanent residence certificate) is issued under Sind e Permanent Residence Certificate Rules, 1971. Therefore, any person who has been issued a domicile certificate and permanent residence certificate under the said Act and Rules would be deemed to be domicile in and permanent resident of the District mentioned in the certificates unless these certificates are cancelled by competent authority or are proved otherwise.
It is not denied that the father of the petitioner was a Government servant and was born and had died in village Kandri, District Khairpur and possessed the domicile and P. R. C. of Khairpur District. It is admitted that the petitioner was granted domicile certificate and P. R. C. of Khairpur District in 1984. It is not denied that the father of the petitioner died on 4-1-19 6. It is also not denied that mother of petitioner had obtained divorce from his father in 1970 and had remarried one Mr. Ali Asghar Jatoi of Shikarpur District.
As already pointed the fact that the petitioner is resident of Khairpur District and possesses such domicile certificate and P. R. C. is not denied but it is rather admitted. The only ground on which the petitioner's form was not accepted was that his mother does not possess domicile certificate and P. R. C. of Khairpur District. It is contended by the learned counsel for the petitioner that under the Prospectus it is not a condition precedent for admission that mother should also have domicile certificate or P. R. C. of the same District. It may be pertinent to refer to the relevant provisions of the Prospectus.
Part III of this Prospectus deals with the admissions. Rule 1 provides "Subject to any law and rules regarding admissions, a candidate who is a permanents resident of any district shall be eligible for admission against the quota of the respective district as given below". It may be relevant to note that for Khairpur District 40 seats are reserved for boys and for Shikarpur District 32 seats are reserved for boys.
Part IV of this Prospectus deals with the Rules of Admission. Rule 3 provides "All seats in various districts are open for competition within such district and nobody shall be denied admission on the grounds of race, religion, colour or caste". Rule 4 provides that "competition in each district shall take place between candidates of that district. Thus, a candidate from District X' shall not compete with a candidate of district Y'." It will be seen from these rules that the requirement for admission is that the candidate should be resident of the district from which he applies.
Clauses (f ), (g) and (h) of rule 7 which are relevant for the decision of this petition are reproduced as under :-
"7. Every application for admission shall be accompanied by true copies of the following documents duly attested by a Government Servant in Grade-18 or above: -
(f) Permanent Residence Certificate (Form C') of the candidate in accordance with law/Rules or in the absence thereof in the form determined by the Government.
(g) In the case of a candidate who is below twenty-one years of age shall produce domicile certificate of his father and if his father is not alive the domicile certificate of his, mother will be accepted. Where both father and mother have died, the candidate shall produce documentary evidence of the death of his parents whereupon the domicile of the candidate shall be accepted.
(h) Affidavit by the candidate, duly countersigned by 1st Class Magistrate stating that he/she does not possess domicile or permanent residence certificate of any district other than the one, on the basis of which he/she has applied for being considered for admission in the medical college.
Clause (f) deals with the permanent residence certificate of the candidate. Clause (g) only requires the candidate who is below 21 years of age to produce domicile certificate of his father and if father is not alive then the domicile certificate of his mother will be accepted. It does not require the father and mother of the candidate to file an affidavit under clause (h) as required from the candidate himself. Thus, there can be no doubt that for purpose of admission the prerequisite condition is the permanent residence and domicile of the candidate only from the district concerned. The domicile certificates of parents are required only for the purpose of ascertaining whether the domicile and P. R. C. of the candidate is genuine or not. There is no condition in this Prospectus providing that the father or mother should also possess the domicile certificate and P. R. C. from the same district before a candidate can be admitted. In the instant case the father of the candidate admittedly possessed domicile and P. R. C. of Khairpur district. The application was submitted by the candidate on 26-1-1986 whereas his father died on 4-1-1986. If the application had been called prior to 4-1-1986 or if the father of petitioner bad died after 26-1-1986 the petitioner could not have been denied the admission. Now the question arises as to whether the petitioner forfeits his domicile and P. R. C. on the death of his father.
In fact the stand taken by the respondent No. 1 in his parawise comments is that the petitioner is not entitled to admission from Khairpur district as his mother does not hold domicile certificate and P. R. C. of Khairpur district and he is not entitled to admission from Shikarpur district as he himself does not hold domicile and P. R. C. from the said district. In fact the position that emerges from this stand is that of proverbial saying "Heads I win Tails you lose" The petitioner who appears to be a brilliant student having secured 70.2 % marks and who otherwise is eligible for admission is being deprived admission because of this interpretation of the respondent No. I, which make it virtually impossible for him to get admission. It may be pointed that the Prospectus issued by the Government of Sind and the Rules regarding admission laid down therein are not statutory Rules but are only executive and administrative in nature. They do not have the C force of law and any application of such rules or interpretation thereof which militates against the principles of natural justice, equity and even common sense cannot be sustained or upheld by this Court but shall be struck down by this Court in exercise of its writ jurisdiction.
