1989 PLP 497 (CLC)

Mushtaq Memon for Petitioner. Sarfraz Ahmed AA.‑G. for Respondents. Dates ‑of hearing: 20th, 24th and 26th October, 1988.. SALEEM AKHTAR, J.‑‑The petitioner was born on 5‑5‑1966. He passed his Intermediate Science Pre‑medical Group Examination from the Board of Intermediate Education, Karachi and obtained 731 marks out of 1100. He claims to be domiciled in Hyderabad. The petitioner applied for admission for the M.B.,B.S. Course in the First Year. The admission to the Medical College for the year 1985‑86 was regulated by the prospectus issued by the Government of Sind. He applied for admission and he was placed on meat list at serial No.27. The petitioner received a letter dated 20‑2‑1986 from the respondent No.1 asking him to produce domicile certificate of his father. The petitioner replied that his father is a disabled person, his mother Dr. Sofia Rahman is maintaining him and financing his education and his name appears in the domicile certificate issued to his mother. The petitioner's mother has her domicile in Hyderabad. The petitioner apprehending that the admission will not be granted to him filed this petition on, 12‑4‑1986 seeking a declaration that the letter dated 20‑2‑1986 is illegal, mala fide, abuse of the process of lawful authority and of no legal effect and further that the petitioner has fulfilled all the conditions relating to the admission in the M.B.,B.S. Course in the college of the respondent No.2. Thereafter the petition was amended and several other grounds attacking the validity of the action were incorporated in it but the prayer remained the same. The amended petition was filed on 31‑5‑1986. The petitioner again amended the petition and added Mumtaz Ali as respondent No.3 but in the petition it has not been explained why he has been added and the relief remained the same as originally prayed for. From the application under Order 1, Rule 10, C.P.C. (CMA 22/86) it seems that the petitioner had filed an application under Order XXXIX, Rules 1 and 2, C.P.C. seeking mandatory injunction directing the respondent No.2 to admit him in the Medical College. This application came up for hearing on 2 7‑1986 when the learned Additional Advocate‑General made a statement that the selection list for First Year M.B.,B.S. class 1985‑86 of Liaquat Medical College, Jamshoro has been finalised and the classes have already started. In view of this statement the petition was ordered to be fixed at an early hearing. The petitioner, however, made this application to join respondent No.3 who would be the person affected if the petition was allowed. Therefore, it is clear that the petitioner was not granted admission. Mr. Mushtaq Memon the learned counsel for the petitioner has contended that the condition imposed by the prospectus to file domicile certificate of the candidate's father is unreasonable and should be struck down and further that this condition is in violation of section 3 of the Majority Act. The admission is granted on the basis of the prospectus issued by the Government of Sind. Mr. Memon has contended that the prospectus or bye‑laws have the force of statutory rules and if they are unreasonable they can be struck down. In this regard he has referred to P L D 1979 S C‑ 1; 1979 S C M R 34; 1981 S C M R 1002 `Jalel.111 An111.7, J and P L D 1980 Quetta

1. Therefore, on petitioner's own admission the prospectus of the Medical College which includes the rules of admission of the candidate should be treated at par with statutory rules or bye‑laws. The question therefore, arises whether the provision in the prospectus for production of father's domicile certificate can be treated to be unreasonable. The prospectus for the previous year had provided that if the candidate was below 21 years of age domicile certificate of the father/mother of the candidate was to be produced. This provision was changed in the prospectus issued for the year 1985‑86 under which the petitioner had applied for admission. In this prospectus it was provided that if the candidate is below the age of 21 years he will produce the domicile certificate of his father. The ground of attack of Mr. Memon is that a candidate who has attained the age of 18 years and become a major cannot be called upon to produce the domicile certificate of his father as a person who is major can have his own domicile independent of the domicile of his father, and therefore, such a restriction will be unreasonable.. The domicile certificate is issued under the Pakistan Citizenship Act, 1951. Section 2 defines `minor' as follows:‑. Minor means, notwithstanding anything in the Majority Act, 1875 any person who has not completed the age of 21 years." Therefore, for the purposes of Pakistan Citizenship Act, 1951 the provision of Majority Act, 1875 which provides that a person becomes a. major on attaining the age of 18 years cannot be pressed into service. In these circumstances for the purpose of domicile certificate any person who has not attained the age of 21 years shall be treated as a minor. Therefore, if the petitioner was required to submit a domicile certificate of his father then in view of the provisions quoted above it will not be in conflict with the provisions of Majority Act. The learned counsel then contended that the petitioner's father is a disabled‑.person and his mother is maintaining him and bearing all. expenses. Merely by becoming disabled or even invalid, a person is not disentitled to obtain a domicile certificate. He can obtain it in the same manner as a completely fit and healthy person is entitled under law. It is not the case of the petitioner that his father was suffering from such a disability which had disqualified him from obtaining the domicile certificate. Any permanent illness or disability unless under law it is a bar for grant of domicile certificate cannot be made a ground for refusing such certificate. The learned counsel for the petitioner has referred to a certificate issued by the District Magistrate, Hyderabad, certifying that Dr. Sofia Rahman is looking after the affairs of his children and the domicile certificate issued to her is valid and her husband is a disabled person as certified by the Medical Board. This does not improve the petitioner's case as by this certificate it cannot be proved that the petitioner's father was suffering from any such disqualification or disability which disentitled him from obtaining a domicile certificate. Mr. Memon contended that a child who lives with his mother keeps the same domicile. He has referred to Cheshire on Private International Law 10th Edition at pages 180 and

181. These observations are particularly related to husband and wife who have separated or divorced. This principle laid down under such circumstances will not apply to a case as the present one where the husband and wife are living together with their children and the husband is disabled. Mr. Memon relying on A I R 1972 H.P. 31 contended that the rule requiring production of father's domicile certificate by a candidate who has attained the age of 18 years is unreasonable and should be struck down. In the referred case according to official note a permanent resident of Himachal Pradesh was one "who should have been living in Himachal Pradesh from generation to generation and wedded to the soil of Himachal Pradesh and having no connection as such, with any other State or territory except Himachal Pradesh. Mere residence was not enough, he, should have his permanent home in Himachal Pardesh". After analysing its meaning and implication except the last sentence the entire note quoted above was declared invalid and struck down as it "is neither reasonably connected with any object of the teaching programme at the college nor is consistent with the constitution provisions". In the present case no such unreasonable condition has been imposed by the prospectus. The petitioner's counsel then contended that when the petitioner opted for medical education the rules were as provided in the prospectus for the year 1984‑85 which provided that the domicile certificate of the father or mother could be produced and therefore, by changing the prospectus. for the year 1985‑86 the petitioner has been prejudicially affected. The prospectus is issued by the Government and is liable to be changed. Such change should be reasonable and not mala fide. In the present case by calling for the certificate of the father only it does not become unreasonable because it further contemplate that. where father is dead the domicile certificate of the mother and when both are dead the .domicile certificate of the guardian can be produced. However, if change of material nature is made where the certificate/document required to be filed is to be obtained from any other authority, Government or agency then sufficient time should be allowed to the applicants to enable them to obtain such certificate/document. Merely because a student has opted out for medical education two or four years back does not create any vested right to get the admission nor does it guarantee admission in the medical college. Mr. Sarfraz Ahmed Khan , the learned counsel for the respondent has contended that as held in P L D 1979 S C 32 the Rule has to be construed strictly and therefore, as the petitioner has failed to comply with the condition of the prospectus the respondents were justified, in refusing. the admission. This contention seems to be correct. We, therefore, dismiss the petition with no order as to costs. AA./M‑655/K Petition dismissed .