' KHALIL-UR-REHMAN RAMDAY, J.--- After the partition of the Sub-Continent in the year 1949, the State of Jammu and Kashmir was forcibly occupied by India. Some parts of the said State were, however, got liberated and are since called the Azad Kashmir Territory while the remaining parts of the same are still under the Indian occupation. Some residents of this Indian occupied Kashmir migrated to Pakistan and are living in different parts of Pakistan and the Azad Kashmir Territory, marking time to return to their homeland, on settlement of the Kashmir dispute. These immigrants and their descendants, though living in Pakistan and Azad Kashmir appear to have preferred to continue to retain their status as subjects of the State of Jammu and Kashmir and their said status appears even to have been recognized by the State of Pakistan.
2. Inam-ul-Haq petitioner is one such subject of Jammu and Kashmir State who is, however, living in the Province of Balochistan. The said subjects of the said State having been declared by Pakistan to be eligible, inter alia, to hold posts in the Service of Pakistan, prompted the petitioner to compete for one of the posts in the Central Superior Services by taking the Competitive Examination held by the Federal Public Service Commission in the year 2001. Since, as has been mentioned above, the petitioner was residing in the Province of Balochistan, therefore, for the purposes of the said examination, he declared himself to be domiciled in the said Province.
3. The petitioner claims to have passed the said examination but appears not to have done well enough to secure a place in any of the Superior Services. Therefore, he decided to make another attempt and again sat for the said examination held in the year 2002. He qualified the written examination; was also put to the requisite medical test but was subsequently informed that as he had crossed the upper age limit of 28 years prescribed for eligibility to the posts in question, therefore, his candidature had been cancelled.
4. The petitioner being a subject of Jammu and Kashmir State invoked the concession envisaged by Rule 4(ii)(b) of the Competitive Examination Rules (hereinafter called 'the said Rules') and asked for relaxation of his upper age limit but was not obliged by the Federal Public Service Commission (hereinafter called 'the Commission') on the ground that while taking the earlier examination of the year 2001, he had declared himself to be a domicile of Balochistan and since Rules 6(iii)(d) of the said Rules prohibited any subsequent change of domicile, therefore, he could not now be treated as a resident of AJK (Azad Jammu and Kashmir) and consequently, he was not entitled to the concession envisaged by the said rule.
5. The petitioner questioned the said decision of the Commission through a representation and then through a review application under section 7 of the Federal Public Service Commission Ordinance of 1977 which were dismissed on 1-10-2003 and 17-10-2003 respectively, which then led him to the Lahore High Court through F.A.O. No,156 of 2003 filed under section 7(3) of the said Ordinance but this appeal also met the same fate.
6. Hence this petition.
7. We have heard Mr. Muhammad Munir Peracha, Advocate Supreme Court for the petitioner and the learned Deputy Attorney-General for the respondents. Nabeel Ahmed Quraishi, Deputy Commissioner/District Magistrate, Mirpur, Azad. Kashmir, who entered appearance on our call, was also heard. He explained to us the position of the subject of the State of Jammu and Kashmir and also confirmed, from the record brought by him, that the petitioner was a certified subject of the said Jammu and Kashmir State.
8. As has been mentioned above, the petitioner had crossed the upper age limit qualifying a candidate to compete for the posts in question. Therefore, what he was looking for was only relaxation of the upper age limit and had sought shelter under the above mentioned Rule 4(ii)(b) of the said Rules which reads as under:- "4. (ii) The upper age limit will be relaxed as follows:--- (a)
(b) By two years upto the age of 30 years in case of the candidate who are permanent resident of Azad Kashmir Territory, and Northern Areas (which include Gilgit, Diamir, Baltistan, Ghizar and Ghanche) or candidates of Jammu and Kashmir State who live in either of the aforesaid areas or any other part of Pakistan." (underlining is ours).
9. The fate of the petitioner's case thus, rests on the interpretation of the above-quoted clause (b) of sub-rule (ii) of the said rule 4.
10. A bare perusal of the same would reveal that it envisages three categories of candidates who could be granted the concession of age-relaxation i,e, candidates from Azad Kashmir Territory; candidates from the Northern Areas and the candidates of Jammu and Kashmir State. It would also be noticed that the candidates falling in the first two categories i,e, candidates from Azad Kashmir and the Northern Areas became entitled to the grant of this concession only if they were permanent residents of the said Territory or the said Areas but no such condition of permanent residence in the State of Jammu and Kashmir attaches to the candidates of the said State because the said State still continues to be under subjugation of another country and the subjects of the said State who are living therein would, unlike the residents of Azad Kashmir, not be free to compete for and hold posts in the service of Pakistan. It may be added that as has been explained in the opening part of this judgment and as is also clear from the above-quoted rule 4(ii)(b), the subjects of Jammu and Kashmir State are a category apart and different from the category of people who are living in the Azad Kashmir i,e, the liberated and the free part of the disputed State of Jammu Kashmir. It appears to us that it is this confusion created by the impression that these two categories of candidates perhaps referred to the same one class of people which had led the Commission and the Honourable High Court to the impugned decisions. We repeat that the candidates from Azad Kashmir and the candidates who are subject of Jammu and Kashmir State are two distinct, separate and independent categories of candidates who are differently treated by the said rule 4(ii)(b).
11. What transpires from the above-mentioned rule 4(ii)(b) is that a candidate for the posts in question who is a subject of Jammu and Kashmir State is not required to be a permanent resident of the said State or even of Azad Kashmir Territory or the Northern Areas in order to qualify for the grant of the concession envisaged by the said rule 4(ii)(b) of the Competitive Examination Rules and what is required to be shown by him is only that he is a subject of Jammu and Kashmir State and on satisfaction of the said condition, he becomes entitled to the relaxation of upper age limit irrespective of whether he is a resident of Azad Kashmir or the Northern Areas or of any other part of Pakistan. And we hold accordingly.
12. Consequently, when the petitioner seeks relaxation of his upper age limit on the strength of being a candidate of Jammu and Kashmir State, he is qualified to the grant of the said concession even if he is domiciled in Balochistan and it is erroneous to think that such a claim involved or entailed a change of domicile from Balochistan to Azad Kashmir Territory. Needless to mention here that it has been and still is the case of the petitioner that he continues to be a domicile of the Province of Balochistan as initially claimed by him and asserts and he has been grossly misunderstood by the Commission and the learned High Court to be attempting to change the place of his domicile from the Province of Balochistan to the Azad Kashmir Territory.
13. Having thus, examined all aspects of the matter, we find that the impression of the Commission that the petitioner, by claiming relaxation of his upper age limit as being a subject of Jammu and Kashmir State, was changing his place of domicile from the Province of. Balochistan to AJK (Azad Kashmir Territory) was grossly erroneous.
14. This being so, this petition is converted into an appeal which is allowed as a result whereof the impugned decision of the Commission dated 7-8-2003; its subsequent decisions on the representation and the review application of Inam-ul-Haq appellant dated 1-10-2003 and 17-10- 2003 and the impugned order of the Lahore High COurt dated 26-1-2004 passed in F.A.O. No,156 of 2003 are set aside. And it is declared that the case of the appellant is not one of change of domicile and that he is entitled to claim relaxation of the upper age limit as envisaged by Rule 4(ii)
(b) of the Competitive Examination Rules being a candidate of Jammu and Kashmir State while continuing to be a domicile of Balochistan. And it, is ordered accordingly. The Commission shall, therefore, proceed now to consider the appellant's case for grant of the claimed relaxation in accordance with law.
15. The parties are left to bear their own costs.