Case Law on Birth Verification of a Student

PLJ 2015 Lahore 908 (DB)[Bahawalpur Bench, Bahawalpur]

Present: Altaf Ibrahim Qureshi and Sadaqat Ali Khan, JJ.

MURAD ALI KHAN--Appellant

versus

VICE-CHANCELLOR, UNIVERSITY OF HEALTH SCIENCES, LAHORE and others--Respondents

Intra Court Appeal No. 9-2014/BWP, heard on 18.3.2014.

University of Health Science Lahore Ordinance, 2002--

----S. 10--Law Reforms Ordinance, 1972, S. 3(2)--Educational institution--Admission in MBBS course--Name was dropped by administration--Challenged through writ petition which was allowed--Intra Court Appeal was not maintainable--Respondent was selected for admission in MBBS against reserved seat--In domicile, columns of place and date of arrival in place of domicile were left blank and certificate of verification of birth registration that there was no entry in birth registration record pertaining to birth entry quota of cholistan and appellant was selected and no provision was provided for second revision in Ordinance and selected candidate had rightly filed writ petition for redressal of grievances--Remedy of revision was available against order for admission which was to be treated as original order and revision filed by appellant was entertained by authority of university and was allowed--Bar of filing of appeal of proviso of Section 3(2) of Law Reforms Ordinance was fully attracted and ICA was not competent.

                                                                                                                        [Pp. 912 & 914] A, B, C & D

Mr. Muhammad Ali, Advocate for Appellant.

Mr. M.A. Hayyat Harraj, Advocate for Respondent No. 1/UHS.

Mr. Farooq Warind, Advocate for Respondent No. 2.

Mr. Muhammad Ayyaz Kalyar, Advocate for Respondent No. 3.

Date of hearing: 18.3.2014.

Judgment

Sadaqat Ali Khan, J.--The instant Intra Court Appeal No. 09-2014/BWP has been filed by Murad Ali Khan against the judgment dated 07.02.2014 passed by Single Judge of this Court in Writ Petition No. 7351 of 2013 filed by Respondent No. 3 Mst. Tehreem Fatima Lashari according to which same was allowed and list dated 2.12.2013 of successful candidates for admission in MBBS course to the extent of present appellant Murad Ali Khan was set aside whereas list dated 16.11.2013 of successful candidates for admission in MBBS course was restored in which name of Respondent No. 3 Mst. Tehreem Fatima Lashari was existed.

2.  Brief facts of this Intra Court Appeal are that Respondent No. 3 Mst. Tehreem Fatima Lashari filed a Writ Petition No. 7351/2013 against the present appellant and; Respondents No. 1 and 2 stating therein that she is by birth permanent resident of village Chak No. 120/DNB Cholistan, Tehsil Yazman, District Bahawalpur; that she passed her F.Sc. (Pre-Medical) in the year 2013 and obtained 916/1100 marks. She applied in MBBS course at Sheikh Zayed Medical College, Rahimyarkhan through University of Health Sciences, Lahore on 14.10.2013 against the seat reserved for Cholistani students being Cholistani. According to merit list (Session 2013-2014) displayed on the website of University of Health Sciences, Lahore she was selected for admission in MBBS course at Sheikh Zayed MedicalCollege, Rahimyarkhan against one seat reserved for Cholistani students being Cholistani. She stated in her writ petition that when she approached the said MedicalCollege on 02.12.2013 for paying her dues and other necessary process and was advised to bring her original documents on 03.12.2013 for further process, called by the college authority. On 03.12.2013 petitioner in writ petition went to Sheikh Zayed Medical College, Rahimyarkhan where she was informed that her name was dropped by the Administration of the said college and Murad Ali Khan Respondent No. 3 in writ petition present appellant was selected without any prior notice or intimation to the petitioner in writ petition. She further stated that she is entitled for admission in MBBS course on the strength of one reserved seat for Cholistani students being Cholistani by birth and the admission of Respondent No. 3 in writ petition present appellant is based upon fake assessment as present appellant/Respondent No. 3 in writ petition is not a Cholistani by birth. Present appellant and present Respondent No. 1 and 2 contested the writ petition which was allowed on 07.02.2014 by the Single Judge of this Court and name of the present appellant Murad Ali Khan was cancelled from the list dated 02.12.2013 pertaining to successful candidates and name of Mst. Tehreem Fatima Lashari Respondent No. 3 in the instant appeal was restored in the list of successful candidates considering her Cholistani by birth. Hence, this Intra Court Appeal.

