NIGHAT ALMAS Versus SELECTION COMMITTEE, BOLAN MEDICAL COLLEGE, QUETTA

MUFTAKHIRUDDIN, J--- By this petition Nighat Almas daughter of Qazi Muhammad Hameedullah has challenged the decision of the Selection Committee, Bolan Medical College, Quetta whereby the petitioner has been left over and the respondents Nos. 3 and 4 have been selected for admission in the Bolan Medical College for the academic session 1982 from the reserved seats of district Kachhi and arises in the coiling circumstances :-----

2. That Qazi Muhammad Hameedullah father of the petitioner a railway employee while posted at Mach in the year 1972, had obtained a domicile certificate under the Pakistan Citizenship Act, 1952 and had secured admission for one of his sons in the Bolan Medical College for the academic sessions 1972 from the district Kachhi but when Nighat Almas in 1982 applied for a seat in Bolan Medical College, Quetta for a reserved seat from Kachhi District on the basis of the same domicile certificate; issued to her father, wherein the name of the petitioner Nighat Almas is mentioned as one of the dependents of Qazi Muhammad Hameedullah, the Selection Committee did not consider her eligible from that District on the ground that she does not belong to that District while the application of Nighat Almas before the Selection Committee was pending the domicile certificate issued to the father of the petitioner was cancelled on 2nd September, 1982 by the Deputy Commissioner-cum-District Magistrate, Kachhi. This order of cancellation was challenged in this Court C. P. No. 269 of 1982 by Qazi Muhammad Hameedullah and this Court vide judgment dated 27th March, 1983 has declared this cancellation of domicile certificate as illegal and without lawful authority. It is alleged that in spite of the order of this Court the Selection Com mittee did not accede to the request of the petitioner and declined to recommend her to a seat reserved for Kachhi District. Hence this petition.

3. The claim of the petitioner is based mainly on the domicile certificate and a small piece of land at Mach whereupon a temporary but (Store) was found constructed in 1972. The petitioner also relied on the affidavit tendered by her before the Selection Committee wherein she has explained her education at Kachhi. An elaborate and comprehen sive counter-affidavit in reply has been filed by the Principal, Bolan Medical College and the Secretary of the Selection Committee wherein it has been asserted that the case of the petitioner was considered by the Selection Committee and the Selection Committee did not consider the reasons shown by her for studying at Kachhi as satisfactory and the consideration which prevailed for the view was that the petitioner had other sisters elder to her who could look after the ailing mother of the petitioner if her ailment required an attendant. The petitioner, according to the members of the Selection Committee on the basis of the material furnished before it, does not belong to District Kachhi. The findings of the Selection Committee is further based on a report from the Deputy Commissioner, Kachhi wherein it was alleged that the petitioner's father did not live in Kachhi after the year 1972. The property alleged to have been purchased by the petitioners father in the year 1972 is only a hut not worth living and is lying abandoned. This report of the Deputy Commissioner is supported by the evidence produced before the autho rities at Mach and is available on record of this case at page 151 (report of members and the Chairman, Town Committee Mach and also signed by members of the District Council) and a report dated 6th August, 1982 made by the Assistant Commissioner, Mach. It has been asserted in the decision of the Selection Committee as reproduced in the counter affidavit filed by Principal, Bolan Medical College on 19th June, 1983. That the father of the petitioner was called upon by District authorities Kachhi to repudiate the allegations made against him by the members of the Town Committee and he was required to establish the genuineness of his claim that he actually belong to Kachhi District but in spite there of the father of the petitioner did not care to appear nor established his bona fides as such the Selection Committee on the basis of the proof furnished before it in the shape of the report of the Deputy Commissioner which in. turn was supported by the documentary evidence, came to the conclusion that the petitioner does not belong to Kachhi District. The explanation offered by the petitioner for having been educated at Kachhi upto the Matriculation was not found satisfactory, the petitioner accor dingly could not be found eligible for admission from the reserved seats of District Kachhi.

4. The learned counsel has vehemently contested the allegations found against the petitioner. It is, however, significant that these facts were alleged in the rejoinder filed in this petition, the counter-affidavits in reply on behalf of respondent No. 1 and respondent No. 4 were filed on 20th June, 1983 and by respondent No. 3 on 21st June, 1983 and on 27th June, 1983 the counsel for the petitioner had requested for adjourn ment as he wanted to study the replies filed by the respondents. No reply to there counter-affidavits has been filed upto the date of hearing of this petition i.e. 25th September, 1983. The allegations of facts con tained in the counter-affidavits, therefore, stand proved having been not rebutted specifically.

