Husaifa Nawaz Vs Govt. of Khyber Pakhtunkhwa etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

OUDICIAL DEPARTMENT)

Writ Petition No.33-A/202 5

TIIDGUENI

Date of hearing: - L3,02.2025,

Petitioner (Huzaifa Nawaz) By M/s. Sardar Aman Khan and lunaid Anwar Khan, Advocate.

Respondents. (Government of Khyber Pakhtunkhwa through Secretary Health & 04 others) By Malik Amjad lnayat, Additional Advocate General (Principal Medical and Dental Council and Khyber Medical UniversityJ By Mr. Asad Tanveer Qureshi, Advocate and (Muhammad Faizan) By M/S Syed Asif Shah and Yaseen Ayaz, Advocates.

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SADIO I.t. l. The petitioner (Huzaifa Nawaz) has averred in his petition that being resident of District Mansehra, obtained the requisite qualification from (within) District Mansehra and being qualified in all respects for the reserved seat of MBBS for the backward area of (Upper TanawalJ hereafter to be d/ referred as"reserued seat' and after qualiffing the Medical Entry Test (MDCAT) has been placed at serial No.S being "lN" (means that he had obtained requisite education from reserved seat area) and was entitled to be placed at serial No.1 of backward area of Upper Tanawal. He further averred that

respondent No.10 (Muhammad FaizanJ has been wrongly placed at serial No.1 in the list of reserved seat (Upper Tanawal, District Mansehra) being not "lN" (means that he had not obtained requisite education from reserved seat area) having his domicile from Torghar, and the same was verified through the concerned quarter on 01'09.2020' Respondent No. 10 (Muhammad FaizanJ has earlier tlvice applied for admission on a reserved seat in backward area of Torghar and his subsequent appearance from the backward area seat (Upper Tanawal) in medical examination test on the basis of having permanent residence of the backward area of (Upper Tanawal) and thus obtained fresh domicile certificate, last date for online registration of MDCAT d/ was 19.08.2024, while, request for fresh domicile was made on 28.0L.2024 (09:30J thus, respondent No.10 managed to appear in medical examination on 22.09.2024 for the reserved seat (Upper TanawalJ without having the domicile of that area (Upper Tanawal District Mansehra) where he later managed to obtain domicile in connivance with local Administration (respondents No.5 & 6). MDCAT

Examinations were held on 22.09.2024, while, he appeared without domicile certificate, which was obtained on 25.09.2024. Further added that respondent No.10 also improved his Higher Secondary School Certificate (HSSC) from Torghar, thus, provisional merit was issued by respondent No.2, violative of the Admission Policy 2024 of the respondents. Thus, petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 with the following prayer: - "lt is, therefore, humbly prayed that on acceptance of the instant writ petition, respondent No.2 to 6 may graciously be directed to place the petitioner ot serial .,/ No.l and name of resPondent No.70 may kindly be ordered to be deleted as "lN" candidate and his name be placed as "0IlT" candidate and petitioner be admitted on reserve seat of UPPer Tanawal. Any other order / direction / relief as may be deemed ft and proper in the circumstances may also be given to the Petitioner."

02.Para-wise comments were called from respondents No. 3, 6 & B on 15.01.2025, which were

accordingly furnished while respondent No'10 also filed reply to the writ petition, which is also available on file.

03.We have heard arguments of learned counsel for the parties at length and perused the available record with their able assistance'

04.The matter forming the subject matter of controversy between the parties pertains to the reserved backward area seat (Upper Tanawal District Mansehra). The Provincial Government Health Department has formulated a policy for admission in the Medical and Dental Colleges of this Province, wherein, eligibility criteria for applying against different categories of seats is also provided' In the J instant matter, the admission being to the backward area seats, as such the said criteria is reproduced being relevant, as under: -

"K CRITERIA OF ELIGIBILITY FOR

BACKWARD AREA SEATS OF KP I, ThE

candidate and his/her father must be having o valid domicile certificate of the Backward area against which he/she is submitting the application and if father is not alive then the

mother's valid domicile of the bacl<ward area will be considered along with the death certificate ofthe father' IL The candidates must have obtained education from class-I till FSc (complete sessionsJ including SSC with science and FSc premeilicol from the institutions within the concerned backward area of Khyber Pakhtunkhwo and have passed examinations lrom the same institutions, Provided such facilities exist in the areo (as pre specimens attached at the end of this policy): location certificate. This location certifcate duly verified by the concerned DEO (Education) and # countersigned bY the DC of the concerned district.

