1989 PLP 1234 (CLC)

ALLAHDINO G. MEMON, J:‑The Petitioner is a student and had submitted Admission Form for admission in 1st Year, M.B.,B.S. on 21‑9‑1986, on the quota reserved for Sanghar District. According to her she had secured 661 Marks in the Examination held by Board of Intermediate Examination for the year 1985, and was further entitled to 20 Marks as she had completed training of Women Guard. The copies of Marks sheet and National Guard Certificate have been produced as Annexures "B" and "C" that according to the petitioners, she was permanent resident of Sanghar District and her father used to practice as an Advocate at Shahdadpur. Her father expired on 25th March, 1983, and on his death her mother Noorun Nahar remarried and, as such, one Abdul Khalique Brohi, uncle of the petitioner took her in his guardianship alongwith her brother. According to her, at the time of submitting Admission Form, she had filed the domicile certificate of her guardian also alongwith her application. The copies of death certificate of her father and domicile certificate of her guardian have been filed as Annexures "E" and "F". In addition to the above documents, she had produced her own domicile certificate and permanent residence certificate for Sarhari Taluka Shahdadpur, District Sanghar, and the copies of the same have been produced as Annexures "F‑1" and "F‑2". That on 19‑2‑1986, first list of candidates selected on merit for admission was displayed on College Notice Board, wherein the name of the petitioner appeared at Serial No.10, in the list of the candidates from District Sanghar. That after lapse of nearly two months another list was put up, wherein the name of the petitioner did not appear. The petitioner contacted the Principal of Liaquat Medical College, Jamshoro, on 28‑4‑1986 and inquired as to the reason of omission of her name. She was informed that she had not submitted domicile certificate of her mother and, as such, she was dropped. ‑ However, on the very day she submitted the domicile certificate of her mother but the respondent No.l advised her to approach the Secretary, Department of Health, Government of Sind, Karachi, who, was the final Authority. She made representation to the Secretary, Department of Health, Karachi but the same was not decided. The copy of domicile certificate of her mother and representation have been produced as Annex. "G" and "H". However, in spite of production of domicile certificate of her mother, the petitioner was not admitted in college and, therefore, the present petition was filed. The notices were issued against respondents Nos.l to

3. One Majeed Baig, working as Assistant in the office of the Respondent No.l filed his counter‑affidavit. According to para 4 of the counter‑affidavit, the petitioner had to produce domicile certificate of her mother as her father was dead, as envisaged by Rule 7(g) of the Prospectus of 1985‑86 but she failed to produce the same till the decision of final selection list was announced. According to the above rule, domicile certificate of guardian was not required. In para 5 of the counter‑affidavit, it was stated that since the Petitioner was below 21 years of age, her own domicile certificate was not relevant under admission rules. In para 6 of the counter‑affidavit it has been stated that the provisional merit list was displayed on 17‑2‑1986 for filing objections by the candidates. This provisional merit list contained the names of those candidates also whose documents were incomplete but they had to produce the same up to 10‑3‑1986. The name of the petitioner was also placed in the provisional merit list at serial No.

10. Later on, the respondent No.4 being the last student was also joined as party at the request of petitioner's counsel. However, in spite of service of notice through the respondent No.l, the respondent No.4 failed to file any objections or counter‑affidavit. We have heard Mr. S.A. Wadood, learned counsel appearing for the petitioner, Mr. Abdur Rahim Kazi, learned counsel appearing for respondents Nos.l to 3 and have gone through the documents produced by the parties. Mr. S.A. Wadood, learned counsel appearing for the Petitioner has contended that in the first merit list, the Petitioner's number was 10, and eleven students had to be admitted from District Sanghar, in accordance with the seats allocated for Sanghar District. That the father of the Petitioner used to reside in District Sanghar so also the Petitioner. On the death of her father the Petitioner was taken under guardianship by her uncle as her mother had remarried. In support of his contentions, the learned counsel for the petitioner has relied upon certificate Annexure "D" Domicile Certificate Annexure "E" Form P‑1, Annexure "F‑1" permanent residence certificate issued by District Magistrate, Sanghar Annexure "F‑2". He has further contented that even the domicile certificate of mother which was issued to her on 23rd August, 1965 while she was serving at Nawabshah was also produced. That the candidates who had failed to submit some documents were issued notices in writing to complete the formalities but no such notice was issued to the petitioner and, as such, she was condemned unheard. In this connection he has relied upon news item published in newspaper daily 'Jang'. Mr. Abdul Rahim Kazi, learned counsel appearing for respondents Nos.l to 3 has contended that since the Petitioner had failed to comply with Rule 7 (g) of the Prospectus 1985‑86, therefore, she was refused admission. We have considered the contentions of the learned counsel. It has not been disputed/denied by respondents Nos.l to 3 that the petitioner was permanent resident of District Saighar. The domicile Certificate issued in favour of Abdul Khalique, uncle of the petitioner further shows the name of the Petitioner at serial No.8 in the names of his children, which goes a long way to show that this certificate was obtained by Mr. Abdul Khalique as guardian of the petitioner and the same was issued on 21‑1‑1986. It will be worthwhile to refer to Rule 7(g) of the prospectus for the year 1985‑86 which reads as under:‑ "Rule‑