5. The main contention of the learned counsel for the petitioner is that the domicile certificate issued to the father of the petitioner is still intact and the Selection Committee was not within their jurisdiction to ignore this position. The contention of the learned counsel has no force. It has been repeatedly pointed out by this Court that mere production of domicile does not conclusively determine the eligibility of the candidate and in spite of submission of domicile certificate it is within the competence of the Selection Committee to determine whether the candidate actually belongs to the District: (See judgment of this Court in C. P. No. 112 of .1981, decided by the Division Bench of which my learned brother Abdul Qadeer Chaudhary, J was a member). This Court in C. P. No. 269 of 1982 filed by Qazi Hameedullah the father of the petitioner had pointed out that Hanneedullah did not require a citizen ship certificate and he had become citizen of Pakistan by operation of law having migrated to Pakistan on 2nd March, 1948. The only status which the domicile certificate issued under the Citizenship Act can bestow on a person is that he is. recognized as citizen of Pakistan and nothing more and the person applying for the domicile certificate is to satisfy the authorities that he is residing in Pakistan for a period not less than one year before making the application. The Citizenship rights of Qazi Hameedullah have never been challenged. What is challenged is that he does not belong to Kachhi District as he did not reside there after 1972 thus he is not domiciled there. The requirement of law as pres cribed by the prospectus is the local certificate or domicile certificate issued by the District Magistrate of the District, therefore the only relevant consideration before the Selection Committee was the establish ment of the fact that the petitioner actually belonged to that District and the Committee after considering the report of the Deputy Commissioner and the documentary and oral evidence furnished before it came to a positive finding of fact that the petitioner does not belong to District Kachhi. The basis of this finding has not been controverted by the petitioner. The finding of fact therefore has to be accepted as correct and the Selection Committee was competent under rule 32 of the pros pectus to decide as to whether a candidate actually belongs to the District, of which he has produced the local/domicile certificate.

The said rule is reproduced below :-------

"32. The Selection Committee, on the basis of the documents attached with the application form of a candidate, as required under paragraph 35, and/or further inquiry through the Deputy Commissioners or other sources, shall be competent to decide as to whether a candidate actually belongs to the District, of which he/she has produced the Local/Domicile Certificate and whether he/she is entitled of his/her being selected against the seats of that district or not. The candidate shall be bound to abide by the decision of the Selection Committee."

6. The unreported judgments of this Court wherein this rule has been considered and the view we now take of the rule 32 had been approved are numerous but some of them may be referred and they are found in Shahid Javid v. Government of Baluchistan C. P. No: 174 of 1980. Farah Deeba v. Government of Baluchistan C. to No. 112 of 1981. Hafeez-ur-Rehman v. Government of Baluchistan C. P. No.177 of 1980 and the latest decision of this Bench in Muhammad Shamsul Qamar v. Selection Committee C. P. No. 47 of 1983. The facts on the basis whereof the Selection Committee has based its findings have not been repudiated either before the Selection Committee or before us and the only reply of the learned counsel is that the Selection Committee has not considered the case of the petitioner properly and reliance has been placed on a judg ment of this Court in Miss Lubna Hafeez v. Selection Committee and others C. P. No. 48 of 1983. We may explain that the basis on which the finding of the Selection Committee was declared as illegal and without jurisdiction were the peculiar facts of that case established on record and they were that the permanent residence of Lubna Hafeez in that District right from the date of her birth till the entire education received by her and the temporary residence of the petitioner at Quetta for her studies in the intermediate classes at Quetta as a scholarship-holder of that District at no stage of time were controverted rather re-affirmed by the Deputy Commissioner, Khuzdar and in spite thereof the Selection Committee had taken a view which we had found perverse, as the Committee had ignored the documentary evidence brought on record before it which established beyond doubt that she belonged to Khuzdar, The judgment of this Court in Lubna Hafeez case is, therefore, of no avail to the petitioner, and the reliance of the learned counsel is misplaced. The factual controversy has been resolved by the Selection Committee and the finding is based on evidence brought on record as such it cannot be said it is based on no evidence or it is a finding which is not possible to arrive at or it is perverse. This Court has pointed out in Quetta Club v. Muslim Khan (P L D 1983 Quetta 46) that however, extensive the jurisdiction of the High Court may be it is not so wide or large as to enable the High Court to convert itself into a Court of appeal, and this view in fact flows from the pronouncements of the High Courts referred therein. In the judgment of the Supreme Court in Muhammad Hussain Munir's case (PLD1974SC 139). At page 142 of the report the weighty observations are found that :--- "the expression" without lawful authority and of no legal effect is an expression of Art and refers to jurisdictional defects as dis tinguishable from a mere erroneous decision whether on question of fact or even law. High Court, in exercise of its writ jurisdiction is concerned only with question whether Court or tribunal below had acted within its jurisdiction."

"It is well settled that where a Court or tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."

No case can doubt that decision given by the Supreme Court of Pakistan is a binding precedent on all Courts in this country to the extent that the decision decides a question of law or is based upon or enunciates a principle of law. This declaration by the Supreme Court is binding on us and a provision to that effect is found in Article 189 of the Constitu tion of 1973 which provision is retained in the Provisional Constitution Order, 1981.

For the above reasons we cannot persuade ourselves to interfere with' the decision of the Selection Committee and would uphold the decision of the Selection Committee. The petition, therefore, is dismissed'.

However, the parties will at their own costs.

S. Q. Petition dismissed.