The petitioner, through instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the validity and legality of the order dated 10.01.2023, passed by Vice-Chancellor, University of Health Sciences, Punjab, Lahore/respondent No.2 and seeks issuance of direction to the said respondent to allow him admission in MBBS course on open merit seat.
2. Brief facts relevant for decision of the instant petition are that the petitioner, after passing his F.Sc. examination in the Pre-medical group by securing 1085/1100 marks, appeared in the Medical and Dental Colleges Admissions Test (MDCAT), obtained 180 marks out of total 200 and thereafter, applied on-line for admission in MBBS Class (1st year) in the Government Medical & Dental Institutions of Punjab for the Session 2022-23 against open merit seats. It is asserted in the petition that all the relevant documents including receipt of domicile certificate were submitted along with the application form. After scrutiny, the petitioner was found eligible for admission in the said course due to achieving aggregate percentage of 93.7727 as per PMDC formula thus in the provisional merit list issued on 15.12.2022, name of the petitioner was reflected at Serial No.550.
However, on 17.12.2022 at 02:04 P.M., an e-mail was received to the petitioner requiring him to provide his domicile certificate and on the same day, the final merit list of the candidates was issued but name of the petitioner was missing in it. The petitioner filed Writ Petition No.83218 of 2022, which was disposed of vide order dated 28.12.2022 and matter was referred to respondent No.1 to treat it petitioner's representation and decide the same through a speaking and well-reasoned order after hearing the petitioner and other concerned persons in accordance with law but the same was dismissed vide impugned order dated 10.01.2023, validity and authenticity of which has been called-in-question through the instant constitution petition.
3. Learned counsel for the petitioner submits that the petitioner had submitted complete and correct application form accompanied by all the necessary documents included the receipt of domicile certificate that is why his name was shown at serial No.550 of the provisional merit list; that in case no receipt of domicile certificate was attached along with the application form of the petitioner, his name could not have been reflected in the provisional merit list; that non-submission of domicile certificate with the application form is not an illegality rather a deficiency which has been made up by the petitioner by submitting the said document as soon as the same become available; that if, for the sake of arguments, it is admitted that petitioner's name was included in the provisional merit list so that he may rectify the lacuna of non-submission of the domicile certificate before the publication of the final merit list, there should have been at least some note or a notice to the petitioner or some intimation in any form so that the petitioner would have filed the copy of the domicile certificate within the time before displaying the final merit list; that the circumstances prove that the petitioner has submitted complete documents alongwith the application form but due to some mala fide reason his name was not included in the final merit list by mischief in order to accommodate some other candidate.
4. Conversely, learned counsel representing the respondent-University, while defending the impugned order, maintained that the admission form submitted by the petitioner was incomplete and as per prospectus for admission in the Medical & Dental Colleges of Punjab, incomplete admission forms are liable to be rejected; that the petitioner was informed regarding the deficiency but he submitted the requisite domicile certificate after issuance of final merit list.
5. In order to properly appreciate the controversy involved in the instant petition, report and parawise comments were requisitioned from the respondents-University, which were submitted.
6. I have given my anxious consideration to the submissions made by learned counsel for the parties in support of their respective pleas and have also gone through the record of the case and law applicable to the facts of the present case.
7. Since the candidature of the petitioner was rejected by the respondents-University due to non- fulfillment of mandatory requirement of submitting the domicile certificate with the online application form, therefore, it would be appropriate to first consider the statutory provisions for obtaining a certificate of domicile. The issuance of Domicile certificate is governed by the provisions of Section 17 of the Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952. For a ready reference the two provisions are being reproduced herein below:- "17. Certificate of domicile. The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily Resided in-Pakistan for a period of not less than one year immediately before the making of the application and has acquired a domicile therein."
"23. Certificate of domicile. The Federal Government, the Provincial Government or any District Magistrate authorized by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form 'P-I' in the manner following:- a) An application for a certificate of domicile shall be made in Form 'P' in duplicate, shall be accompanied by an affidavit affirming the truth of the statement made in it and affirming further that the applicant had not migrated to India after the first day of March 1947 or that, having so migrated, and returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan. b) Any authority to whom an application is presented may demand such evidence as it may considered necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan. c) The authority shall pass such order on the application as it deems fit."
