' The controversy raised in the petition confines to .Nomination for seat in M.B.,B.S. Course against the reserved seats for District Kotli, in Medical Colleges in Pakistan. Miss Attiya-tul-Qaddus, petitioner and Miss Sajida, respondent No,3, both applied against the quota (female) reserved seats for District Kotli, in M.B.,B.S. Course, to the Nomination Board, respondent No,2. The Nomination Board, respondent No,2, in its decision selected Miss Sajida, respondent No,3, in consideration of her merit. She had secured 861 marks and was placed at Serial No,1, in merit list. Miss Attiya-tul-Qaddus secured 748 marks and was placed at No,4 of the merit list. The reserved seats in the quota of female candidates for District Kotli, were 3. Thus, by virtue of merits, petitioner was excluded from the nomination against one of the reserved seats. She challenged the nomination of respondent No,3, by invoking writ jurisdiction of this Court. The petition was moved on December 16, 1993. It was averred that the petitioner was a First Class State-Subject and domicile of Kotli City. She secured 748 marks in Pre-Medical F.Sc. Examination held in 1993. She applied for admission in M.B.,B.S. Course, against the reserved seats for District Kotli, in professional Medical Colleges of Pakistan. On account of nomination of respondent No,3, she was deprived of her right to avail admission in M.B.,B.S. Course, against the reserved seats for female students of Kotli District. She challenged the propriety and validity of nomination of respondent No,3 by respondent No,2 and also assailed the domicile certificate issued by District Magistrate, Kotli, respondent No,5, on the recommendation of Revenue Assistant, Magistrate 1st Class, respondent No,4, on June 16, 1993. She advanced the following grounds to seek the relief in exercise of writ jurisdiction:--
(i) That respondent No,3 was permanent resident of Town Digri, Taluka Disgri, District Mirpur Khas, Sindh, Pakistan. She was born there, and received education in the institutions of Mirpur Khas, Sindh Province. She also secured domicile certificate from District Magistrate, Mirpur Khas, on December 31, 1992. She applied for her admission as a domicile of Sindh Province, in Liaqat Medical College, Jamshoro, Sindh, but failed to avail her admission on account of having less marks than the other students;
(ii) that the domicile certificate issued by the District Magistrate, Kotli, was illegal and in flagrant violation of law. Since respondent No,3 was born in Sindh, permanently resided there, received education and sought admission, as permanent resident of Sindh, in Liaqat Medical College, Jamshoro, Sindh, she was ineligible to secure domicile certificate from Kotli; and
(iii) that respondent No,3 secured nomination for admission in Medical College, by fictitious and fraudulent means. Thus, the decision of her nomination by respondent No,2, was unlawful, void ab initio and mala fide.
' Respondents Nos. 1 and 2, in their written statement, admitted the correctness of paras.
1. To 7. The contents of paras.8, 8(g), 8(h), 8(j) and 8(1) were repudiated. The contents of paras.8(a) to (f), (i) and (k) were admitted. Respondent No,3, in her written statement admitted the correctness of paras.2 to 7 and repudiated paras.1, 8(a) to (I). It was averred, as preliminary objection, that in presence of alternate remedy, the petition was not maintainable. It was also averred that the domicile certificate in dispute was issued by a competent authority. Moreover, the petitioner having secured admission, deserves its retention under law.
2. Ch. Muhammad Taj, the learned counsel for the petitioner, emphasised that the District Magistrate, Kotli misdirected himself in issuing domicile certificate. False facts were placed before the District Magistrate as respondent No,3 was not a domicile of Kotli District. He referred to documents appended with the petition, showing therein that respondent No,3 was born in Town Digri. She is living there permanently and secured her domicile certificate from District Magistrate, Mirpur Khas, Sindh, in order to seek admission in Liaqat Medical College, Jamshoro. It was argued that respondent No,3 could not avail two domiciles as she has shown by her conduct. Reference was made to Miss Rakhshanda Aslam's case PLD 1986 SC (AJ&K)
1. Mr. Muhammad Younus Surakhvi, the learned counsel for respondent No,3, controverted the aforesaid points ' and supported the impugned domicile certificate issued by the District Magistrate, Kotli. The learned counsel also urged dismissal of the petition in presence of alternate remedy in the shape of appeal to the Government against the order of issuance of domicile certificate. Reference was made to PLD 1985 Karachi 316, 1988 CLC 1565 and 2259 and PLD 1986 (AJ&K)
112. The objection relating to alternate remedy was controverted by Ch. Muhammad Taj, the learned counsel for the petitioner, by reference to Muhammad Faisal Rabbani's case decided by this Court, on October 12, 1992.
