1996 C L C 1794

[Azad J&K]

Before Chaudhary Muhammad Taj, J

AMBREEN GUL and another---Petitioners

versus

NOMINATION BOARD OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD

through Chairman, Muzaffarabad and 3 others---Respondents

Writ Petition No. 61 of 1996, decided on 21st May, 1996.

(a) Educational Institution---

---- Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974),
S.44--Constitutional petition---Nomination for admission in M.B.,B.S. Course in
different Medical Colleges of Pakistan against reserved seats---Such seats were reserved
for domicile of 'M' District---Respondent's nomination to such seat was challenged by
petitioners on the ground that respondent having abandoned her domicile of origin and
having adopted domicile of her choice was not entitled to be nominated for a seat
reserved for the district of her origin 'M'--"Domicile of origin" and "domicile of
choice"---Distinction---Effect and consequences flowing therefrom---Domicile of
origin after adopting domicile of choice, remains in abeyance during that period and is
revived on abandonment of choice---(Respondent who was admitted to be a domicile of
'M') by origin, after abandoning her domicile of choice, applied for fresh domicile from '
M' which was issued in her favour---Conditions laid down to stay for period of 5 years
would not be applicable to respondent for her domicile of origin being 'M', same revived
after surrendering domicile of choice---Respondent's domicile of origin having revived
after she abandoned domicile of choice, her nomination for M.B.B.S. Course for reserved
seat from district of her origin ' M' was valid in circumstances.

Fauzia Hussain Abbasi v. Nomination Board and others 1995 CLC 1761; Miss
Rakhshanda Aslam v. Nomination Board of Azad Jammu and Kashmir PLD 1986 SC
(AJ&K) 1; Qamar Afzal v. Muhammad Ashfaq Khan PLD 1979 SC (AJ&K) 96; Private
International Law by G.C. Cheshire, Fourth Edn., p. 171; Muhammad Ashfaq Khan v.
Chairman, Nomination Board and another PLD 1979 Azad J&K 43; Sultan Khan v.
Federal Public Service Commission 1983 CLC 2803; Corpus Juris Secundum, Vol.28;
Halsbury's Laws of England, 4th Edn., Vol.8 and Private International Law ref.

(b) Domicile---

----"Domicile of origin" and "Domicile of choice" ---Distinction and effect and

consequences. flowing therefrom---Domicile of origin after adopting domicile of
choice, remains in abeyance during that period and is revived on abandonment of choice.

Muhammad Ibrahim Zia for Petitioners.

Ghulam Mustafa Mughal and Ch. Muhammad Yusuf, A.-G. for Respondents.

ORDER

This writ petition has been filed challenging the order of nomination of respondent No.3
for the Course of M.B.,B.S. in Medical College of Pakistan, against the seats reserved for
domiciles of Muzaffarabad District, on the basis of domicile Certificate which is illegal,
without jurisdiction and is ineffective and inoperative against the rights of the petitioner,
passed by respondent No. l on March 10, 1996.

2. The facts as disclosed in the petition are that respondent No. 1, the Nomination Board,
Azad Jammu and Kashmir, invited applications for admission in M.B.,B.S. Course for the
year 1995-96 in different Medical Colleges of Pakistan, against the reserved seats, from
Page No. 1 of 8
the candidates of Azad Jammu and Kashmir and refugees settled in Pakistan. It was also
disclosed that the petitioners are State-subjects, as such applied against the five seats
reserved from women of domicile of Muzaffarabad District. It was also stated that in
addition to the aforesaid five seats, other seat for the woman, out of 10 seats for Azad
Jammu and Kashmir, was allocated for Muzaffarabad District, against which respondent
No.3 was nominated by respondent No.l, on the basis of domicile certificate issued by
respondent No.2, the District Magistrate, Muzaffarabad. The petitioners claim to be
entitled for their nomination against the above seat. The nomination of respondent No.3
was challenged as illegal, without jurisdiction and lawful authority.

3. The respondents in response to the notice issued to them, filed their written statements
claiming the writ petition to be not maintainable on the grounds that the petitioners are
not aggrieved persons. They were nominated for -the course of B.Sc./DEM, Peshawar, as
such were not entitled to contest for any further nomination. The petitioners were not
entitled to invoke the writ jurisdiction of this Court for having an alternative remedy and
also the points raised relate .to the facts not amenable to the Constitutional jurisdiction.
The dismissal of the writ petition was also claimed on the facts as respondent No.3 was
claimed to be a permanent resident of Muzaffarabad (A.K.) and, therefore, the domicile
certificate was correctly issued in her favour, as such her nomination was made on the
basis of merit.

