' FAKHRUDDIN H. SHAIKH, J.-This is a constitution petition whereby the petitioner has challenged the order of the Commissioner, Hyderabad dated 11th November, 1981 and the order of the Appellate Committee (established under the Sind Permanent Residence Certificate Rules, 1971) dated 13th May, 1982, whereby Permanent Resident Certificate (P. R. C.) issued by the Deputy Commissioner, Sanghar in favour of the petitioner was cancelled. The facts leading to this petition are as under :
2. The petitioner is daughter of Nawab Hussain and claims to be a permanent resident of Khipro, District Sanghar where she was born on 26-8-1963. She received her primary education in Khipro and thereafter she went. To Karachi for better education and got admission in Government Girls Secondary School in 1971. She passed her Matriculation examination in 1976 at Karachi. Her father Nawab Hussain had joined service on 4th February, 1948 as a Clerk in Nara Prison, Hyderabad and had been serving the Government of Sind in various capacities. At the time of filing this petition (on 15-5-1982) he was serving as D. S. P. Special Branch, Karachi.
3. It is further claimed by the petitioner that her father had settled in Khipro Town of Sanghar District after coming to Pakistan and that he had also purchased a house in Khipro from Choudhry Muhammad Siddique by a sale agreement dated 11th February, 1967.
4. After passing Intermediate Science Examination in the year 1978-79, the petitioner sought admission in Medical College and for this purpose she applied for P. R. C. To Deputy Commissioner, Sanghar, who after conducting necessary inquiry and perusing the documents produced by the petitioner, granted P. R. C. On 10th July, 1979, in which her place of permanent residence was shown as Khipro Town. Her father Nawab Hussain had also obtained domicile certificate from the same District on 27th March, 1980. On the basis of the P. R. C. The petitioner was admitted in Nawabshah Medical College and at present she is stated to be student of IIIrd year of M. B., B. S.
5. Respondent No, 3 who was also an applicant for a seat in M. B., B. S. Filed appeal before the Commissioner under rule 8(1) of the Sind Permanent Residence Certificate Rules, 1971 (hereinafter referred to as the P. R. C. Rules). Although this was a belated appeal yet the Divisional Commissioner admitted the appeal and after perusing several documents which were produced by the parties before him, came to the conclusion that the petitioner was not entitled to be issued a P. R. C. For Sanghar District. He, therefore, allowed the appeal of respondent No, 3 by his order dated 11-6-1981 referred to above and cancelled the P. R. C. Issued in favour of the petitioner. The learned Commissioner had closely scrutinised the documents produced by the petitioner in support of her claim for P. R. C. Of Khipro Town. About some of these documents the learned Commissioner made following observations :- "I also consider it necessary to place on record my very strong suspicion that a number of forgeries have been committed and false registers etc. Prepared, perhaps at the behest of respondent's father who seems to have misused his official position as a police officer. I propose to refer this matter separately to concerned authorities for action according to law."
' The word 'respondent' in the above quotation has been used for the petitioner who was respondent before the Commissioner.
6. This order was challenged by the petitioner in find Appeal before the Appellate Committee under rule 8(3) of the P. R. C. Rules. This Committee also thoroughly examined all the documents which were produced by the parties. There were as many as nine documents produced on behalf of the petitioner and 10 documents produced by respondent No, 3 who was the only contesting respondent before the Appellate Committee. After thoroughly examining these documents the Appellate Committee fully concurred with the view of the Divisional Commissioner and dismissed the appeal.
7. The present petition has been filed to challenge the above two orders passed by the Divisional Commissioner and the Appellate Committee in appeal. Mr. Usman Ghani Rashid learned counsel for the petitioner has raised the following contentions in support of the petition-
(i) that only the Deputy Commissioner was competent to decide the question of permanent residence on the basis of evidence produced before him and that the Commissioner and the Appellate Committee were not competent to rely on any additional evidence produced before them which was not produced before the Deputy Commissioner ;
(ii) that the P. R. C. Rules have no legal value because the same have not been issued under any statutory powers conferred on the Governor ;
(iii) that the petitioner was not hit by the mischief of any of the disqualification laid down in rule 6 of the P. R. C. Rules ;
(iv) that the Commissioner was not competent to entertain a time-barred appeal which was filed after more than 30 days of the issuance of the P. R. C., while the time prescribed by rule 8 of the P. R.
C. Rules is thirty days ;
(v) that the question of permanant residence is connected with citizenship and that under the 1969 Constitution as well as under the present Constitution the subject of "citizenship" falls within the legislative competence of the Centre and as such the Provincial Government or the Governor of the Province was not competent to frame rules in respect of permanent residence ; and
(vi) that there was overwhelming evidence before the authorities concerned in support of the claim of the petitioner for P. R. C.
