P L D 1984 Quetta 61 (PLP)

MUNTAKHIR‑UD‑DIN, J.‑By this petition Mir Aimal Khan son of Abdullah Jan has challenged the selection of Azhar Shah son of Feroz Shah who has been reserved seat of Baluchistan from Quetta Rural Area.

2. Before stating the facts of this case it would be useful to briefly out line the scheme/policy embodied in the notification dated June, 1983 issued by the Government of Baluchistan. This notification. has been placed on the file by the petitioner as Annexure "C". 80 Seats are reserved in the Engineering Colleges/ Universities of Pakistan for the students of Baluchistan. Out of these 80 seats 73 were allotted to the District and were termed as District Merit seats, 3 seats were placed on open m‑.rite and 3 seats were reserved for Dip loma‑holder of Polytechnic Institutes and one seat was allotted to non -Muslim minority community. 2‑A. The above‑mentioned 73 seats were distributed amongst the 16 Districts of Baluchistan on population basis. Seats reserved for Quetta Dis trict have been bifurcated into Quetta Urban and Rural and two seats have been allocated for Quetta Rural. Rule 4 of the notification clarifies the position in these words :‑ "Except Quetta District, no difference has been made between Urban & Rural Areas of the Province. In Quetta District the areas falling within the limits of Quetta Municipal Corporation and Quetta Cantt. are treated as Urban areas and the remaining part of the District as Rural area." Other paragraphs of the Policy Notification relevant for the determi nation of the points raised in this petition are reproduced below :‑ (7) Only the candidates who are genuine/locals of Baluchistan or in possession of valid domicile certificates will be eligible for admission against the above seats reserved in various Engineering Colleges/ Universities. (7‑a) All seats in the above districts are open for competition within each district to the local and domicile candidates of the Province of Baluchistan and no body shall be denied admission on the ground of race, religion, colour or caste. Competition in each district shall take place between candidates of that district. Thus, a candidate from district "Q" shall not compete with a candidate of district "G" (8) The candidates seeking admission shall have to produce before the Selection Committee a valid local certificate or a valid domicile cer tificate, as the case may, issued by the District Magistrate of the respective district. (10) The minimum qualification for a candidate for admission to Ist year Engineering Class is Intermediate Science (Pre‑Engineering of the Board of Intermediate and Secondary Education, Quetta or any other equivalent examination of any recognized Board or University. (12) A candidate found in. possession of two or more local/domicile certificates issued by the District Magistrate of different districts, at the time of interview, shall not be considered for admission against the seats of any of the districts of which he/she possesses local/domi cile certificates. His/her application shall be rejected by the Selection Committee. (14) The Selection Committee on the basis of the documents attached with the application form of a candidate, as required under para graph 16 and/or further inquiry through the Deputy Commissioners or other sources, shall be competent to decide as to whether a can didate actually belongs to the district, of which he/she has produced the local/domicile certificate and whether he/she is entitled of his/her being selected against the seat of that district or not. The candidate shall be bound to abide by the decision of the Selection Committee. (16) All applications must be accompanied by photostat copies or true copies of the following documents duly attested by an officer of grade 16 or above (i) F. Sc. (Engineering Group) Certificate. (ii) F. Sc. (Engineering Group) detailed marks certificate. (iii) Matriculation certificate. (iv) Local/Domicile certificate from the District Magistrate. (v) Permanent Residence Certificate from District Magistrate. (17) Selection of candidates for admission shall be made by the Selection Committee (listed at para‑21) appointed by the Government strictly on the basis of merit in each category of seat amongst the applicants according to the prescribed conditions. (21) The Selection Committee to interview and select the candidates shall consist of the following members :‑ (1) Chairman, Baluchistan Public Service Commission ....... Chairman. (2) Commissioner of the concerned division ......................... Member. (3) Deputy Martial Law Administrator of the concerned Div ..._Member. (4) Secretary Education Department ........ Member. (5) Secretary Law Department ................. Member. (6) Director of Education (Colleges) ......... Member.

3. The petitioner and respondent No. 2 applied for a seat reserved for Quetta Rural area. At one stage on account of some misunderstand ing in the office of the Director of Education (Colleges) where the appli cations were received, the name of respondent No. 2 was shown in the list of the candidates for Quetta Urban but later on the application made in this behalf on 9‑7‑1983, be was treated as candidate for Rural area. Since the respondent 'No. 2 had secured 641 marks whereas petitioner had only 597 marks, respondent No. 2 was recommended by the Selection Committee which recommendations have been approved by the Government. Against this selection of respondent No. 2 from Rural area of Quetta this petition has been filed.

