P L D 1980 Quetta 23 (PLP)

Amir-ul-Mulk for Respondent No.

5. Khalid Malik for Respondent No.

6. Date of hearing : 26th June 1979. ZAKAULLAH LODHI, J.-The two petitioners are related inter se as father and son. The first petitioner joined service in earstwhile Baluchistan States Union on 3rd April 1955 and remained posted in Kalat Division until 1972. Thereafter he was transferred to Quetta but was. again posted at Kalat. However since Ist December 1976 he is posted at Quetta, His total stay in Baluchistan comes to 22 years approximately out of which stay at Kalat was for little over 18 years. It was in 1976 that he applied for a -Domicile certificate which was issued to him after abut two years on 19th March 1979. The second petitioner's name also appears in this Domicile certificate.

2. The second petitioner was born at Kalat and was educated there up to Middle Standard. Thereafter he passed his Matriculation and F. Sc. (Per-Engineering) examinations from Quetta in . the years 1976 and 1918 respectively obtaining 518 marks in the examination mentioned last. He then applied for admission in an Engineering College against three seats allocated to Kalat District for which there were 11 competitors but on merits the 2nd petitioner topped the list. It would be pertinent to mention here that in the marks secured by the second respondent and fourth to sixth respondents, of which the sixth respondent was accommodated against Divisional quota of such seats, there is a difference of 100 to 126 marks. Accordingly it is an admitted position that the second petitioner did not suffer any disability, viz. fourth to sixth respondents as far as merits were concerned. Consequent upon his submitting such application he was required by the Director of Education, Baluchistan, Quetta, for an interview on 21st March 1979 vide his letter issued on 30th February 1979 (Annexure G) who further directed him to produce, among others, Domicile certificate duly issued by a District Magistrate. He made an appearance as required, but subsequently when the list of successful candidates (Annexure `O') was published by the Selection Committee constituted for this purpose his name was missing. Upon this, the first petitioner submitted an application to Secretary Government._of Baluchistan, Education Department, Quetta on 28th April 1979 enquiring about the reasons for the omission of his son's name in the said list, and he was informed vide letter dated 2nd May 1979 (Annexure P-I) That the Selection Committee had rejected his son's application and that copy of such decision could not be supplied to him. He also did not disclose the reasons for rejection of the application. Any way the Ist petitioner later on learnt that the Selection Committee had not considered his son's case on the ground that the District Magistrate, Kalat upon being approached by some students objecting to his Domicile certificate had suspended the same vide Letter dated 22nd March 1979 (Annexure J), under intimation to the Secretary, Government of Baluchistan, Education Department, Quetta, the second respondent herein; as such, the Domicile certificate issued to the first petitioner not being available to the 2nd petitioner he had obviously no entitlement to be considered for the admission applied for. The second and third respondents namely Secretary, Government of Baluchistan Education Department, Quetta and the Selection Committee have also not controverted the position that the 2nd petitioner's application was not considered on account of said intimation given to them by the concerned District Magistrate. However, it is further evident from the letter dated 20th April 1979 (Annexure M) issued by the District Magistrate, Kalat that subsequent to the suspension of the Domicile certificate as said above, he entered upon an enquiry in the matter through his Assistant Commissioner, who recommended cancellation of first petitioner's Domicile certificate on the grounds that he had applied for the same after 17 years of stay in Kalat; that he had no property in Kalat District, except a Katcha built house etc. at Mangooher (District Kalat) but that was not sufficient to establish genuineness of his intention of settling down in Kalat District as the purchase of such property had been managed little before applying for Domicile certificate, arid that; for four years preceding the making of the application for Domicile certificate he had been living at Quetta. Consequent upon these observations of the Assistant Commissioner. Kalat, the Deputy Commissioner vide his above-referred letter cancelled the Domicile certificate of the first petitioner.

3. Both the petitioners have now come up to this Court in its jurisdiction under Article 199 of the present Constitution to assail the validity of the order of cancellation of first petitioner's Domicile certificate and also the omission to select the 2nd petitioner for the Engineering College, which act followed as a corollary to the cancellation of Domicile certificate.

4. The main question that requires our consideration is whether the action of the first respondent, the Deputy Commissioner, Kalat who initially suspended and then cancelled the Domicie certificate of the petitioner was lawful, and also whether the Selection Committee, the third respondent herein was legally justified in ignoring the said document upon receiving intimation from the Deputy Commissioner, Kalat that he had suspended the same.