3. Learned counsel for the appellant submitted that the writ petition of Respondent No. 3 was not maintainable before the Hon'ble Single Judge of this Hon'ble Court without availing the remedy provided by University of Health Sciences, Lahore in Para-F(vi) of the Prospectus for admission in MBBS course (Session 2013-2014) i.e. complaint if any against the selection list may be lodged within ten days of the Notification. It is further submitted that according to the birth certificate of present Respondent No. 3 Mst. Tehreem Fatima Lashari the entry in birth register was made with the delay of two years as Respondent No. 3 was born in 1997 and entry regarding her birth was made in the relevant register in the year 1999. So there is ambiguity regarding birth place of the Respondent No. 3. It is further submitted that father of Respondent No. 3 is an employee of Cholistan Development Authority and he resides at Bahawalpur and Respondent No. 3 had studied from Class-I to F.Sc. at Bahawalpur but her father being influential person had got entered the name of Respondent No. 3 in the birth register in Chak No. 120/DNB. It is further submitted that appellant had been deprived from his fundamental right of his education only on the point that the word “by birth” is not mentioned in residential certificate issued in favour of the appellant. It is further submitted that residential certificate was issued by the Cholistan Development Authority in favour of the appellant and also domicile certificate issued to the appellant support the version of the appellant and admission has been granted to the appellant by the admission board after completion of the process and appellant paid his fee and classes have started. Thus on the doctrine locus penitential a vested right has been created in favour of the appellant and admission of the appellant could not be disturbed. It is lastly submitted that by virtue of the power contained under Section 21 of General Clauses Act (1897) be recending, amending, withdrawing or canceling any order could only be available to the authority (Respondents No. 1 and 2) in case the same has not been carried into effect and reliance placed on PLD 1963 Lahore 53 and PLD 1965 Peshawer 47.

4.   On the other hand learned counsel for Respondents No. 1 and 2 and learned counsel for Respondent No. 3 both have supported the impugned judgment and submitted that under Article 10 of the University of Health Sciences, Lahore Ordinance, 2002 revision is available. Thus under Section 3(2) of Law Reforms Ordinance, 1972 this Intra Court Appeal is not maintainable.

5.  We have heard the learned counsel for the parties and perused the record.

6.  We think before proceeding to the merits of the case it is most relevant to reproduce the relevant Para of prospectus for admission in MBBS course of Government Medical and Dental Institution of the Punjab for the year 2013-2014 pertaining to one reserved seat for MBBS course for Cholistani students at Sheikh Zayed Medical College Rahimyarkhan which is hereby reproduced:--

“The Chief Minister Punjab has approved reservation of one (01) seat for MBBS course (w.e.f. session 2010-11) for Cholistani students at Sheikh Zayed Medical College, Rahimyarkhan, out of its current allocation on open merit basis with the following criteria:

1.       Such a candidate should otherwise be eligible for admission into Medical College (having passed F.Sc. from any of the Districts Bahawalnagar, Bahawnlpur or Rahimyarkhan and passed Entry Test in accordance with the required percentage.

2.       The candidate must be Cholistani by birth and should have actual residence in Cholistan, as verified by Cholistan Development Authority.”

