MST. KISHWAR REHMAN Versus GOVERNMENT OF BALOCHISTAN

1. TARIQ MAHMOOD, J .Following relief has been sought in this petition:

2. "In the circumstances the petitioner respectfully prays that this Honourable Court may kindly be pleased to declare that the respondent No.5 in .violation of procedure, out of the way, without following the law and in colourable exercise of jurisdiction granted Domicile Certificate to the respondent No.4 and Mr. Khalil-ur-?Rehman when Local Certificate of the respondent No.4 was not cancelled.

3. It may also be declared that the Domicile Certificate (Annexure F/2 dated 21-12-2000 and 3-1-2001) are illegal, unlawful and without any legal effect. The respondents Nos. 2 and 3 could not have selected the respondent No.4. Hence the order of the respondents Nos.2 and 3 are equally illegal and without lawful authority.

4. It may also be held that the petitioner is entitled to be admitted in Bolan Medical College, Quetta."

5. Petitioner alleged that respondent No.4 and his parents belong to Dera Ghazi Khan and in possession of Domicile Certificate issued by District Magistrate, Dera Ghazi Khan. His father Khalil-ur-Rehman after passing ? M.Sc. (Botany) applied for appointment as Lecturer and in the absence of any local candidate, was appointed in Government College, Turbat, initially on contract. However, subsequently was selected by Public Service Commission. It is also the case of petitioner that father of respondent No.4 had been enjoying the privileges, benefit and allowances as Domicile of Dera Ghazi Khan. It has been explained that special incentive allowances were allowed to the non-Local employees in Mekran and during all these years, father of respondent No.4 never revoked his domicile of region, as much as, respondent No.4 and this family has throughout been living in a room of the College. However, it appears that a National Identity Card was issued by Registration Office, Panjgoor to respondent No. 4 and his father on 11-7-2000, showing them residents of the area. It further appears that respondent No.4 applied for grant of Local Certificate, which was granted by the District Magistrate, Panjgoor on 12-10-1999. It may be stated here that four seats have been reserved in Bolan Medical College for the candidates actually belong to the Panjgoor District. As the respondent No.4 was in possession of a Local Certificate issued by District Magistrate Panjgoor, therefore, he also applied for one of the reserved seats. On merits he stood at serial No. l on the list as against petitioner, who is at serial No. 5 but in case petitioner is found ineligible, she would automatically get a seat, as she admittedly belongs to District Panjgoor.

6. Record reveals that when petitioner and other contestants came to know about the issuance of Local Certificate: in favour of respondent No.4, they raised objection before the Deputy Commissioner, Panjgoor who referred the matter for enquiry to Assistant Commissioner, vide Letter dated 7-12-2000. Impugned order of Selection Committees also indicates that a specific objection was raised by the contestants before the Selection Committee that respondent No.4 does not belong to District Panigoor and matter was referred to Deputy Commissioner Panjgoor for verification. Record further reveals that enquiry was conducted and it is important to point out that all the members of Local Certificate Committee gave in writing or made statements that neither the respondent No.4 is a Local of the area nor they made any recommendation or consulted in the matter before the issuance of Local Certificate. They also recommended that Local Certificate so issued in favour of respondent No.4, be cancelled. Although Tehsildar Panjgoor also endorsed the view of the members of Local Certificate Committee, but pointed out that respondent No.4 is residing in the area for past sometime and that he has taken his education from Panjgoor. It was on the basis of this material that Assistant Commissioner prepared a report on 21-12-2001 and while endorsing the view that respondent No.4 is not a Local of the area and not entitled for Local Certificate, recommended for issuance of Domicile Certificate, in case he desires. Record further reveals that on the basis of this report Local Certificate of respondent No.4 was cancelled on 23rd of December, 2000, however, if appears that copy of cancellation order was endorsed to respondent No.4 on 22-12-2000. The result of enquiry was communicated by Deputy Commissioner to Selection Committee vide. Letter dated 16-1-2001, informing that respondent No.4 is not a Local of Panjgoor District and that on the recommendation of Assistant Commissioner his Local certificate has been cancelled and instead, a Domicile -Certificate has been issued in his favour on 21-12-2000. Record also reflects that on 21-12-2000 an application was submitted for grant of Donucile Certificate, which was granted on the same day i.e. 21-12-2000 and even before the cancellation order of Local Certificate (23-12-2000). In the background of the events, when the matter came up for consideration before the Selection Committee, it was pleased to turn down the objection of contestant that "Mr. Noman does not belong to District Panigoor" on the ground that Deputy Commissioner has informed that his Local Certificate has been. cancelled and instead a domicile certificate has been issued.