4. Mr. Muhammad Ibrahim Zia, the learned counsel for the petitioners raised the
following points, in support of his petition:-- .

(i) That respondent No.3 is not domicile of Muzaffarabad District as according to the
learned counsel, she was nominated against the reserved seat, from Muzaffarabad
District, on the basis of domicile certificate issued by respondent No.2 last year. Her
nomination was cancelled by the High Court of Azad Jammu and Kashmir and upheld by
the Supreme Court, observing thereby that she was not a domicile of Muzaffarabad
District;

(ii) that respondent No.2, while issuing the domicile certificate in favour of
respondent No.3, acted against the mandatory provisions provided for the purpose, as
envisaged in the State Subject Act, 1980 and the rules made thereunder. It was explained
that a domicile certificate was issued earlier by the District Magistrate, Muzaffarabad on
September 22, 1993 and later on, the above respondent got the domicile certificate from
the District Magistrate, Karachi, on October 13, 1994, as such she abandoned the
domicile of the State of Jammu and Kashmir and adopted that of District Karachi as
domicile of her choice. After the issuance of above-referred domicile certificate from
Karachi, the issuance of a second domicile certificate by respondent No.2, is against law
and also offends the provisions governing its issuance;

(iii) that the dictum of the Supreme Court of Azad Jammu and Kashmir in the earlier
proceedings in a case titled ' Fauzia Hussain Abbasi v. Nomination Board and others (i
995 CLC 1761) disentitled respondent No.3 to be nominated against the seat reserved for
the domiciles of Muzaffarabad District, upholding the judgment of the High Court in an
appeal tiled by her against the order, of acceptance of writ petition challenging the
legality of her nomination as domicile of Muzaffarabad District. Therefore, the
nomination on the basis of fresh domicile certificate is illegal and without jurisdiction;
and

(iv) that the District Magistrate, Muzaffarabad who was a party in the earlier proceedings,
ignoring the observations of the Supreme Court, issued the domicile certificate. It was
explained that after abandoning the domicile certificate issued earlier in 1993 and
subsequently adopting the domicile of Karachi in 1994, the impugned domicile certificate
was issued clearly against the provisions particularly provided in Rule 7 of the Azad
Jammu and Kashmir State-Subject Rules, 1980.

5. Controverting the arguments advanced by the learned counsel for the petitioners, Mr.
Ghulam Mustafa Mughal, Advocate and Ch. Muhammad Yusuf, Advocate-General,
representing the respondents, addressed the following arguments:--

Page No. 2 of 8
(i) That respondent No.3 is a State-Subject and permanent resident of District
Muzaffarabad which is her domicile of origin. It was explained that due to her parents'
business engagement, she had to reside temporarily at Karachi but she has no intention to
settle permanently there. The domicile certificate was correctly issued under law.

(ii) that on the basis of facts available, the District Magistrate proceeded to issue the
domicile certificate which cannot be assailed in writ jurisdiction as the same relates to the
question of fact;

(iii) that the alternative remedy of appeal available to the petitioners, was not availed
by them; as such the extraordinary ,jurisdiction of writ petition cannot be invoked for the
purpose. The learned counsel while explaining the position, referred to the provisions of
abovementioned Rules providing the remedy of appeal;

(iv) that the domicile of origin can never be abandoned. It is only kept in abeyance if
a domicile of choice is adopted and is automatically revived on surrendering the domicile
of choice;

(v) that the verdict of the Supreme Court of Azad Jammu and Kashmir, reported as
1995 CLC 1761, supports the version of the respondent so far as the revival of her
domicile of origin is concerned; and

(vi) that the petitioners have already been nominated for the course of B.Sc.
(D.B.M.), Peshawar, therefore, are not entitled to be nominated for any other course or
seat reserved by the Nomination Board.

