' This Constitutional petition was accepted by the following short order:-- "For the reasons to be recorded later, this petition is accepted with no order as to costs. The respondents are directed to grant admission to the petitioner in the First Year Engineering Class, if he otherwise competes the merit."
' The reasons for the short order are detailed below:--
2. The relevant facts are that the petitioner applied for admission in the University of Engineering and Technology, Lahore, on open merit basis as resident of Punjab Province. The petitioner passed his F.Sc. Pre-Engineering Examination from Karachi securing 856 out of 1100 marks. In addition thereto he was entitled to get 20 marks for N.C.C. In all, he had 876 marks to his credit for the purpose of calculating his merit for admission in the First Year Engineering Class. The petitioner was within the ambit of selection but his name was not included in the merit list, though the last student who was admitted in Mechanical Engineering had only 869 marks. Admission to the petitioner was refused by the Engineering University on the ground that he did not produce domicile certificate of his father to show that he was domicile of Punjab.
3. The Marriage of petitioner's mother with his father Ijaz Ahmad was dissolved in June, 1991.
Thereafter, his mother contracted second marriage with Mr. Asif Saeed Janjua in December, 1991.
The petitioner and his sister remained with their mother ever since after the Talaq. The petitioner continued to remain in the custody and protection of his real mother who bore the expenses of his education. The stepfather of the petitioner on learning that the admission had been refused to the petitioner on the ground that the domicile certificate of his real father had not been supplied with the admission form, applied to the convener of the Admission Committee that the petitioner was living with his mother and himself and the whereabouts of his real father were not known because he never contacted them. The domicile certificates of the petitioner, the petitioner's real mother and his step-father issued by the District Magistrate, Rawalpindi were supplied to the University.
Despite that, the respondent University declined to grant admission to the petitioner. Resultantly, this Court was moved under Article 199 of the Constitution to issue direction to the University to admit the petitioner on merit basis.
4. Learned counsel for the petitioner has argued that the petitioner has valuable right of obtaining admission in the University of Engineering and Technology, Lahore on the basis of open merit as domicile of Punjab and this right cannot be denied to him on flimsy ground that the domicile certificate of his real father had not been supplied. It is further argued that after the separation between the parents of the petitioner he has been brought up by his real mother and for the purpose of admission the domicile of her mother should be taken into consideration. It is also argued that discriminatory treatment has been meted out to the petitioner and his mother by violating Article 25 of the Constitution, in that, the domicile certificate of the father and not that of the mother has been insisted by the University.
5. Learned counsel for the University has submitted that where an applicant applies for admission on the basis of Punjab domicile but he has passed the Secondary and the Higher Secondary School Examination from outside Punjab then he is required to file copies of domicile certificate of the father from Punjab and documentary proof that father's name appears in the electoral rolls in Punjab.
' He has informed that since the domicile certificate of the real father of the petitioner and other required documents pertaining to his father had not been supplied, the University had no choice but to refuse admission, as per 'the Admission Policy contained in the Prospectus for the year 1996 of, the Engineering University. He has relied on the rules contained in paras.
42.1,43.2 and 43.3 (b) of the Prospectus. He has further relied on para. 46.10 of the Prospectus to contend that incomplete applications could not have been entertained and admission granted on basis thereof.
6. In order to appreciate the arguments of the learned counsel for the University it will be profitable if the relevant provisions of the rules contained in the Prospectus are examined. These are as follows:-- "42.1. Category A.--The applicant should be a bona fide resident of the Punjab Province.
Applications are to be submitted to the University according to procedure and requirements laid down in this prospectus. The selection and allocation of disciplines are made by the University according to merit.
43.1. Domicile Certificate to be submitted by all Applicants.--All applicants are required to submit with their applications an attested photocopy of their domicile certificate failing which their applications shall not be considered for admission.
43.2. Applicants required to submit Additional Documents.--Applicants for the categories requiring Punjab domicile will have to submit additional documents in support of their domicile certificate if they belong to cases mention at (a), (b) and (c) below:--
(a) Applicants for categories A, F. L. N, Q and R who have passed both the Secondary School Examination and the Higher Secondary School Examination from any Board of Intermediate and Secondary Education not included in the Punjab Province or Federal Capital Area, Islamabad.
