ABDUL HAYEE KURSSHI, ACTG. C. J.----We have heard Petitions Nos. 60 of 1977, 77 of 1977, 78 of 1977 and 85 of 1977 together, for the reason that all these petitions related to admission of students from the District of Quetta in the Bolan Medical College for the academic year 1977-78 and common questions or rather overlapping questions of law and facts arose. We propose to dispose of the four petitions by this common judgment.
2. The brief facts of the case are that the total number of seats in the Bolan Medical College, Quetta is 133 and 100 out of them are to be filled by distribution and selection from among the various districts in the Province. While students from the urban area of Quetta district have allocation of 7 seats, students residing in rural reps of Quetta district have an allocation of 4 seats. Out of the rural area seats, one sent is reserved for girl students although they could also compete on the general seat. In regard to admission of students from the rural area seats, the candidate has in addition to other documents as marks certificate etc. Also to produce Permanent Residence Certificate from the District Magistrate on pre--scribed pro forma as well as a certificate showing his residence in the rural area of Quetta District. While the first of such certificate has to be issued only by the District Magistrate, with regard to the second certificate no authority is prescribed and we have not been told who is the competent. Authority in such behalf. Admissions have thereafter to be made strictly on the basis of merit in "each category of seats from amongst the applicants" except in case of reserved seats.
3. Having dealt with the point of allocation of seats for the Quetta District we propose to state the manner of selection. Applications have to be made to the Selection Committee which is composed of Provincial Health Secretary, Provincial Education Secretary, Director. Health Services; and the Principal of Bolan Medical College, in case a candidate is aggrieved by the decision of the Selection Committee, an appeal lies before High Powered Appellate Committee and composed of two Provincial Ministers, namely Miss Fazila Aliani and Maulvi Saleh Muhammad and two other persons from the public namely, Mir Sabir A.I Baluch and Mr. Mahmood Khan Achikzai. In the administrative set-up this High Powered Appellate Committee which for the sake of convenience is hereinafter referred to "Appellate Committee" was the final authority.
4. We now proceed to state the facts of each case so as to highlight such aspects as would be dealt with in this judgment.
5. In Petition No. 77 of 1977, Miss Nasreen Fatima Awan is petitioner whereas the first four respondents are the Principal, Bolas Medical College; the Government of Baluchistan, the Selection Committee and the Appellate Committee while the 5th respondent is Miss Mah Jabeen Sarwar, who had succeeded in obtaining admission. The case of the petitioner is that she had secured 543 marks out of 1000, whereas Miss Mah Jabeen Sarwar who succeeded in obtaining admission had secured 481 marks. On that considera--petition the petitioner was entitled to admission in the College but she has been denied admission on the ground that she does not fulfil the requirement in regard to her residential statue within the Quetta rural area. She had produced documents consisting of certificates from educational institutions, domicile certificate, certificate in regard to her sister's admission on rural seat and a residence certificate before the Selection Committee but this committee felt that she had not been able to establish that she had stayed for 12 years in rural area of Quetta and in order to arrive at that conclusion this Committee mainly relied on the circumstance that her father being a Government servant was liable to be transferred and so he may have stayed in the rural area only on a routine posting. The Selection Committee also expressed that some stronger evidence of permanent residence was a necessary requirement.
6. Being aggrieved by such decision of the Selection Committee the petitioner filed an appeal before the Appellate Committee which was rejected on the ground that "she could not produce sufficient evidence to prove her domicile". Having no alternate remedy the petitioner hat, invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution.
7. In Petition No. 85 of 1977 the petitioner is Miss Naila Rashid and out of the four respondents, the first three are the Principal, Bolan Medical College and the two Committees whereas the 4th respondent is Miss Mah Jabin Sarwsr, who as stated above, is a respondent even in Petition No. 77 of 1977. The case of the petitioner is that she is daughter of Wing Commander Akhtar Rashid who on account of exigencies of service had at various times been bared at various Air Force establishments in Pakistan. She has for the patent reason of not being a permanent resident of Quetta relied on a decision of the Council of Common Interests, taken in December 1971, to the effect that children of Armed Force3 Personnel had the option for admission in professional colleges either in the Province of their domicile or the Province of posting of their parents. It is the case of the petitioner that at the tine of admission in the Bolan Medical College her father was posted at Samungali Air Base, Quetta. This Air Base is located within the rural area of Quetta District. The Selection Committee rejected the candidature of the petitioner and she filed an appeal before the Appellate Committee. Such Committee came to the conclusion that "she did not actually reside in rural area nor did she belong to it at any stage". On merit she stood at No. 40 in the list and therefore she was refused admission even on general seat.
