PLJ 2008 Karachi 10 (DB)
Present: Sabihuddin Ahmed, C.J. and Faisal Arab, J.
MEHMOOD UL HASSAN KHAN--Petitioner
versus
DOW UNIVERSITY OF HEALTH SCIENCES through
Vice-Chancellor--Respondent
Const. P. No. D-1758 of 2007, heard on 4.9.2007.
Educational Institution--
----Constitution of Pakistan (1973), Arts. 15, 22(3)(b)
& 37(3)--Constitutional petition--Admission, right of--Scope--Public
Authority might confine such right to an educational institution located in a
particular area to its residents, but ancestry of candidate ex facie would be
an irrelevant consideration. [P. 13] A
Sindh Permanent Residence Certificate Rules, 1971--
----R. 6--Pakistan Citizenship Act, (II of 1951)--S.
17--Educational institution--Permanent residence certificate--Rules of
admissions--Father's domicile--Admission in educational institutions on basis
of such certificate--Scope--Basic objective of Rule 6 of Sindh Permanent
Residence Certificate Rules, 1971 would be to determine permanent residence of
a candidate in an area on basis of factual inquiry--Domicile of child must
follow that of his father would have no application for purpose of Rule 6 of
Sindh Permanent Residence Certificate Rules, which envisaged separate domicile
for parents and children applying for admissions in educational
institutions--Certificate of domicile issued under Citizenship Act, 1951 either
to a candidate or his parents would altogether be irrelevant for such
purpose--Principles. [P. 14] B
Domicile--
----Interpretation--Expressions "domicile" and
"permanent residence"--Distinction--Expression "domicile"
would reflect a person's status as a citizen of a particular State or country,
whereas expression "permanent residence" might be a pure question of
fact as to his residence in a particular area. [P.
15] C
PLD 1961 SC 616; PLD 1978 Kar. 214; 1980 SCMR 456 &
2000 CLC 406 rel.
Pakistan Citizenship Act, 1951 (II of 1951)--
----S. 17--Sindh Permanent Residence Certificate Rules,
1971--R. 6--Permanent residence--Educational institution--Question of--Factum
of permanent residence of student could be only relevant consideration for a
candidate's admission into institution through law made under authority of
Provincial Citizenship Act, either to a candidate or his parents is altogether
irrelevant. [P. 17] H
Constitution of Pakistan, 1973--
----Arts. 15, 22(3)(b) & 37(3)--Sindh Permanent
Residence Certificate Rules, 1971, R. 6--Educational institution--Permanent
residence certificate--Admission in State owned Medical College--Prospectus of
College reserving seats on open merits for candidates, who and their parents
both possessed such certificates from Karachi District--Validity--Provincial
Government might have right to reserve seats in educational institutions for
bona fide residents of such Province--Denial of such right to a resident on
mere ground of his failure to get original domicile certificate cancelled would
be violative of fundamental rights guaranteed under Art. 15 of the
Constitution--Candidate for such purpose must possess his own independent
domicile certificate of Karachi separate from that of his parents having
certificate from another place. [P.
16] D
2001 CLC 2001 ref.
1980 SCMR 456; 2001 SCMR 1161 and 2001 SCMR 1729 rel.
Pakistan Citizenship Rules, 1952--
----R. 23--Sindh Permanent Residence Certificate Rules,
1971, R.6--Permanent resident having been born and having obtained certificate
of domicile and permanent residence from appropriate authorities--Disqualify
for admission into M.B.B.S. course on ground of father's
domicile--Validity--Domicile certificate, cancellation or change
of--Scope--Such certificate, if obtained through misrepresentation could be cancelled--Holder
of such certificate issued in his favour by one District, if chose to settle
down permanently in another District, would be entitled to retain such
certificate. [P. 17] F
Constitution of Pakistan, 1973--
----Art. 15--Fundamental right violative--Domicile--Cancellation
of--Educational institution--Validity--Provincial Government might have the
right to reserve seates in educational institution for bona fide residents of
that province but denial of such right to resident on mere ground that he has
failed to get his original certificate cancelled would be violative of
fundamental rights guaranteed under Art. 15 of Constitution. [P. 17] G
Mr. Khalid Javed Khan, Advocate for Petitioner.