(b)
(c)
43.3. Additional Documents required.-The applicants who are required to submit additional documents may fall into following three categories.
(a) Children of Government Servants.--
(b) Others.--Applicants other than those at (a) above have to submit the following additional documents in support of their domicile certificate:-
(i) An attested photocopy of father's domicile certificate of the Punjab Province or the Federal Capital Area Islamabad.
(ii) Documentary proof in the form of a certificate on Form F-VII from the election officer of concerned area of the Punjab Province Federal Capital Area, Islamabad to the effect that name of the applicant's father appears in the electoral rolls. '
(iii) An attested photocopy of the relevant page of the electoral rolls on which the name of the father of the applicant appears.
(iv) An undertaking from the candidate on Form F-VIII.
(c) Applicant whose father is not alive.-In case his father is not alive and the above documents cannot be produced, the applicant should submit:-
(i) Documentary proof of his father's death.
(ii) Documentary evidence of his father's immovable.Property in Punjab or Federal Capital Area, Islamabad.
46.10. Incomplete applications.--Applications which are incomplete in any respect shall not be entertained. Application for, fee and the documents submitted with it shall not be returned on any ground."
' Learned counsel for the University has explained that requirement of producing domicile certificate of the father, his identity card and proof with regard to his vote in the electoral rolls had been prescribed with a view to ascertain that the applicant applying for admission on the basis of domicile in Punjab is really a bona fide resident of Punjab. He has submitted that for determining the domicile of an applicant it is only the domicile of the father of the applicant which is relevant under the Rules contained in the Prospectus. According. To him, mother's domicile is not relevant for ,the child is to be known by the father whose duty it is to support his children.
7. I have given anxious consideration to the submissions made by the learned counsel for the parties. I am shocked to know that some of the conditions prescribed by the University for determining the domicile of an applicant are manifestly unjust and irrelevant.
8. Let we first take the case which is peculiar to the circumstances of the petitioner. Here the father and mother of the applicant have separated. There is ample proof in the shape of Talaqnama and re-marriage of the petitioner's mother with Mr.Asif Saeed Janjua in December, 1991. There is also sufficient proof in the shape of affidavits by the mother and step-father of the applicant that after the separation between the spouses the applicant is in the care and custody of his mother and step-father and is being brought up by them. The domicile, certificate of the applicant, the real mother and the step-father of the applicant from District Rawalpindi of Punjab Province were produced before the University Authorities. The University does not challenge the fact that the marriage between the father and mother of the applicant came to an end in 1991 and thereafter the petitioner is being brought up and maintained by his mother and is living with her. It is also not denied that the mother is the bona fide resident of Punjab Province. Her domicile certificate shows so. In addition thereto, the real father of the petitioner and mother hail from Punjab. In the Talaqnama dated 8-6-1991, copy of which has been placed on record, shows that the petitioner's father Ijaz Ahmad was resident of House No,9, Park View G.T. Road, Rawalpindi. Similarly, his mother Abida was resident of Abid Majeed Road, Lahore and both of them had married 18 years before the Talaq. The identity card number of Ijaz Ahmad is also given in the Talaqnama as 210-47-353102.
The Identity Card of the mother of the applicant showing her permanent address of Rawalpindi with the supporting affidavit was produced before the University Authorities.
9. This is admitted position that an applicant who is bona fide resident of Punjab Province is entitled to have admission on merit basis in category 'A', although he may have passed the requisite school/college examinations from a Board outside the Punjab Province. The petitioner has passed these examinations from the Karachi Board and has produced proof that he is otherwise domicile of Punjab Province.