8. In Petition No. 60 of 1970, petitioner is Muhammad Masoom and while the first three respondents are the Government of Baluchistan and the two Committees, the remaining two respondents are Nasir Zaman and Niaz Muhammad, each of whom ha3 been admitted in the College. The case of the petitioner is that he is resident of Killi Chuhi, a rural area of Quetta district whereas the two respondents Nasir Zaman and Niaz Muhammad were residents of urban area in the same district.
It is contended that tire two respondents were wrongly admitted in the College on Quetta rural seats. His case is that although hr had secured lesser marks than the two respondents Nasir Zaman and Niaz Muhammad, if he succeeded in getting respondents declared disentitled to admission, he would succeed in securing admission. His claim to admission was rejected on the ground that he was at No. 10 on the merit list and the two respondents who had been admitted bad produced cogent evidence in regard to being residents of rural areas. The Appellate Committee also accepted the same process of reasoning which had been adopted by the Selection Committee.
9. In Petition No. 78 of 1977, petitioner is Miss Rukhsana Malik and while the first four respondents are the Principal, Bolan Medical College the Government of Baluchiatan and the two Committee the remaining three respondents are Miss Mah Jabeen Star war who is respondent also in Petitions Nos. 77 of 1977, and 85 of 1977 and Nasir Zaman and Niaz Muhammad who are also respondents in Petition No.. 60 of 1977.
The case of the petitioner is that site is a resident of staff quarters of District Jail, Quetta and such premises are located within the limits of Hudda Municipality, which area in spite of being a municipal area is for purposes of admission to the Bolan Medical College treated as a rural area.
She has attacked the admission of Miss Mah Jabeen Sarwar on the ground of the latter being a resident of urban area, and even in regard to Nasir Zaman and Niaz Muhammad her attack is based on similar grounds, although in addition, it has also beers urged that on merit she had a better claim to admission.
Petition No. 77 of 1977
10. We propose to deal with Petition No. 77 of 1977 in the first instance. The petitioner has produced before us the following documents :- "(1) Certificate from Headmistress of the Government Primary School in Wahdat Colony, Quetta, to show that from 28-4 1964 to 10-3-19.6,9 she had studied In the said Primary School.
(2) Certificate from the head-mistress of Government Girls High School, Railway Colony, Quetta to show that from the year 1971 to 1974 she studied in the said school.
(3) Certificate from the Board of Intermediate and Secondary Education Balachistan to show that she passed bar Intermediate examination in 1976.
(4) A Certificate of Domicile in favour of her father Haft Abdur Rehman issued by the District Magistrate, Quetta on 6th July 1973.
(5) A Farid-i-Haqiat relating to Killi Karez Din Muhammad showing purchase of land in the Killi by Hafizur Rehman Azizur Rehman and Mumtaz-ur-Rehman, three brothers of the petitioner.
(6) Certificate of Domicile in favour of Khaj Muhammad eternal grand-father of the petitioner, issued by the District Magistrate, Quetta on the October 1969, showing his address in Killi Karen Din Muhammad, Quetta.
(7) A certificate from Municipal Engineer of Quetta Municipality to the effect that Killi Din Muhammad is out of Quetta municipal limits.
(8) A residential certificate issued by District Magistrate, Quetta, Pishin on 21st May 1977, showing that the petitioner is a resident of Killi Din Muhammad.
(9) A letter from the Government of Baluchistan dated 22nd March 1977, showing that the petitioner's elder sister Miss Razia Fatima Awan was also given admission in the Bolan Medical College in 1974, on the basis of bar status as a rural resident of Quetta district."
11. The learned Advocate-General hen also placed before us the application form filed by the petitioner before the Selection Committee and together with this form is a certificate issued by the Assistant Commissioner of Sadder Sub-Division, Quetta dated 6th November 1973, to the effect that the petitioner's father is a resident of Killi Karen Din Muhammad.
12. Parawise Comments have been submitted by Principal of Bolan Medical College. In such comments the significant points that would require examination are the following :-- "(i) That there was no proof of the petitioner's 12 years continuous stay in Quetta.
(ii) That the Selection Committee and the Appellate Committee were not satisfied with the evidence produced by the petitioner in support of her claim that she was a resident of rural area, Quetta ; and
(iii) that respondent Miss Mab Jabeen Sarwar was given admission by reason of the fact that she was the resident of rural area despite hey having secured lesser marks."
13. Respondent Miss Mah Jabeen Sarwar has also filed a counter affidavit wherein she has tried to assert that petitioner Miss Nasreen Fatima was a resident of urban area and for such reason she was rightly refused admission. In addition the counter-affidavit raises an argument to the effect that petitioner Miss Nasreen Fatima had failed to produce her Ration-Card before the Selection Committee and the name of bar parents did not appear in the Electoral Roll for the general election that were bald In March 1977.