8. So far as the contention of the vires of the P. R. C. Rules is concerned, Mr. Usman Ghani Rashid learned counsel for the petitioner has referred to the preamble of the rules from which it transpires that the Governor has promulgated the rules "in pursuance of the Martial Law Proclamation of 15th March, 1969 read with Provisional Constitution Order and in exercise of all powers enabling him in that behalf". It is contended that neither the proclamation of 1969 nor the Provisional Constitution Order (P. C.
0.) of 1969 empower the Governor to make rules. Rules can be made only under the powers conferred by a parent statute and as there is no parent statute under which rule-making power is vested in the Governor, therefore, the P. R. C. Rules should be deemed to be without lawful authority and ultra Ores of the Proclamation of 1969 and P. C.
0. Of 1969.
9. It has on the other hand been contended by the learned Additional Advocate-General Mr. Muhammad Ibrahim Memon that these rules have not been framed in exercise of any statutory powers but they are intended Government policy in respect of allocation of quota of seats to different Districts in respect of admissions in Medical Colleges. The Prospectus of the Medical Colleges has prescribed different quotas for students having permanent residence on various districts of the Province. Now in order to implement the provisions of the prospectus regarding allocation of quota the Government has to frame policy so as to determine the qualifications of the competing candidates from each District for the purpose of selecting those who are most eligible.
It is for this purpose that the rules have been framed. Strictly speaking the P. R. C. Rules are not statutory rules. They have been issued in exercise of executive authority vested in the Government in respect of framing policy. We are inclined to agree with the view convassed by the learned Additional Advocate-General and also supported by Mr. Shaikh Haider learned counsel for respondent No,
3. In support of this view reference has been made to the case of Saijad Raza and 3 others v. Commissioner, Quetta Division and others (1). In this case also the question of framing rules by the Government under its executive authority for the purpose of admission to educational institution was under consideration. Mr. Fakhruddin Ibrahim, J. Who delivered judgment of the Division Bench observed as under about the executive authority of the Government to issue rules in this behalf :- "21. With these observations I find myself in entire and in respectful agreement. If an institution is owned and controlled by the Government then obviously the executive authority of the Government is available for laying down any policy or framing rules. The Prospectus before us of course contains a lot of matter which can hardly be regarded either as laying down policy or framing rules, as for instance, it gives a list of the persons who have been employed as Professors in the College. The relevant part of the instructions, however, with which we are concerned in this case are clearly laid down in precise language of sufficient generality to amount to rules. For this reason I have come to the conclusion that the instructions in question were, in law binding."
We are in full agreement with the view taken in the above case. The P. R. C. Rules are nothing but administrative instructions for the guidance of the authorities concerned for the purpose of determining eligibility of candidates applying for seats in Medical Colleges from various Districts in conformity with the quota allocated by the Prospectus of the Colleges. We, therefore, hold that the P. R. C. Rules, which have been subject-matter of consideration in various decisions of the Supreme Court and High Court for the last 10 years are still holding the field and never before vires of the rules was challenged on the ground that the Governor was not competent to issue the same.
10. Mr. Usman Ghani Rashid has challenged the validity of the rules also on the ground that the question of permanent residence is connected with the citizen ship which was and is a subject of Federal Legislative List and, therefore, the Governor was not competent to frame rules in respect of permanent residence. The argument has no substance. The question of citizenship is quite independent of permanent residence. It is the subject of domicile which can be said to be ancillary to citizenship that is why the rules regarding issuance of Domicile Certificate are issued by the Central C Government under the Citizenship Act.-- The question of permanent residence has nothing to do with citizenship although the fact that a person is holding a Domicile Certificate may be one of the factors to be considered for determining the question of permanent residence. By no stretch of it can be argued that the subject of permanent residence is connected with or dependent upon citizenship and therefore it falls within the exclusive legislative competence of the Federal Government. We, therefore, do not agree with {{FOOT NOTE}}
(1) P LP 1973 Kar. 332 {{FOOT NOTE}} the learned counsel for the petitioner that the Governor was not competent to frame rules or issue notifications specifying the qualifications etc. In respect of Permanent Residence Certificate.
11. So far as other objections (other than that of limitation) to the impugned order are concerned they can be taken up together because they relate to points of facts decided by the Commissioner and the Appellate Committee. It has been alleged that none of the disqualifications laid down in Rule 6 of the P. R. C. Rules applied to the petitioner and that there was overwhelming evidence in support. In order to appreciate the above argument we have carefully gone through the orders of the Commissioner and the Appellate Committee. The order of the Commissioner runs into typed pages in which he has applied his mind to each and every document produced by the parties in respect of their claims and counter-claims an came to the definite conclusion that the petitioner was not proved to b permanent resident of Khipro Town. Similarly the order of the Appellate Committee also runs into 6 typed pages and it transpires from the order that all the documents referred to by the Commissioner were thorough re-examined and as a result thereof the Committee arrived at the same conclusion as arrived by the Commissioner. It has not been pointed out that the two authorities have misread the evidence or that their finding is not based on the evidence or that the finding is arbitrary or perverse so as to justify interference by this Court in constitutional jurisdiction. In this connection reliance has been placed on another decision of a Division Bench of this Court in the case of Miss Meharun Nisa Baloch v. The Appellate Committee and 2 others (1), in which it has been held that decision of Appellate Committee cancelling P. R. C.
