1. DURAB PETALJ.-The petitioner wants to be a doctor. She claims to be a permanent resident of Sujawal, a town in the Thatta District of Sind, and she had applied for admission in the Peoples Medical College, Nawabshah, as she had obtained the requisite number of marks in her Intermediate (Pre-Medical) Examination of July 1976. Now admission to medical colleges in the Province of Sind is governed by a quota system. Every district of the Province is given a quota for a medical college, and the quota in the Nawabshah Medical College for girl students from the district of Thatta was one or two seats. Nothing turns on the number of seats reserved for girls in the Thatta District, and it is sufficient to state that the petitioner had obtained a Permanent Residence Certificate under the Sind Permanent Residence Certificate Rules, 1971 (hereinafter called the said Rules) and in view of her marks, she had been granted provisional admission in the Nawabshah Medical College. However, an appeal was filed against the grant of this Permanent Residence Certificate to her and to several other stu--dents, and these appeals were heard on i7-3-1977 by the Committee constituted under rule 8 of the said Rules, We shall refer in this order to this Committee as the Committee and the Committee allowed the appeal and cancelled the petitioner's Permanent Residence Certificate on 17-3-1977.
2. As this order was passed without hearing the petitioner, it was patently illegal, but as her attempts to have it set aside, were unsuccessful, she filed a writ petition in the Sind High Court against the cancellation of her Permanent Residence Certificate. This writ petition was allowed and the High Court directed the Committee to rehear the appeal against the petitioner after hearing her.
3. In accordance with the directions of the High Court, the Committee reheard the, appeal against the petitioner on 10-10-1977, and, according to learned counsel, the petitioner had resisted the appeal on three grounds. The first was that the petitioner's father had married a second wife, who belonged to Sujawal in Thatta District. The second was that the petitioner's elder side: had a year or two earlier obtained admission in a medical college on the basis of a Permanent Residence Certificate for Thatta District. The third and most important ground on which the petitioner opposed the appeal was that she lived with her father, who had a certificate of domicile for Thatta District, which had been issued by the District Magistrate of Thatta on 2-11-1974 in .The purported exercise of his powers under section 17 of the Pakistan Citizenship Act, 1951. The Committee was not impressed by these grounds. It rightly held that the residence of the petitioner's step-mother before her marriage to the petitioner's father was totally irrelevant 14 to the petitioner's claim to be a permanent resident of Thatta District. It was also impressed by the fact that a Permanent Residence Certificate had been issued for Thatta District to the petitioner's elder sister, because this sister had obtained admission in a medical college against a seat for there was no other candidate. Finally, whilst the Committee noted the fact that the petitioner's father had a certificate of domicile of Thatta District, it pointed out that the petitioner's family came from Dadu District and that although her father had managed to obtain a certificate of domicile from Thatta District, he lived with his daughter in Hyderabad city, where he "owns large immovable property". Accordingly, by its order dated 10-10-1977, the Committee once again allowed the appeal against the grant of a Permanent Residence Certificate to the petitioner, therefore, her admission to the Nawabshah Medical College was cancelled and the seat which had been allotted to her was given to the third respondent.
4. The petitioner, therefore, filed a writ petition for the second time in the Sind High Court against the Committee's order of 10-10-1977 and she also sought a direction from the High Court that she should be admitted to the Nawabshah Medical College. But the learned Judges of the Sind High Court, who heard this writ petition pointed out that the question of the cancellation of the petitioner's Permanent Residence Certificate was within the discretion of the Committee and that they could not interfere with the Committee's decision, because it was supported by material on the record. That there was material on the record in support of the Committee's decision is obvious, therefore, as in this Court, learned counsel had submitted that the petitioner was a minor when she obtained a Permanent Residence Certificate and as she was staying with her father, she was a permanent resident of Thatta District, because her father had a certificate of domicile for that district. In support of this submission, learned counsel had relied on a judgment of a Division Bench of the Sind & Baluchistan High Court Hafiz Azizur Rehman v. The Domicile Scrutiny Committee, Karachi and 2 others (PLD 1975 Kar. 1039) but although this judgment supported learned counsels submission to the hilt, the learned Judges dissented from the view taken in it and also observed that it was distinguishable on the facts. Accordingly, by their judgment dated, 16-11-1977, they dismissed the writ petition therefore, the petitioner has filed this petition for leave. 'Ale observed that the Committee's decision of 10-10-1977 was supported by material on the record. In order to overcome this difficulty, Mr. M. I. Memon submitted that on a proper construction of the said Rules, a minor who was living with his father was entitled to a Permanent Residence Certificate for the district for which his father had a valid domicile certificate. Now the certificate was issued under section 17 of the Pakistan Citizenship Act, 1951 which reads: "17. The Central 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 as period of not less than one year immediately before the making of the he application, and has acquired a domicile therein."