14. It would be profitable to reproduce the relevant extract from the order of the Selection Committee which reads as follows ;- "(1) At S. No. 7 (petitioner) was rejected because the Committee felt that the stay of twelve years in the Rural area of Quetta could not be accepted, as there wag no proof of permanent residence as claimed by the candidate.
(2) Her father was residing in Rural area on routing posting and was liable to be transferred. The Committee felt that some stronger evidence of permanent residence in the said area eras the necessary requirement.
(3) The tenure of posting was not strong enough to justify the above claim."
A fairy detailed appeal which is Annex. 'P' on the record was submitted by petitioner Nasreen Fatima and the memo. Of appeal carried the copies of Domicile Certificate, Residence Certificate, Certificates from educational institutions, etc. As annexure. The Appellate Committee disposed of the appeal of the petitioner by the following single sentence order :---- `The appeal was beard by the Appellate Committee but it was rejected as she could not produce sufficient evidence to prove her domicile."
15. Mr. Muhammad Aslam Chisti, Advocate has raised the following contentions before us :---
(1) That on facts and from a perusal of the documents produced, conclusion became inescapable that the petitioner was a resident of rural area of Quetta, alternatively that the conclusions recorded by the Selection Committee and the High Powered Appellate Committee are arbitrary, perverse, opposed to weigh evidence and significantly silent on the principal features of the case.
(2) That on merit petitioner had a better right to admission in the College, and ;
(3) that the domicile certificate was, if not conclusive, at least strong presumptive evidence, of the residence of the petitioner.
On the other hand Mr. Muhammad Ahmed Mirza, Advocate-General has contended before us that in the restricted exercise of our jurisdiction, under Article 199 of the Constitution, it was not open to us to examine the evidence that was available before the Selection Committee and the Appellate Committee and further that even if such evidence was examined by us, we should not interfere with the decision of the administrative tribunals on the mere ground that a different view on facts was possible. The learned Advocate-General bas attempted to persuade us to come to the conclusion that the decision of the Appellate Committee being one of an administrative tribunal as distinct from a judicial tribunal need not toe couched in an argumentative order. The learned Advocate-General has also attempted to persuade us to keep out of consideration the domicile certificate issued by the District Magistrate, in exercise of delegated authority under section 17 of the Citizen hip Act. He has raised an argument that under the Prospectus governing the question of admission in the Bolan Medical Collage. Domicile certificate, is not at all mentioned and the requirement is that of a Permanent Residence certificate issued by a District Magistrate.
16. We propose to consider the documents on which the claim of the petitioner to rural residence is based. The certificate from the head--mistress of the Primary School and the headmistress of the Girls High School, Annezs. "C" and "D-1", clearly establish that from the year 19.4 to the year 1974 (both inclusive) the petitioner obtained her education in Quetta. Similarly the certificate from Board of Intermediate and Secondary Education. Quetta further establishes that until year 1976 the petitioner studied at Quetta. We must straightaway state that the seats for Quetta District were divided between urban seats and rural seats and the petitioner claimed admission on the basis of rural residence. We, therefore, propose to examine the documents that have been produced by the petitioner for establishing that she was a resident of rural area. The first of these documents is a certificate of domicile (Annex. F) issued in favour of Hafiz Abdur Rehman, the father of the petitioner, which shows that the father of the petitioner was a resident of Killi Karez Din Muhammad admittedly a rural area of Quetta district. The certificate was issued on 6th July 1973. And the name of the petitioner appears there in the column reserved for insertion of the names of the children with their ages in the said certificate. The second certificate of domicile is in respect of Khaj Muhammad the maternal grand father of the petitioner. This certificate was issued as early as on the 6th October 1969, and it shows the residence of Khaj Muhammad to be Killi Karez Din Muhammad.
17. The genuineness or authenticity of these domicile certificates has not been challenged but an argument has, however, been raised on the premises that under section 17 of the Pakistan Citizenship Act, a certificate of Domicile can be issued if it is established that for a period of one year a person has "ordinarily resided in Pakistan". The argument has been advanced to show that the grant of a domicile certificate establishes nothing more than the fact of a person having resided in Pakistan for a period of one year only. To such argument, is supplemented the argument that under para. 5 at p. 10 of the Prospectus of Bolan Medical College, the requirement is not a domicile certificate but a certificate of residence in the rural area.