3. It is undisputed that the nomination against the reserved seats in an allocated quota for each District, in case of male and female students, is made on the basis of merit. In the present case, nomination was also made in consideration of merit of the candidates, against the reserved seats in M.B.,B.S. Course. However, in order to avail nomination against the reserved seats, it was enjoined upon the candidate to provide a domicile certificate from a District where the student resided permanently and claimed its domicile. The controversy in the present case, has arisen on account of domicile status of respondent No, 3.
4. The proposition of domicile is resolved in the light of provisions of Rule 7 read with Section 5 of Azad Jammu and Kashmir State-Subjects Rules, 1980. It is well-settled proposition that domicile certificate shall be issued by the District Magistrate on the satisfaction that the incumbent person permanently resided within the territorial limits of the District. For, a domicile conveys the significance of place of one's permanent residence and not an ordinary or temporary place of business. This view finds support from Miss Rakhshanda Aslam's case PLD 1986 SC (AJ&K) 1.
5. It is evident from the record appended with the petition that the petitioner is domicile of District Kotli. This position is supported by respondents Nos. 1 and 2, in their written statement. Respondent No, 3 has denied the statement of facts averred in the petition but has produced no evidence in support of the denial. Therefore, it is established that the petitioner is domicile of District Kotli, as such she is eligible to seek her nomination for admission in M.B.,B.S. Course, against one of the reserved seats for female students of District Kotli.
6. The certified copy of School Leaving Certificate of respondent No, 3, appended with the petition, reflects that she was born on April 5, 1975 and she was admitted in Government Girls Primary School Digri, on April 27, 1980. This was her first admission. The certificate issued by the Government Girls High School, Bhansingabad, Mirpur Khas, Sindh, contains the entry relating to place of birth of respondent No, 3, as Digri. She remained in the school w.e.f. September 1, 1987 to April 30, 1990. The domicile certificate issued in favour of respondent No,3, on her application, on December 31-12- 1992 by District Magistrate, Mirpurkhas, further indicates that she was born in Digri Town, District Mirpurkhas. In column relating to date of arrival in the place of domicile, it was mentioned that she was domicile since birth. In another column relating to 'address in Tehsil country outside Pakistan', the word "Nil" was entered. That reflects that she was domicile of District Mirpurkhas since birth.
Moreover, she had not migrated from any other country outside Pakistan.
7. The Prospectus and Application form prescribed for admission in Medical Colleges of Sindh Province, were also placed on the file of this Court. According to the Prospectus, the seats in M.B.,B.S. Course in different Medical Colleges of Sindh Province, could be allocated according to quota fixed by the Government. For District Mirpurkhas, 47 seats were reserved in six Colleges. According to rule of admission, it was provided that only those candidates shall be eligible to apply for admission in I-Year M.B.,B.S./B.D.S. In the Medical College in Sindh, who were permanent residents and domicile in any District of Sindh. These seats were open for competition within each District. In order to avail a seat, it was enjoined that the candidate/student must provide a permanent residence certificate of the candidate and domicile certificate of father. A candidate was required to use only one domicile and permanent residence certificate. Violation of this rule was disqualification. Liaqat Medical College Jamshoro provided seats for candidates domiciled in the Districts of Hyderabad, Thatta, Badin, Mirpurkhas, Thar Nawab Shah, Naushahro Feroze and Sanghar.
8. In order to avail admission in Liaqat Medical College, Jamshoro, it was essential to provide a domicile and permanent residence certificate. In compliance with the aforesaid conditions, respondent No, 3 secured permanent residence certificate from District Magistrate, Mirpurkhas, on January 17, 1993 and domicile certificate described above. The domicile certificate of father of respondent No, 3 issued on December 31, 1981, was also available on record. According to the entries of that certificate, Fazal Shah, father of respondent No, 3, was domicile of Taluka Digri since 1936. In that certificate, name and age of the children of Fazal Shah were also entered. Miss Sajida, respondent No, 3, was entered at Serial No,
7. Likewise, in Form-B, relating to Identity Cards, applied by Fazal Shah, father of respondent No, 3, contains the name of respondent No, 3 at S. No, 4.