10. The real question that falls for determination in the present case is, whether the residence/domicile of the applicant's mother will not be relevant in determining the domicile of the applicant even though he may be exclusively living with and being maintained by his mother on account of separation between the parents. Normally when the parents are living together the domicile of the child would be the same as that of his father. However, where on account of the separation between the spouses the child is living with the mother then his domicile will be that of his mother and it cannot be that of the father, for the simple reason that he is not residing with the father. Rule contained in 42.1 of the Prospectus prescribes "the applicant should be a bona fide resident of the Punjab Province." The domicile certificate is required to determine the bona fides of the residence of the applicant. The meaning of 'domicile' in law is "a permanent legal residence." In order to determine the bona fides of the domicile of the applicant, domicile of either of the parent will be relevant, with whom the applicant may be actually living. If the applicant is residing with the father then of course it is the domicile of the father, which will determine the domicile of the applicant. However, if the applicant is living with the mother on account of separation between the spouses or otherwise, then it is the domicile of the mother which will be relevant for determining the domicile of the applicant. It may be mentioned that mother has the legal as also the moral right of custody of her children and to being them up particularly when they are not in actual custody of the father. The requirement of production of copies of domicile certificate and National Identity Card of the father of the applicant as mentioned in rule 43.3 (b) ibid will govern those cases where the applicant is actually living with and under the care of the father. But where the applicant is not actually living with and under the care of real father, then the copies of the certificates of domicile and the National Identity Card of the father will not at all be relevant and instead copies of the domicile certificate of the mother will be relevant for determination of the residence of the applicant.
11. I find that in the instant case the admission has been refused to the petitioner by narrow construction of the word ' father' as occurring in various clauses of sub-para. 43.J (ibid). Clause (i) requires that attested photocopy of father's domicile certificate of the Punjab Province should be produced. Clause (ii) requires certificate with regard to the father's registration as a voter. Clarisse (iii) requires that copy of the electoral rolls bearing name of the father of the applicant should be produced. Clause (iv) requires copy of the Identity Card of the applicant's father. The word ' father' occurring in the above four clauses has been used as a term of art and not in the popular sense. It has been used in the meaning of a parent which includes the father as also the mother. If the applicant is living effectively in the custody of the father then the word ' father' would mean father as popularly understood but if the applicant is effectively living with the mother then the word ' father' would be deemed to mean mother'. Such construction of the word ' father' would be in consonance with the accepted principles of interpretation. Article 263 of the Constitution provides that "words importing the masculine gender shall be taken to include females." Similarly section 13 of the General Clauses Act provides that "words importing the masculine gender shall be taken include female." Likewise, section 12 of the Punjab General Clauses Act provides that in all Punjab Acts, unless there is anything repugnant in the subject or context "the words importing the masculine gender shall be taken to include the females." From the afore quoted provisions it is clear that whenever a word is used in any legal instrument including an Act, Rule/instructions to import masculine gender then it shall be taken to include female. The result, therefore, is that the word ' father' will also include its female, i,e, the mother. Therefore, in appropriate cases, such as the case in hand, the requirement of sub-para. (b) of para. 43.3 ibid will be fully complied with if the required documents pertaining to the mother instead of the father are supplied by the applicant in proof of his domicile. In the instant case the applicant had produced the photocopy of the Punjab Domicile certificate of the mother and copy of her Identity Card. Resultantly, the admission could not be refused merely on the ground that domicile certificate of father and his Identity Card had not been supplied.
12. The legal controversy can be looked from another angle also. The interpretation or the construction of the word ' father' as occurring in para. 43.3. Of the Prospectus referred to above if used in restricted sense by not including mother in it, would make it violate of Article 25 of the Constitution. This Article provides as follows:-- "(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent, the State from making any special provision for the protection of women and children."
In the context, of the controversy involved in this case, it may be stated that father and mother both are entitled for the care and well-being of their children. The mother is equally entitled to see that her child gets the best possible education, subject to merit. Similarly the child is also entitled to utilize the benefit of the status of either of his parents. There cannot be discrimination in the exercise of these rights on the basis of sex alone. Recognition of father's domicile status to the exclusion of that of the mother will be a case of clear discrimination based on sex, which is not permitted by Article 25 of the Constitution. Provisions of the Prospectus which are inconsistent with the fundamental right governed by Article 25 (ibid) will have to be declared void by virtue of Article 8 of the Constitution which provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the Fundamental Rights to the extent of inconsistency shall be void.