18. No doubt the Prospectus in its relevant part makes no mention about domicile certificate but the question is whether such certificate is a relevant or valuable document for establishing residence of a person, especially when the Prospectus does not prescribe any authority as being competent for issuance of such certificate. In such context is must be stated straightaway that section 17 of the Citizenship Act, contemplates that an applicant for a domicile certificate, must make an application in the prescribed manner, containing prescribed particulars and the Federal Government or its nominee has to be satisfied about the applicant being an ordinary resident of Pakistan for a period of one year be the certificate is issued. Again rule 23 of the Pakistan Citizenship Rules, provides Form 'P' as the form in which the application for domicile certificate is to be made and the certificate has also to be in the prescribed Form 'P-1'. The application for domicile certificate bas to be supported by an affidavit affirming the truth of its contents and the authority competent to grant such certificate has the power to demand evidence for the purpose of satisfying itself about the truth of the assertions in the application for certificate. Form 'P', which is fairly detailed has to show not only the place of residence but also the period of continuous residence. Again Form 'P-1', which is the certificate has to mention the address in Pakistan for the person seeking domicile certificate and the names of children of the person also require to be mentioned in the same. To sum up it would appear that domicile certificate is issued by a statutory functionary after a complete probe and inquiry and has for such reason all the sanctity of a public document.
19. The learned Advocate-General and Mr. S. H. Jafri have however contended before us that the requirement of the prospectus is a residence certificate and that such certificate should disclose twelve years residence in :Baluchistan. 1n support of such contention they place reliance on Para 18 at page 9 of the Prospectus, which reads as follows ;- "Admission to Medical College is open only to the local candidates and those domiciled local candidates who have a minimum of 12 years continuous stay in Baluchistan"
20. It would seem that a distinction is sought to be raised between the local residents of Baluchistan rind such residents who for any reasons might have migrated to this Province. A faint attempt was made by the Advocate for the petitioner to point out the illegality or at least unreason, ableness of such provision but we do not think it necessary to enter into the question of sires or the reason behind the rule because the words used being "continuous stay in Baluchistan" and in this case the various certificates from educational institutions establish a longer span of time of continuous stay of the petitioner in Baluchistan.
21. The word "domicile" not being defined in the Citizenship Act, recourse to understand its impact has to be made to its dictionary meaning or what rosy be called common parlance. The Oxford Dictionary defines 'Domicile as meaning 'Dwelling place, home; (Law) place of permanent residence fact of residing Since in the instant case the petitioner is not being considered a local inhabitant of Baluchistan the concept of domicile of origin and domicile of choice would be attracted. In Such context it is necessary to state that with his birth a person acquires a domicile but by circumstance he may and can acquire a domicile of choice in which cast the only factors that need to be established are a clear intention of relinquishment of domicile of origin and an express wish to acquire a new domicile Once the facts of relinquishment and acquisition are established domicile undergoes a change and the person acquires the new domicile and has a permanent home, at least in the notional sense at the sew place. No doubt mere length of stay does rot by itself create domicile but a valid declaration does establish a permanent home. In the case of .Mat. Shamsa Khatoon v. Chief Settlement Commissioner (PLD 1967 gar. 265) it was held that a domicile certificate, prima facie, was evidence a permanent abode of a person. Domicile has often been considered a synonym for home and it would be of benefit to reproduce a passage from the judgment of Lord Granworth in the case of Whicker v. Home ((1858) 7 H L Cas. 124) which reads as follows :--- "By domicile we mean home, the permanent homes and if you do not understand your permanent borne. I am afraid that no Illustration drawn from foreign writers or I think the best I have heard is one which describes the home as the place 'Uncle stt-dlacess-uras-if nihi avocet uncle cum profectusest peregrlnarlridetur. I think that the best illustration and I use that word rather than definition, to describe what I mean. 'In the same report are page 164, Lord Wensleydale wrote as follows ;-- "There are several definitions of domicile which appear to me pretty nearly to approach correctness. One good definition is this Habi--tation in a place with the intention of remaining there for ever, unless some circumstance should occur to alter the intention."
22. What we understand by a domicile certificate is a document which ,prima facie establishes the place of residence of a person coupled with a intention of residing there permanently unless of course circumstances arise an may compel or induce him to adopt a different place as a permanent domicile. Domicile does convey permanency in residence and with the necessary connotation a domicile certificate does establish, if not at least by providing presumptive proof of a person being a permanent resident of a particular place. The domicile certificate of the father of the petitioner discloses that he arrived in Quetta in 1939-1950. We have been informed at Bar that he is in the Policy service of Province of Baluchistan.
23. On such view of the matter we regret our inability to accept the contention of the Learned Advocate-General that the domicile certificate produced by the petitioner should be overlooked.
We may in passing also state that the petitioner has produced a domicile certificate even of her maternal grand father showing his residence in Killi Karea Din Muhammad. Queita since 1922.
24. There is still another document on the record which appears to have completely overlooked by both the Committees. The elder sitter of the petitioner had in the first instance been refused admission in the Bolan Medical College in 1974, on identical grounds but on representation she was treated as a resident of rural area and admitted in the College. It will be legitimate to presume that unmarried sisters would normally live together. Besides a certificate issued by District Magistrate, Quetta had been placed before us in this Court (which no doubt was not produced before the two Committees), which clearly shows that petitioner Nasreen Fatima was a resident of Killi Din Muhammad, a rural area of Quetta. An earlier certificate to the same effect issued by the Assistant Commissioner, Quetta had been produced before the Appellate Committee.