5. In order to examine these questions in their true perspective it would be of advantage to refer to the law governing the issuance of Domicile certificates. In this connection, Mr. Munawar Ahmad Mirza, learned counsel for the petitioner invited our attention to section 17 of the Pakistan Citizenship Act, 1951 (hereinafter called the "Act") under which the Federal Government was competent to issue a certificate of domicile to any person about which it was satisfied that he intended to live permanently in, and had, in fact, resided in Pakistan for a period not less than one year immediately before making the application and had as such, acquired domicile in Pakistan. It further envisages that once these preconditions had been fulfilled by an applicant the District Magistrate, who acted in this behalf as a delegatee of the powers of the Fe feral Government, shall be left with no discretion but to issue the requisite certificate. Then adverting to Pakistan Citizenship Rules, 1952 (hereinafter referred to as the "Rules" he referred to rule 23 whereby it was required that application for such certificate shall be made in a prescribed form known as form "P-1" and it shall be accompanied by an affidavit arming the truth of the statements made therein and that the authority to whom such application had been made after satisfying itself that the facts stated in the application were correct and that the applicant had continuously resided in Pakistan for a period not less than one year preceding the date of the making of the application and further that he intended to live permanently in Pakistan shall issue such certificate. In the light of above, it was argued before us and rightly so, that according to law a person applying for a domicile certificate is required to fulfil only two conditions; namely his residence of at least one year before making the application and genuine intention to live permanently in Pakistan. It is thus not a requirement of law that an applicant had to satisfy the District Magistrate of a particular District that he intended to live in his District permanently. The District Magistrate figures in the scheme of law only because he is a delegatee of the powers of the Federal Government under the Act by virtue of section 18 of the Act and therefore application for securing such certificate is to be made to him. It is true that in the said form the applicant is required to disclose his place of residence and the date of arrival therein. But it is in order to facilitate the verification of the fact of his having acquired domicile of Pakistan and the place where he lived for one year before making the application. The fact of issuance of certificate by District Magistrate should not be misinterpreted so as to be understood that a person was domicile of a District and not the country; for no such concept of domicile exists at all. In short domicile certificate is a declaration or acknowledgement of the fact that a person living at a particular place in a particular District at the relevant time was domicile of Pakistan. AS far as the pre-conditions and the powers of the concerned District Magistrate to issue said certificate are concerned reference may be made to the case of Noor Muhammad v. Province of West Pakistan and another P L D 1971 Lah. 367, wherein, among others, it was held that once the preconditions for the issuance of domicile certificate were fulfilled the District Magistrate concerned was left with no discretion but to issue such certificate and a person entitled to it could demand the same as a matter of right. In the present case domicile certificate had been issued to the first petitioner on 19th March 1979 and it can safely be presumed for all intents and purpose that he fulfilled the pre-conditions referred to above and the District Magistrate Kalat, issued it validly after being satisfied that the first petitioner intended to live in Pakistan permanently and that he had lived in Kalat District at least one year before making the application. Accordingly as long as the certificate in question was not cancelled in accordance with law it was not open for any authority to exclude It from consideration for whatever reason it might be. It will not be out of place to mention here that it was right of a citizen to claim a domicile certificate and such clam having once b--en accepted after due verification, it could not be taken away arbitrarily; as has been done in this case. As far as suspension of the certificate, pending enquiry, is concerned there is absolutely no justification for that as well, because the law is absolutely silent about it. Even otherwise the legal position on the point is obvious namely either a person is a domicile of Pakistan or he is not. Conceivably there can be no third proposition. Therefore, the Selection Committee was not all bound to follow the instructions of the District Magistrate concerned suspending the domicile certificate and consequently omit to consider the application of the 2nd petitioner on this ground alone. However, it is also not the position of law that the Federal Government's hands are tied once it has issued the domicile certificate directly or through a delegatee of its powers. It is not at all divested of the powers to cancel it. On the other hand it is vested with necessary powers even to deprive a person of the citizenship of Pakistan on the grounds that have been enumerated in section 16 of the Act; hence a domicile certificate can also be cancelled in case the concerned authority, which is District Magistrate Kalat in the instant case was satisfied that it bad been obtained by means of fraud, false representation of facts or concealment of any material fact. Section 16 of the Act amply caters for such a situation. The manner in which action is to be taken in such cases is laid down in Rule 26 of the rules which envisages that any Magistrate of the Ist Class, a Provincial or Central Government upon coming to know that a person had obtained certificate of domicile in the circumstances enumerated above shall initiate action under section 155 of the Code of Criminal Procedure through a Police Officer and the latter would investigate into the truth of such allegations and if it was satisfied that the allegations were true, prosecution under section 177 of Pakistan Penal Code or under any other law for the time being in force shall follow. In case it resulted into the recording of an order of conviction by a competent