1984 PLP 260 (SCMR)

S. A. NUSRAT, J.‑This petition for leave to appeal is from the judgment of the Sind High Court, dated 12‑4‑1983 whereby constitutional petition of the petitioner seeking declaration that she was entitled to be admitted to first year M. B., B. S. class in the academic year 1982‑83 was dismissed. . 2. The brief facts of the case are that the petitioner applied for admission to the first year M. B., B. S. class against one of 272 seats reserved for girl candidates of Karachi. She was interviewed on 17‑2‑1983 and asked to produce domicile certificate of her parents though she had stated in her application that her parents were permanently settled in Engl4nd and she was under the guardianship of her uncle. It is alleged that her name appeared at Serial No. 128 in the tentative list of the selected candidates and was also shown and scored off in the final list on account of her failure to produce domicile certificate of her parents. 3. According to the Prospectus of M. B., B. S. issued by the Government of Sind, Health Department, for the academic year 1982‑83 the candidates applying for admission to Medical Colleges in Sind were required to produce certain documents alongwith their application as specified in rule 7. The petitioner, who is below 21 years of age was inter alts required to produce a Permanent Residence Certificate issued under Sind Permanent Residence Certificate Rules, 1971 and the domicile certificate of her parents as per sub-rules W and (g), respectively of rule 7 both of which were admittedly not produced by her. The application of the petitioner for admission was accordingly rejected by the Selection Board. 4. The petitioner filed a constitutional petition in the High Court of Sind challenging the refusal of admission to her in the Medical College and prayed for a direction to admit her by canceling the admission of the respondent No. 4 so that she maybe admitted against the seat thus vacated as she had secured higher marks. The petition was dismissed by the learned High Court as per impugned judgment and hence this petition. 5. Sub‑rules (g) and (f ) of rule 7 of the Prospectus are as follows:- (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) Domicile Certificate of the candidate, and in case the candidate is below 21 years of age, the domicile certificate of father/mother of the candidate. In case a candidate who is below 21 years of age, is not in a position to produce domicile certificate of any of his/her parents due to their death he/she will produce the domicile certificate of a legally adopted guardian Mentioning The Name Of The Candidate Therein. 6. One of the contentions raised before the High Court was that the requirement of production of a domicile certificate as per rule 7(g) of the Prospectus was, in terms, not applicable to the case of the petitioner as her parents were not dead but had migrated to England and settled there and hence their domicile certificate could not be produced. It was further contended that it was also not incumbent upon her to produce the domicile certificate of her legally adopted guardian but still she had produced the domicile certificate of her uncle, Muhammad Hanif, which should have been considered sufficient. 7. The domicile certificate of Muhammad Hanif and his affidavit were examined by the learned High Court, and it was found that the same were discrepant in various particulars. From the certificates produced by the petitioner it was noticed that she had passed her Matric examination from Lahore and Intermediate examination from Sialkot thus making it clear that she had been residing at Lahore and Sialkot where she had studied. Having further found that the petitioner had also failed to produce a Permanent Residence Certificate as required under Rule 7 (f ) of the Prospectus, the learned High Court held that it was good enough reason for the rejection of her application and any further discussion regarding inapplicability of rule 7 (g) was considered to be irrelevant. 8. It was contended by Mr. Usman Ghani Rashid, learned counsel fore the petitioner that the Sind Permanent Residence Certificate Rules, 1971; were ultra vires of the power of the Governor and although this point was raised during the course of arguments before the High Court; the same was not discussed in the judgment. In support of his assertion, the learner; counsel referred to his personal affidavit filed alongwith the petition where it has been stated that actually such contention was raised before the High. Court but submissions in‑this regard were not incorporated in the judgment. Suffice to say that the perusal of the Constitution Petition filed in the High Court shows that this point was not raised even obliquely, much less specifically in the petition. To this the reply of the learned counsel was that the petitioner had for the first time come to know from the parawise comments of the respondent No. 3 filed in the petition that her application was also rejected for want of Permanent Residence Certificate. The contention has no force because after the receipt of prawise comments it was open to the petitioner to have challenged the vires of the Rules in question which was admittedly not done. The question with regard to the invalidity of the Rules on constitutional and other grounds was one of great importance as it called for the striking down of the Rules. This required specific pleading so that a notice could be issued to the Provincial Government to meet the objections and, therefore, the point having not been so raised, no exception can be taken to the judgment of learned High Court nor are we persuaded to examine this contention raised in the above manner before us. 9. Since the admission of the petitioner was also refused on the ground of non‑production of Permanent Residence Certificate it is not necessary to examine the contention of Vie learned counsel that rule 7(g) was unreasonable and therefore bad in law because any discussion regarding it will be merely academic and of no avail to the petitioner. 10. The petition in the circumstances, merits no consideration and it is dismissed. S. G. D. Petition dismissed.