25. The next piece of evidence is in respect of house is Killi Karez Din Muhammad, This "Farid-i- Haaiat" shows that three brothers of the petitioner owned houses in Killi Karez Din Muhammad.
Each one of these three brothers is aged under 20 years and, therefore. It would only be fair to assume that the funds for the purchase of these properties had been procured by the father of the petitioner.
26. In the counter-affidavit filed by Miss Mah Jabeen Sarwar, respondent No. 5, it has beer. Stated that the petitioner could not be considered a resident of rural area because, neither she produced "Ration---Card" nor do the names of her parents appear in the Electoral Roll. The learned Advocate-General has also produced before us the application from submitted by the petitioner wherein her postal address is shown to be a place located on Whyte Road an urban area of Quetta. Such points have been rebutted by Mr. Muhammad Aslam Chisti who has produced a certificate from the Police Head-Quarters showing that the "Ration" for the family had been obtained from the Police Lines. It is further submitted by Mr. Muhammad Aslam Chishti that the absence of the names of parents of the petitioner in the Electoral Roll is for the reason that the father of the petitioner was posted at Kalat in March 1977, when the elections were held. In regard to the postal address, shown at Whyte Road, Quetta. We have seen the admission from wherein the permanent residence and the present residence of the petitioner is shown to be Killi Karez Din Muhammad. No doubt the postal address is shown at Whyte Road, Quetta, but it is common knowledge that very often postal address is shown in cities or urban areas in order to ensure prompt delivery of post. These circumstances in our view do not detract from the main case of the petitioner that she is resident of the rural area of Quetta.
27. The next point that deserves consideration Is whether the impugned orders are liable to be interfered with by this Court In exercise of powers under Article 199 of the Constitution. We are conscious of the legal position that this Court does not normally undertake appraisal of p evidence nor does it readily displace findings of fact. A traditional slowness of the High Court to disturb findings of fact has become a succinct rule governing the exercise of powers in these cases.
However, it would be laying too broad a proposition, if it is stated that this Court cannot at all interfere with the decision on facts recorded by administrative tribunals. A wealth of case-law is available on the point. There have been instances when the High Courts have travelled into the realm of facts in exercise of its constitutional jurisdiction. The High Courts have interfered when findings based on insufficient evidence, misreading of evidence, non---consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable views on evidence, has been taken. It cannot be said that every finding of executive tribunal is beyond the scope of interference of the High Court, because if that were so, the concept of certiorari would virtually become redundant and meaningless. We are sure such helplessness on the part of the superior Courts was not contemplated by the vast body of case-law that has come to occupy the field over the years.
28. The learned Advocate-General has invited our attention to a Division Bench decision of the erstwhile High Court of Sind & Baluchistan in case of Muhammad Yakub v, Zaheer Aslam and others (PL D 1976 Quetta.77). This case also was a case in relation to admission of a student in the Bolan Medical College. Their Lordships of the Division Bench came to the conclusion that the High Powered Appellate Committee, in the process of arriving at a decision whether to grant or rouse admission to the petitioner, "was not required to investigate any incident or action completed in the past for purpose of arriving at the true conclusion". The learned Advocate-General wishes us to interpret these words to mean a total outer of jurisdiction of the High Court in the matter of investigation of any fact. We are afraid, we cannot interpret these words of their Lordships to mean what the learned Advocate. General wishes us to understand. Their Lordships have in the same judgment also considered such cases in which the Supreme Court has laid down the test in regard to the scope of interference. The Division Bench had referred to the case of Tariq Transport Co. v.
Sargodha --Bhera Bus Service (PLD 1958 SC (Pak) 437) and drawn deductions from the decision of the Supreme Court. Their Lordships of the Division Bench have come to the conclusion that the Supreme Court's Judgment did permit investigation of facts and hearing of legal arguments when dispute between rival act of facts came up for determination. A tribunal may be acting judicially or I am executive capacity but whether it had to act judicially depends on the nature of decision it has to give. To put in simpler word if a tribunal has to determine between rival entitlements or varying contentions on facts in support of entitlement, surely it has to act in accordance with the norms fixed for conduct of judicial tribunals. In such cases its conclusions can be interfered with.
Can it by any stretch of interpretation be said that while a tribunal can enter into facts In order to determine rival entitlement, the High Court by the nature of its jurisdiction is forbidden from entering into facts. To our mind the answer has to be in the negative because then entire concept of judicial control over administrative actions will undergo such radical change as to destroy the very structure of writ jurisdiction. We do rot wish to be misunderstood as meaning that the High Court in such case will convert itself into a Court of appeal and determine the minutest contabulations in the evidence, but the High Court has to be satisfied that reasonably correct conclusion hiss been recorded and the decision does not suffer from perversity. To adopt any other view would neither be according to dictates of law nor founded in principles of justices and an attempt to find an apology for such refrain would only be in vain.