5. This section does not empower any authority much less the District Magistrate to grant a certificate of domicile for a district in the Province --of Sind or in any other Province. And neither the learned Advocate General nor Mr. M.I. Memon were able to refer us to any provision of law under which a District Magistrate of the Province of Sind was entitled to issue a Permanent Residence Certificate for a district of that Province. Be this as it may, as the learned advocate general did not dispute the fact that District Magistrates in Sind were issuing such certificates, for the purpose of this petition, we would hold that the certificate of domicile of the petitioner's father was a piece of evidence in support of her claim for a permanent residence certificate for Thatta District. However, merely because the tribunal which had exclusive jurisdiction to decide the question (namely, the Committee) rejected this piece of evidence and preferred other evidence, would not mean that the tribunal' decision was without lawful authority, unless of course the said Rules entitle a person to a Permanent Residence Certificate on the basis of his domicile certificate, or, in the event of such a person being a minor, on the basis of his father's domicile certificate. Accordingly, it is necessary to examine the said Rules.
6. Rule 1 of the said Rules merely prescribes that the said Rules "shall come into force at once". Rule 2 reads: "2.-(1) No person shall be eligible for admission to a Medical or an Engineering College in Sind, or such other Educational or Technical Institution in the province as may be notified by Government in the behalf from time to time (here in after referred to as an educational institution) or be recruited to any service or against any post under the rule-making authority of the Governor of Sind, or under any local authority or statutory body set up or established by it (hereinafter referred to as the Public Service), unless he furnishes to the authority competent to make the admission or the recruitment, as the case may be, a certificate of his permanent residence in Sind from the District Magistrate of the area where he is permanently residing (2)--------------------------------------------------------.
(a) --------------------------------------------------------.
(b) --------------------------------------------------------.
7. This rule has to be read with rule 5 which prescribes different forms of Permanent Residence Certificates for persons seeking admission to educational institutions and for persons seeking employment in public service.
8. Rules 3 and 4 are important were rightly relied upon by tae High Court n the judgment under appeal. They read; "3. A person desirous of obtaining a certificate of Permanent Residence under these rules, shall make an application in Form 'A' to these rules to the District Magistrate of the area where he is permanently resident, The application shall be accompanied by an affidavit in Form B---.
4. If the District Magistrate, on perusal of the application and affidavit, and after holding such enquiry as he deems necessary, is satisfied that the applicant is entitled to a certificate of Permanent Residence for the purpose of admission to an educational institution or recruitment to the Public Service, as the case may be, he shall issue to the applicant such a certificate:'
9. Rule 4 is the key provision in the said Rules, because it the rule which, empowers District Magistrates to issue Permanent Residence Certificates. The rule appears as first sight to be very wide, because it goes not contain any guidelines for the discretion conferred on District Magistrates. But the rule is not really as wide as it appears to be. This is for more reasons than one.
10. The first is that the word "residence" is to be founded in many Statutes, such as, for example, the Income-tax Act and the Succession Act, therefore, the concept of residence is too familiar to persons well-versed in our jurisprudence to require any definition secondly the information, which has to be submitted in an application for a permanent Residence Certificate contains by implications some guidelines for the exercise of the District Magistrate's discretion under rule 4.
11. Thirdly, the wide powers conferred by rule 4 are curtailed by the restrictions imposed on these powers in rules 6 and 7.
12. These rules read: "6. No person shall be eligible for rant of a certificate in Form `C' unless-
(i) he was born in any area forming a part of Sind, and further--
(a) in the case of a person of legitimate birth, at the time of his birth, his father was domiciled in Sind, or if he was born after the death of his father, the latter, at the time of his death, was domiciled in Sind, or
(b) in the case of a person of illegitimate birth, his mother, at the time of his birth, was domiciled in Sind; or
(ii) in the case of a person who was not born in Sind-
(a) his parents are domiciled in Sind, and have resided in Sind for a period of not less than 3 years; or
(b) if his parents are not domiciled in Sind, he is domiciled in Sind, and further has either resided in Sind or has been educated in Sind for a period of not less than 3 years; or
(iii) his father or mother is in the service of the Government of Sind and has pint in not less than one year service as such.