7. Mr. Tahir Muhammad Khan, learned counsel for petitioner vehemently argued that the grant of Domicile Certificate in favour of respondent No.4 is in violation of procedure for grant of such certificate and in colourable exercise of jurisdiction. Also that private respondent could not have been selected for a seat reserved for District Panjgoor. "And in case he is declared ineligible, petitioner would automatically get a seat being a bona fide resident of the area. On the other hand, Mr. W.N. Kohli learned Counsel for the private respondent submitted that petitioner is residing in the area since birth, was entitled for the grant of Domicile Certificate and consequent admission in professional college against the seat reserved for the area. Mr. Naeem Kasi appearing on behalf of respondent No.3 pointed out that at the time of interview, respondent No.4 was in possession of two certificate i.e. Local and Domicile and further that although he was also in -possession of Domicile Certificate of his father issued by-District Magistrate D.G. Khan but it did not contain the name of private respondent. Learned Assistant Advocate-General though admitted that Local Certificate or Domicile Certificate were issued in favour of private respondent without following the procedure of necessary probe or referring the matter to Local/Domicile Certificate Committee, supported the order of issuance of domicile certificate and grant of admission to respondent No.4.

8. There are two ways to approach the problem. Firstly, that certificate (page 71) issued to respondent No.4 is a certificate of domicile issued under Rule 23 read with section 17 of the Pakistan Citizenship Act, 1951 but in such a case holder cannot claim that he is permanent resident of the area and entitled to benefits attached thereto. Also for the reason that application filed by respondent No.4 (page 69) was not in Form P-I issued under the Pakistan. Citizenship Act, 1951 but he claims to be permanent resident of District Panjgoor and secondly; it is in the nature of P.R.C., and if it is so, then it can be issued only in the manner provided (may be a subsisting practice).

9. Accordingly, it may be seen that a Local Certificate Committee has been constituted in every district to make recommendations for the issuance of Local Certificate. The issuance of Local Certificate is not regulated by any law-rules/regulation on the point but as a person in view of the exigencies and the complexities of the present day life may require it. For example to obtain a seat in professional colleges reserved for the area or for employment, therefore, it appears that in order to regulate the issuance of Local Certificate, a Committee has been constituted to give recommendations for issuance of Local Certificate to those who are genuine residents of the area. Similarly though the Domicile Certificate are issued under the Pakistan Citizenship Act, 1951, but it appears from practice and present case is a concrete example that such certificates are being used for the purpose of admission in professional colleges in Balochistan and to get employment against reserved seat for the district/province or any other like purpose. Nowadays even Registration Authorities require it to check issuance of Identity Cards to Afghan Nationals. It is for such reason that either same are being issued on the recommendations of Committee or after probe through police and on the recommendation of Mutabirs. However, bare perusal of provisions of Pakistan Citizenship Act, read with Rules reveal that issuance of Domicile Certificate in favour of a person means that he was domicile of Pakistan and not the domicile of particular district. Factually a certificate issued under section 17 pf the Act, read with rule 23, cannot have any other purpose as the said section provides that the Central Government may upon B 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 a period of not less than one year immediately before submitting the application and has acquired domicile therein (Refer 1980 SCMR 456) but since petitioner took birth in Pakistan, therefore, he must be deemed to be a domicile of a Pakistan by birth. But in the domicile certificate, granted by the Deputy Commissioner, the grantee is mentioned to be the domicile of a particular district in that, place of domicile of petitioner has been mentioned as Kahn-e-Zangi, Tehsil and District Panjgoor and it may be noted that even para.26 of Prospectus requires a candidate to produce before the Selection Committee a Local Certificate issued by the Deputy Commissioner/District Magistrate of their respective District or a Domicile Certificate issued by the Deputy Commissioner/District Magistrate of the District Magistrate under the Pakistan Citizenship Act. It may also be stated that local certificate is issued to a person, who belongs to one of the indigenous tribes of Balochistan and permanently residing in a particular area. As against this, Domicile Certificates are issued to those who do not belong to indigenous tribes of Balochistan but otherwise are permanently residing in Balochistan (commonly known as 'Settlers'). In case of issuance. of Domicile Certificate strictly in terms of Pakistan Citizenship Act, no doubt District Magistrate himself is competent to do so delegatee of Central 'Government but since domicile certificates .are being issued for the purpose of admission in the professional colleges of Balochistan or gains attached to it such as, residence or for the purposes hereinbefore mentioned, therefore, if in order to regulate issuance of such certificates, Local Certificate Committee and Domicile Certificate Committee have been constituted or some set procedure is being, followed and the same are being issued on their recommendation, no departure can be made, particularly when criteria and purpose for grant of two Certificates are entirely different. Also that in the former case. it cannot be cancelled except in the manner provided by the law but in later case after providing opportunity of hearing or/and probe into the matter, same can be recalled. In our view, these observations would remove some of the anomalies regarding nature of such certificate.