29. Arbitrary decisions are never considered wholesome in our system of law. One of the dominant tests of a decision being arbitrary is whether it proceeds on any substantial reason or exhibits lack of application of mind, Such manner of exercise of jurisdiction has very often been a quoted or called by a synonym of abuse of jurisdiction. Such abuse manifests itself by making it patent that the authority that had the a Ifs before it either overlooked the evidence brought before it or by reason of preconcieved notions misdirected itself to arrive at such conclusions, which are either perverse or could not be substantiated on the basis of avail able evidence. Such arbitrariness or abuse of jurisdiction may very often become patent by an ad hoc observation indicating a desire to over look the available evidence coupled with a longing for evidence which in the imagination of the authority should have been produced. Very often a cloak is provided for arbitrary decision by mention of the words that some better evidence or the best evidence has not been produced but the fact of the matter may well be that the available evidence is overlooked. This in our humble opinion is arbitrariness of the worst type when a tribunal dealing with the rights of the citizen overlooks what is placed before it in the form of evidence and supplements its desire to overlook the evidence by finding a fault with the petitioner that the best evidence has not been produced.
30. Applying the above test, we find that the orders of the Selection Committee as well as Appellate Committee suffer from such arbitrariness The order of the Selection Committee states that a stay of 12 years in the rural area of Quetta had not been established and further that because the father of the petitioner was liable to transfer in various parts of Baluchistan, the residence of tine petitioner in the rural area was not established. If the Selection Committee had considered the effect of the certificates issued by the various Schools and the Board of Intermediate Education, a conclusion would have been inescapable that the condition of 12 years residence in rural area had been fulfilled. Moreover even the petitioner's sister was admitted in the Bolan Medical College, and normally unmarried sisters live together.
31. With regard to the next argument that the liability of father's transfer defeated the rights of children to education, we cannot commend the argument any the little more. The father of the petitioner was and is a Government Servant but surely it cannot be said that for the mere fact that a Government servant is liable to transfer, the children must follow the father to every place of posting in the Province. Such argument of the Selection Committee loses all its force in the face of the certificates from educational institutions showing that the petitioner had obtained education at Quetta.
32. We have given our anxious consideration to the question of relief in this case. One of the modes of dealing with the case was to remit the matter once again for reconsideration. We have not thought it proper or desirable to adopt this mode of disposal for the reason that it will be time consuming and the Appellate Committee has ceased to function. In these circumstances, we have come to the conclusion that it would be fit and proper if this Court grants the ultimate relief. Two reliefs have been claimed by the petitioner namely, that it may be declared that the refusal to give her admission in the Bolan Medical College was without lawful authority and secondly that the petitioner was entitled to be admitted in the College. The reliefs claimed are indeed overlapping, in tire circumstances of the case, we are of the view that grant of a declaration that the petitioner is entitled to be admitted in the Bolan Medical College would meet the ends of justice. We grant such relief and declare accordingly.
This petition is allowed to such extent but there shall be no order as to Costs.
Petition No. 85 of 1977
33. The brief facts of this petition which is filed by Miss Naila Rashid, have already been stated in the foregoing paragraphs: Mr. Khalid Malik, the learned Advocate for the petitioner has mainly relied on the minutes of the meeting of council of Common Interests which reads as follows -- "The children of Armed Forces Personnel should have the option of being eligible on the basis of merit, for admission to schools, profes--sional colleges/institutions/universities etc. Either in the Province of their domicile or the Province of posting of their parents. The question of extending this facility to civilian employee would be considered later."
Mr. Khalid Malik has urged before us that the father of the petitioner being an Air Force Officer and stationed at Samungali, Quetta, the petitioner was entitled to admission on the basis of her residence. Before us documents consisting of a certificate issued by the Administration Wing of Pakistan Air Force Base at Samungali, a certificate from the Habib Bank showing that the petitioner has an account in the Jinnah Road Branch of the said Bank at Quetta have been produced. The petitioner has also produced a certificate of domicile issued by the District Magistrate, Quetta on 29th March 1977, in favour of father of the petitioner and such certificate bears the name of the petitioner. A residence certificate bearing the same date and Issued by the District Magistrate, Quetta has also been produced before us. In addition the petitioner has produced some certificates from the Air Force authorities to establish that the father of the petitioner was posted at Samungali at various points of tune.
34. On the other hand the learned Advocate-General has produced before us the original admission form submitted by the petitioner wherein the present address of the petitioner and her father is shown to be at Rawalpindi or Peshawar. Even the present postal address of the petitioner has been shown to be at Rawalpindi.
