1988 PLP 90 (CLC)

NASIR ASLANI ZAHID, J.‑‑ This petition has been filed by one Vijai Kumar (through ‑his father and next friend Mohanlal son of Lokchand) a student, who after passing his H.S.C. Part II Pre‑Ntedical group Annual Examination, 1986 and securing 708 marks including 20 marks of N.C.C. and being eligible applied for his admission to first year M.B. B.S. 1986‑87 session in Chandka Medical College, harkana. The last date for filing applications was 19‑2‑1987 and by that time the application on prescribed form duly filled up and supported by all required annexures was submitted by the petitioner. According to the petitioner, he was entitled to admission on merits as his marks were more than respondents Nos. 3, 4 and 5 who had already been granted but when the list of students who had been granted admission was displayed, the petitioner did not find his name in the said list and as such he immediately approached the office of Chandka Medical College and he was informed that his application form had been rejected by the Principal only on the ground that the domicile certificate of the father of the petitioner was an old domicile certificate of 1960 and it was not on prescribed form. The petitioner immediately filed the present Constitutional Petition on 8‑6‑1987 and by order, dated 9‑6‑1987 of this Court comments were called for from respondent No.l. In the comments submitted by respondent No.l it is stated that the disappearance of the name of the petitioner in the selection list was due to non‑production of his father's domicile certificate on proper P‑1 form and, therefore, a candidate next on merit was selected. We have heard Mr. Mohanlal tiakhijani, learned counsel for the petitioner, Mr. Zawar Hussain Jafferi, learned A.A.‑G. for the official respondents and Mr. Abdul Latif Memon who has appeared for respondent No.5, the student who is likely to be affected‑in case this petition is allowed. The relevant provisions of the Pakistan Citizenship Act, 19511 and of the prospectus containing the Rules for admission of students to Medical Colleges in Sind have been pointed out by Mr. Mohanlal. A perusal of the provisions of Pakistan Citizenship Act, 1951 show that the domicile certificates are issued there-under and section 19(2) of the said Act of 1951 provides that the domicile certificate issued under the provisions of Pakistan Citizenship Act, 1951 shall be conclusive evidence of the fact recorded in such certificate unless it is proved to have been obtained by fraud, false representation or concealment of any material fact. In the parawise comments submitted by respondent No.l, Principal, Chandka Medical College, no allegation has been made that the domicile certificate of the father of the petitioner issued in 1960 had been obtained by fraud, false representation or concealment of any material fact. We have also gone through the provisions of the Pakistan Citizenship Act, 1951. No provision of this Act provides that the validity of a domicile certificate lawfully issued under the provisions of the said Act expires after a certain period of time. No rules or instructions have been shown to the effect that after passage of some period or time a person who has been issued a domicile certificate, is required to apply for a fresh domicile certificate as his original domicile certificate is deemed to have expired on account of passage of time. The prospectus applicable to the admissions of students to the academic Sessions 1986‑87 have also been perused. There is a provision for filing of permanent residence certificate on prescribed form but as regards domicile certificate of the father of the applicant, no such provision is made in the Rules that it must be on the recently prescribed form. What is required is that a valid and lawfully issued domicile certificate of the father of the applicant should be annexed with the application for admission to the Medical College. This was done by the petitioner. The domicile certificate of the father of the petitioner issued in 1960 has not been shown to have been obtained by fraud, false representation or concealment of any material fact. As observed earlier, no provision of law or applicable rules has been shown to the effect that the domicile certificate issued in 1960 ceased to be effective after expiry of some time. In our view, on the basis, of the law and applicable rules a domicile certificate lawfully issued under the provisions of Pakistan Citizenship Act, 1951 remains valid till it is withdrawn or cancelled. It is not the case of the official respondents or even the private respondent No.S that the domicile certificate of the father of the petitioner issued in 1960 has been withdrawn or cancelled. In the circumstances, we are of the view that the application form submitted by the petitioner by 19‑2‑1987, the last date for filing the admission forms for admission to Medical College for academic sessions 1986‑87, was supported by all required documents and his form