P L D 2001 Quetta 72 (PLP)

TARIQ MAHMOOD, J.

Following relief has been sought in the instant petition: "In the light of abovementioned facts and circumstances, it is therefore, humbly prayed that the respondent may kindly be directed to issue a Local Certificate in favour of petitioner being the validly married wife of a person, who is a Local of District Kachhi accordingly, in the interest of justice." Facts, in brief, are that petitioner is a qualified Doctor. She got married with one Doctor Noor Ullah Khan Magsi on 19-6-1998, who claimed himself to be the Local and permanent resident of District Kachhi. It appears that Public Service Commission advertised some posts of Lady Medical Officers, which included vacancies meant for residents of District Kachhi. -It is one of the requirements of Public Service Commission that candidate should produce a Domicile/Local Certificate issued by District Magistrate/Deputy Commissioner, Kachhi. Petitioner submitted an application to Deputy Commissioner, Kachhi for grant of Local Certificate on the ground that as she had got married with Doctor Noor Ullah Khan Magsi, who is allegedly permanent resident of District Kachhi, therefore, she was also entitled for grant of the same. In support of her claim she filed Local Certificate issued by Deputy Commissioner, Kachhi on 17-10-1980, in favour of her husband and which reads as under:-- "As per verification by the Chairman, District Council Kachhi, this is to certify that Mr. Noor Ullah son of Maulvi Ghulam Hussain, Caste Magsi is a bona fide Local of Mouza Chokhi, Tehsil Jhal Magsi, District Kachhi." It further appears that as her application was not disposed of, therefore, she filed C.P. No.(S)91 of 2000 and after hearing learned counsel for petitioner and learned A.A.-G. this Court issued directions to learned Deputy Commissioner to dispose of her application, in accordance with law and within the prescribed period. Record reveals that in pursuance of above directions, learned Deputy Commissioner, Kachhi has been pleased to decline the request, vide impugned order. Hence this petition. Respondent Deputy Commissioner filed detailed counter-affidavit and took the stand that as a matter of fact neither petitioner nor her husband is permanent resident of the area, therefore, petitioner was not entitled for grant, of Local Certificate. It has further been explained that 'Local Certificates are issued to the genuine residents of the area and as the husband of petitioner has no connection with District Kachhi, therefore, same cannot be issued. Also that certificate issued to her husband was not in accordance with laid down procedure. Mr. Aman Ullah Khan Kanrani, learned counsel for the petitioner argued that husband of petitioner is in possession of Local Certificate issued by D.C. Kachhi and petitioner being his legal wedded wife is automatically entitled for grant of Local Certificate and refusal by D.C. is without lawful authority. In support of his contention, he referred to following case laws:-- (1) Amtul Naseer Sarni v. Secretary Health and others 1975 SCMR page 265; (2) Chat-4hry Noor Muhammad v. Province of West Pakistan PLD 1971 Lahore page 361; (3) Shahbaz Khan v. Government of Balochistan PLD 1977 Quetta page 22; (4) Dr. Mrs. Munawar Zareen v. Secretary P.P.S.C. PLD 1997 Lahore page 36; (5) 1995 CLC 93 (Citation is incorrect); (6) Syed Ali Nawaz Shah Gardezi v. Lt.-Col. Muhammad Yousaf Khan PLD 1962 Lahore 558; (7) Miss Sumaeea Zareen v. Selection Committee 1991 SCMR 2197; and (8) Miss Salma Mughal v. Selection Committee 1993 SCMR 2183. On the other hand learned A.-G. while supporting the impugned order explained that Local Certificates are issued by the Deputy Commissioner only to those, who are genuine residents of the district enjoy benefits attached with such district and as the petitioner has failed to satisfy respondent that she or her husband is genuine resident of the area, therefore, the impugned order is unexceptionable. Before proceeding further, few words about reported judgments, cited by learned counsel for petitioner. In Amtul Naseer's case, the observation of Lord Macmillan in the case of Ramsay v. Liverpool Royal Infirmary to the affect that the residence must answer a qualitative as well as a quantitative test, and that the Courts have regarded 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 as indicia of his intentions in regard to residence:" were referred. However, we do not see how these observations are of any avail to the petitioner, particularly in view of position taken by Deputy Commissioner in the impugned order and counter affidavit. In Choudhary Noor Muhammad's case it was held that every citizen possess right to claim Domicile Certificate and once an application for grant of