6. I have heard the learned counsel for the parties and also gone through the record.
The parties are not at variance on the following points:--

(i) That respondent -No.3, Miss Fauzia Hussain Abbasi is resident of Muzaffarabad
District, as such her domicile of Origin is of Muzaffarabad;

(ii) that respondent No.3 was issued a domicile certificate by respondent No.2, in the
year 1993, on 22-9-1993;

(iii) that respondent No.3, later on, got issued a domicile certificate from the District
Magistrate, Karachi, on 13-10-1994;

(iv) that the certificate issued by the District Magistrate Karachi, referred to above,
was abandoned by respondent No.3, on 20-4-1995;

(v) that a fresh domicile certificate was issued by respondent No.2, in favour of
respondent No. 3, on 11-11-1995;

(vi) that the nomination of the above respondent last year by the Nomination Board as
domicile of Muzaffarabad, was held to be cancelled by the High Court and the same was
upheld by the Supreme Court vide its judgment dated 16-7-1995: and

(vii) that the point raised with regard to non-maintainability of the writ petition in the
written statement, on the ground that the petitioners are not aggrieved persons, was
abandoned by the counsel for the respondents and similarly the point of alternate remedy
available to the petitioners, was also not pressed.

7. It is essentially required as to what domicile is. The definition of domicile is not given
either in the State Subjects Act, 1980 or the rules made thereunder of 1980. The word
"domicile" attracted the attention of the different jurisdictions. The proposition came also
under discussion before the Supreme Court of Azad Jammu and Kashmir, in a case titled
"Miss Rakhshanda Aslam v. Nomination Board of Azad Jammu and Kashmir" (PLD 1986
SC(AJ&K) 1) Dealing with the word "domicile", the learned Judge observed as under:--

"The word 'domicile' is a derivation of Latin word ' domus' meaning a home or a dwelling
place; its relationship which in law creates between individual and a particular locality or
a country. A person shall be said to be domiciled of a locality where he intends to live
Page No. 3 of 8
permanently and considers that place as his principal or permanent home. The 'domicile'
of a person, therefore, shall be determined while taking into account the intention of the
person manifested by his conduct to show whether he has adopted a mental attitude to
settle down at a particular place permanently and make that place as his permanent home.
It is correct that a person may leave his country temporarily to make his fortune and in
that even the domicile of origin is retained as he never intends to permanently abandon
the domicile of origin and make his home permanently in the domicile of choice but
where the intention is throughout clearly expressed through conduct or circumstances to
have an inference that a person never wished to return to the domicile of origin and has
elected the domicile of choice for no other purpose than that of trade, settling thereat
permanently and also acquired huge property thereat, it shall be said that such person has
abandoned his domicile of origin for domicile of choice. To have a finding on the point
duration of person's stay at a place other than that of his domicile of origin, the purpose
of his stay thereat, the nature of the business he carries, the quantum of movable and
immovable assets he holds, and his conduct and mental attitude towards his domicile of
origin shall provide the guideline and have to be taken into consideration. "

8. In another case titled "Qamar Afzal v. Muhammad Ashfaq Khan" (PLD 1979 SC
(AJ&K) 96), the learned Judges of the Supreme Court while dealing with the words
"domicile", gave the following verdict at page 98 of the report:--

A person shall be said to be domiciled of a locality where he intends to live permanently

and considers that place as his principal or permanent home. 'Domicile' of a person,
therefore, shall be determined while taking into account the intention of a person
manifested by his conduct to show whether he has adopted a mental attitude to settle
down at a particular place permanently and make that place as his permanent home. So,
in every case the question of domicile is to be decided on the facts of that particular case
and no hard or fast rule can be laid down to have a universal definition of the word
'domicile'.

Domicile is of three types:

(1) Domicile of origin;

(2) Domicile of choice; and

(3) Domicile of adoption.

What is a domicile of origin and domicile of choice?

The domicile of origin of a person is that which he at his birth acquires from his parents
and once it is ascertained in law, it clinges to the person until he chooses to divest himself
of it by substituting a domicile of choice for the domicile of origin. In the first place,
there is a strongest possible presumption in favour of continuance of domicile of origin
and it has been rightly said by Lord Macnaghten that 'its character is more enduring, its
hold stronger and less easily shaken off'. This observation is found in Private
International Law by G.C. Cheshire, Fourth Edition, p.171. Thus, in law a person is
presumed to carry the domicile of origin until it is proved that he has abandoned that
domicile with the intention to Jet up at a place permanently with the intention to make
that place a permanent home and make a fortune for him. The domicile of choice is
'acquired by combination of fact and intention. The fact is residence and the intention is
that the residence should be permanent'. It, therefore, follows that the domicile of origin
can be discarded for domicile of choice by intention to reside at the place of domicile of
choice permanently. On this score, it would be quite sufficient to have evidence that a
person has taken up a habitation in another country other than that of the country of
origin with the intention of remaining thereat for an indefinite period to constitute this
latter country his domicile of choice. It is thus necessary for making out a case of
domicile of choice to prove that a man had taken up his residence in a country other than
that of his domicile of origin for an

