' 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 his matriculation as a student from Fazia Degree College Faisal Karachi, conducted 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 Nos. 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:-- "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 Qr 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 the 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 dew, mine 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".
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 domicilee of Pakistan and not the domicilee 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 a. 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.
(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.
(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.
(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.
' We, allowed this petition by our short order dated 4-9-2007.