2022 PLP 1259 (MLD)

LAL JAN KHATTAK, J.

Through this judgment, we shall also decide the connected writ petition bearing No.1109-P/2021 titled "Mushtaq Ahmad v. Government of Khyber Pakhtunkhwa Health Department, Peshawar and others", as common issue is involved in both the petitions wherein the petitioners have questioned MBBS/BDS admissions of the respondents Nos.7 to 11 in the Public Sector Medical and Dental Colleges of Khyber Pakhtunkhwa against the seats reserved for candidates hailing from erstwhile FATA.

2. It is the petitioner's case in WP No. 1069-P/2021 that pursuant to the advertisement annexure "D" to the writ petition, he and the respondents Nos.7 to 11 applied for their admissions for the session 2020-2021, against the revised approved distribution of MBBS / BDS seats reserved for erstwhile FATA candidates. According to the averments of the Writ Petition, as the respondents Nos.7 and 8 are residents of Peshawar, per their CNICs, therefore, their admissions in the medical college against the reserved seats are illegal and unlawful. Regarding respondent No.9, it is averred that as she was born at Nowshera, therefore, she was ineligible for her admission against the reserved seat whereas admissions of the respondents Nos.10 and 11 have been assailed on the ground that being dual domicile holders they have wrongly been admitted in the Medical College against the reserved seats.

3. In his Writ Petition bearing No.1109-P/2021, petitioner Mushtaq Ahmad has disputed the admissions of respondents Nos.7 to 9 almost on the grounds taken in the first writ petition.

4. Parawise comments were filed by the respondents wherein issuance of the desired writ has been opposed. It is worth to note that the private respondents have also filed documented miscellaneous applications refuting therein the petitioners' claim.

5. Arguments heard and record gone through.

6. First of all we take up the case of petitioner Fahadullah against the respondents Nos.7 and 8 i.e. Miss Hooria Ahsan Afridi and Miss Shereen Ahsan Afridi against whom it has been alleged by the petitioner that because of their being residents of Peshawar, per their CNICs, they on no count were entitled to their admissions in the Medical College(s) against the reserved seats. While elaborating his point of view, learned counsel for the petitioner submitted at the bar with vehemence that in view of their addresses given in their CNICs, the respondents for all intents and purposes were Peshawarties and by dent of their tribal domicile they have usurped the petitioner's right by getting entry in the medical profession for which they were not entitled too.

7. True that in their CNICs, the respondents have been shown as residents of Peshawar but the fact ibid is of no help to the petitioner for getting their admissions cancelled as according to the admission policy of Khyber Medical University for the session 2020- 21 and vide notification dated 24th February 2021, (copies of which have been filed by the respondent-university with its parawise comments) in order to get admission in the medical college of the Province against the reserved seats, the candidates of Merged Area Districts (MAD) must possess valid domiciles of the merged districts which condition the respondents have fulfilled. The factum of the respondents being domicile holders of erstwhile FATA gets ample corroboration and support not only from their verified domicile certificates but also from the various documents submitted by them with their CM and from the parawise comments of the university as well. When the only qualification for getting admission in the Medical Colleges against the 11 reserved seats for the erstwhile FATA students is that they must possess valid domiciles of the Merged Districts which qualification both the respondents amply have then there is no justification for the petitioner to challenge their entry into the medical profession.

8. Besides, mere mentioning an address in his CNIC by a citizen would not sever his ties with his birth place or deprive him of his nativity unless he opts or solemnly declare so explicitly which is not the case in hand as the respondents uptill now have not uprooted themselves from their place of origin rather they own it which claim of theirs gets impetus from the available record showing their elders as residents of erstwhile FATA, therefore, they have rightly been given admissions in the medical college against the reserved seats to which no exception could be taken.