The law relating to domicile was considered by a learned Single Judge of this Court in case reported in P L D 1975 Kar, 979 and it may be helpful to reproduce the following observations made by the learned Single Judge: -
"According to Dicey domicile of choice is acquired by every indepen dent person by obtaining combination of residence (factum) and intention of permanent or indefinite residence (animus mamendi) but not otherwise. The domicile of any person is the place or the country, which is considered by law to be his permanent home. It is a mixed question of law and fact or rather inference drawn by law from certain facts though in general facts which constitute home' are the same facts from which law infers that it is domicile. Domicile is acquired, except where the law provide otherwise as in case of minors and a wife, where a person resides at a place with the intention of residence and is retained by having so resided there with the intention of residence (animus mamendi), though in fact he may no longer reside there. With respect to the evidence necessary to establish the animus mamendi it is impossible to lay down any positive rules. According to Turner L. J., in an old English case: -
Courts of justice must necessarily draw their conclusions from all the circumstances of each case and each case must vary from its circumstances; and, moreover, in one, the fact may be of the greatest importance but in another, the same fact may be so qualified as to be of little weight.'
A woman acquires at marriage the domicile of her husband and her domicile continues to be the same as his and changes with his throughout their married life. She may acquire a home for herself but in no circumstances she can have any other domicile or legal home than her husband, and a widow retains her husband's last domicile until she changes it."
The petitioner is a minor and as such his domicile follows that of his father. In fact he acquired the domicile by getting domicile certificate and P. R. C. from Khairpur district in 1984 during the lifetime of his father. This domicile, he has obtained under a law and statutory rules made there under. This right cannot be taken away from him by an administrative order of the respondent No. I under Rules which are neither statutory nor have the force of law. His mother who was divorced from his father had acquired the domicile of her husband, which was Shikarpur district. Her domicile in any way under law automatically deprives the petitioner of the domicile that he has acquired under the law. As already pointed in fact the respondent No. I do not dispute the domicile or the residence of the petitioner in Khairpur district.
In view of the facts of this case we have no doubt that the petitioner is eligible to get admission from the seat reserved for boys residents of Khairpur district. On merits he is entitled to admission as he was placed at serial No. 7 in the merit list. It is not disputed that he is permanent resident of Khairpur district. The domicile certificate and P. R. C. issued to him by competent authority have not been set aside by any such authority.
On perusal of the Prospectus it appears that it has not been issued by any authority in exercise of any powers vested in such authority under any law. Therefore, we have held that the rules regulating admissions contained in this Prospectus are neither statutory rule nor have any force of law. They are simply administrative instructions. We have reproduced the relevant rules above. It is quite clear from the rules that the require ment is that the candidate only should be domiciled in and permanent resident of the district from where he makes application for admission. Clause (g) of rule 7 does not even require the parents of the candidate to file permanent residence certificate. The plain reading of the rules would clearly show that it is nowhere laid down that the parents of the candidate should also be domiciled in or permanent resident of the district concerned. However, the domicile certificates of parents can help the authorities to adjudge whether the domicile certificate and permanent residence certificate issued to candidate is genuine or not. This conclusion is to be arrived at keeping in view the facts of each case. In the instant case as already pointed there is ample evidence and it is not disputed that the petitioner is permanent resident of Khairpur district. In view of these admitted facts and circumstances the fact that his mother does not possess the domicile certificate of Khairpur district would not deprive him of the right to get admission against the seats reserved for Khairpur district. We are unable to agree with the interpretation of rule 7(g) advanced by respondent No. 1.
The petitioner has explained as to how his mother acquired the domicile certificate of Shikarpur district and this explanation is not disputed or rebutted. In view of the law pointed out in P L D 1975 Kar. 979 repro duced above she acquired the domicile of her second husband. There is no law that after the death of father the legitimate son would also acquire the domicile of his step-father only because of the marriage of his mother. In our view the decision of respondent No. 1 to refuse petitioner admission against seats reserved for boys of Khairpur district only because his mother does not possess domicile and residence certificate from Khairpur district appears to be arbitrary and capricious under the circumstances of this case. The impugned decision of the respondent No. 1 and his interpretation of the rules appear to be unjust, against the principle of natural justice and equity and, therefore, cannot be sustained. This Court has already ordered with the consent of the A. A.-G. vide orders dated 28-4-1986 that the petitioner shall be allowed to attend the classes provisionally till further orders. We, therefore, hold that decision of respondent No. I refusing admission to the petitioner to be unlawful and of no legal consequence and direct respondent No. I to admit the petitioner in the first year M. B., B. S. class of the year 1985-86 against a seat reserved for Khairpur district.
Next we come to the question with regard to admission of respondent No. 3. Due to misinterpretation of rules respondent No. 3 has been given admission and has in fact been attending the classes. If his admission is cancelled at this stage he will be deprived of one precious year for no fault of his. If he had been refused admission in the beginning he would D not have wasted one year but would have joined some other course or vocation. We, therefore, do not pass any order with respect to respondent No. 3 and leave it to respondent No. 1 to decide his case in accordance with the principles of natural justice and equity. The petition is allowed to the extent mentioned above. The parties are directed to bear their own costs.
s. Q./K-3/K Petition allowed.
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