35. Initially we propose to consider the validity of the decision of the Council of Common Interests.
The said Council is creation of Article 153 of the Constitution. It is appointed by the President and is composed of the Chief Ministers of the Provinces and an equal number of members from Federal Government, to be nominated by the Prime Minister from time to time. The function and power of the Council are again laid down in Article 154 of the Constitution. It shall be profitable to reproduce Clause (1) of Article 154, which reads as follows ;--- "(1) The Council shall formulate and regulate policies in relation the matters in Part II of the Federal Legislative List and, in so far as it is in relation to the affairs of the Federation, the matter in Entry 34 (electricity) in the concurrent Legislative List, and shall exercise supervision and control over related institutions."
It would clearly appear that the Council has the power to formulate and regulate policies only in relation to such matters which fall within Part II of the Federal Legislative List or in relation to such items as relate to the affairs of the Federation concerning the subjects enumerated in Part II. The Council also can deal with matters in relation to electricity. University education is a provincial subject and the Federal Legislature would in no manner be concerned with the same. We have entertained grave doubts in regard to the validity of this resolution of the Council of Common Interest, for the limited scope within which the Council has to operate in terms of Clause (1) of Article 154 of the Constitution would not permit the said Council to frame policies in regard to such matters as are not specifically mentioned in Clause (1) of Article 254.
36. Even if it is assumed that the petitioner being daughter of an A' Force Officer was entitled to the benefit of the resolution of Council of Common Interests, there is another difficulty in her way. The various certificate of posting of Wing Commander Akhtar Rashid that have been produced before us do not establish that he was posted at Quetta during the, period when admission to the College was open. Certificate Annex 'E' shows that in each year namely, 1965, 1966 and 167 Wing Commander Akhtar Rashid was posted at Samungali, Quetta for period extending from one month to four months in each year. Similar certificate Annexure 'M' also shows that in 1966 and 1967 to attended some courses at Quetta for a brief period of four months. Annexure 'O', 'P' and 'Q' are entitlement slips of the father of the petitioner and the same show that during the months of November and December, 1976 and January, 19:17 the officer had for a few days been borne on the strength of Pakistan Air Force Base at Samungali, Quetta.
37. On examination of all these documents we do not find that Wing Commander Akhtar Rashid was posted at Samungali Pakistan Air Force Base as a regular incumbent. It seems that off and on he had been detailed toe duties at Samungali but his permanent address was Peshawar and at the time of application, for admission of the petitioner he was posted at Rawalpindi. These documents have been produced by the petitioner herself and such documents fail to establish that her father was posted at Samungali, Quetta.
38. The remaining documents consisting of the domicile certificate or the residence certificate also do not advance her case because on her own admission, she was not resident of Quetta. She has in addition also filed a certificate showing her voluntarily service in the National Guard Scheme and certificate reads that such training in the National Guard Schema was obtained by her at Rawalpindi anal not at Quetta, negativing her stay at Quetta.
39. In these circumstances, we see no force in the petition of Mst; Naila Rashid and dismiss the same but there shall be no order as to cost.
Petition No. 60 of 1977
40. We next come to the petition filed by Mohammad Maseom. The brief facts of this case have been stated in the foregoing paragraph. Then petitioner claims to be bona fide resident of Killi Chuhi in Tehsil Quetta, a rural area. In the merit list he stood at No. 10 but respondents Nasir Zaman and Nian Muhammad who respectively stood at Nos. 5 and 6 were given admission.
41. The case of the petitioner is directed more against displacing of finding in favour of respondents Nasir Zaman and Niaz Mohammed in regard to their residence in rural areas, rather than to his own entitlement. The obvious reason is that on merits he could not have secured admission in preference to respondents Nasir Zsma n and Niaz Mohammad. In regard to these respondents the petitioner had agitated before the Appellate Committee that they were residents of urban area and therefore could not be considered for admission from the quota reserved for students from rural area. The Appellate Committee came to the conclusion that evidence produced by the petitioner against the respondents was not acceptable and therefore they rejected the claim of the petitioner.
42. The petitioner has produced a certified copy of a certificate issued by the District Magistrate, Quetta in favour of Niaz Mohammad wherein the latter is shown to be a resident of Killi Metherzai.
The petitioner has also produced copies, from the record of right; showing that Barat Khan, the father of respondent Niaz Mohammad had obtained some land in Wahalla Matharzal but the same land had been resold by Haji Barat Khan to one Bismblah. The argument that is sought to be raised on such premises is that the father of respondent Nisa Mohammad had attempted to show himself to he a resident of Wahalla Matharzal solely for purpose; of obtaining admission for the respondent Niaz Mohammad in the medical college. In addition the petitioner has also produced copies of some correspondence between Deputy Commissioner, Quetta and the Principal of Bolan Medical College, wherein it is stated that Niaz Mohammad had obtained the certificate of residence on misrepresentation. It may at this stage be stated that such letters from the Deputy Commissioner have emanated at the it stance of the petitioner who bad sought a further enquiry into the residential status of the respondents.