indefinite period so as to make that place his principal home. Though it is difficult in such
cases to decide the intention to abandon the domicile of origin in the absence of express
declaration yet it is permissible to have an inference on the issue from certain established
Page No. 4 of 8
circumstances and facts whether a person intends to live permanently at the domicile of
choice in abandoning the domicile of origin. The intention must be apparent to choose
that place in fact as residence and in intention of permanent residence. It would be
sufficient on the issue to prove that a man had taken up his residence in a country other
than that of his domicile of origin for an indefinite period say, for such a period as would
enable him to make his fortune. It is correct that a person may leave his country
temporarily to make his fortune and in that case, the domicile of origin is retained as he
never intended to permanently abandon the domicile of origin and make his home
permanently in the domicile of choice but where the intention was throughout clearly
expressed through conduct or circumstances to have an inference that a person never
wished to return to the domicile of origin and has selected the domicile of choice for no
other purpose than that of trade, settling thereat permanently and also acquired huge
property thereat, it shall be said that such person has abandoned his domicile of origin,
for domicile of choice. To have a finding on the point, the duration of a persons's stay at a
place other than that of his domicile of origin, the purpose of his stay thereat, the nature
of the business he carried on, the quantum of the movable and immovable assets held by
him and his conduct and mental attitude towards his domicile of origin shall .provide the
guideline and have to be taken into consideration. "

9. While dealing with the point of domicile of origin and domicile of choice, it was
observed by this Court in a Division Bench case titled "Muhammad Ashfaq v. Chairman,
Nomination Board and another" (PLD 1979 Azad J&K 43), as under:--

"While dealing the question of domicile, the actual residence and intention to reside at a
place permanently or for an indefinite period, are to be taken into consideration. The
domicile of choice is acquired even if there is no intention on the part of a person to
abandon his domicile of origin. If a person has settled at a place permanently or. for an
indefinite period, he acquires the domicile of choice and as soon as he acquires it, the
domicile of origin remains in abeyance during the continuance of a domicile of choice
and during the period of such abeyance he is deemed to be a domicile which he acquires
by his choice. The intention to reside permanently or for an indefinite period is to be
gathered from the circumstances of each case and there are no hard and fast rules to
ascertain such an intention. "

10 The point also came under discussion before the Lahore High Court in a case titled
'Sultan Khan v. Federal Public Service Commission (1983 CLC 2803) and the following
observation was made:--

"---In law there are two main classes of domicile, one is the domicile of origin which is
communicated by operation of law to each person at the time of his birth and the other
domicile of choice which every person of full age is free to acquire in substitution for that
which he possesses. The domicile of choice is voluntary and can be abandoned or
changed according to the intention and permanent residence of a person while domicile
origin remains in abeyance during that period and can be revived. "

11. While dealing with the question of continuance and termination of domicile of a
person, it has been observed in Note 13 of Corpus Juris Secundum, Vol. 28 (referred to by
the Supreme Court (AJ&K) in Fauzia Hussain Abbasi's case) as under:--

"The abandonment or change of domicile is a proceeding of a very serious nature. A

domicile once acquired, whether by origin or choice, continues until a new domicile is
actually acquired; the acquisition of a new domicile terminates the preceding one at the
same instant."

While dealing with the question of domicile of origin; domicile of choice and the
domicile by operation of law, it has been observed in Notes, 5, 6 and 7 of Vol. 28 of
Corpus Juris Secundum as under:--

"5. Domicile of Origin:

The law attributes to every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom he is legally dependent, at
the time of his birth. While the domicile of origin is generally the place where one is born
Page No. 5 of 8
or reared, it may be elsewhere. The domicile of origin has also been defined as the
primary domicile of every person subject to the common law.

6. Domicile of Choice:

A domicile of choice is the place which a person has elected and chosen for himself to
displace his previous domicile; it has for its true basis or foundation the intention of the
person. A person having more than one residence may choose which of them shall be his
domicile, and his choice is final if made in good faith, although he may spend less time at
his domicile than at his other residence.