Mr. Afaq A. Saeed, Advocate for Respondent No. 1.
Mr. Abdul Jabbar Lakho, A.A.-G.
Date of hearing: 4.9.2007.
Judgment
Sabihuddin Ahmed, C.J.--The petitioner who is admittedly
a permanent resident of Sindh having been born in Karachi, have lived there
throughout and having obtained his Certificates of Domicile and Permanent
Residence from the appropriate Authorities appears to be aggrieved by
stipulation in the Rules of admissions of the respondent purporting to
disqualify him for admission into the M.B.B.S. courses on ground of his
father's Domicile of the Punjab Province. The facts as asserted by the
petitioner and not controverted by the respondents appears to be that the
petitioner's father was serving in the Pakistan Air Force and had come over
from Punjab and settled in Karachi and married his mother, who was a resident
of Sindh in 1986. The petitioner was born in Karachi in 1989 and passed Mis
matriculation as a student from Fazia Degree College Faisal Karachi, inducted
by the Federal Board and took the Intermediate examination conducted by the
Karachi Board of Intermediate Education as student of Government Delhi College
Hussainabad Karachi.
2. However,
unfortunately upon his retirement from the Air Force, the petitioner's father
stated to have remarried abandoned his wife and children from first marriage
and moved back to Punjab. Nevertheless, his mother is still reluctant to seek
release from matrimonial ties. In the circumstances, the petitioner's prospects
of seeking education for the purpose of following a career of his choice in an
Institution of higher learning which being seriously imperiled by stipulation
that to qualify for admission not merely the candidate should possess the
Domicile and Permanent Residence Certificate of the District of Karachi but his
father should also be shown to be domiciled in Sindh. Learned counsel argued
that the aforesaid stipulation was not merely unreasonable but is also ultra
vires the Constitution and the law declared by the Superior Courts.
3. Mr. Khalid
Javed Khan learned counsel for the petitioner has placed reliance upon a
Division Bench Judgment in Syed Muhammad Afaque v. Federal Public Service
Commission 2001 CLC 2001. Under Rules 6(a)(iii) of the Federal Public Service
Commission Rules of Competitive Examination 1997 candidates were offered
appointments against quota of vacancies reserved for different Provinces/areas
on the basis of their respective father's Domicile Certificates. Accordingly
the petitioner who was born in and always lived in Sindh was being treated as a
candidate from Punjab on account of his father Domicile Certificate in view of
the relevant Rules. A Division Bench of this Court of which one of us
(Sahibuddin Ahmed, C.J) happened to be a member found the Rules to be ultra
vires Articles 15, 25 and 27 of the Constitution and allowed the petition
directing the Public Service Commission to allocate seats to candidates on the
basis of their own Permanent Residence in the areas in which they had lived and
acquired the substantial part of their education irrespective of the areas to
which their respective fathers belonged. We were informed that appeals against
the above judgments being Civil Appeals No. 1318 and 1327 of 2002 were
preferred before Honourable Supreme Court but were dismissed and the principle
laid down by this Court was upheld. Learned counsel contended that upon analogy
the stipulation in the admission policy of the respondent is also liable to be
struck down.
4. Indeed while it
may be possible for a Public Authority to confine the right of admission to an
educational institution located in a particular area to residents of such area
but the ancestry of a candidate seems to be ex-facie an irrelevant
consideration. Nevertheless, Mr. Afaque Saeed learned counsel for the
respondents argued that under the law the petitioner himself was neither
entitled to the grant of a Domicile nor a Permanent Residence Certificate.
5. With regard to
eligibility for grant of a permanent residence certificate, it may be mentioned
that such certificates are granted for the purpose of admission to an
Educational institution in Form "C" in terms of Rule 6 of the Sindh
Permanent Residence Rules 1971. To be able to appreciate the contention, it may
be pertinent to reproduce Rule 6, which reads as follows:--
A
"6. No person shall be eligible for grant of
certificate in Form C unless--
(i) he was born in
any area forming a part of Sindh, and further--
(a) in the case of
a person of legitimate birth, at the time of his birth, his father was
domiciled in Sindh, or if he was born after the death of his father, the later,
at the time of his death, was domiciled.