Ill. ln case where there are no facilities within the concerned Bacl<ward area of SSC with science and F.Sc Pre Medical, the candidate must have obtained his/her primary and middle education from the respective bacl<vvard area, provided the candiilate hos obtoined SSC with Science and F'Sc Pre-medical from the area (adiacent to) their backward area and in case no candidate is available from the area

nearest to that backward area, then from within the District of domicile.

N. ln case of non'existence of school/colleg e or non-availability of the facitity for teaching science subjects, the candidate will have to provide a solid proof in the form of a certificate duly verified bY the concerned DEO (District Education 1ficer) and countersigned bY the DePutY Commissioner of the concerned district" V. In case anY candidate who has obtaineil part of his/her education from outside the concerned backward area or area of domicile, Provided such facilities exist, will not be considered as

d/ inside candidate.

W. ln case of non-availabilitY of candidates fulflling the above' mentioned criteria, the selection will be made on merit from amongst the candidates on the basis of maximum education obtained from the concerned baclward area.

Vlt. The candidates must have passed in the prescribed Entance Test for admission to public sector ltledical & Dental Colleges as per PM&DC Medicol & Dental IJndergraduate Education

(Admissions, Curriculum And Conduct) Policy anil Regulations 2023.

Vlll. Students selected on Backward Areas quota seats should sign surety bond of not less than ftve years, stating that after completion of eilucation, they shall perform dutY in their home districts for at least 5 Years. AnY violotion will result in their payment of an amount equal to self-finance seat, with compounding interest rate' This money will be recovered as atears of land revenue, in case of nonPaYment' IX. The location certificate (year-wise) issued by concerned comPetent authority shall be verified on the d/ recommendation of Stutiny Committee if required, before issuing the fnal merit for admission.

Note: All admrssions will be based on the locotion certificate provided by the concerned DC and DEl. KMIJ-AC will not be resPonsible for omission or if anY in the location commission certifcate or anY other ilocument/information as provided by the candidate. lf anY certifcate submitted by the candidate is found false, or forged during his/her study

period, his/her admission shall be cancelled forthwith and he/she shall be blacklisted for admission to anY professional colleges in KhYber Pokhtunkhwa. Further legal action can be taken ogainst the student under the existing uimi nal I aw s

05.For further understanding it is imperative to refer other relevant provisions i'e' section 2(l) of the Pakistan Medical and Dental Council Act, 2022' which is reproduced herein below:

(l)"Medical and dental colleges admissions tests" or "MDCAT" means the meilical and ilental college admission tests, as defned in section d Section 17 of the Medical and Dental Admission Tests (MDCAT) is also reproduced as under:

(1)Each province, Gilgit Baltiston and lslamabad Capital Territory as per the policy anil standards approved by the Provincial Governments and Federal Government respectively shall conduct on the dates approved by the Council, a single admission test based on the intermediate or equivalent syllabus for all students seeking admission in undergraduate programs both in public

and private medical and dental colleges and universities.

(2)No student shall be awarded a medical or dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in a medical or dental college in Pakistan:

Provided that the mandatory requirement of MDCAT shall not apply to students seeking admission on a special program seat Predefined exclusively for foreign students and on the seots reserved for overseas Pakistanis.

(3)The admission to medical and dental programs conducted by public and private colleges and universities shall be regulated as per the policy and s/ standards of the Federal Government through Minister-incharge, Provincial Government and Gilgit- Baltistan strictly on merit. However, Private colleges may take anY additional entrance test subiect to ony condition imposed by the relevant university to which such college is afiliated:

Provided that the marks obtained by a student in MDCAT conilucted bY the province shall constitute o minimum of fifty percent of the weightage for the

purposes of admission in the public and private colleges.