7. Domicile by Operation of Law.

Domicile by operation of law is that domicile which the law attributes to a person,
independently of his own intention or actual residence. It is consequential, ordinarily
resulting from legal domestic relations, as that of the wife arising from marriage, or the
relation of parent and child. Whenever a person does not fix a domicile for himself, the
law will fix one for him in accordance with the facts and circumstances of the case; and
an infant's domicile will be fixed by operation of law where it cannot be determined from
that of the parents."

12. While dealing with the question of domicile of choice and that of origin, it has been
observed in para.425 of Halsbury's Laws of England, Fourth Edition, Vo1.8, as under:--

"425. Description of domicile.--The law attributes to everyone at birth a domicile which

is called a domicile of origin. This domicile may be changed and a new domicile, which
is called a domicile of choice, acquired; but the two kinds of domicile differ in the
following respects:--

(1) The domicile of origin is received by operation of law at birth; the domicile of
choice is acquired later by the individual actually moving to another country and
intending to remain there indefinitely.

(2) The domicile of origin is retained until the acquisition of a docmicile of choice; it
cannot be divested, although it remains in abeyence during the continuance of a domicile
of choice; the domicile of choice is lost by abandonment whereupon the domicile of
origin will revive unless some other domicile is acquired; the domicile of choice is
destroyed when it is once lost, but may be acquired a new by fulfilling the same
conditions as are required in the first instance.

(3) The domicile of origin is more durable than that of choice, in the sense that it is
more difficult to establish a change of domicile when the domicile alleged to have been
displaced is once of origin. "

13. While dealing with the question as to how the domicile of choice is abandoned, it has
also been observed as under in para. 430 of the aforesaid treatise:--

"430. Abandonment of domicile of choice.--A domicile of choice can be lost by

abandonment. This process is the exact converse of its acquisition. It is necessary for the
propositus to cease to reside in the country of domicile, and also to cease to have the
intention to return to it as his permanent home. Absence without the intention of
abandonment is of no effect; nor his intention without any actual change of residence.
Both the intention and the act must be demonstrated to be unequivocal, though the
evidence necessary to establish abandonment is less than that acquired to establish
acquisition.

It is never necessary that another domicile of choice should be acquired but in two cases
the abandonment of one domicile of choice and the acquisition of another may coincide
in point of time; the first being where the same Act constitutes the fact of abandoning the
old and of acquiring residence in the new; the second where the intention to abandon the
old and settle in the new supervenes on actual residence in the new domicile."

Page No. 6 of 8
14. While dealing with the question of abandonment of existing domicile and revival of
the domicile of origin it has been observed in the book entitled 'Private International Law'
by Cheshire (11th Edition, at pages 160 and 161) as under:--

"Abandonment of an existing domicile.--Since a domicile of choice is voluntarily

acquired if there is the requisite intention and residence, so it is extinguishable in the
same manner, i.e. merely by a removal from the country with an intention not to return
and even without acquiring a fresh domicile. The only distinction between acquisition
and abandonment is that the latter requires less evidence than the former, There cannot be
abandonment animo solo………But the domicile of origin, which in its inception is not a
matter of free-will but is communicated to a person by operation of law, is not
extinguished by mere removal with an intention not to return. It cannot be lost by mere
abandonment. It endures until supplanted by a fresh domicile of choice.

Revival of the domicile of origin.--If the domicile of origin is displaced as a result of the
acquisition of a domicile of choice, the rule of English law is that it is merely placed in
abeyance for the time being. It remains in the background ever ready to revive and to
fasten upon the propositus immediately he abandones his domicile of choice. "

15. While dealing with the point of domicile of origin and domicile of choice and their
abandonment, the Supreme Court of Azad Jammu and Kashmir gave the following
verdict in a case titled "Fauzia Hussain Abbasi v. Nomination Board and others" (1995
CLC 1761) at pages 1774 and 1778:--