(b) the case of a
person of illegitimate birth, his mother, at the time of his birth, was
domiciled in Sindh; or
(ii) in the case of
a person who was not born in Sindh:
(a) his parents
are domiciled in Sindh and have resided in Sindh for a period of not less than
three years, except those employed by Central Government and
autonomous/semi-autonomous Corporations in whose case three years residence may
be waived; provided the official furnished adequate evidence to prove that due
to exigencies of service he was unable to fulfil that condition.
(b) if his parents
are not domiciled in Sindh, he is domiciled in Sindh, and further has either
resided in Sindh or has been educated in Sindh for a period of not less than 3
years; or
(iii) His father or
mother has been recruited to any specified service or post mentioned in clause
(b) of sub-rule (2) of Rule 2."
6. With great
respect, we find the contention patently untenable. Learned counsel indeed read
out Rule 6(i), which relates to a situation where the father of a candidate is
domiciled in Sindh (for whatever it means) but completely overlooked that Rule
6(ii)(b) also explicitly makes a candidate eligible for a Certificate if his
parents are not domiciled in Sindh but he himself is domiciled in Sindh and is
either resided or has been educated in Sindh for a period of not less than
three years. Whatever confusion might have been created by die use of the
expression "domicile" in these Rules it is at least evident that they
envisage separate domiciles for parents and children applying for admissions in
educational institutions and the Rule that the Domicile of a child must follow
that of his father has no application whatsoever for the purpose of these
Rules. A careful reading of the Rules clearly demonstrates that the basic
objective is to determine the permanent residence of a candidate in an area on
the basis of a factual inquiry.
7. As regards a
domicile certificate it was contended that the same is to be granted under
Section 17 of the Citizenship Act, 1951 and the petitioner had to be treated as
a minor and granted a certificate for the same area as his father. In this
context, we need to observe that the expression "domicile" with reference
to a particular area appears to be misnomer which has given rise to a great
deal of confusion. The distinction between "domicile" and
"permanent residence" needs to be clearly kept in view. The former
reflects a person's status as a citizen of a particular State or a country
whereas the latter may be a pure question of fact as to his residence in a
particular area. Way back in 1961, the Honourable Supreme Court observed in
Joan Marg Carter versus Albert William Carter (PLD 1961 SC 616), "we are
constrained to observe that the learned Judges of the Letters of Patent Bench
have fallen into error in thinking that a person cannot be domiciled in a
country unless his Domicile can be fixed at some particular place in that
country ......" Clarifying the position a Division Bench of this Court in
Mehr-un-Nisa Baloch versus Appellate Committee (PLD 1978 Karachi 214) held that
"insofar as the Citizenship Act is concerned Domicile Certificate is
granted when the concerned Authority is satisfied that the applicant has ordinarily
resided in Pakistan for a period of not less than one year immediately before
making of the application and has acquired domicile therein. Therefore, the
Domicile of which Section 17 speaks of is not of a particular area in Pakistan
but of Pakistan".
C
8. The distinction
was further highlighted by the Honourable Supreme Court in the subsequent case
of Muhammad Yar Khan versus Deputy Commissioner-cum-Political Agent Loralai
(1980 SCMR 456). Their lordships observed, "in this view of the matter it
would be obvious that the domicile certificate granted to the petitioner by the
District Magistrate, Loralai, would only show that he was domicile of Pakistan
and not the domicile of Balochistan or for that matter of the District of Loralai."
Highlighting the distinction between the concepts of domicile and certificate
of permanent residence and applying them to the facts of the case, their
lordships held that the petitioner being a citizen of Pakistan by birth having
his ancestral home in District Dera Ghazi Khan, there was no legal bar even to
his applying to the District Magistrate Loralai for grant of a domicile
certificate. Nevertheless, as to the certificate of permanent residence the
position was altogether different and when he claimed admission in an
institution of higher learning against seats reserved for residents of
Balochistan or its districts he was required to prove such residence as a
matter of fact to the satisfaction of the concerned authorities. The above
precedents were followed by a Division Bench of this Court in Ziaullah versus
District Magistrate Nawabshah (2000 CLC 406) of which one of us (Sabihuddin
Ahmed C.J) was a member, and it was explained that domicile related to the
status of person and was question of law, permanent residence was one of fact.
