P L D 1981 Supreme Court 335 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-For the reasons to be recorded later, this petition is converted into appeal and is allowed. The judgment of the High Court is set aside: The order of Selection Committee impugned before the High Court is declared as without lawful authority and Without any effect ; with the further declaration that the petitioner is entitled to be admitted to the first year M. B., B. S. Class, in Bolan Medical College, for 1980-81 Session. The prayer . of the petitioner in the High Court as also of the learned Advocate-General made in Court today for substituting the petitioner for respondent No. 5 as a consequential direction, is refused. There shall be no order as costs. Leave to appeal has been sought from judgment, dated 23-11-1980 of the Baluchistan High Court, whereby a Coustitutional petition arising out of refusal by the Selection Committee of the Bolan Medical College (respondent No. 2) to admit the petitioner in the First year M. B., B. S. Class for the Session 1980-81 was dismissed. The petitioner had applied for one of the nine reserved seats for District Kachhi. It is not disputed that but for the impugned decision of the Selection Committee, the petitioner would have been admitted to the seat claimed by him, on consideration of his merit as compared to the other candidates. It is also not disputed from either side that in order to be selected for any of the reserved seats, it was incumbent upon the candidate (petitioner) to submit a "permanent residence- certificate"/"domicile certificate". This requirement is indicated in several provisions of the relevant prospectus. The application of the petitioner was accompanied by a certificate issued by the District Magistrate, Kachhi, on 28-1-1977, which read as follows :- "As per verification by the Naib-Tehsildar, Balanari, this is to certify that Mr. Munir Ahmed son of Muhammad Rafiq casts Mullazai (Raisani) is bona fide Local of village Mithri, Sub-Tebsil Balanari, District Kachhi." This certificate was cancelled by the District Magistrate on 26-6-1980 on an assumption that the petitioner, not being permanent resident of District Kachhi, could not be issued such certificate. However, by a subsequent order dated 23-7-1980, the District Magistrate restored the same certificate (issued on.28-1-1977) with the following order "No. 7734-7763/10-LC/DDR/JB.-Mr. Munir Ahmed son of Muhammad Rafique caste Mullah Zai (Raisani) submitted an application dated 19-7-1980 for the restoration of his local certificate No. 4-CTZ/CB-5, dated 28-1-1977 which was Cancelled under this Office Order No. 6743-6803/LC-DDR/JB, dated the 26-6-1980.1 have gone through the contents of application submitted by Mr. Munir Ahmed son of Muhammad Rafique and the recommendation/verification of the Chairman District Counsel, Kachhi. I accept the request of the applicant and accordingly revise the Order passed by my predecessor. Hence the earlier Local Certificate issued in favour of Mr. Munir Ahmed son of Muhammad Rafique stands valid. This should be published in Newspapers for the information of all concerned." In the meanwhile, the application of the petitioner was considered by the Selection Committee in a meeting held on 10-5-1980, the minutes of which are reproduced below :- "The candidate, Munir Ahmed son of Muhammad Rafique appeared before the Committee and was heard. .He had all along been studying in Quetta from primary to F. Sc. (Medical). The Deputy Commissioner, Kachhi was asked to verify the antecedents of the candidate and.submit his report to the Committee. The Deputy Commissioner, Kaehhi visited Mithri, claimed to be the permanent residence of the candidate, and recorded the statement of notables of the village. The report of the Deputy Commissioner, Kachhi was considered in the second meeting of the Committee, which was held on 10th June 1980, at Quetta and was attended by the Divisional Commissioner, Sibi. According to the report of the Deputy Commissioner, Kachhi the father of the candidate had abandoned his residence in Mithri as far back as 1955 after the flood which eroded Mithri and had permanently settled down in Quetta (HUDDA). The father of the candidate owned a shop at Wazir Muhammad Road, Quetta. In view of the report of the Deputy Commissioner, Kachhi, the application of Mr. Munir Ahmed son of Muhammad Rafique. was rejected by the Committee." It is important to note here that the decision of the Selection Committee, refusing admission to the _ petitioner reproduced above, after due formalities regarding approval, was published in the newspapers on 18-7-1980. The petitioner challenged this decision in the High Court through a Constitutional Petition. A learned Division Bench, agreeing with the decision of the Selection Committee dismissed the writ petition. We during the preliminary hearing, noticed that the effect of the issuance of certificates by the District Magistrate in favour of the petitioner (with due formality) and their being in operation at the relevant time was not considered by the Committee nor by the High Court. Instead an informal report of the District Magistrate was acted upon. Accordingly notice was issued to the respondent authorities as also respondent No. 5, the student, who was benefited by the impugned order of the Committee. Learned Advocate-General has contended that the two certificates by the District Magistrate relied upon by the petitioner are not the "permanent residence certificates" as required by the prospectus. According to him, they being "local certificates", did not satisfy the requirement. He also contended that at the time the committee announced the order of rejection of the peti tioner's application on 18-7-1980, the first certificate stood cancelled and the second one had not by then been issued. He also contended that the High Court rightly refused to interfere with findings of fact about the petitioner's permanent residence ; therefore, the petition merited to be dismissed. After hearing the matter at length, we feel satisfied that the order passed by the District Magistrate on 23-7-1980, wherein the contents of the petitioner's application and the certificate of a Chairman have been noticed, in fact related to the permanent residence of the petitioner. We have perused the language used in these documents. They undoubtedly relate to and certify the "permanent residence" of the petitioner as