“…………The general principle of Private International Law on the point would be

resorted to only where the law of the land is silent. For instance, there is no definition of
word 'domicile' in the law in force in Azad Kashmir; similarly there are no guidelines in
the law to determine the intention of a person that he has abandoned the domicile of
origin and acquired the domicile of choice. On such points, the principles of Private
International Law would be fully applicable. But the statutory requirements that person
seeking domicile certificate has been continuously living in Azad Kashmir for five years
and intends to live permanently in Azad Jammu and Kashmir by origin, it would not be
necessary to prove that he has been actually residing in Azad Kashmir continuously for
five years; if he is domicile of Azad Kashmir by origin, the fact that he has been living
out of Azad. Kashmir temporarily in connection with his business, service or for any
other reason, he would be deemed to be residing in Azad Kashmir for the purpose of
section 5 of the State Subjects Act, 1980 and rules framed thereunder; he would be denied
domicile certificate only if it is shown that he has abandoned domicile of his origin or
does not intend to settle in Azad Kashmir permanently in future ------

The contention of the learned counsel for the appellant that the domicile of origin clings
with the person even after acquiring the domicile of choice and is not destroyed but
remains in abeyance is correct; this principle has been approved by the judicial
,authorities, referred to above. However, in the instant case, the question which needs
determination is that if the domicile of origin of the appellant has gone in abeyance
meaning thereby that she was not the domicile of Azad Kashmir when her nomination for
admission against the reserved quota of seats from Muzaffarabad was approved by the
Nomination Board, how the same was valid. "

16. Considering the points admitted between the parties, the controversy confines to the
points as follows:--

(i) Whether respondent No.3, after adopting the domicile of her choice i.e. Karachi,
did not remain to the domicile of Muzaffarabad which is her domicile of origin?

(ii) Whether the requirements of issuance of domicile certificate as provided in the

State Subjects Act, 1980 and the rules made thereunder of 1980, are not satisfied, as such
issuance of a second domicile certificate cannot be maintained in law?

(iii) Whether a domicile of origin after adopting the domicile of choice, remains in
abeyance and is automatically revived after surrendering the domicile of choice?

Page No. 7 of 8
(iv) How far the judgment of the High Court upheld by the Supreme Court, with
regard to the cancellation of the nomination of respondent No.3, for the last year, binds
her for any other nomination, .including the one in dispute?

17. On the basis of law discussed above, it can safely be resolved that the domicile of
origin after adopting the domicile of choice, remains in abeyance during that period and
is revived on abandonment of domicile of choice.

18. Respondent No.3, herein who is admitted to be a domicile of Muzaffarabad by origin,

after abandoning her domicile of choice, applied for a fresh domicile from Muzaffarabad
which was issued in her favour. The condition laid down to stay for a period of 5 years, is
not applicable to her in the circumstances as her domicile of origin is Muzaffarabad
which revives after surrending the domicile of choice.

19. The objection taken by the learned counsel for the petitioners on the ground of
cancellation of nomination on the basis of domicile of Muzaffarabad last year by the
Supreme Court, has no substance as the nomination was cancelled in view of the fact that
at the time of nomination, respondent No.3's domicile was in abeyance and she
voluntarily adopted the domicile of her choice, i.e. Karachi. Therefore, the learned Judges
in the Supreme Court came to the conclusion that at the relevant time she was not
domicile of Muzaffarabad, as such, was not entitled to be nominated, but here the
position is otherwise as she has abandoned the domicile of choice and got issued a
domicile certificate from Muzaffarabad which even otherwise issued initially had
revived.

20. In view of the above discussion, the writ petition is found to have no substance in it
which is hereby dismissed.

A.A./98/AJ&K Petition dismissed.

Page No. 8 of 8
1986 C L C 1425

[Peshawar]

Before Abdul Karim Khan Kundi and Inayat Elahi Khan, JJ

MUHAMMAD SALEEM KHAN--Petitioner

versus

PRINCIPAL, AYUB MEDICAL COLLEGE--Respondent

Writ Petition No. 22 of 1985, decided on 26th February, 1986.

Constitution of Pakistan (1973)--

---Art. 199--Educational institution--Admissions in Medical Colleges against reserved

seats--Prospectus containing that no candidate would be given admission after six weeks
of commencement of session--Admission against reserved seat however allowed to
candidate on reserved seat after six weeks of commencement of session--On cancellation
of his domicile and on purposely staying back by next candidate, petitioner becoming
second next candidate eligible for admission against reserved seat but Principal refusing
to allow him admission on ground that more than six weeks had passed after
commencement of session--Petitioner had applied for admission in time and he was
deprived due to fraud played by first candidate who obtained domicile, by practising
fraud, which was later on cancelled--Principal who did not abide by rule of prospectus in
case of first candidate while admitting him after six weeks of commencement of session,
held, could not enforce said rule in case of petitioner whose application was still pending
for admission against reserved seat which had thus fallen vacant-issued to Principal to
vacant--Writ of mandamus admit petitioner.--(Educational institutions).