Of a person, is not open t interference in constitutional jurisdiction of the High Court. We are in respectful agreement with the view taken by the Division Bench of this Court.
12. The only other point which remains to be considered is that th Commissioner was not competent to entertain a time-barred appeal filed by respondent No,
3. It may be stated that respondent No, 3 was not a party before the Deputy Commissioner who had issued P. R. C. To the petitioner. The P. R. C. Was not notified nor any objections were invited to the issuance of the P. R. C.
By any public notice. Under these circumstances the respondent could have filed appeal only within 30 days of the date when she came to know of the P. R. C. The question as to what date the time of 30 days should be counted for filing appeal under rule 8 of the P. R. C. Rules was considered by the D. B. Of this Court in the case of Taj Muhammad v. Commissioner, Hyderabad (2). In this case Zaffar Hussain Mirza, J. (as he then was) held that the Commissioner while construing E rule 8 according to the letter of law by computing the period of limitation from date of issue of the certificates and overlooking the fact of petitioner having had no notice of grant of certificate in question to respondents was wrong in holding that the time should be counted from the date of certificate. It was held that under such circumstances the time should be calculated from the date when the appellant came to know of the order regarding P. R. C. In support of this view the learned Judge had relied on the Supreme Court decision in the case of Allah Deno v. Faqir Muhammad (3). {{FOOT NOTE}}
(1) PLD 1978 Kar. 214 (2) 1979 CLC 237 (3) P L Llo 1969 S c582 {{FOOT NOTE}} ' He have no reason to differ from the view already taken by a Division Bench' of this Court on the point of limitation in the matter of appeals under rule 8.
' For the above reasons we are satisfied that under constitutional jurisdiclion no grounds for interference with the orders of the Commissioner and the Appellate Committee have been made out. The petition as such is liable to be dismissed and is hereby dismissed but with no orders as to cost.
' It may, however, be observed that since the petitioner is about to complete third year M. B., B. S., hence it would be proper to stay the operation of the impugned orders for two months so as to enable the petitioner to approach the Supreme Court for proper remedy, if so desired.
' AMIAL MIAN, have had the advantage of reading the Judgment proposed to be delivered by my learned brother Fakhruddin H. Shaikh, J. I concur with the reasoning given and the conclusion arrived at by him. However, I would like to add few lines in order to obviate the hardship, which is faced by many students, whose admissions from the Medical Colleges or Engineering Colleges are cancelled on account of the cancellation of the P. R. Cs. In the instant case the petitioner has been a student of the Medical College for nearly three years, her ouster from the College as a result of the cancellation of the P. R. C. Would not be beneficial to any one, as respondent No, 3 cannot be given admission directly in the 3rd year M. B., B. S. Class nor it will be in the interest of the State. It is a well, known fact that the State has to contribute considerable amount towards the education of each Medical student. The Petitioner's 3 years studies in the M. B., B. S. And the amount spent by the Government on her education will go in waste. It is, therefore, imperative that some modulity be worked out, which should take care that the disputes relating to P. R. Cs. Should be settled before a student gets an admission either in a Medical or an Engineering college.
2. In my view the following steps may be conducive to achieve the above desired object.
(i) A first year intermediate science student desiring to obtain admission after passing his intermediate examination, in a Medical or Engineering College, should be required to apply immediately after he/she secures admission in 1st year intermediate science class.
(ii) The authority concerned in each district should specify one or two months period throughout Sind for inviting applications for P. R. Cs.
(iii) That list of the applicants for P. R. Cs. Should be pasted on the notice boards of the Deputy Commissioner's offices immediately after the expiry of the above specified period and if possible it may also be published in a daily newspaper, which may have substantial circulation in the district concerned. A period may also be notified for submitting objections to the applications.
(iv) The names of the successful applicants may also be pasted on the Deputy Commissioners' notice boards so that any aggrieved person may file an appeal against granting of any P. R. C.
(v) A short period may be specified for deciding the appeal by the Commissioners and by the appellate committee.
(vi) That no application for cancellation of a P. R. C. Should be entertained once a student is granted admission in any medical or engineering college.
3. In my view about two years period will be sufficient to agitate the question, as to whether a student is entitled to obtain a P. R. C. From a particular district. The two years period, which a student has to spend on completion of intermediate science examination should be co-terminus with the above two year period for settlement of dispute about P. R. Cs.
' As regards the present case, I would also recommend to the authorities concerned that in case it is possible to accommodate the petitioner, she may not be deprived of her seat in the medical college. The copy of this Judgment may be forwarded by the Advocate-General, Sind to the authorities concerned for considering the above observations.