HABIBUR REHMAN vs GOVERNMENT OF PAKISTAN And Other

ORDER

1. DORAB PATEL, J.--By a notification dated 27-10-1977, the Government of the North-W est Frontier Province announced that it had reserved six seats for male students from the Orakzai Agen cy in the medical colleges of the country . And for the purpose of this petition for leave, it is sufficient to observe that the petitioner as well as the fourth and fifth respondents claim that they were domiciled in the Orakzai Agency and had passed their F. Sc. (Pre- medical group), therefore, they had applied for admission in medical colleges against the quota of seats reserved for students domiciled in the area of the Orakzai Agency . The applications of these three students were supported by domicile certificates and the date for interviews of students, who had passed their F. Sc. was 12-2-1978. As the fourth respondent was not called on 12-2-1978 for his interview , he made enquiries and was informed that he could not be called as his domicile certificate was not in order , because it had been issued by the Deputy Commissioner , Kohat and not by the Political Agent, Orakzai Agency . Now it would appear that the domicile certificate produced by this respondent with his application form was a very old certificate issued before the creation of the Orakzi Agency , and, therefore, the certificate had been signed by the Deputy Commissioner , Kohat. Accordingly , on learning of the requirement that the certificate had to be issued by the Political Agent, Orakzai Agency , this respondent immediately applied to the Political Agent, Orakzai Agency for the issue of a domicile certificate and learned counsel stated that this certificate was issued to him on 19-2-1978 and as this was issued after the last date for the interviews, the submission was that this certificate was of no avail to the fourth respondent. This plea appears to have found favour with the first two respondents, because although the fourth respondent had higher marks than the petitioner and the fifth respondent, he was not called for an interview even though the results of the successful candidates were announced on 20-3-1978, more than one month after the date on which the fourth respondent had submitted his fresh domicile certificate to the authorities. Accordingly , as the authorities rejected his claim to be admitted in a medical college, the fourth respondent filed a writ petition in the Peshawar High Court against the Federal and the Provincial Governments, the petitioner and the fifth respondent in this petition. This writ petition was contested by the respondents, but it was allowed by a Division Bench of the Peshawar High Court by its judgment dated 23-10-1978. Hence this petition for leave.

2. The judgment under appeal states that the fourth respondent had obtained 523 marks (including 20 marks for his service in the National Cadet Corps) and that the petitioner before us had only secured 443 marks, whilst the fifth respondent has secured even lower marks. Mr. Qasim Imam stated that the observations in the judgment about marks obtained by the petitioner and by the fourth and fifth respondent were correct, therefore, he pressed the petition on one ground only. This was that the fourth respondent was not a domicile of the Orakzai Agency and that the domicile certificate issued to him on 19-2-1978 had been illegally issued.

3. In support of this plea, Mr. Qasim Imam stated that all candidates for the seats reserved for the Orakzai Agency had to produce a certificate of their domic ile in that Agency signed by the Political Agent of the Orakzai Agency . But as the certificate originally produced by the fourth respondent was a certificate issued by the Assistant Commissioner Hangu and counter-signed by the Deputy Commissioner , Kohat, learned counsel's submission was that the fourth respondent was not a domicile of the Orakzai Agency therefore and that his application had been rightly rejected by the authorities, the High Court had erred in allowing this respondent's petition. But in allowing the fourth respondent's petition, the learned Judges of the High Court observed that the Orakzai Agency had been created long after the issue of the. origina l domicile certificate by the Assistant Commissioner , Hangu to the fourth respondent. Mr. Qasim Imam also admitted that the Orakazi Agency was not in existence when the fourth respondent had obtained a domicile certificate from the Assistant Commissioner , Hangu, and got it countersigned by the Deputy Commissioner , Kohat. It is true that the Orakzai Agency had been created by the date when this respondent had filed his application form, therefore, he should have obtained a fresh certificate of domicile from the Political Agent, Orakzai Agency , and he did so by February , 1978. But merely because this certificate was producedA after the prescribed date for interviewing candidates from this Agency would not mean that the fourth respondent was debarred from applying for admission if he was otherwise so entitled to do, provided the certificate was produced before the authorities announced the list of candidates granted admission. And, as the fourth respondent admittedly obtained the correct certificate a month before the Government announced the list of successful candidates, nothing turns on the fact that he produced a correct certificate at least in the absence of some mandatory provisions to the contrary , and no such provision has been produced before us.

4. In these circumstances, as the fourth respondent had admittedly obtained far higher marks than the petitioner , the only question was whether the certificate of domicile granted to the fourth respondent by the Political Agent, Orakzai Agency was in order , therefore, we argee with the view of the learned Judges of the High Court that the fourth respondent's application bad been illegally rejected and as he had higher marks than the petitioner , he was clearly entitled to admission as against the petitioner . The petition is without merit and is dismissed.