(b) Provisional Constitution Order (1 of 1981)

----Art. 9--Discretion--Exercise of, must be real--Bad faith, dishonesty, unreasonableness

disregard of public policy and things like that referred to according to facts of individual
cases, held were matters relevant to question--Court would interfere if a decided on a
competent matter was so unreasonable that no reasonable authority could ever had come
to it.

(c) Educational institution-_

-Admission in professional colleges against reserved seats of backward area--Matters to

be taken into consideration for admission stated Candidates entitled to admission against
such seats not to be suffer due to made to technicalities and intricacies of prospectus with
no statutory force behind it.

1979 S C M R 1018(2) rel.

Abdullah Jan Mirza and M.M. Idris for Petitioner.

Haji Muhammad Rafiq for Respondent.

Date of hearing: 10th February, 1986.

JUDGMENT

ABDUL KARIM KHAN KUNDI, J.--One Faizanullah, another Tayab and third
Muhammad Salim Khan, the petitioner had applied for admission in the Ayub Medical
College against the reserved seat of Kala Dhaka for the session 1984-85. Faizanullah
being on the top was allowed admission which was challenged by the petitioner in Writ
Petition No-2/85 on ground that he was not the bona fide domicile of Kala Dhaka,
District Mansehra and accordingly prayed that his name be struck of the roll and instead
he be admitted against the seat as he was the only eligible candidate left in the field
Page No. 1 of 1
because Mr. Tayab the second candidate had purposely stayed out of the contest for
admission. Pending his writ petition the Deputy Commissioner, Mansehra cancelled the
domicile of Faizanullah on 12-3-1985 and learning about the cancellation, the petitioner
immediately applied to the Principal Ayub Medical College on the same day for his
admission against the reserved seat. Petitioner also claimed that the responder had
assured him that his stand was justified and that he would get the admission against the
reserved seat. Petitioner had withdrawn from his writ petition in order to approach the
concerned authorities for admission against the vacant seat. On cancellation of his
domicile certificate the respondent had struck of the name of Faizanullah from the
College Rolls on 24th of March, 1985 but did not admit the petitioner against the
reserved seat having thus fallen vacant mainly on the pretext that no student could be
admitted after a lapse of six weeks of the start of the session which instantly commenced
on 31-10-1984. Petitioner approached the Minister for Health in the Government of
N.-W.F.P. but his recommendation also did not materialize and before whom the
respondent had forwarded the same plea that according to the prospectus of the College
admissions were to close automatically six weeks after the start of the session and that no
student could be admitted thereafter even if a seat falls vacant. Petitioner was obliged to
approach this Court once again in a writ petition stating that the pretext of the respondent
that no student could be admitted after a lapse of six weeks as an unreasonable and
unfounded excuse and also discriminatory because Faizanullah himself was admitted on
15-1-1985, much after the lapse of six weeks of the commencement of session on
31-10-1984. He further stated that the College remained closed for winter vacation from
5th of December, 1984 to 5th of March, 1985 and that the session factually started on the
re-opening of the College after the winter vacation. He stated that he had applied for
admission on 12th of March, 1985 only a week after the reopening of the College after
the winter vacation immediately on the cancellation of the domicile certificate of
Faizanullah and that the refusal of the Principal was unjustified both on factual and legal
ground. He claimed that the Principal had no lawful 'authority in the circumstances to
register refusal in the matter of the admission of the petitioner.

2. We heard Mirza Abdullah Jan, Advocate assisted by Mufti Muhammad Idris, Advocate
for the petitioner and Muhammad Rafique Awan, Advocate for the respondent. At the
outset we were referred to 1979 S C M R 1018(2) that prospectus was not a statutory
document and that it has not been framed rather approved by any legislature and that
even it was not known if the legislature was ever informed of its existence. That being the
position the prospectus shall not have any statutory sanction. It is nothing more than an
offer for admission in the College under certain conditions. The respondent was to
perhaps lay his--entire emphasis on the prohibitory provisions contained in the
prospectus in not allowing admission to the petitioner after a lapse of six weeks of the
commencement of the session for misapprehension ors his part that his act would be
violative of a statute. His apprehension, however, does not appear genuine, sanguine and
reasonable for even Faizanullah was allowed admission against the reserved seat on
15-1-1985 much after the lapse of six weeks of the commencement of the session. Again
the College had remained closed for winter vacation from 5th of A December, 1984 to 5th
of March, 1985. Faizanullah's domicile was cancelled on 12th of March, 1985 and he had
thus attended the classes only for a week after the reopening of the College after winter
vacation and in the circumstances the respondent should have been equally gracious