$) The MDCAT result of one Province shatl be valid for the entire country and shatl be volid for a Period of three years. Each province, Gilgit-Baltistan and lslomabad Capital Territory shall give preference to the students having domicile of their respective province or territory as the case maY be.

(5)Admissions on vacant seots shall be decided by the respective provincial government and respective authority in case of Gilgit-Baltistan anil lslamabad Capital Territory.

d/ 06. Similarly, expression 2 (h) of the PM&DC Medical and Dental Undergraduate Education (Admission, Curriculum and Conduct) Policy and Regulations 2023, is also reproduced herein below for ease of reference:

'Medical and Dental Colleges Admission Test' or 'MDCAT' means the medical and dental colleges admission test as ilescribed in section 77 of the Act:

07.During the course of arguments, learned counsel for the petitioner mainly argued and raised

objections over the admission of respondent No'10 (Muhammad Faizan):

D "That the cut-off date to aPPIY for the admission was from 05.08,2024 to 19.08.2024 and as such on the cut-off date, the resPondent No.10 was not having domicile of the backward area i.e. district Mansehra, as he has even opptied for the ilomicile afier cut'off of date on 21,08.2024, which was issued to him on 25.09.2024.

D That if even for the PurPose of arguments, the cut'off date is considered as 21.10.2024' os was published in the second advertisement then as per the eligibility titeria the d petitioner though having domicile of District Mansehra but he was neither having the domicile of his father nor of his mother as (after the ilomicile by respondent No.70 and his father on 21.08.2024) his father has ilied on 02.09.2024 and as such after the death, the domicile of his fother become redundant, therefore, in such eligibility criterio respondent No.70 was required to have o valid domicile certificate of his mother but the same has been

issued to the mother of resPondent No.10 on 13.12.2024.

Y That since the resPondent No.70 is taking advantage of improveil marks in the F.Sc, however, the same would operate part against him, as for the improvement examination he has appeared in a School situated in District Torghar, therefore, hts F.Sc ts to be considered as outside districL D That the resPondent No.10 has concealed the fact, as he in the last location certificate has not mentioned that he has aPPeared in a school for improvement for the F,Sc marks situated in district Torghor.

d/ D That PreviouslY on two consecutive events the respondent No,10 had aPPlied for the quota reserved for Torghar but this time he has applied for seat reserved for Upper Tanawal. He also made reference that the domicile for district Mansehra has been obtained with ill'will and malofide and only for the purpose of admission, which fact is also reflecting in the domicile certifcate showing the purpose of intention of respondent

No.1.0 for the PurPose of seeking admission."

08.In response to the aforesaid arguments, learned counsels representing the respondents stated that they had granted admission to respondent No.10 in accordance with the eligibility criteria and rebutted the arguments of the learned counsel for the petitioner and argued:

Y That the resPondent No.10 has obtained all his qualification from inside the backwaril area i.e. Upper Tanawal. Learned counsel for the respondent No.70 also made reference to the various documents aPPended, which s/tows that not onlY the r' respondent No.10 has acquired all the education from district Mansehra but the domicile of his parenx from district Mansehra where the Permonent address is shown as district Mansehra.

D That the resPondent No.10 produced his domicile as well as domicile of his mother, which was though issued to his mother on 13.12.2024, however, the mother of the respondent No.10 had applied for the same on 02,10.2024 i.e. much before the

last date to apply for admission i'e' D /f wos not the requirement at the time of submrssion of domicile of the desires candidate or his father was not pre-requisite requirement to apply for the MDCAT, as the candidate is onlY required to submit his l,t year F'Sc pre' medical marks sheet / DMC and lD / Form-B or smartcard."

Y learned counsel for resPondents argued that the cut-off date shall not be treated from 05.08.2024 till 19.08.2024 rather the some shall be reail from 21.10.2024, as to apply for the MDCAT test and to apply for admission are two distinct eventualities and phases and since the resPondent No.10 has d/ obtained his domicile much before the cut-off date i.e. 21.10.2024, therefore' it was valid.