Domicile Certificate is submitted, the District Magistrate has no discretion but to grant it provided the pre-conditions for the issuance of Domicile Certificate were fulfilled. The judgment is in apt, in that, same pertained to issuance of Domicile Certificate under Pakistan Citizenship Act, 1951 and Rules made thereunder. In the Shahbaz Khan's case, the Division Bench of this Court laid down procedure with regard to cancellation of Domicile Certificate and it was provided that cancellation amounted to depriving petitioner of benefit of domicile of Sibi who obtained a seat in Engineering College which could not have been done without proper enquiry as required under Rule 26 of Pakistan Citizenship Rules, 1952. The judgment is again distinguishable, inasmuch as, in the said case a Domicile Certificate was issued under Pakistan Citizenship Act of 1951, which was cancelled in violation of procedure laid down in the said law/rules. Whereas in the instant case petitioner has applied for grant of Local Certificate, which is neither governed by any law nor by rule. In Lahore case of Dr. Munawar Zareen, it was held that if a woman got married before entry into Government Service, she should be treated to have acquired the domicile of her husband but if she got married after entry into Government Service, she should retain her original domicile that she held at the time of entry into service. However, this judgment is distinguishable, inasmuch as, Column No.6 of application form prescribed by the Public Service Commission for use of candidates for appointment by selection also provides that domicile of a married woman will be that of her husband and this judgment was given in that context. Also that neither any application form of Balochistan Public Service Commission nor any other material was placed before us to show whether a married women would be governed by domicile of her husband or otherwise. However, it may be noted that question for consideration in this case is whether petitioner is entitled for the automatic grant of certificate on the basis of Local Certificate issued in favour of her husband. In Ali Nawaz Qardezi's case, it was held that the domicile of the husband is the domicile of the wife, and the law applicable to a divorce is the law of the domicile of the parties which means the domicile of the husband. If the law in force in Egypt allowed a Muslim husband to divorce his Christian wife by word of mouth and that divorce had been recognized as valid by a Court of law in Egypt, that decision would be a decision which would be binding not only between the parties but on all the world and recognizable by Courts of all countries. In last-mentioned two cases, word 'belongs' used in para. No.34 of the Prospectus of Bolan Medical College came up for consideration. It may be noted that quota system has not so far been abolished. The object of creating reserved seats for different Districts in professional colleges and employment appears to give legal protection to the students/genuine residents of the area in order to bring them at par with the developed areas of the country/province. We have also noticed that whenever reserved seats/posts are advertised, the Authorities concerned demand Local/Domicile Certificate issued by the Deputy Commissioner/District Magistrates of the respective district. Accordingly, the aforementioned object would be defeated, if the candidates, who are not bona fide/permanent residents of the area but somehow or other manipulate to obtain Domicile/Local Certificate from such districts become eligible for such reserved seats, effecting the rights of genuine residents of the area. Now it is important to point out at this stage that there are two types of citizens residing in Balochistan. A 'local' and generally it is believed that a local is a person who belongs to one of the indigenous/recognized tribes of the province and such recognized tribes have been duly notified by the Government. The others are commonly known as 'settlers' and a settler is a person who does not belong to aforementioned recognized tribe but otherwise is permanently residing in any part of Balochistan. There is no discrimination between a local and settler and if for such reason that whenever a seat/vacancy is reserved for a district, the requirement is to produce a Local/Domicile Certificate issued by respective Deputy Commissioner/District Magistrate. It may also be seen that the issuance of Local Certificate is not regulated by any law/rules/regulation on the subject but as a person in view of the exigencies and the complexities of the present day life may require it for example to obtain a seat in professional colleges reserved for the area or employment, therefore, it appears that in order to