13. 7.--(1) No person shall be eligible for a grant of a certificate of Permanent Residence to Form 'D' unless---
(i) he ix a citizen of Pakistan; and (ii; fulfils the conditions at clause (i) or clause (1i) of rule 6.
(2) A person who is domiciled in or has acquired a domicile of another Province shall not be granted a certificate in Form `D', unless he renounces such domicile and produces satisfactory evidence before the District Magistrate of such renunciation."
14. There is absolutely no ambiguity about these rules. They curtail and are intended to curtail the powers conferred on District Magistrates under rule 4, and as even if a person is a permanent resident of a district of Sind, he is no entitled to a Permanent Residence Certificate unless he can bring his case under these rules. But as the converse does not follow, the petitions was not entitled to a Permanent Residence Certificate solely on the ground of her father's domicile in Sind or on the ground that having come of age, she is now domiciled in Sind.
15. Mr. M. I. Memon, however, submitted that the issue of a Permanent Residence Certificate fell exclusively under rule 6, but if that had been the intention of the rule-maker, he would have enacted accordingly. Instead he has conferred the power of issuing Permanent Residence Certificates by rule 4. It is also not irrelevant to point out here that in view of rule 5 a Permanent Residence Certificate "shall specify the district or other local area in Sind of which the holder of the certificate is a permanent resident", and further even if a person can bring his claim under rule 6, he is not entitled to a Permanent Residence Certificate in view of rule 7 unless he is a citizen of Pakistan. Additionally, the consequences of accepting Mr. M. I. Memon's submission would be startling. If learned counsel's submission is accepted, every person domiciled in Sind would be entitled to apply for a Permanent Residence Certificate from any district of Sind. As rightly observed by the learned Judges of the Sind High Court, this would defeat the very object of the requirement that a Permanent Residence Certificate should be for a district of the Province, and it would also reduce the said Rules to absurdity. But absurdity is no material to be attributed to the rule-maker.
16. Accordingly, in the circumstance discussed, we bold that rule 6 merely curtails the powers conferred on District Magistrate under rule 4, and it does not confer on District Magistrates any independent power to issue Permanent Residence Certificates.
17. We now turn to Azizur Rehman's case. The petitioner in this case had obtained a Permanent Residence Certificate for the district of Badin, but it was cancelled by the Committee on the ground that he had not produced evidence of his place of birth, of the place of his primary education and even of the residence of his family. As according to the learned Judges of the Sind & Baluchistan High Court, the petitioner bad produced evidence to show that his family had its permanent residence in Badin at first sight, this judgment would appear to be distinguishable on the facts. But, as submitted by Mr. M. I. Memon, the learned Judges set aside the Committee's decision not because of the evidence produced by the petitioner of his family's place of residence, but because of the interpretation placed by them on the said rules. They, however, examined only rule 6 and held that the District Magistrate's power of granting a Permanent Residence Certificate was governed exclusively by this rule. After analysing this rule, Rashid, J. (who pronounced the judgment of the Court) observed in paragraph 11 of the judgment: "I have, therefore, come to the conclusion that an applicant for the grant of Permanent Residence Certificate can claim such certificate under one or more of the categories listed in rule 6 of the Rules, which--ever may suitably apply to him."
18. Then, so as to leave no doubt about the ratio of the cast, the learned Judge observed in paragraph 22; "The Committee has cancelled the Permanent Residence Certificate granted to the petitioner by the District Magistrate on the sole ground that he failed to produce any evidence of his birth or of primary education. Evidence of primary education is irrelevant for the purposes of grant of Permanent Residence Certificate."
19. There can be few better indicia of the residence of a student than the place of his primary education, and we agree with Mr. M. I. Memon's submission that the ratio of this case is that a person is entitled to a Permanent Residence Certificate if he is domiciled in Sind. As this view is totally inconsistent with that taken in the judgment under appeal, with respect, we venture to think that it would have been better if the learned Judges had, in the instant case, referred the writ petition to a larger Bench. However, we have examined both the judgments with the assistance of the learned counsel and for the reasons which we have given, we are satisfied that rule 6 merely curtails the powers conferred on District Magistrates under rule 4, therefore, with all respect to the learned Judges, we cannot agree with the view taken by them in Azizur Rehman's case and we agree with the view taken in the judgment under appeal.
20. The petition is without merit and is dismissed.