in District Kachhi. The District Magistrate accepted this and passed the said order. Learned Advocate-General when faced with this situation, insisted that notwithstanding this factual aspect the use of the words "Local certificate" by the District Magistrate should not be given the meaning of "permanent residence certi ficate". We do not agree with him. The order, dated 23-7-1980 in reality is not a new certificate nor has it been described as a new certificate. It is a 'n order recalling the earlier order dated 26-6-1980, whereby the petitioner's "permanent residence" was wrongly determined and assumed. The contents of the order dated 23-7-1980, read with the contents of the documents relied upon therein, clearly establish that it was an order declaring and redetermin ing that the permanent residence of the petitioner was in District Kachhi. That being so, if on this basis and for that reason alone the certificate of 1977 is revalidated, then the use of word `local' for the 1977 certificate, cannot be deemed to have changed the above-noted reality. It was a mere wrong description which obviously was an inadvertent mistake. While reading these documents, it should have been ignored. The order of District Magistrate, dated 23-7-1980 and the certificate dated 28-1-977 read together as shown above, did furnish the evidence that the petitioner was in possession of the required "permanent residence certificate". It will not be out of place, here to mention that during the hearing in the High Court, the parties including) those on whose behalf the learned Advocate-General has raised the above discussed objection, in their. arguments and pleadings/affidavits as also the learned Judges of the High Court treated the so-called `local certificate a, the `permanent residence certificate'. The next question arises whether the said certificate subsisted at the time relevant for consideration of the application of the petitioner. It is not denied that the original certificate was filed with the petition. It is also not in dispute that the Selection Committee considered the application and rejected it on 1(p-5-1980, when the certificate was still in force. The mere fact that the decision of the Committee was published on 18-7-1980 and that the certificate remained in an invalid and cloudy suspense for only 28- days froth 26-5-1980 to 28-7-1980, when it was rectified, would not furnish the committee even a technical ground (what to talk of a substantial ground) to deny the petitioner's claim. At this stage, it would be of advantage to reproduce an observation in University of Dacca and another v. Zakir Ahmad (1), (though made in a different context but fully attracted to the point in controversy). It reads "It is equally important to remember that unfair action may cause greater harm to the prestige of the heads of educational institution who are expected to be in- lace parentis to the students and may seriously undermine' the authority which they claim to possess over the students placed in their charge." The hypertechnical contention of the learned Advocate-General, needs no further comment or refutation. The last contention of the learned Advocate-General also is without a force. The Committee did not notice the certificate/order issued by the District Magistrate in favour of the petitioner. The. requirement in the pros pectus regarding production of the relevant cerficate was ignored. Instead sole reliance was placed on a report of the District Magistrate ; which admittedly was not the document specified in the prospectus nor could itf bind the petitioner or adversely affect his rights. We cannot help highlight ing an absolutely ludicrous situation created by the District Magistrate's certificate, orders and report, however they might be described. The petitioner was granted certificate in 1977 after due enquiry. It was cancelled on 26-6-1980. It was regranted/revalidated on 27-7-1980. And in the meanwhile on 10-6-1980, a different report stated to be on `due enquiry' was also made by him What judgment. these young students of impressionable age entering threshold of their practical life, will make about the District Administration. We will in this context also, reiterate the observation made in Zakir Ahmad's case through this time it will apply to the Civil District Administration. It is high time that the rules and machinery dealing with all these matters is streamlined. The sooner it is done, better it will be for the authorities con cerned and the students. And above all the Courts will be saved of seeing the painful spectacle of young students being driven to Courts for redress in educational matters-the need of the society is to keep them away from litigation. The petitioner had sought in the High Court as one of the reliefs.. his admission on the seat given to respondent No. 5, who has till now studied in the relevant class for nearly a year. The learned Advocate-General also at the conclusion of the main arguments requested that the petitioner may substituted for respondent No. 5. - It is not denied that the respondent No. (1) r L. n 1965 s C 90 was not at fault at all either with regard to the orders of the District Magistrate or the action of the Selection Committee. Why he should be penalised for fault of others, has not been explained We, therefore, while reiterating the view expressed, in this behalf, in The Chairman, Selection Committee. Bolan Medical College, Quetta, etc. v. Miss Safla Ahmad etc. (1979SCMR529) do not find any justification for the grant of this prayer/request. In the light of the foregoing discussion, we convert this petition into appeal and allow the same with the short order already passed, which is reproduced below "For the reasons to be recorded later, this petition is converted into appeal and is allowed. The judgment of the High Court is set aside. The order of Selection Committee impugned before the High Court is declared as without lawful authority and without any effect ; with the further declaration that the petitioner is entitled to be admitted to the First Years M. B., B. S. Class in Bolan Medical College for 1980-81 Session. The prayer of the petitioner in the High Court as also of the learned Advocate-General made in Court today, for substituting the petitioner for respondent No. 5 as a consequential direction, is refused. There shall be no order as to costs." s. A. H. Petition converted Into appeal. and allowed. (1)