Court the domicile certificate shall automatically be rendered null and void. This procedure is mandatory and unless it is complied with strictly no authority would be justified in cancelling a domicile certificate. In Shahbaz Khan v. Government of Baluchistan P L D 1977 Quetta 22, the question with regard to cancellation of domicile certificate came under consideration of a . Division Bench of this Court and it was held that inquiry within the meaning of rule 26 of the rules was necessary for the cancellation of the domicile certificate and such course having not been adopted for the cancellation of the certificate by the concerned authority the impugned notion was absolutely illegal and without jurisdiction. In respect of a certificate of residence also which stands on much lower palestal than a domicile certificate it was held in the case of Miss Nasreen Fatima Awan v. Principal of Bolan Medical College, Quetta and others P L D 1978 Quetta 17, that such certificate created a vested right in favour of the person to whom it had been issued and if the Deputy Commissioner concerned desired to divest the holder of the certificate of such right, he could do so only after issuing a show-cause notice and hearing the certificate holder and not otherwise In the instant case not only that the action of the suspension and subsequent cancellation of the certificate was taken behind the back of the petitioner but even otherwise no inquiry was made by the District Magistrate, Kalat as required by rule 26 of the rules. In fact, what he did in this case was that after receiving application from some interested persons alleging that the domicile certificate had been obtained in a manner not provided-by law, he decided upon entering in an enquiry in the matter and entrusted the case to the Assistant Commissioner, Kalat who made report unfavourable to the first petitioner on most flimsy grounds, such as, the first petitioner had not applied for such certificate despite living in Kalat District for 17 years; that he had not purchased property in Kala District in a manner which could suggest that he intended to live there permanently; for 4 years prior to the making of such application he was living at Quetta, and finally recommended the cancellation of the said certificate which was factually done by the District Magistrate, Kalat, vide his order dated 28th April 1979. This action is highly illegal and without jurisdiction not only for the reason of failure to abide by the provisions of the said rule but also on the ground that entire action had been taken behind the back of the first petitioner, and was thus in violation of the principles of natural justice. Additionally, the grounds for such cancellation as recommended by the Assistant Commissioner, Kalat were also foreign to law on the point, hence even if these averments were to be taker as correct, the said certificate cannot be cancelled on these grounds. In these circumstances learned Assistant Advocate-General fairly conceded that the impugned action did not enjoy the protection of law and was liable to be set aside. However he as well as the learned counsel appearing for the other respondents urged that the Selection Committee was justified in not considering the 2nd petitioner's application because on the date on which the application for admission was submitted the first petitioner had not received domicile certificate, therefore, it was not submitted alongwith the application and an incomplete application was liable to be excluded from consideration. We are not impressed by this argument firstly because requisite domicile certificate had been submitted to the Selection Committee before the date on which the selection of the candidates was effected; and second it is not a ground for not considering his application. On the other band from the perusal of the parawise comments submitted by the 2nd and 3rd respondents it is crystal clear that the domicile certificate was before the Selection Committee but was not considered as it had been suspended by the District Magistrate, Kalat. Moreover non-submission of domicile certificate or any other such like document alongwith the application could at best be regarded mere procedural irregularity and was not, therefore, sufficient to adversely affect the eligibility of the 2nd petitioner to secure admission, for, such eligibility depended upon his status as a local or a domicile and the domicile certificate was nothing more than a recognization of such status by a competent authority. As the fact that he was domicile of Pakistan living in Kalat District at the relevant time was not in dispute, therefore, he had every right to be considered for admission. In such circumstances mere failure to fulfil a procedural requirement could not legally persuade the Selection Committee to refuse to consider the application. Of course, if the certificate was not submitted until the last date fixed by the Committee to consider the applications it could be justified to take appropriate steps. Accordingly this contention as well carries no weight. It was also urged before us that beside the domicile certificate permanent resident certificate duly issued by the Deputy Commissioner of the District where the second petitioner permanently resided at the relevant time was also not accompanying the application and this was an additional ground upon which his application was liable to be rejected. In the light of above discussion we need not discuss this omission and the con. sequences that could flow from it. Suffice it to say that it was again a procedural irregulasity and it could also not constitute a ground for rejecting second petitioner's application. Furthermore, it would now be open for the Selection Committee to ask the second petitioner to make good the defects, if any, in his application as we propose to leave the matter of admission in question for the consideration of the Selection Committee in the light of this judgment.

6. The above are our reasons for accepting the petition with no order as to costs by means of a short order passed on 26th June 1979, and declaring that the cancellation of domicile certificate dated 19th March 1979, issued to the first petitioner was without lawful authority and of no legal effect and further directing the third respondent to consider second petitioner's application for admission on to an Engineering College afresh. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition accepted.