10. It may also be noted that question of residence in a particular district depends upon the satisfaction of Committee which of course has to be based on record. Such domicile certificates in the district are invariably issued after the person claiming the domicile is certified to be the resident of the area. Invariably recommendations of Committee or result of enquiry are accepted by the D.C. concerned unless there is a concrete material to the contrary.

11. In some what similar circumstances this issue came up for consideration before Hon'ble Supreme Court in the case of Fida Muhammad and another v. D.C. Killa Abdullah and it was observed as under;--

12. "We have heard learned counsel and have perused the impugned judgment carefully. In our opinion question for consideration in the instant case is as to whether Domicile Certificate granted by District Magistrate in favour of petitioner No. 1 on 31-12-1976 was issued under the provisions of the Act or otherwise. This proposition came up for consideration before this Court in the case of Muhammad Yar v. Deputy Commissioner-cum-Political Agent Loralai and another 1980 SCMR 456, wherein status of such a Domicile Certificate obtained on Form P I issued under the Pakistan Citizenship Act, 1951 and rules made thereunder was equated with a permanent residence certificate meant for admission in professional colleges or for obtaining jobs in the Government Departments. Therefore the District Magistrate retains the authority to cancel the same even without following the provisions of rule 26 of Rules. It may be noted that ins the case of Muhammad Yar Khan the District Magistrate Loralai had cancelled his Domicile Certificate and his such action was sought to be declared without jurisdiction but this Court did not agree with this contention and refused to interfere in the order of the High Court dismissing his petition for restoration of cancelled Domicile Certificate. Thus we are of the opinion that as in view of above judgment of this Court the status of a Domicile Certificate is not more than permanent residence certificate as such the District Magistrate retains the jurisdiction to cancel the same, however, grounds for doing so differ from case to case and no arbitrary powers can be conferred upon the District Magistrate to exercise jurisdiction against the settled principles of justice. As in the instant case the petitioner No. l despite availing opportunity of hearing before the Inquiry Committee failed to establish that he being a permanent resident of Chaman had obtained the so-called Domicile Certificate in his favour therefore, keeping in view these factual aspects art adverse order was passed against him by District Magistrate vide order dated 22nd February, 1999. Therefore, we are of the opinion that the High Court in exercise of its jurisdiction under Article 199 of Constitution had rightly refused to interfere in the impugned order passed by District Magistrate Killa Abdullah at Chaman. "

13. Now it may be seen that admission to the Bolan Medical College is open to the genuine, . local and domiciled candidate of the Province of Balochistan (para.25 of the Prospectus 1999-2000). Similarly under para.30 of the Prospectus the Selection Committee is competent to see and enquire as to whether a candidate actually belongs to the district of which he has produced the Local Domicile Certificate. In this background when the matter came up for consideration before the Committee, serious objection was raised about the belonging of respondent No.4 from Panjgoor. It appears that Selection Committee was also not satisfied on the basis of available record about the belonging to respondent No.4 from District Panjgoor and it was for such reason that matter was referred to D.C. Parkjgoor for enquiry. Record reveals that simultaneously application was submitted before D.C. Panjgoor for cancellation of Local Certificate and he referred the matter to A.C. for enquiry. A detailed enquiry appears to have been conducted and it is important to point out that whereas no Local Certificate could have been issued without recommendation of Local Certificate Committee, all the members of Local Certificate Committee recommended for cancellation of Local Certificate on the ground that respondent No.4 is not a Local of the Area and further that neither they had made any recommendation nor were consulted in the matter. It was on the basis of this enquiry that the learned A.C. recommended for cancellation of Local Certificate but while endorsing the view of persons enquired in the matter also-made an observation that petitioner be issued a domicile certificate, if so desired. It is pertinent to point out that such report was prepared on 21-12-2000, matter was also placed before the D.C. on 21-12-2000, and cancellation order was issued on 23rd of December. 2000, but before the issuance of cancellation order, respondent No.4 appears to have filed an application for issuance of Domicile Certificate on 21-12-2000 claiming himself to be the permanent resident of Panigoor, and amazingly it was granted on the same date, but once again without any probe and enquiry in the matter. This could not have been done. It may also be noted that Selection Committee was under a legal obligation to decide question of belonging of respondent No.4 and though matter was referred to Deputy Commissioner to enquire whether private respondent belongs to area or not but unfortunately Deputy Commissioner in his report dated 16-1-2001, (R-5) did not give a definite opinion. whether respondent No.4 actually belongs to District Panjgoor but instead informed the committee that his Local Certificate has been cancelled but on the recommendation of A.C., a domicile certificate has been issued. Even the Selection Committee which was supposed to decide the question on the basis of report so received, documents available on record and attending circumstances but -failed to perform its duty and the objection of contestant that respondent No.4 does not belong to the area was never decided. It may also be seen that possession of Local Certificate issued by the Deputy Commissioner/District Magistrate or Domicile Certificate issued by the D.C./D.M. under the Pakistan Citizenship Act, 1951, by itself would not be sufficient to grant admission because the same is open to genuine local and domicile candidates of the province/district and it is for the Selection Committee to decide the belonging of a person on the basis of material available on record or enquiry through the D.C., as ordered in this matter Also that settled law is that mere fact that the father of respondent No.4 had joined service in Balochistan and posted at Panjgoor is not by itself conclusive evidence of respondent . No.4 or his father's intention to settle permanently in Panjgoor. For the acquisition of a domicile of choice, there must be a combination of residence and intention of permanent or indefinite residence before the change can become effective. The alleged birth of respondent No.4 and his education at Panjgoor can also be taken into consideration to record a finding, whether he actually belongs to Panjgoor.