Y Learned counsels for the

respondents also argued that improvement and aPqearance in examination of respondent No.L0 in the ilistrict Torghar would not affect the stotus of respondent No.70 from being 'lN' as respondent No.10 has completed atl the requisite qualifcation from

District Mansehra and Location Certificate hos been rightly issued by the concerned authorities.

D Respondent No.3 in Para 5 ofthe written comments has sPecificallY pointeil out that the online registration portal for entty exams started from 05.08.2024 to 19.08.2024 and the same was simply for the registration of MDCAT while the cut of date for submission of admission forms in the medical and dental Programs was Y Learneil counsels for the respondents also argued that the alternate ond efficacious remedy is available to the petitioner under the o/ existing admission PolicY 4s the decision of the ailmission committee con be chollenged in the Appellote KMU Admission Committee which decision can further be assailed in Review Petition before the provincial admission committee. Further, argued that another remedy under regulation L0 (3) of the PM&DC Medical and Dental lJndergraduate Education (Admission, Curriculum And Conduct) Policy and Regulations 2023 which also provides for a complaint to the council in respect

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of any irregular admission made by an aggrieved studenL Thus, the present constitutional petition of the petitioner is also not maintainable in the present scenorrc,

09.While hearing the parties it is necessary to firstly diverge upon the domicile. The word 'Domicile'has been beautifully explained in the case of Director Education Officer Female reported as (2023 SCMR 217).

I. Domicile

1.Black's Law Dictionary @inth Edition), otPage 558 Domicile, The place at which a person has been physicolly present and that the person regards as home; a person's true, fixed, PrinciPal, and Permanent dl home, to which that person intends to return and remain even though currently residing elsewhere. A person has a sexled connection with his or her domicile for legal purposes, either because that place is home or because the law has so designated thot place' 2, Words and Phrases (Permanent Edition), Volume 73, at Page 425 '

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Person's "domicile" is place where he has his permanent home or principal establishment, to which place he has, whenever he is absent, intention of returning. Vehrs v. lffirson lns. Co., La.App., 168 So.Zd 873,877.

The place in which a Person has voluntarily fixed the habitation of himself and his family, not for a mere special and temPororY PurPose, but with a present intention of making it his permanent home, unless and until something which is unexPected and uncertain shall occur to induce him to adopt some other Permanent home is his "domicile." Caldwell v. Shelton, 22L S.W.2d 815, 817, 32 Tenn.APP. 45.

3, Corpus Juris Secundum, Volume )$V, At pages 2'3 d/ The word "domicile" is derived from the Latin "domus," meaning a home or dwelling house. Domicile is the legal conception of home, and the term "home" is frequently used in defining or describing the legal concept of domicile.

Domicile is the relation which the law creates between an individual and a particular locality or country. What has been said to be the most comprehensive and correct definition which would be given is that, in a strict legal sense, the

domicile of o person is the place where he has his true, fixed, Permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.

Domicile has also been defined as that place in which a person's habitation is fxed, without any present intention of removing therefrom, and that place is properly the domicile of o person in which he has voluntarilY fixed his abode, or habitation, not for a mere special or temporary purpose, but with a present intention of making it his permanent home.

The same judgment also draws distinction between Domicile and Residence.

2.Domicile and Residence Distinguished

"/ While the terms "domicile" and "residence" are frequentlY used synonymouslY, or said to be synonymous, and "residence" and "legal residence" have been defined in language similar to that used in defining "domicile", "domicile" and "residence" ore not, when accuratelY precisely used, convertible terms' "Domicile" is a lorger term, of more extensive signification and has been

said to be used more in reference to personal rights, duties, and obligations;

and residence is of a more temporaty character than domicile.

That there is a dffirence in meaning between "residence" and "domicile" is shown by the fact that a person maY have his residence in one place while his domicile is in another and that he may have more than one residence at the same time but as appears in infra, only one domicile.

10.Another important judgment ln Adnan Khan's case reported as 2022 PLC (C.S.) 550 fully elaborate the concept of renunciation of the domicile under Succession Act, 1925.

1-L. Section 9 of the Succession Act, 1925 o/ provides as:

9.Continuation of domicile origin: The domicile of origin prevails until a new domicile has been acquired.