Mst. Tehreem Fatima Lashari petitioner in writ petition and Respondent No. 3 in the instant appeal applied for admission in the MBBS course at Sheikh Zayed Medical College Rahimyarkhan against the seat reserved for Cholistani students claiming herself Cholistani on the basis of following documents:--

(i)      Certificate of domicile issued on 21.08.2013 by DCO Bahawalpur according to which place of domicile is mentioned Chak No. 120/DNB Cholistan. Name of Tehsil is mentioned Yazman and date of arrival in place of domicile is mentioned since birth.

(ii)     “B” Form of Respondent No. 3 issued on 16.09.2011 by National Database and Registration Authority showing therein that Respondent No. 3 Mst.Tehreem Fatima Lashari was born in District Bahawalpur on 09.01.1997.

(iii)    Birth certificate of Respondent No. 3 Mst. Tehreem Fatima Lashari issued on 06.12.2013 by Secretary Union Council Meerana (106) District Bahawalpur according to which Mst. Tehreem Fatima Lashari was born on 09.01.1997 in District Bahawalpur at Chak No. 120/DNB Tehsil Yazman, District Bahawalpur and entry in the register of birth was made on 01.02.1999 at Sr. No. 6 of old register much prior to the present dispute of admission in MBBS course of Respondent No. 3 when she had no imagine that she would get admission being Cholistani at Sheikh Zayed Medical College, Rahimyarkhan.

(iv)    ID Card of Imtiaz Hussain Lashari real father of Respondent No. 3 Mst. Tehreem Fatima Lashari according to which permanent address is mentioned Cholistan Chak No. 120/DNB Tehsil Yazman, District Bahawalpur and this ID Card was issued on 08.11.2007 much prior to dispute of the admission of the Respondent No. 3 Mst. Tehreem Fatima Lashari rather she had not passed F.Sc. at that time.

(v)     Certificate dated 21.10.2013 issued by Assistant Director, Cholistan Development Authority, Bahawalpur certifying therein that Mst. Tehreem Fatima Lashari present Respondent No. 3 is Cholistani by birth and permanent residence of Chak No. 120/DNB Cholistan, Tehsil Yazman, District Bahawalpur.

7.  In view of the above Mst. Tehreem Fatima Lashari was selected for admission in MBBS at Sheikh Zayed Medical College, Rahimyarkhan against the reserved one seat for Cholistani students being Cholistani according to the list dated 16.11.2013 issued by Respondents No. 1 and 2 for successful candidates. Present appellant Murad Ali Khan present appellant has applied for admission in MBBS course against one seat reserved for Cholistani students claiming himself as Cholistani on the basis of following documents:--

(i)      Certificate of domicile issued on 17.07.2012 according to which in coloumn address in Pakistan is mentioned Chak No. 147/DB Cholistan P.O. Kaduwala, Tehsil Yazman, District Bahawalpur but coloumn of place and column of date of arrival in the place of domicile is left blank in the domicile.

(ii)     Certificate dated 10.02.2014 issued by Election Officer Bahawalpur according to which Muhammad Ramzan grandfather of the appellant Murad Ali Khan is mentioned as voter member at Sr. No. 208 and his address is mentioned Chak No. 147/DB Cholistan Yazman, District Bahawalpur.

(iii)    Certificate dated 10.02.2014 issued by Election Officer of Bahawalpur according to which Muhammad Ali real father of present appellant Murad Ali Khan is mentioned as voter member at Sr. No. 210 and address is mentioned Chak No. 147/DB Cholistan Yazman.

(iv)    Certificate dated 06.11.2012 issued by Managing Director Cholistan Development Authority Bahawalpur certifying therein that Murad Ali Khan present appellant is a permanent resident of Chak No. 147/DB Cholistan Tehsil Yazman, District Bahawalpur.