enough to allow admission to the petitioner against the reserved Seal having thus fallen
vacant but for his insistence that he could not allow admission to the petitioner because a
period of six weeks had since elapsed to the commencement of the session.

3.Again it was also the petitioner who had challenged the admission of Faizanullah who
had played a fraud on the Deputy Commissioner Mansehra, Principal Ayub Medical
College and the petitioner is obtaining a bogus domicile certificate of Kala Dhaka,
District Mansehra and getting admission in the Ayub Medical College on its strength and
depriving the petitioner, a bona fide resident of the place of his lawful right of admission
in the college against the reserved seat. In case the domicile n certificate of Faizanullah
was later on found bogus and his admission was canceled petitioner should not be made
the sufferer for the fraud played by third person. He has applied for admission in time but
was deprived of his lawful right on account of a fraud of Faizanullah. In fact this is not a
case of late applying for admission and his application for admission shall be deemed
pending with retrospective entitlement) for admission.
Page No. 2 of 1
4. It is contended that there was vesting a discretion in the respondent to allow or not to
allow admission to the petitioner against the reserved seat after the lapse of a period of
six weeks of the commencement of the session and since the respondent has exercised his
discretion in the larger interest of the institution, hence the Court is not supposed to issue
a writ of mandamus obliging the respondent to allow admission to the petitioner when the
session of 1984-85 has since ended and the petitioner is only attending the classes
through the interim order of the Court necessarily, at present the classes of session 1985-
86 when against the reserved seat of Kala Dhaka for the session 1985-86 the petitioner
has neither applied and another candidate had since been admitted against the reserved
seat. There are, however, certain well-understood principles which the Court looks to in
considering any question of the exercise of discretion. The exercise of a discretion must
be a real exercise of discretion. Bad faith, dishonesty, unreasonableness, disregard of
public policy and things like that referred to according to the facts of individual cases
have been acknowledged as matters which are relevant to the question. Courts have to
interfere) if a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it.

5. In the instant case the respondent has been found unreasonable throughout in
dealing with the matter of admission of the petitioner. He did not abide by the so-called
rule of the prospectus not to admit F student after the lapse of six weeks of the
commencement of the session in case of Faizanullah. The moment the domicile of
Faizanullah was cancelled on 12th of March, 1985 when he had hardly attended the;
classes for a week the respondent was supposed to offer the reserved) seat to the next
candidate i.e. Mr. Tayab and in his absence to the petitioner and since Mr. Tayab was out
of the field he was to accommodate I the petitioner against the reserved seat who had also
applied for admission once again on 12-3-1985 against the reserved seat having fallen
vacant

The respondent's unwarranted rigidity caused a loss of one academic year to the
petitioner which he is prepared to sustain if he is deemed admitted against the reserved
seat in session 1984-85 and for one reason or the other i.e. for non-completion of the
requisite attendance etc. he is deemed to have failed and is permitted to continue his
studies of the first year M. B.,B.S. in the current session of 1985-86 of which, rather
earlier, he is regularly attending the classes under the interim order of this Court.

6. In fact in the professional colleges it is the admission which matters and the
students may or do fail during the course of their studies but they stay on the roll of the
college and ultimately qualify the professional tests and exams. The authorities have
further to be I considerate enough in case of admission against the reserved seats of
backward areas that candidates entitled to admission against such seats i are not made
sufferers due to the technicalities and intricacies of, prospectus with no statutory force
behind it.

7. In view of what has been stated above we would accept this writ petition, issue a
writ of mandamus to the respondent to admit the F petitioner in the Ayub Medical
College in first year M.B.,B.S. and to consider him admit to against the vacant seat
reserved for Kala Dhaka District Mansehra in the session 1984-85. We would make no
order as to costs.

M.Y.H. petition accepted .

Page No. 3 of 1
Page No. 4 of 1