4. The petitioner has challenged the selection of respondent No. 2 on the following grounds :‑ (i) That the respondent No. 2 had not applied for a seat from Quetta Rural area, hence he was not entitled to be considered. (ii) That the procedure/rules contained in paragraph 16 of the policy have not been complied. The application made by respondent No. 2 was not to be considered a photo copy of permanent residence certi ficate and the Affidavit on non‑Judicial stamp have not been filed by Respondent No. 2 alongwith application. (iii) It was also alleged in the petition that the father of respondent No. 2 was permanent resident of Sind and thus he was not to be con sidered in view of the policy contained in paragraph 12. (iv) That the respondent No. 2 does not belong to Rural society and the domicile certificate issued to the father of this respondent, wherein his name appears does not entitle him to claim a seat from the Quetta rural area. The residence of respondent No. 2 and his father's is temporary.

5. The respondent No. 2 has filed an elaborate counter‑affidavit in reply to the petition and has attempted to show that the petitioner him self does not belong to Quetta Rural area ‑and his father has large pro perty in Quetta Town. Parawise comments from the Director of Edu cation, Baluchistan on behalf of respondent No. 1 has been filed wherein it has been accepted that the respondent No. 2 is domicile from a Rural area of Quetta and the policy laid down for the selection of the students which admits of no discrimination has been correctly given effect to. We. have also perused the record in order to ascertain the fact our selves as it was alleged by the petitioner that the respondent No. 2 has not applied for a Rural seat.

6. The objections (1) and (I1) do not require any serious consider ation as the record perused by us does show the respondent No. 2 has applied for a seat reserved for Quetta Rural area and all the documents required in the notice, (Annex. R‑11) issued by the Director of Education (Colleges) of Baluchistan, whereby the applications were invited were filed by the respondent No.

2. The affidavit on non‑Judicial stamp is also on the record. The procedural formalities have been complied with. The ob jection (ii) therefore, is misconceived and, is accordingly repelled.

7. The father of Respondent No. 2 has maintained throughout that he is not in possession of any domicile certificate except one produced by him and respondent No. 1 have no reasons to disbelieve him and the affidavit filed in that behalf. The petitioner was not able to show nor has been able to produce anything before us to show that the respondent No. 2 or his father are in possession of any domicile certificate except the one produced by the respondent No. 2 alongwith his application. The objec tions contention raised in objection (iii) therefore; fails. The factual con troversy raised in objection No. (i), (ii) and (iii) therefore, stand re solved.

8. It has been strenuously urged by the learned counsel for the peti tioner that only local and Tribal students of Quetta Tehsil or those who have integrated in the Tribal society can be eligible for a seat reserved for Quetta Rural area. We are clear in our mind that no such inference can be possibly drawn from the clear and unambiguous words used in the policy notification. The policy does not specify that only those persons can apply who are born in the Tribal family rather it makes clear that the qualification in respect of eligibility is only residence in the area and, for the establishment of the same the domicile certificate was required to be filed. Permanent residence is not the same thing as place of birth. A person may be born at one place and become a permanent resident o another place and this interpretation of the policy further finds support from paragraph 7 (a) of the policy which is nothing but the incorpor ation of the provisions contained in Article 22 (3) (b) of the Constitution of Pakistan in the policy notification. Article 22 (3) (b) of the Constitution is reproduced below :‑ "22 (3) (b) No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth."

9. The significance of the word "only" is th4t other qualifications being equal, the race, religion or caste of a citizen should not be a ground of preference or disability and emphasises that none of the enumerated grounds namely race, religion and caste etc. is a valid ground for ad mission or refusal to students in educational institutions maintained by the State aid. If the policy is interpreted in the way the learned counsel for the petitioner desires us to do the scheme as contained in paragraphs 7 and 7 (i) would become nugatory and will render it discriminatory. The contention and the insistance of the learned counsel for the petitioner that the inhabitants of the Rural area should have agricultural back ground is not the requirement of law nor the same can be spelt out from the policy. One of the recognized principles of interpretation and also the guiding rule of construction is that Courts have to gather the intention o law‑maker from the words used by it and the words used should receive their natural meaning and as a general rule Courts should avoid a construction which renders any provision or rule meaningless and must lean in favour of construction which will render every word operative, rather', than one which may make the same words idle or nugatory. The policy contained in paragraphs 7 & 7 (i) intents that the policy should operate equally, uniformally and impartially on all persons within that area.

10. It was shown by the father of the respondent No. 2 in his application for the grant of domicile certificate that he intends to settle permanently and the address shown therein was the place which was a Rural area and even up to this day he has not lived in any Urban area. The declaration to settle down permanently thus stands fulfilled. The learned counsel for the petitioner has placed a reliance on 'Muhammad Bibi v. Abdul Ghani and others (P L D 1975 Kar. 979). We regret, we have not been able to find out any principle laid down in the judgment which may be applied in this case in favour of the contention raised on behalf of the petitioner against the respondent No. 2 rather it supports the case of respondent No.