(v)     ID Card of Muhammad Ali real father of the present appellant Murad Ali Khan according to which permanent address is given Chak No. 147/DB Tehsil Yazman District Bahawalpur and considering these documents of appellant, Respondents No. 1 and 2 dropped Mst. Tehreem Fatima Lashari from the list dated 16.11.2013 for successful candidates in the admission of MBBS course and selected Murad Ali Khan present appellant by issuing list on 02.12.2013, showing Murad Ali Khan appellant as successful candidate for the admission in MBBS course on the quota of Cholistan considering him Cholistani.

Mst. Tehreem Fatima Lashari had placed on record “B” Form of National Data Base and Registration Authority pertaining to Murad Ali Khan present appellant through C.M. No. 397 of 2014 moved in Writ Petition No. 7351/2013 during the pendency of writ petition according to “B” Form Murad Ali Khan present appellant was born on 01.04.1995 in District Vehari. His sister Mst. Kishwer Khanum and his brother Fayyaz Ali Khan were also mentioned in “B” Form and were born in District Vehari and further there is another document regarding verification of birth registration issued by Administrator Union Council No. 107 Chak No. 75/DB (Cholistan) on 07.12.2013 certifying therein that birth registration record of Chak No. 147/DB (address given by the appellant Murad Ali in his domicile) of Union Council No. 107 Chak No. 75/DB Cholistan, Tehsil Yazman has been minutely checked but no birth entry dated 01.04.1995 of Murad Ali Khan S/O Muhammad Ali has been found available. During the arguments when we confronted these two documents to learned counsel for the appellant he could not rebut these two documents and in view of these two documents it is admitted position that Murad Ali Khan present appellant was born on 01.04.1995 at District Vehari as mentioned in “B Form” and not born at Chak No. 147/DB Cholistan P.O. Khudwala Tehsil Yazman District Bahawalpur which address is mentioned in his domicile and we think that rightly in domicile of the appellant coloumns of place and date of arrival in the place of domicile are left blank and certificate of verification of birth registration dated 07.12.2013 issued by the Administrator shows that there is no entry in the birth registration record of Chak No. 147/DB of Union Council No. 107 Chak No. 75/DB Cholistan pertaining to the birth entry dated 01.04.1995 of Murad Ali Khan (sic)

(sic) quota of Cholistan and present appellant was selected and no provision is provided for second revision in the ordinance and Respondent No. 3 Mst. Tehreem Fatima Lashari has rightly filed Writ Petition No. 7351 of 2013 for redressal of her grievances and further submitted that as revision was provided under Article 10 of the University of Health Sciences, Lahore Ordinance, 2002. Hence, Intra Court Appeal before the Division Bench against the judgment of Single Judge of this Court is not maintainable. Article 10 is hereby reproduced:

“Revisional Powers of the Chancellor: The Chancellor may, of his own motion or otherwise, call for and examine the record of any proceedings in which an older has been passed be any authority for the purpose of satisfying himself as to the correctness, legality or propriety of any finding or order and may pass such order as he may deem fit.”

8.  In view of the above, we are, therefore, convinced that a remedy of revision was available in the matter against the order-dated 16.11.2013 for the admission of Respondent No. 3 which is to be treated as the original order for the purpose of Section 3(2) proviso one of Law Reforms Ordinance, 1972 and revision filed by the present appellant was entertained by the authority of the University and was allowed and Respondent No. 3 was dropped whereupon present appellant was selected on 02.12.2013 in the list of successful candidate for admission in MBBS course in the quota of Cholistan. So the bar of filing of the instant appeal of proviso of Section 3(2) of Law Reforms Ordinance 1972 is fully attracted in the instant case and the instant Intra Court Appeal is also not competent. Reliance is placed on case “Vice Chancellor University of Health Sciences vs. Breeha Zainab and others” 2011 MLD 1652 in which it is held as under:

“We are, therefore, convinced that a remedy of revision was available in the matter against the order of refusal of admission to the Respondent No. 1, which is to be treated as the original order for the purpose of Section 3(2) proviso one of Law Reforms Ordinance, 1972. Additionally a revision was entertained by the Chancellor of the University and was rejected by him vide order dated 24.10.2009 and this fact has been narrated in reply to Paragraph No. 3 of the parawise comments by Respondents No. 1 and 2 before the learned Single Judge in Writ Petition No. 7848 of 2009, the extract of

which has been reproduced above, therefore, the bar of proviso to Section 3 sub-section (2) of Law Reforms Ordinance, 1972 is fully attracted in the instant case and the instant ICA is not competent for the above reasons.”