14. It may not be out of context to point out that object of reserved seats for various districts in professional college appears to give legal protection to the students of backward area in order to bring them at -par with the developed area of the country. This departure from merits has a Constitutional protection in case of educational institutions financed by the Government. So, this object would certainly be defeated if the students who are not permanent/genuine residents of the districts, manage the certificates and act admission. And in the absence of Permanent Resident Rules which is a long awaited demand. a very high responsibility lies on the shoulders of Selection Committee and Deputy Commissioner concerned to see that .admissions are granted only to students, who actually belong to the area but in this case unfortunately neither the Selection Committee at the time of grant of admission to respondent No.4 and rejecting the objection of contestants including petitioner has felt its responsibility nor Deputy Commissioner cared. The matter was referred to Deputy Commissioner only to see whether respondent No.4 actually belongs to the area but since simultaneously proceeding were also initiated for cancellation of Local Certificate, therefore, two issues were mixed up and although ultimately Local Certificate was cancelled (which has not been challenged by the respondent No.4), Assistant Commissioner at his own made a recommendation for issuance of Domicile Certificate but the proceeding do not appear to be transparent because in ease of transparency the respondent No.4 could not have attained knowledge of cancellation of Local Certificate and about the recommendations of Assistant Commissioner, Panjgoor for issuance of Domicile Certificate. It indicates that while preparing and submitting report on 21-12-2000, the details of report were definitely conveyed to respondent No:4, who promptly submitted an application on the same day after obtaining recommendations from different authorities but certificate was also issued on the said date and before cancellation of his Local Certificate i.e. 23-12-2000. In the, circumstances it is clear that the Assistant Commissioner anti Deputy Commissioner had a keen interest that respondent No.4 should get a seat in all circumstances but since the certificate issued at page 71 is not a certificate of domicile of Pakistan but is being treated as a permanent resident or domicile resident of Panjgoor and as claimed by the respondent No.4 in his application, therefore, no such certificate could have been issued without first following .the procedure. Accordingly, the Domicile Certificate issued by Deputy Commissioner in favour of respondent No.4 was issued without lawful authority and consequently of no legal effect. However, it would be open for the respondent No.4 to apply to District Magistrate, Panjgoor for, grant of certificate under Pakistan Citizenship Act, who can issue the same in terms of Pakistan Citizenship Act and Rules thereunder. But as to the issuance of Local/Domicile Certificate on the basis of claim that respondent No.4 is a native resident of Panjeoor as reflected from his application for grant of Domicile Certificate, the matter is to be dealt with, as per consistent procedure of enquiry in the matter.

15. In result, we declare the issuance of certificate dated 2 -12-2000, on the basis of application submitted by, respondent No.4 on 21-12-2000, having been issued without lawful authority; however, his application would be treated as pending, in that, it is the stand of respondent No.4 that he took birth at Panjgoor, was brought up and throughout studied there and it would be open for the Deputy Commissioner to proceed in the matter, in accordance with settled procedure for grant of such certificate. Consequently; and for the reasons mentioned in earlier part of judgment, admission granted by Selection Committee to respondent No.4 is cancelled.

16. We would have normally remanded the case to the Selection Committee for consideration of the case of the petitioner in the light of above observations viz-a-viz any- other candidate but as it has not been disputed that petitioner on merits stands at serial No.5 and the permanent resident of the area, therefore, we order that she should be admitted against the seat granted in favour of respondent No.4 Noman Khalil. In the circumstances of the case no order as to cost.

17. Q.M.H./M.A.K./73/Q ???????????????????????????????????????????????????????????????????????? Order accordingly.