1992 PLP 461 (MLD)

MAMOON KAZI, J.‑‑.The petitioner after passing his Matriculation and H.S.C. Examination held by the Board of Intermediate and Secondary Education, Sukkur applied for admission for the studies of the course of Bachelor of Engineering in the N.E.D. University of Engineering and Technology under Respondent No.2. The petitioner had applied for admission under category 10‑2‑1(b). After the petitioner had submitted his admission form to Respondent No.l, a list was published in the national newspapers including the daily Dawn of May 4, 1991. However, the name of the petitioner did not appear in the provisional merit list in the said newspaper, although, the petitioner had secured 827 marks (inclusive of N.C.C. in H.S.C.) according to which his name should have been mentioned in the said fist. The petitioner tried to obtain information in this regard from the Respondent No.l but his entry inside the University was totally stopped, and hence the present petition.

2. It is pertinent to point out that, according to the case of the petitioner, the petitioner's father' had abandoned the petitioner since before the filing of the petition for many years and the petitioner thereafter was forced to live with his guardian and real uncle, Mr. Ghulam Ali. Affidavits sworn by the petitioner as well as his guardian to this effect have been filed alongwith the petition as Annexures D‑1 (sic) the N.E.D. Engineering University in regard to admission in the said University is regulated by the prospectus issued by the Respondent No.l and clause 17.1 in the said prospectus lays down the following conditions to be fulfilled by the candidates before their form for admission to the course of Bachelor of Engineering would become eligible for consideration. The said rule provides as follows: ‑ "17.1 (a) The candidates for admission on merit under categories 10.2.1.(a), 10.2.1.(b), 10.2.3.(b)(i), 10.2.3.(b)(ii), 10.2.9, 10.2.10 and 10.2.11 must be domiciled of Karachi Division (Province of Sindh) and Permanent Residents of Karachi Division. They must also have passed their SSC, HSC and or any other qualifying examinations from the educational institutions situated in Karachi Division only.' Candidates for admission under the above categories must submit with their application forms certified photostat copies of domicile of Karachi Division (Province of Sindh) and Permanent Residents Certificates of Karachi Division. However, those candidates who have passed their S.S.C., H.S.C. and or any other, qualifying examinations from the institutions located outside the Karachi Division shall lie required to produce the respective additional documents as detailed below: (b) Children of Government Servants If the father of the applicant is a Government Servant who belongs to Karachi Division but is serving in any other part of Pakistan, then the father should produce a Certificate from the Head of his Department affirming that he is a Domicile of Karachi Division (Province of Sindh). It shall be necessary in such cases that the period of the applicant's study corresponds with the period of posting of the father in the Area. (c) Others Applicants other than those at (a) and (b) above will have to submit following additional documents in support of their Domicile Certificates. (i) An attested photocopy of father's Domicile Certificate of Karachi Division (Province of Sindh). (ii) Documentary proof from the Election Officer of concerned Area of Karachi Division to the effect that the name of the applicant's father appears in the electoral roll. (iii) An attested photocopy of the relevant page of the electoral rolls on which the name of the applicant's father appears. (iv) An attested photocopy of the National Identity Card of the Applicant's father. (d) Applicant whose father is not alive, In case applicant's father is not alive and the documents mentioned at (b) and (c) above cannot be produced the applicant should submit. (i) Documentary evidence of his father's immovable property in the province of Sindh (Karachi Division); (ii) Documentary proof of his father's death.

4. The case of the petitioner is that although all the documents as required by the said clause in the prospectus were submitted by the petitioner, alongwith his admission form but since the whereabouts of his father were not known to the petitioner and the petitioner was being looked after by his guardian as pointed out earlier, the requirements of paragraph (c) which was applicable in the petitioner's case could not be strictly fulfilled by him. However, the information required by the said paragraph was furnished by the petitioner but the same was furnished in relation to his guardian in place of his father. This is also evident from Annexure‑J filed with the petition, which is a receipt dated 11‑6‑1991 issued by the Receiving Clerk of the University acknowledging receipt of the documents which, according to the petitioner, had been filed by him alongwith his admission form. Although no controversy has been raised by Respondent No.l in regard to the filing of the aforesaid documents by the petitioner alongwith his admission form but, according to the said respondent, the documents, Annexures E/1 and F/3 submitted by the petitioner had been issued on 10‑3‑1991 and 19‑2‑1991 respectively, consequently, the claim of the petitioner in regard to his permanent residence in Karachi was questionable. No doubt, affidavits in regard to the permanent residence of the petitioner and his guardian in Karachi, were sworn by the petitioner and his said guardian, which also appear to have been submitted with the admission form of the petitioner, indicating that the petitioner had stayed in Karachi with his said guardian for about seven years prior to the date when the said affidavits had been sworn but it appears they were not believed by the said respondent. Controversy leas also been raised in regard to the filing of permanent residence certificate by the petitioner alongwith his admission form but in this regard Mr. Raja Qureshi has invited our attention to Annexure‑J to the petition which, as pointed out earlier, was a receipt issued by the Receiving Clerk of the said University and the same shows that permanent residence certificate had been submitted by the petitioner alongwith the other document&.