It was held that the District Magistrate could not refuse to grant domicile
certificate to the petitioner's children merely on the ground that he had taken
up residence in another District. At the same time it was clarified that a
permanent residence certificate could not be claimed merely on the strength of
such domicile certificate. We are therefore, of the view that permanent
residence of a candidate could be the only relevant consideration for his
eligibility for admission in an institution of higher learning aided by public
revenues.
9. The prospectus
for admission to State owned medical colleges in Karachi required that 426
seats on open merit be reserved for candidates with Karachi domicile who had
studied at Karachi. The eligibility criteria requires that apart from matric or
intermediate examination Certificates from Karachi, a candidate's domicile
certificate of District Karachi, his P.R.C. of the same District and his
father's domicile of Sindh Province is to be filed. It obviously implies that a
candidate must possess his own independent "domicile certificate"
separate from that of his father who could have such a certificate from any
other place. Indeed if the father has obtained a Certificate from any other District
in the Province of Sindh, the candidate would fulfil the criteria on account of
his own certificate from Karachi. However, there may be occasions where the
father possesses a domicile certificate from another Province where the
candidate himself has never resided or has no intentions of residing. A
legitimate question could arise whether such a candidate would be eternally
barred from seeking admission in any Institution of professional and higher
education anywhere on account of application of similar Rules? Article 15 of
the Constitution guarantees to every Citizen the right to reside and settle in
any part of Pakistan. Article 22(3)(b) guarantees that no citizen will be
denied admission to an educational institution receiving aid from public revenues
on grounds of race, caste or place of birth etc. Article 37(c) requires State
to make technical and professional education equally accessible to all on the
basis of merit. However, as observed by the Honourable Supreme Court in
Muhammad Yar Khan's case (1980 SCMR 456), it is possible for a Provincial
Government to reserve seats for permanent residents of that Province in
institutions of higher learning. The above principle was further highlighted in
Atiya Bibi Khan versus Federation of Pakistan (2001 SCMR 1161) and Gul Rukh
Sarfaraz versus Government of
N.-W.F.P. (2001 SCMR 1729), wherein reservation of seats for candidates for
less developed areas in medical colleges was upheld, but it was observed that
the benefit should only go to those who had lived and studied in those areas
and not to those who had merely acquired domicile certificates in respect of
such areas.
10. For the
foregoing reasons, we have arrived at the following conclusions:--
(i) That the
domicile and permanent residence Certificate are two entire distinct concepts.
(ii) That the
Citizenship Act 1951 only speaks of the concept of Pakistan domicile and has
nothing to do with any particular Province, District or area. The District
Magistrate is only a functionary authorized to issue a certificate of domicile
to a person who has resided in Pakistan for a certain period and chosen to make
Pakistan his permanent home.
E
(iii) Rule 23 of the
Pakistan Citizenship Rules only contemplates cancellation of Domicile
Certificate if it has been obtained through misrepresentation and a person is
entitled to retain his certificate of domicile issued by one District
Magistrate even if he chooses to permanently settle down in another District.
F
(iv) A Provincial
Government may have the right to reserve seats in educational institutions for
bona fide residents of that Province but denial of such right to a resident on
a mere ground that he has failed to get his original domicile certificate
cancelled would be violative of his fundamental rights guaranteed under Article
15 of the Constitution.
F
(v) That in any
event the question of permanent residence in a Province or a District is to be
determined on the basis of a factual inquiry under the Sindh Permanent
Residence Rules 1971 and the factum of such permanent residence of student
could be only relevant consideration for a candidate's admission into an
institution of higher learning imposed through law made under the authority of
a Provincial legislature and a certificate of domicile issued under the
Citizenship Act either to a candidate or his parents is altogether irrelevant.
H
We, allowed this petition by our short order dated
4-9-2007.
(R.A.) Petition accepted