8. The afore-quoted provisions of statutes do not prescribe the definition of the term Domicile' hence it would be advantageous to provide its definition. The Black's Law Dictionary (Seventh Edition), defines the word Domicile' as a person's true, fixed, principal and permanent home, to which that person intends to return and remain even though currently residing elsewhere. Plain reading of the definition gives the meaning of a domicile as proof of a permanent residence of a person. The concept of a permanent residence as defined in the terms of a domicile is of two types, one by birth and the other by choice. A person, who desires to select his permanent residence by choice means that he intends to relinquish his original place of abode and to choose another place for the purpose of his permanent residence. Once the facts of relinquishment and acquisition are established, a domicile undergoes a change and the person acquires a new domicile and has a permanent home, at least in the notional sense at the new place. The domicile has to be considered a synonym for home. Thus, the domicile certificate is, prima facie, a proof of the place of permanent residence of a person, who intends to permanently reside at a particular place. The Oxford Dictionary has defined the word "permanent" as "lasting" or "expected to last for a long time or forever", whereas the word "temporary" has been defined as "lasting or meant to last for a limited time only". Similarly, the word "residence" has been defined as a house, the state of living in a particular place. Thus, the permanent residence means the state of living at a particular place for all the time or at least for a longtime, whereas a temporary residence means living for a short time.
9. There are two stages of a domicile certificate, one is, that when the person intended to permanently reside at a particular place, as such, applies for a domicile certificate. Secondly, after obtaining a domicile certificate, the holder of a certificate continues to permanently reside at a particular place. Thus, in the first circumstance, when a person applies for a domicile certificate, the authority has to consider as to whether the applicant relinquished his earlier permanent place of residence before selecting his new place of domicile. As far as the second circumstance is concerned, the authority on its own or on the objection of any person concerned can conduct an inquiry with regard to a permanent residence of a holder of a certificate for a particular place.
10. Now, reverting to the merits of the case. This is an era of competition in every sphere of life. In the field of education, there is a competition amongst the students to achieve the goals/targets and remain on the top of merit list. In the medical field also, students not only in Pakistan but in every country, try their level best to get admission in MBBS though it is really a hard nut to crack yet to be and for this purpose, they burn midnight oil. It is a dream of every student to reach at the climax of his relevant field. Likewise, parents of students desire that their child achieve the highest goal and become symbol of pride for them. In the instant case, educational certificates of the petitioner annexed with this petition show him indeed the brilliant student as he secured excellent marks in every examination but unfortunately, on reaching close to his target, he could not succeed to get admitted in MBBS course due to non-submission of domicile certificate with his application form.
11. In the report and parawise comments submitted by the respondents-University, clause qua submission of mandatory documents with the application form has been incorporated, which reads as under:- "(C) Mandatory Documents to be submitted: The aspiring candidates should know that with online applications, they shall have to submit the following MANDATORY documents without which their application will be considered incomplete and will be rejected....
Mandatory Documents for All Categories of Seats c. Domicile certificate of the candidate.
Domicile of Punjab is a mandatory requirement for admission on aforementioned categories of seats.....".
12. Perusal of afore-quoted provision depicts that submission of domicile with the application form is mandatory-cum-directory in nature. Moreover, in reply to Para-4 of the instant writ petition, the respondents in their report and parawise comments have mentioned that "the University also requested through email and through telephonic call to provide the domicile certificate, but even then, the petitioner failed to do the needful until the UHS displayed its 'Final Merit list of candidates' on December 17, 2022; the petitioner's failure to provide the said requisite document within the stipulated time frame which leads to rejection of his application in accordance with the provisions of Prospectus Session 2022-23." meaning thereby that they had given specific time to the petitioner to submit the domicile certificate. However, this version of the respondents-University is not acceptable as text of the e-mail, copy whereof has been attached with the petition, reads as under:- "You are requested to provide the following documents on this e-mail urgently:
1. Domicile Certificate."
13. Thus, without giving stipulated timeframe, the petitioner was directed to submit the domicile certificate urgently therefore stance of the respondents is negated by their own e-mail admittedly sent to the petitioner.