regulate the issuance of Local Certificate, a Local Certificate Committee has been constituted in each district to give recommendations for issuance of Local Certificates to those who are genuine residents of the area. It appears from record produced by learned Deputy Commissioner that a Local Certificate Committee has been constituted in District Kachhi to make recommendations for grant of Local Certificate. In the application, prescribed for grant of Local Certificate, an applicant claims himself to be native resident of the area and the purpose for which the same is required. There is a pro forma for the purpose, as well which requires various informations from an applicant including his permanent and temporary residence, purpose for which it is required, particulars of, education alongwith proof, details of property, copy of Identity Card, verification by members of District Committee/Notables of the area and Chairman Town Committee, report by Patwari/Qanoon-go, recommendation by Tehsildar and Sub-Divisional Magistrate. Besides, there is a printed form regarding proceeding conducted by Members of Local Certificate 8 Committee. Therefore, if in order, to regulate issuance of such certificates, Local Certificate Committee has been constituted and the same are being issued on their recommendation, no departure can be made. Also that after providing opportunity of hearing or/and probe into the matter, a Local Certificate can be even recalled. It may also be noted that question of residence in a particular district depends upon the satisfaction of Committee or Issuing Authority, which of course has to be based on record. Such Local Certificates in the district are invariably issued after the person claiming the Local Certificate establishes to be the resident of the area. Invariably recommendations of such Committee or result of enquiry are accepted by the Deputy Commissioner concerned, unless there is authentic material to the contrary. Also that such certificates are in the nature of Permanent resident Certificates. In our view, these observations would remove some of the anomalies regarding nature of such Certificates. Now it may be seen that the petitioner based her claim on two factors i.e. (1) her marriage with Doctor Noor Ullah Magsi and (2) that her husband is holder of a Local Certificate but as mentioned hereinbefore that matter has to be decided on the basis of recommendations made by a Local Certificate Committee constituted for the purpose and in the manner provided. But it appears from the record that neither the petitioner followed the procedure nor Deputy Commissioner and impugned order was passed C without providing an opportunity of hearing to petitioner or her husband and before placing reliance on the enquiry conducted by him (may be due to time specified by this Court). It also appears that petitioner or her husband has not placed before him/Committee any material to establish that he/she is a genuine resident of the area except Local Certificate hereinbefore mentioned. It may be because of impression of petitioner that she is automatically entitled for grant of same on the basis 'of her husband's Local Certificate but we may clarify that even in such cases, laid down procedure has to be followed. Although we appreciate the anxiety of learned Deputy Commissioner that Local Certificate should be issued only to bona fide residents of the area, everybody should get a fair chance to prove his/her entitlement. Also that at the time of submission of application, it was obligatory on the part of petitioner or her husband to place necessary material before the learned Deputy Commissioner/Committee to prove that she is a genuine resident of the area but simultaneously it cannot be ignored that enquiry was conducted behind the back of petitioner and without providing an opportunity of hearing to her/him. In the circumstances we feel appropriate to set aside the impugned order passed by learned Deputy Commissioner and petitioner is at liberty to appear before the learned Deputy Commissioner and/or Committee constituted for the purpose and establish that her husband is a genuine and bona fide resident of the area. We may add that issuance of Local Certificate in favour of her husband is definitely an evidence but by itself is not conclusive in view of position taken by the Deputy Commissioner. However, all these questions are open for consideration by the Issuing Authority, with an opportunity to petitioner or her husband. In case, she succeeds to the satisfaction of Deputy Commissioner/Committee, her claim for grant of such certificate by virtue of her marriage, should also be considered in view of settled law. Petition is disposed of, with above observations. Q.M.H./M.A.K./72/Q Order accordingly