9. Respondent No, 3, in para. 8(c) of the written statement, has expressly admitted the correctness of issuance of domicile certificate in her favour by District Magistrate, Mirpurkhas, Sindh in the year 1992. However, it was pleaded that the same was surrendered subsequently.
10. The aforesaid facts lead to the conclusion that respondent No, 3 initially claimed as domicile of Town Digri, District Mirpurkhas, Sindh. She secured a certificate to that effect, in addition to certificate of permanent residence, in order to avail admission in Liaqat Medical College, Jamshoro, Sindh. On her failure to get admission for lack of merit, on second round she explored avenue of another domicile and secured the certificate from District Kotli. This time, she was successful in securing her admission in M.B.,B.S. Course, in Fatima Jinnah Medical College, Lahore.
11. It is to be ascertained as to whether respondent No, 3 was permanent resident of village Anohi Sarhota, District Kotli or Town Digri, District Mirpurkhas, Sindh. On the first round, the respondent claimed her permanent residence inclusive of her place of birth, at Town Digri, District Mirpurkhas, Sindh. She was legally bound by her own admission and claim made before the District Magistrate, Mirpurkhas. Therefore, she was estopped from denying her previous stand on the basis of which she was issued domicile certificate by District Magistrate, Mirpurkhas in 1992 and permanent residence certificate in 1993. Mr. M.Y. Surakhvi, the learned counsel for respondent No, 3, was unable to satisfy as to why the earlier stand taken by respondent No, 3, may not be accepted as correct. It is least permissible to allow a party to retract from the previous claim, in its convenience and choice. The law does not permit such a course, particularly when a vested right of rival party is infringed by such retraction. It is particularly so when it is satisfied that the previous claim of the party rested on true facts and position of the case. Therefore, issuance of domicile certificate by District Magistrate, Mirpurkhas, at the request of and in the light of the facts stated by respondent No, 3, operates as an estoppel against her.
12. The District Magistrate Kotli, issued certificates in favour of respondent No, 3, on the basis of evidence produced before him. Copy of Jamabandi of Village Anohi Sarhota for the year 1990 was appended with the written statement. It was accompanied by photostat of Identity Card of Zahida Fazal, sister of respondent No, 3 and photostat of Identity Card of respondent No, 3, issued on March 25, 1993 and Form 'B', applied by Fazal Hussain Shah, father of respondent No, 3, which contains the name of the respondent. It is evident that all these documents, except Jamabandi, were secured in order to avail domicile certificate from District Magistrate, Kotli, issued on June 16, 1993. The name of Fazal Hussain Shah appears in the column of ownership in the Jamabandi. That reflects that he was owner of the land situate in Village Anohi Sarhota, but the document by itself was not a proof in support of claim of the respondent No, 3 that she resided permanently in that village. Survey No, 444 measuring 1 Kanal 15 Marlas, was entered as `Abadi Deh'. It was shown in possession of Chiragh Hussain Shah, Karam Hussain Shah, to the extent of one-half and Nazir Hussain Shah, Fazal Hussain Shah and Adalat Hussain Shah, rest one-half. It was unascertainable as to whether the house of father of respondent No, 3, in fact, existed there or not. The oral evidence of the witnesses who appeared before the District Magistrate, was supportive of the fact that Fazal Hussain Shah was resident of village Anohi Sarhota. But this evidence does not rebut the claim of the respondent made by her before the District Magistrate Mirpurkhas, in 1992 and 1993, in order to secure the domicile certificate and permanent residence certificate.
13. It is an accepted rule that at one time, a person may have only one domicile. Therefore, the law applicable to the proposition under consideration, supports the case of the petitioner, in order to hold that respondent No, 3, has secured domicile certificate from the District Magistrate, Kotli, on the basis of misstatement, suppression of material facts and incorrect position. Since she is not found domicile of District Kotli, she was not eligible to avail her admission in the Medical College of Pakistan, against the reserved seats for District Kotli.