43. The Principal of the Bolan Medical College has filed parawise comments wherein it has been stated that although he had received a letter from the Deputy Commissioner. Quetta to the effect that respondent Nisz Mohammad bad obtained the residential certificate on mis-statement of fact the certificate issued to Niaz Mohammad bad not been cancelled. In regard to respondent Nasir Luqman, it is stated in the parawise comments that in spite of Localities of Hudda and Sirki having been declared to be municipal areas, such areas for purposes of admission in the medical college were treated as rural areas and therefore respondent Natir Zamar; had rightly been admitted.
44. Mr. Basharatullah, Advocate for the petitioner has argued before us that the certificate of residence issued in favour of Niaz Mohammad should have overlooked by the two committees because the Deputy Commis--sioner who bad earlier issued the certificate had stated that the same had been obtained by misstatement. It cannot be overlooked that the certificate created a vested right in favour of Niaz Mohammad and if the Deputy Commissioner wanted to divest Niaz Mohammad of such accrued right he should have given a notice to Niaz Mohammed to show cause against any amendment in regard to residential status of Niaz Mohammed.
Admittedly no such notice was given to Niaz Mohammad and the entire enquiry which has been conducted by a Tehsildar was behind the back of Niaz Mohammad. Even in these papers in relation to the Paid enquiry (Annexure `C') nothing has been positively stated as to on what factual premises this amendment of residential status of Niaz Mohammad was proposed to be carried out.
No notice having been given to Niaz Mohammad and the enquiry having been made behind his back the entire process adopted by the Deputy Commissioner was opposed to Law. The principal of Bolan Medical College in his parawise comment has also stated that he did notact on the report of the Deputy Commissioner for tae simple reason that in spite of the enquiry the Deputy Commissioner did not cancel the residential certificate issued in favour of Niaz Mohammad. This obviously was a right course for the Selection Committee to adopt and no fault can be found with that.
45. Coming to the case of the petitioner in regard to Nasir Zaman, we are of the view that the petition cannot succeed. Nasir Zaman, according to the petitioner, was a resident of Stuart Road.
Quetta. On the other hand, Nasir Zaman claims to reside at Arbab Karam Khan Road. This area according to the map produced before us by the Advocate-General has now b-en converted into municipal area in the administration of town committee Hudda. The Prospectus clearly states that despite the creation of municipalities areas of Hudda and Sirki the area enclosed within these municipal areas was to be treated as rural area for the purpose of admission in the Medical College.
46. On ouch view of the matter we sea no force but no order its to costs.
Pedtion No. 78 of 1977
47. This petition has been filed by Miss Rukhsana Malik who is daughter of Javad Malik, Deputy Superintendent, District Jail, Quetta. The case of the petitioner is that she is residing in Jail Colony of the District Jail, Quetta She claims-d that the District Jail was initially a rural area but after the creation of Hudda Municipality, it was enclosed within the area of such Municipality. We have already stated that in spite of Hudda area being a municipal area, for purposes of admission in the medical college such area is considered a rural area. The learned Advocate. General and Mr. Kbalid Malik and Mr. S, H. JAM appearing for respondents Miss Mah Jabeen Sarwar, Nasir Zaman and Niaz Mohammad contested the fact of District Jail or the Jail Colony being within Hudda Municipalities. We had, therefore, requested the learned Advocate-General to ascertain the factual position as to whether the District Jail and the Jail Colony fell within Quetta Municipal limits.
Learned Advocate. General has placed before us the map of the city of Quetta and also two certificates issued respectively by the Municipal Engineer, Quetta and the Chief Officer of Quetta Municipality. The sketch as well as the two certificates clearly stow and state that the District Jail and Jail Colony, Quetta is within Quetta Municipal limits. On facts it would thus deem that the petition wan not grounded soundly. The petitioner on the hand could occupy the quarter in the Jail Colony only for the reason of her father being an employee of the Jail Department, but even over looking that aspect of the case the Jail Colony, itself, being within the municipal limits of Quetta Municipality, therefore the petitioner court not claim residence in rural area. We there fore, see no force in this petition which is also dismissed but there shall be no order as to costs.
31. In the result she Petition No. 77 of 1977 of Miss Masreen Fatima Awan succeeds and the Petitions Nos. 85 of 1977 of Miss Nails Rashid. 60 of 1977 of Mohammad Masoon and 78 of 11977 of Miss Rukhsana Malik are dismissed. There shall be no order as to costs.