14. Another aspect of the matter is that the respondents sent the abovementioned e-mail to the petitioner on 17.12.2022 at 02:04 p.m. and on the same day, issued the final merit list simultaneously, which indicates that sending e-mail to the petitioner was just a formality as thereafter he was not granted reasonable time to make up the deficiency. Once the respondents afforded an opportunity to the petitioner to fill up the lacuna, he should have been granted reasonable time in this regard.
15. Non-inclusion of the name of the petitioner in the final list was a sort of major penalty and it amounted to the petitioner without being heard thus amounted to violation of the principles of natural justice and it violated the fundamental rights of the petitioner. Even if the petitioner had failed to submit copy of the Domicile Certificate before the respondents and thereby had violated the rules of admission, the said rules being executive and administrative in nature should not be interpreted in the manner in which the interpretation thereof should militate against the principles of natural justice, equity and common sense. Reliance is placed on the case of Khalid Shaikh vs. Member and Chairman of Academic Council Selection Board and others (PLD 1987 Karachi 255).
16. The submission of a domicile certificate alongwith the application form is for the purpose of supporting evidence of the status and eligibility of the candidate, and therefore, it does not relate to the inherent qualification of the candidate to be admitted to the course applied for. In appropriate cases, therefore, even if the documents are not submitted within the prescribed period, the time could be relaxed. Reliance is placed on the case of Aasia Ishaque Siddiqui vs. The Selection Board for Admission in the Medical Colleges of Sindh and others (1986 MLD 2079). The documents submitted with the application form are merely the supporting evidence of the status and the eligibility of the candidate and do not relate to the inherent qualification of the candidate concerned. The object of prescribed period of time for filing of documents is to clear the question of final selection when the candidate appears before the Selection Board. There seems to be no reason to interpret that time prescribed in the rule should be so religiously and rigidly observed as to subject the substantive right of a candidate to the production of documents within this limited time schedule. In appropriate cases the Selection Board may relax this limit and allow further time to the candidate to file these documents. In this case the petitioner was clearly deprived of a chance to submit the domicile certificate. If he had failed to attach the same with the application originally, the Chairman Admission Board in all fairness should have intimated the petitioner before discarding his name from the final merit list of the selected candidates that he had failed to submit the domicile certificate. Had the petitioner failed to submit a copy of the Domicile certificate alongwith his application form, his application was liable to rejection under the rules and there was no occasion for the Admission Board to include the name of the petitioner in the provisional list.
17. It is also important to note that as per admission schedule, after displaying the final merit list on 17.12.2022, some other selection/upgradation lists were to be displayed till 31.12.2022 and since petitioner had made up the deficiency by submitting the domicile certificate on 19.12.2022, he should have been adjusted against any seat if had become available in the said lists.
18. For the foregoing reasons, I find that the petitioner is entitled to the declaration to the effect that his non-selection in the first year MBBS class for the session 2022-23 was illegal and unauthorized.
The petition, therefore, succeeds and is accordingly allowed. The name of the petitioner be deemed to be among the candidates selected for admission to MBBS Class for the session 2022-
23. However, as a matter of fact, while rejecting the name of the petitioner from the final merit list, some other student has been included in the same, who definitely would have joined the session coupled with the fact that classes have now been started thus I feel it appropriate to direct the respondents that without disturbing any candidate, the petitioner shall provisionally be allowed to join the classes and his candidature shall be regularized in the eventuality of vacation of seat by any candidate in future. The respondents are further directed to initiate process simultaneously for creation of one extra seat in addition to already existing seats only for the petitioner, which shall be ended automatically in the aforementioned eventuality of vacation of seat by either of the students.