14. Mr. M.Y. Surakhvi, the learned counsel for respondent No, 3, argued that the petition was not maintainable in presence of alternate remedy in the shape of appeal against the order of District Magistrate, Kotli, to the Government. It is correct that under Rule 7, the order relating to issuance of domicile certificate by District Magistrate, was subject to appeal within 30 days, before the Government. In this case, no appeal was preferred by the petitioner and instead, she moved an application before the Revenue Assistant, Magistrate Ist Class, Kotli, on December 13, 1993 and 3 days thereafter, invoked the jurisdiction of this Court through writ petition. The Nomination Board communicated its decision to Secretary, Health, on November 7 and November 11, 1993. The decision was communicated to the Health, Secretary in order to communicate the same to the concerned Institutions in Pakistan. The communication was made on November 16, 1993, by the Ministry of Health Division, Islamabad. It is undenied that the petitioner was not apprised of the aforesaid position. She received information from external sources, in consequence of which she immediately moved the Revenue Assistant and subsequently invoked the jurisdiction of this Court.
It is admitted by the learned Counsel for the respondent that respondent secured admission promptly. She was pursuing her studies in Fatima Jinnah Medical College, Lahore. That suggests that the petitioner genuinely believed that an appeal before the Government was not likely to provide her an immediate and efficacious remedy.
15. It is correct that ordinarily, in presence of alternate remedy, it is always desired that before invoking writ jurisdiction of this Court, such remedy may be availed by the party. There are cases in which, in the light of circumstances of such cases, remedy by writ was denied by the Courts of law.
But this is not an absolute rule. The primary object and function of the Courts of law is to redress the grievance of an aggrieved person expeditiously. Therefore, in urgent, abnormal and expedient matters, it is always deemed permissible to grant relief to the needy persons despite the fact that alternate remedy was not availed in due course of time.
16. In order to deny a person of relief in exercise of writ jurisdiction, it is always desired to ensure that the alternate remedy was, in fact, adequate and efficacious. Unless it was satisfied that alternate remedy was indeed adequate and efficacious, the door of the Court could not be slammed on a party. An identical view was held in Muhammad Faisal Rabbani's case, decided by this Court. On October 12, 1992 and its other reported cases. The relevant observation is reproduced:--- "The law provides that alternative remedy must be adequate and efficacious. Mere presence of alternative remedy is not sufficient to deny an aggrieved person the requisite relief, permissible through writ petition. The learned counsel for the respondents was unable to satisfy that the alternative remedy in the shape of an appeal before the Government was equally efficacious. In this view of the matter, despite presence of alternative remedy, unless it is found efficacious, the petition cannot be dismissed on this sole ground. In an identical situation, the relief in the shape of nomination against the reserved seats in Pakistan Professional Medical Colleges was granted by this Court in exercise of its writ jurisdiction, in Imran Rauf's case, decided on December 24, 1991. The objection is, therefore, repelled."
17. The appeal before the Government undeniably would not have been disposed of as expeditiously as the petition under consideration. The disposal of the appeal would have further caused embarrassm ent to the petitioner as the courses of current Session I-Year M.B.,B.S. Have already commenced. In this view of the matter, the objection is repelled.
18. It was proposed by the learned counsel for the respondent No, 3, that since the respondent has already secured admission and she is attending the classes, she may be allowed to retain her admission and the Government may be advised to provide an additional seat to the petitioner. It was also proposed that on account of brilliant academic career of the respondent, she may be accommodated against the seat already allotted to her, otherwise, she would be mentally disturbed and suffer embarrassm ent. It is true that a student who has availed admission, when denied the same by indulgence of an authority, Tribunal or Court, is always disturbed, but that by itself is no justification to allow perpetuation of an illegal action. Since respondent No, 3 secured the seat by misrepresentation, it could not be proposed that instead of the respondent, the petitioner may be placed at the disposal and mercy of the Government for providing an additional seat to her. The petitioner being a bona fide claimant of the seat in dispute, deserves allocation of the same. It is, therefore, declared that the seat allotted to respondent No, 3, is the entitlement of the petitioner and she is eligible to her nomination by respondent No, 2, against the said seat. However, the Government or Nomination Board is advised that it may use its good offices with the Government of Pakistan or Provincial Governments to avail an additional seat, to accommodate respondent No,
3. Therefore, the writ is accordingly issued to respondents Nos. 1 and 2, to give effect to the finding of this Court. The petition is disposed of accordingly.