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:‑ (a) (b) .. (c) (d) .. (e) (f) . (g) In the case of the candidate who is below 21 years of age he 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 death of his parents whereupon the domicile of the candidate shall be accepted." The bare reading of the above rule will show that in case of death of father and mother, a candidate can be allowed admission on producing some evidence to show that he was resident of a particular district. Unfortunately, the rule is not exhaustive inasmuch as it does not make any provision in case where the father of the candidate is dead, and the mother had re‑married. Because in such a case the Muslim female children usually reside with near relation of their father. In the present case, the petitioner had produced domicile certificate and permanent residence certificate of her own as well as the domicile certificate of her uncle Abdul Khalique which clearly showed that they were residents of Sanghar District. Even on merits it is an admitted position that she stood at number 10 and 11 students had to be admitted from District Sanghar. In this view of the matter, the petitioner should have been given an opportunity to produce the domicile certificate of her mother. It will be worthwhile to refer to the case of Ghulam Murtaza v. The Chairman, Selection Board, Principal King Edward Medical College, Lahore, and two others 1981 CLC 274; in which the Petitioner had applied for admission to Medical College and produced certificate of having completed NCC training alongwith his admission form. This certificate was signed by authorised officer and not by Incharge However, another certificate duly signed by the Incharge was submitted before the final selection but admission was refused on the ground that proper certificate had not been submitted alongwith the application form in time. It was observed as follows: ‑ "A little technicality has been made a fetish of deprivation. Merit has to be calculated for admission with reference to facts and reality. If these exist at the relevant time but the certification thereof which is not in the hands of the candidate follows subsequently the candidate cannot be punished for the acts of others." In the case of Munir Ahmad v. Government of Baluchistan and 4 others PLD 1981 SC

335. A permanent residence certificate was issued which was latter on cancelled and again it was re‑issued in favour of the petitioner. In the circumstances the admission was refused which was challenged, and the matter ultimately went before the Hon'ble Court, and their Lordships were pleased to observe as follows: ‑ "The mere fact that decision of the Committee was published on 18‑7‑1980 and that the certificate remained invalid and cloudy suspense for only 28 days from 26‑5‑1980 to 28‑7‑1980, when it was rectified, would not furnish the Committee even a technical ground to deny the claim of the petitioner." In the case of University of Dacca v . Zakir Ahmad PLD 1965 SC page 90 though made in a different context but fully attracted to the point in controversy, it was held that:‑ "It is equally important to remember that unfair action may cause greater harm to the prestige of the heads of educational institutions who are expected to be in locoparentis to the students and may seriously undermine the authority which they claim to possess over the students placed in their charge." In the present case the petitioner was entitled to get admission from the quota allocated for Sanghar District. The documents, produced by the petitioner alongwith the application included her domicile certificate, the domicile certificate of her uncle/guardian, her permanent residence certificate and other certificates which were necessary for entitlement to admission except domicile certificate of her mother. It is the case of the petitioner that her mother had remarried after the death of her father Mr. Wahid Bux and that, therefore, she was living with her uncle Abdul Khaliq, whose domicile) certificate was also produced alongwith the application. Even first list of the candidates selected on merit for admission was displayed on College Notice Board in which her name appeared at serial No.10. Therefore, if any other documents were required in her case, it was the duty of the respondents to have given notice to the petitioner t produce the same. The petitioner has alleged that other students were given notice in writing to comply with the objections, but in her case no such notice was issued. In this connection she has relied upon a news items published in daily 'JANG' dated 27‑2‑198 which shows that the notices were issued to the students individual for making compliance. The newspaper does support the contention the petitioner. As observed above, the case of the petitioner stood on different footing inasmuch as her mother having bee remarried. the petitioner was residing with her uncle and the domicile certificates issued in favour of the petitioner and her uncle were produced. Even permanent residence Certificate issued in favour o the petitioner was also produced. In such a situation the petitioner should have been given an opportunity of being heard and allowed time to produce her mother's domicile certificate which had been issue in 1965' and was in existence at the relevant date. In the case of Miss Shahida Khatoon v. Government of Sind and others PLD 1982 Kar. page 454 a Division Bench of this Court of which one of us, namely, (my learned brother Saleem Akhtar, J.) was a member observed as follows:‑ "The respondents are not only placed in a position to decide the case for admission according to Rules but they are also expected to act in an equitable and legal manner. They cannot be permitted to act arbitrarily and to perpetuate such action in the garb of technicalities. An arbitrary act performed in good faith gives an impression of mala fides and is likely to be challenged in the Court of law consuming a long time thereby affecting career of quite a few students. The authorities are expected and they should act in a proper, reasonable and fair manner. They should avoid to. rely upon hyper technical grounds." No evidence has been produced from the other side to show that the petitioner was not entitled to get admission from the quota allocate to Sanghar District. In view of the above discussion, and legal position this petitioner is allowed. The order refusing to grant admission to the petitoner declared as without lawful authority and of no legal effect. The 1 petitioner was admitted in the Pakistan Girl Medical College, Nawabshah, thereafter she has been allowed to attend classes from the session 1985‑86, vide order dated 27‑10‑1986,we, therefore, further direct that the Petitioner shall be allowed by the respondents to continue .with her further studies according to the Rules. The petition is allowed with no order as to costs. M . Y . H . / M‑614/ K Petition allowed.