5. Perusal of clause 17.1 in the prospectus indicates that paragraph (a) therein applies in the first instance to those candidates who are domiciled in Karachi Division and are also its permanent residents. Paragraph (a) further shows that if such candidates have passed their S.S.C. or H.S.C. or any other qualifying examination from the educational institutions situated in Karachi Division, then they would only be required to furnish their Domicile and Permanent Residence Certificate. However; if such candidates have passed their S.S.C. or H.S.C. or any other qualifying examination from the institutions located outside the Karachi Division, they would be required to produce the additional documents as per paragraphs (b), (c) and (d) in the said clause. Paragraphs (b) and (d) apply to children of Government servants and those applicants whose father is not alive. Since the petitioner, according to his own showing, is neither the child of a Government servant nor his father is said to be not alive, the said paragraphs admittedly are not applicable to the petitioner. The only other paragraph applicable to the petitioner would be paragraph (c): This paragraph as is evident there from, requires the additional documents enumerated therein to be submitted alongwith the admission form. The uncontroverted position is that the petitioner did file the said documents alongwith his admission form but the documents did not relate to his father but the same related to his guardian. It is pertinent to point out that paragraph (c) does not refer to guardian. Mr. Rehanul Hassan Farooqui has vehemently argued that as per his own case, the petitioner was not eligible for admission as none of the documents required to be produced by him according to paragraph (c) of clause 17 had been filed by the petitioner alongwith his admission form and therefore, the present petition is liable to be dismissed on that account. We, however, do not find force in the argument.

6. We find that clause 17 in the prospectus only contemplates two kinds of situations namely; where the father of the applicant is alive or where the father of the applicant is not alive. The said clause does not contemplate a situation such as the present one, where the father of the applicant has abandoned the applicant and the applicant has no information about him and is not in a position to confirm whether his father is alive or not. When the applicant is living with his guardian and it can be shown by him that both the applicant as well as his guardian are permanent residents of Karachi Division and the documents enumerated in paragraph (c) in respect of the guardian can be produced by the applicant, in our opinion, that would constitute sufficient compliance with clause 17 of the prospectus. As has just been pointed out by us, clause 17 cannot be strictly applied under the circumstances of the case and unless the rules ace comprehensive enough to cover all kinds of situations, the same, in our opinion, can be relaxed, depending upon the circumstances of each case, to avoid an injustice which may otherwise be caused to a party. No doubt, in cases which are comprehensively covered by clause 17(1) of the prospectus, the said clause would have binding force but then a candidate cannot be deprived of admission to the said University merely because owing to the peculiar circumstances of his case, the same is not covered by any of the said paragraphs of clause 17.1. Otherwise, the said clause would be liable to be struck down as discriminatory and unreasonable.

7. We have considered the documents filed on behalf the petitioner in support of his contention that he and his said guardian are permanent residents of Karachi and nothing substantial can be spelt out from the said documents or the counter‑affidavit of the respondent to falsify the claim made by the petitioner or his guardian viz., that they are permanent residents of Karachi Division. Mr. Rehanul Hassan Farooqui has pointed out indiscrepancies between the Domicile Certificate issued to the petitioner's guardian, Annexure‑F/2 and a copy of his National Identity Card, Annexure‑F/3 and a Certificate issued by the Election Officer, Annexure‑E/1, as in the first document the year of birth of the petitioner has been shown as 1949 whereas in the other document his age has been shown as 56 years in the year 1991. But such small discrepancy, in our opinion, cannot defeat the case of the petitioner.

8. In the result, we allow this petition and declare that the omission of the name of the petitioner in the merit list issued by the respondent No.l is without lawful authority. We direct the respondents to include the name of the petitioner in the merit list and allow him to complete all other formalities necessary in the matter. The parties are left to bear their own costs. K.BA./A‑1138/K Petition allowed.