13. All efforts are to be made to interpret the provisions of law including rules and instructions in such a way that they harmonise with the fundamental rights guaranteed by the Constitution. I have already held that ' father' as occurring in para. 43(b) of the Prospectus includes ' mother'. In view of this interpretation there is no need to declare that the said provisions of the Prospectus are void. The result is that a mother can get his child admitted in an educational institution on her own independent domicile. This can be done even where the wife is living with the husband, if on account of independent factors she has a distinct and separate place of domicile. For example, a male resident of Karachi may have married a lady from the Punjab. The spouses may be having their separate vocations and even owning property separately in their respective Provinces. The spouses in such circumstances may be differently domiciled. The child is entitled to seek admission in any of the two Provinces by getting benefit or the domicile of either of the parents. If he wants to get admission in a college in Punjab he can get the benefit of the domicile of his mother and if he wants to get admission in Sindh he can get the benefit of the domicile of his father.
14. Independent of the facts of the present case, I find that the requirement to produce documentary proof of the factum of registration of the father as a voter cannot be a compulsory condition. It may he pointed out that no law provides that if a person is not registered as a voter then his children shall not be considered to be domicile of the place of residence of their father (including mother). If a person is not registered as a voter, then the only consequence under the relevant election laws is that he is deprived of casting his vote and to contest election. There is no law which disentitles the child or children of such a person who is not registered as a voter to seek admission in Colleges and Universities. Article 4 of the Constitution provides as follows:-- "(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--- (a)
(b)
(c)
Right to get admission in colleges and higher seats of learning is a valuable right which is relatable to the ' life' of a citizen. If a person who is otherwise eligible is prevented from receiving higher education, then it will amount to affect quality of his life. Under Article 4 reproduced above no such detrimental action can be taken unless specifically permitted by law. Therefore, in the absence of any law providing that a person who does not get himself registered as a voter in an electoral roll shall have the effect of depriving his/her children to obtain admission in colleges, it cannot be held that insistence on production of proof with regard to the registration of as parent of an applicant as a voter has any validity in law. Clauses (ii) and (iii) of Para. (b) (ibid) which relate to the proof of registration. Of the father as a voter would be violative of Article 4 of the Constitution if these provisions are considered compulsory. Resultantly, I declare that clauses (ii) and (iii) of para 43.2(b) are not compulsory. If an applicant produces these documents, well and good, and the same can be considered to determine the bona fides of residence of the applicant, ,but if an applicant fails to produce such documents then his application cannot be refused to be entertained or admission refused merely for non-production of these documents. The question of bona fides of residence/domicile of the applicant shall be determined on the basis of Other material produced by the applicant.
15. It may be pointed out that right to knowledge or right to receive education, subject to eligibility and availability of accommodation in educational institutions is a basic right of every citizen. This is the right of the individual who seeks admission in an institution or seat of learning. This is not the right of his parents or anybody else. Therefore, any lapse on the part of a parent should not be allowed to come in the way of the individual desiring to get education, provided he competes on merit. The question of the residence/domicile of the parents will be relevant for determining the domicile of the applicant and for nothing else.
16. The upshot of the whole discussion is that the word 'father' as occurring in clauses (i), (ii), (iii),
(iv) of sub-para. (b) and clauses (i) and (ii) of sub-para. (c) of para. 43.3. Of the under graduate prospectus for the year 1996 of the University of Engineering and Technology, Lahore will be deemed to include 'mother' of the applicant as well. Further, the requirement to produce certificate from the election officer will regard to the enrollment of the father (including mother) as a voter and copy of the electoral roll, as contained in clauses (ii) and
(iii) of para. 43.3.(b) will be optional. The application will not be refused to be entertained merely on the ground that the two documents relating to the registration of the parent as a voter have not been appended with the application for admission.
For what has been discussed above, the action of the University authorities to refuse admission to the petitioner who otherwise falls within the ambit of selection, is declared to be without lawful authority and of no legal effect and the petitioner is entitled to get admission despite non- production of the domicile certificate etc. Of his father.
' Copy of the above reasons shall be forwarded to the Vice-Chancellor of the Engineering University, Lahore for future guidance and necessary amendments in the Prospectus.