12.Similarly, sections 13 and 14 of The Succession Act, 1925 are also relevant for the present discourse, which are reproduced hereunder for ready reference:

13.Continuance of new domicile: a new domicile continues until former dom cile ha heen resumed or another has been acquired'

74.Minor's domicile: The domicile of a minor follows the domicile ol the parent lrom whom he derived his domicile of origin.

13.Another terminology which during the arguments of the counsel for the petitioner came before this court is the word iaPtweue&. As counsel for the petitioner alleged that the respondent No.10 has improved his HSSC from district Torghar therefore in order to ascertain the impact of improvement over the status of respondent No'10 the interpretation of word Improvement is of c necessary implication' The word improvement has been defined in the Cambridge Dictionary as to (cause something to) get better.

14.Having heard all the parties and going through the record with due care it is evident that although the respondent No.10 previously appeared for the admission from District Torghar for the sessions 2023-2024 but could not find place being '0UT' and

then for the current sessions, respondent No.10 duly appeared in the MDCAT and was declared as successful on22.09.2024. According to the Location Certificate, respondent No.10 has completed his entire education from institutions located in District Mansehra and was considered to be'lN'by the concerned competent authority. 0n 07.08.2024, the oflice of the Deputy Commissioner, Torghar/ respondent No.7 has duly issued Abandonment Certificate, thereafter, the petitioner furnished declaration dated 21.08.2024 and finally on 25.09.2024, Domicile Certificate was issued to the respondent No.10. The mother of respondent No.10 also furnished declaration dated 02.10.2024 and certificate to this effect was issued to her on 12.LL.2024. According to the Letter No. & Exam/MDCAT-2Dz4/65 dated 04.08.2024, the candidates were required to upload their 1st year F.Sc Marks sheet/DMC while submitting their details on MDCAT online registration portal along with their personal LD/ Form-B/ Smart Card number before 09s August with regular fee and 266 August with late fee. All these cut of dates were with regard to the

appearance in MDCAT but appearance in MDCAT and filing admission form for Medical and Dental programs are tvvo different eventualities and phases' By bare reading of the provisions of section 2(l) and section 17 ofthe Pakistan Medical and Dental Council Act, 2022 and expression 2 (h) of the PM&DC Medical and Dental Undergraduate Education (Admission, Curriculum And Conduct) Policy and Regulations 2023, which clearly postulate that MDCAT is just requirement under section 17 of the Act ibid for the purpose of taking admission in the Medical and Dental programs and admission in the Medical and Dental programs is a different phenomenon (one being entry test (MDCAT) being eligibility criteria for admission in medical and dental programs), for which, as per record, the last date for d/ submission was 08.01.2025 and all the requisite formalities have been observed by the respondent No.10 before the last date of submission of admission Form. As the other aspect regarding improvement of respondent No.10 is concerned, the legal aspect of the same can be safely gathered from the very definition of improvement which states something in

addition to already existing position' The already existing position of the respondent No.10 as per record and location certificate issued to the respondent No.10 by the concerned competent authority is District Mansehra not Torghar so for all purposes the status of the respondent No.10 cannot be stretched from'lN'to'OUT'. The available record further strengthens the stance of respondent No'10 as sufficient material is available on record in the form of Nikah-Nama of his parent, the CNIC of his father, the documents pertaining to the ownership his residence which shows that respondent No'10 along with his family has been residing in District Mansehra Tehsil Darband for so many decades and under the legitimate expectancy, the respondent t No.10 has furnished declaration dated2l.08.2024 for District Mansehra Tehsil Darband.

15.As far as the maintainability of the instant constitutional petition is concerned, the learned counsel for the respondents also strongly resisted the maintainability ofthe instant petition and placed his reliance on Palwasha Sherani's case reported as (2024 MLD 623), wherein, it was held that in the

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presence of the alternate and efficacious remedy, the petitioners could not invoke the extraordinary jurisdiction ofthe High Court in constitution Petition.

16.For what has been discussed above, this writ petition being bereft of merits is, hereby, dismissed.

Amouncetl"

JUDGE

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I}DGE

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