could not have been rejected and the petitioner denied admission to medical college on the ground that the domicile certificate of the father of the petitioner was issued in 1960. It may be added here that the Rules contained in the Prospectus applicable for admission to 1986‑87 session do not require the domicile certificate of the father of the applicant to be on any prescribed form. Mr. Abdul Latif Memon, learned counsel for respondent No.5 submitted that the petitioner had not submitted that recently issued domicile certificate of the father of the petitioner on prescribed form and the decision for not admitting him to medical college has been taken in accordance with law and applicable rules. In the counter affidavit of respondent No.5, Muhammad Hamid, it has been stated that he was selected on merits and he had taken admission in Chandka Medical College, paid the requisite fee vide receipt, dated 29‑6‑1987 and he has also started attending classes having purchased his necessary books. It is further stated by him in his affidavit that he has incurred expenses in connection with his admission and the petitioner is not entitled to admission as all the seats have been filled up and there is no seat vacant for the petitioner. The classes in the medical college for the current session 1986 have recently started as is apparent from the receipt, dated 29‑6‑1987 filed by respondent No.5 showing payment of the fees to the Medical College. The final list showing the students who have been admitted in the Medical College was made public either in the last week of Play 1987, as stated in the comments filed by respondent No.l or on 2‑6‑1987 as averred by the petitioner. In any case the petitioner had taken immediate action and then he made inquiries to find out the reason for not granting him admission and immediately rushed to this Court by filing the present Constitutional Petition, on 8‑6‑1987. In the comments filed by respondent No. 1, Principal, Chandka Medical College, the only ground given for not admitting the petitioner is that the domicile certificate of the father of the petitioner on the prescribed form i.e. on the form recently issued had not been submitted within time. From this it follows that in case the domicile certificate of the father of the petitioner was on proper form, the petitioner would have been admitted to Medical College by the authorities concerned. As observed earlier, we have already held that the validity of the domicile certificate of petitioner's father issued in 1960 could not have been challenged in the absence of any provision of law or. Rules which provide that such domicile certificate lost its validity on account of passage of time or the applicable rules in the prospectus' provide that the domicile certificate of the father of the applicant should be on some prescribed form. Neither there is any provision in' the law or applicable rules that a domicile certificate lawfully issued loses its validity after passage of some time nor does the Prospectus provides that the domicile certificate of the father of the applicant should be on some new prescribed form. The petitioner's admission form, therefore, could not have been rejected and he was entitled to be admitted. As a result, Constitutional Petition No.D‑156/87 is allowed and the petitioner is directed to be admitted to Chandka Medical College in the First Year for academic session 1986‑87 against one of the seats reserved for boys domiciled in Dadu District. There will be no order as to costs. We are conscious of the fact that on account of grant of the present Constitutional Petition, the last student on the merit list admitted to Medical College against the seats reserved for Dadu for boys, namely, Muhammad Hamid, is likely to be affected. It is also apparent from the counter‑affidavit filed by Muhammad Hamid, respondent No.5, that he has paid his fees on 29‑6‑1987, purchased the books, incurred other expenses and has also started attending classes of First Year in Chandka Medical College academic sessions 1986‑87 after 29‑6‑1987. Mr. Abdul Latif Memon had submitted that there was no fault on the part of respondent No.5 but in view of the conclusion reached by us, it can also be observed that there was no fault on the part of the petitioner. Out of the two i.e. petitioner and respondent No.5, admittedly petitioner has secured more marks and therefore, he was entitled to admission. Then the petitioner has lost no time and within a matter of days after making requisite inquiries he filed the present Constitutional Petition on 8‑6‑1987. We realize that respondent No. 5 can be thrown out of the college on account of the grant of this petition. If any other seat is available on account of any student having left the college or by any other method respondent No.S can also be accommodated, we are sure the official respondents will take such action which will avoid removal of respondent No. 5 from the College. A.A. /V‑5/K Petition accepted.