For the foregoing reasons the instant Intra Court Appeal is dismissed on merits as well as being not maintainable.

(R.A.)  I.C.A. dismissed

Discrimination is not allowed to any Pakistani under Article 25

PLJ 2000 Peshawar 350 (DB)

Present: SARDAR MUHAMMAD RAZA KHAN, C.J.; SHAKIRULLAH JAN AND TALAAT QAYYUM QURESHI, JJ.

BABER ELAHI etc.-Petitioners versus

DIRECTOR OF EDUCATION, PRIMARY SCHOOLS, NWFP. PESHAWAR, etc--Respondents

W.P. No. 374 of 1998, decided on 12.5.2000. Constitution of Pakistan, 1973--

—Arts. 25 & 199—Repugnancy to provision of Art. 25 of the Constitution-Advertisement issued by respondent and the system of selection resorted to by giving preference to PTC candidates having qualified from Elementary Colleges of N.W.F.P. or all others having qualified from other similar or equivalent institution of the country, whether discriminatory and violative of the provision of Art. 25 of the Constitution-Recognized Institutions in a country must be treated at par with each other failing which importance of recognition loses its very significance-­Discrimination involved in present case is directly affects the veryincidence of recognition of certain institution which were otherwise recognized by the Government as well as by the University Grants Commission-Admittedly in recruitment of Senior English Teacher and Senior Vernacular Teachers, no preferential treatment is given to candidates even if qualified from Allama Iqbal Open University-Preferential treatment meted out to PTC teachers alone does not conform to any norms of either logic or any principles of reasonable differntia-Plea of respondents that they prefer PTC trainees of N.W.F.P. because in their Elementary Colleges, very admission to PTC candidates is given on basis of vacancies that fall from time to time in districts of the Province was no ground for preferential treatment and the same was not supported by any logical reasons because candidates qualifying from that institution might eventually failed in entrance examination and interview and those qualifying from other Provinces validly domiciled in N.W.F.P. might be more likely to be selected-Such admission in Elementary colleges based on vacancies in the Province or in the Districts was not being followed in case of other Teachers posts-Such special course of action adopted against P.T.C. was clear discrimination, not based on reason or logic nor such course is provided in Rules or Prospectus- Advertisement issued by Respondent and system of selection resorted to, by giving preference to PTC candidates having qualified from Elementary colleges of N.W.F.P. over all others having qualified from other similar or equivalent institution of country, is discriminatory and violative of provisions of Art. 25 of the Constitution.        [Pp. 360 & 361] A, B & C

Mr. Khurshid Khan, Advocate for Petitioners.

Mr. Qazi Muhammad Ghazanfar A.A.G, for Respondents.

Date of hearing : 12.5.2000.

JUDGMENT

Sardar Muhammad Raza, C.J.--The posts of Primary Teaching Certificate (PTC) teachers were advertised in the daily 'Mashriq' Peshawar in its issued dated 7.2.1999 by Director of Education Primary Schools NWFP Peshawar with a basic condition, inter alia, that those who have qualified from Elementary Colleges of NWFP would be given preference over all others having qualified from any other Institutions. The petitioners are hit by such condition and are refused entry because they are either qualified from Allama Iqbal Open university Islamabad or Jamshoro Sindh.