2. In para. 6 of the judgment the learned Judge has quoted Dicey in these words :‑ "According to Dicey since a domicle consists of and is constituted by residence and due animus manendi, "any fact. from which it may be inferred either that ' D' resides ' or has the intention of indefinite residence within a particular country, is, as far as it goes, evidence that 'D' is domiciled there. "The facts relevant for determination of animus manendl, according to Dicey, are expressions of intention and time and the mode of residence in a country. Time, according to one authority, is the grand ingredient in constituting domicile and according to Dicey in most cases unavoidably conclusive. Ac cording to Cheshire a person's residence in a country is prima facie evidence that he is domiciled there and the presumption in . favour of domicilie grows in strength with the length of the residence but is not the sole criteria of domicile for everything depends upon the attendant circumstances for they alone disclose the nature of the person's presence in a country. The residence must answer, in the words of Lord' Mac Milian in the case of Ramsay v. Liverpool Royal Infirmary (1930) A. C. 588) a qualitative as well as a quantitative test. The Courts have regarded the following as an indication of the resident's intention. Naturalization, purchase of house or burial ground, exercise of political rights, financial expectations, establishment of children in business, the place where a man's wife and family reside, declaration of his intention."

11. If we examine the finding of the Selection Committee in this case in the light of the above, we find that the findings of the facts found on the basis of the documents produced by the respondent No. 2 and accepted by the Committee are that respondent No. 2 has been living in the Rural area', and has settled since long in the area, he has nexus in the place of the' area. The respondent No. 2 thus fulfills the qualitative and quantitative tests) laid down in Miss Amtul Naseer Sami case (1975 SCMR 265) and relied upon by the learned counsel. Another reliance of the learned counsel for the petitioner is judgment of this Court reported in 'C. P. No. 168 of 1980' Muhammad Ashfaq v. Selection Committee for Engineering Seats' (1982 C L C 2383) wherein it has been pointed out by my learned brother Abdul Qadeer, Judge, who wrote the judgment for the Bench at page 2386 :‑ "The permanent residence certificate is required in order to show that the applicant is a bona fide resident of that district from which he claims seat. Such a condition in the prospectus has been made in order to save the interest of those candidates who are bona fide resi dents of backward Districts." The petitioner could not establish anything against the respondent No. 2 by which it may be inferred that he does not reside in Rural area nor anything is found by the Selection Committee. This judgment too is of no avail to the petitioner and door not advance the case of the petitioner. The fact that the respondent No. 2 has been living in the Rural area and has not abandoned that place, has been established beyond doubt. The documents which support these facts were placed before the Selection Committee and are filed in this petition also and the same have been accepted by the Committee. 1.2. It has been urged by respondent No. 2 in his counter‑affidavit filed in the reply and the same has been repeated before us by his counsel that the petitioner himselt does not fulfil the conditions and the tests which he urged against the respondent No. 2 and in support thererof has pointed out that the petitioner's father is millionaire and has a huge property at Mission Road of Quetta Town and the fact that the petitioner was educated at Saint Francis Grammar School, a prestigious institution of Quetta, where the petitioner has received his early education upto matriculation, but we do not give any serious consideration to this aspect as it does not effect the case of respondent No. 2 whom we consider has been rightly found eligible in terms of the policy. The Selection Committee has found both the res pondent No. 2 and the petitioner eligible, in terms of policy, to be con sidered from Rural area of Quetta and the respondent No. 2 having secured more marks was selected by the Committee. The grounds on which the, learned counsel for the petitioner contests the conclusive effect of the decision of the Committee have no merit. The Committee has functioned within the spirit and intention of the policy and while so functioning has made a real and honest endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at even if erroneous is not be scrutinized by the High Court and will not be considered sufficient ground for interference. 1n view of what we have said above, we do not find any illegality, arbitrariness or perversity in the decision taken by the Selection Committee.

13. No other ground was urged. The upshot of the above discussion is that the petition has no merit and is dismissed. Since the students are involved we make no order as to cost. ABDUL QADEER CHAUDHRY, J.‑I, agree that the petition be dismissed. The purpose behind bifurcating the Ouetta District into Rural and Urban area is to protect the interests of the rural population who have not those facilities which are available in Urban area of Quetta. The respondent No. 2 is residing at a place which enjoys all the facilities of Qutta town. It is almost a part of Quetta for all intents and purposes. The educational facilities available to students residing within Quetta Municipality are enjoyed by the residents of this area where the University of Baluchistan is also located. The Government may consider that such areas which have been developed as an urban society and getting all the facilities of a town may be excluded from the Rural area of Quetta District. M. Y. H. Petition dismissed.