9. So far as the case of respondent No.9 is concerned, record reflects that she was issued a tribal domicile certificate on 07.05.2007 by the Political Naib Tehsildar which then was countersigned by the Assistant Political Agent FR, Peshawar. Further, on page 5 of C.M.No.1009-P/2021, there is available a verification report according to which domicile of the respondent No.9 has correctly been issued, hence, she too has rightly been admitted in the Medical College against the reserved seat for being a candidate from erstwhile FATA.

10. Now we come to the case of respondent No.10 namely Maira Khan Afridi. No doubt, earlier she was issued domicile certificate from District Nowshera on 03.07.2017 but subsequently she applied to Deputy Commissioner, Nowshera for cancellation of her Nowshera domicile which was accordingly cancelled on 10.06.2020 whereafter on 11.06.2020 she was issued domicile certificate of FR, Peshawar which was a part of erstwhile FATA. Her subsequent domicile certificate, as per page 07 of C.M. No.661-P of 2021, is also verified by the issuing authorities, therefore, she cannot be dubbed as a dual domicile holder. Further, on record there are copies of domiciles certificates issued to the respondent's father and other relatives according to which they are domicile holders of erstwhile FATA. So respondent Maira Khan Afridi too prima facie is a resident of erstwhile FATA and, per revised approved policy of the Government, she has rightly been admitted in the medical college against one of the reserved seats.

11. Lastly comes the case against Ameen ud din i.e. the respondent No.11. It reflects from the record that in the year 2016, he was issued a tribal domicile certificate (page 49 annexure O/I to the writ petition) according to which he belongs to FR, Peshawar but thereafter he got a certificate of domicile from district Peshawar on 09.07.2018 showing him to be a permanent resident of the settled area of the Province. It is worth to add that no material is produced by the respondent No.11 which could show that the subsequent domicile of district Peshawar issued to him has been cancelled and it is we settled that a person can possess only one domicile at a time and having two domiciles at the same time is an illegal act which fact was even made known to the respondent when the second domicile was issued to him (see instructions given on over leaf of the respondent's subsequent domicile available at page 50 of the petition). As respondent Ameen ud din is dual domicile holder and in case a person has two domiciles at a time then the subsequent one will prevail, therefore, during the existence of his subsequent domicile of Peshawar on no count he was entitled to get admission in the Medical College against one of the seat reserved for erstwhile FATA students.

12. Though learned counsel for the respondent No.11 vehemently argued that as by now the respondent has studied for about a year in first year MBBS and by applying the principle of locus poenitentiae, it will not be proper for this Court at this belated stage to disturb his admission but we are not in agreement with the submission of the learned counsel as it was within the specific and personal knowledge of the respondent that subsequent to his earlier tribal domicile he was issued a domicile from Peshawar and thus he was ceased to be a resident of erstwhile FATA but even then he got admission in the noble profession of medical through concealment of facts qua his nativity which act and conduct of his cannot be countenanced and validated on any ground. Besides, admission committee of the University had made known to him that any of the informations provided by him to the committee if turned out to be false then in that eventuality his admission would be cancelled to which he had subscribed and to this effect he had sworn in an affidavit.

13. For what has been discussed above, the instant and the connected petition bearing No. 1109-P of 2021 are allowed to the extent of respondent Ameen ud Din only and consequently the concerned respondents are directed to cancel his admission given to him in the medical college against the seat reserved for erstwhile FATA candidates, however, as on merit next to him is petitioner Mushtaq Ahmad and petitioner Fahadullah is far behind him, therefore, the cancellation of admission of Ameen ud din would be of no use to the latter, therefore, we direct that petitioner Mushtaq Ahmad be admitted in place of Ameen ud din but as by now almost a year has passed and in such like situation, it would not be possible, as per rules, to consider petitioner Mushtaq Ahmad for his admission in session 2020-2021, for shortages of classes, therefore, the admission committee of KMU and the other respondents are directed to admit him in the medical college as a student of MBBS in the upcoming session of 2021-2022. MH/71/P Order accordingly.