2.   The case had already been heard by a Division Bench of this Court comprising Hon'ble Mr. Justice Shakirullah Jan and Hon'ble Mr.Justice Talaat Qayyum Qureshi. During arguments, they got confronted with a judgment in writ petition # 544/95 decided on 27.10.1996 at theprincipal seat of this Court about which they had some reservations and hence upon their reference, this larger Bench was constituted before which detailed arguments were addressed once again to resolve the point as to whether the candidates having qualified PTC from Elementary Colleges of NWFP should be given preference over those who have qualified from other Institutions of the country.

3.  The learned counsel for the petitioners was of the view what the petitioners have qualified PTC from the recognized Institutions of the country and hence should not be treated with discrimination, being violative of the provisions of Article 25 of the Constitution. It is a matter of paramount importance that recognised Institutions in a country must be treated at par with each other failing which the importance of recognition loses the very significance. We believe that the discrimination involved in the instant case, indirectly affects the very incidence of recognition of certain Institutions which are otherwise recognised by the Government as well as by the University Grants Commission.

A

4.  It is again a matter to be taken note of that for the recruitment of Senior English Teachers (SET) and Senior Vernacular Teachers (SVT) nopreferential treatment is given to the candidates even if qualified from Allama Iqbal Open University. The preferential treatment meted out to PTC teachers alone does not conform to any norms of either logic or any principle of reasonable differntia.

5.   The learned Asstt: Advocate General supported the stance taken by the Education Department that the students qualifying from Allama Iqbal
Open University Islamabad are not imparted training as a part of studies but the learned AAG had no answer to the rebuttal that practical training isimparted to the PTC trainees of Allama Iqbal Open University in various Elementary Colleges of the country, including those of the NWFP.

6.    The next defence adopted by the respondents was, that they prefer PTC trainees of NWFP because in their Elementary Colleges, the very
admission to PTC candidates is given on the basis of vacancies that fall from time to time in the Districts of NWPF. This by itself is no ground for the
preferential treatment and is not supported by any logical reason because the candidates qualifying from their Institutions might eventually fail in theentrance examinations and interviews and those qualifying from Punjab, Sindh or Allama Iqbal Open University Islamabad, validly domiciled in theNWFP, might be much superior in the examinations and might be more likely to be selected.

7.          The reason is not well founded from another point of view as well bes'ause it presupposes the final selection of every PTC candidate if qualifiedfrom Elementary Colleges  of NWFP whether or not  he  qualifies  the examination or whether or not he is competent enough to qualify the test orinterview, notwithstanding the fact that competent and capable candidates were available from other recognised Institutions of the country. This goeswithout saying that such admissions in Elementary Colleges based on vacancies in the Province or in the Districts is not followed in case of SETsand SVTs. This special course of action adopted against PTCs is a clear discrimination, not based on reason or logic. It is neither provided in Rulesnor in any Prospectus.

8.          Last but not the least, the University Grants Commission has categorically ruled through its Equivalence Committee that the degrees,certificates, diplomas issued by Allama Iqbal Open University are equivalent to all above awarded by all the Universities of Pakistan. The learned AAGhas  not  either refuted   or contested   such  certificates   on   record.   No discrimination, or policy ultimately learning to discrimination, can beadopted or resorted to and if so done, would clearly be in violation of Article 25 of the Constitution.

9.   So far as a Division Bench judgment dated 27.10.1996 of this Court given in writ petition # 544/95 is concerned, we would humbly differtherewith on the grounds already mentioned. Moreover, we are quite confident that had the equivalence certificate of the University GrantsCommission been produced before the Hon'ble Division Bench of the above case, the decision would altogether have been quite the reverse of it.

10.       Consequently,   the   writ   petition   is   accepted   and   the advertisement issued by Respondent #  1  and the system  of selectionresorted to, by giving preference to the PTC candidates having qualified from 
B

the Elementary Colleges of NWFP over all others having qualified from other similar or equivalent Institutions of the country, is discriminatory and violative of the provisions of Article 25 of the Constitution.

(A.A.)                                                                               Petition accepted.