1. ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, petitioner herein has prayed following relief:--- "it is, therefore, most humbly prayed that respondent No,1 may kindly be directed to treat the petitioner as refugee settled in Pakistan in the category of "Jammu and others" due to migration as a consequence of Mangla Dam affectee as he has been treated in case of civil rights like right of vote etc. The respondents 2 to 4 may kindly be directed to abstain from making appointment against one seat of Lecturer Biology reserved for refugees till the decision of the writ petition. Any other relief to which the petitioner is deemed entitled to in the estimation of the honourable Court may also be granted."
2. ' The brief facts forming the background of the controversy are that the Azad Jammu and Kashmir Public Service Commission advertised various posts of different disciplines including Biology for different units of Azad Jammu and Kashmir and refugees settled in Pakistan. The petitioner herein being affectee of Mangla Dam and now domicile of District Sargodha applied for appointment as Lecturer Biology against the post reserved for the refugees settled in Pakistan. The Public Service Commission issued call latter to him on 15-3-2010 for written tea. He qualified the said test and was placed at the top of the successful candidates and thereafter, was interviewed by the Public Service Commission on 2-8-2010: He attained the merit position in the test and interview. He was told that the Commission will obtain instructions from the Government as to whether Mangla Dam affectees settled in Pakistan can be given the status of refugees settled in Pakistan and thereafter, shall issue its recommendation. It is alleged that no action has been taken by the Public Service Commission, so far. The case of the petitioner is that he and his father are admittedly State Subjects as is evident from the documents Annexures "PA" and "PA/1", the state subjects issued to them by the District Magistrate Mirpur on 10-11-1977 and 3-12-1998. The petitioner's family was displaced due to the construction of the Mangla Dam and constrained to take refuge in Pakistan and got settled in Chak No,5 Rakh Dharema Tehsil and District Sargodha. The petitioner got his_ education up to higher secondary level from Sargodha and thereafter did his Master of Philosophy in Molecular Biology. His name also appeared in the voter list of the said area, therefore, is liable to be treated as refugee settled in Pakistan falling in the category of "Jammu and others". As this category is entitled to contest election and avail all other civil rights at par with the refugees settled in Pakistan, therefore, respondents were bound to treat the petitioner as refugees settled in Pakistan and recommend him for appointment against the post of lecturer Biology in view of his merit position. It is alleged that objection on the part of Public Service Commission after the final selection .Regarding the status of the petitioner is mala fide, without lawful authority and is against the law. It is claimed that the petitioner cannot be deprived of his rights on the basis of erroneous interpretation of law by the Public Service Commission.
3. ' This petition was admitted for regular hearing on 24-8-2010, but despite availing various opportunities neither the Public Service Commission nor the Government has filed any written statement resultantly, their defence was closed vide order dated September 29, 2010. An important question relating to the interpretation of the constitution and the status of the petitioner was raised; therefore, the learned Advocate-General was directed to assist the Court.
4. ' Ch, Muhammad Latif,. The learned Advocate representing the petitioner, inter alia argued that the petitioner admittedly is a Mangla Dam affectee and State Subject, hence, Public Service Commission was bound to recommend him against the quota of the refugees settled in Pakistan.
5. In support of his contentions, he placed reliance upon section 8 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, instructions issued by the Election Commission of the Azad Jammu and Kashmir in the year 2005, the State Subject Certificate issued in favour of the father of the petitioner by the District Magistrate Mirpur on 10-11-1977, State Subject of the petitioner dated 3-12- 1998. The certificate issued by District Magistrate Mirpur dated 3-8-2010, to the effect that petitioner is a resident of Chak No,5 Rakh Dharema Tehsil and District Sargodha and is Mangla Dam affectee, the Domicile Certificate issued by the District Magistrate Sargodha on 24-8-2003 and voter list Patwar Circle Chak No,5 Rakh Dharema Tehsil and District Sargodha. The learned advocate contended that petitioner has secured 1st position in the test and interview and was liable to be recommended against the quota of refugees settled in Pakistan by treating him as such in view of the aforesaid Law and the Public Service Commission was not vested with ally authority to refuse him to recommend against the quota of said unit. He further argued that the action of the Public Service Commission is arbitrary, illegal and without lawful authority and liable to be quashed.
6. ' Raja Gull Majeed Khan, the learned Advocate-General referring to the provisions of Pakistan Rehabilitation Act, 1956, as adopted in Azad Jammu and Kashmir and the Notification dated 24-8- 1972, vehemently submitted that the petitioner cannot be treated as refugee settled in Pakistan because he has not migrated from any part of the occupied State of Jammu and Kashmir. The learned Advocate-General further submitted that only a refugee of Jammu and Kashmir settled in Pakistan can compete against the quota reserved for the said category and the petitioner has no right to compete against the said quota, therefore, applying against the seats reserved for the refugees settled in Pakistan and qualifying the test will not create any right in favour of the petitioner. He argued that no lawful right stood accrued in favour of the petitioner on the basis of which action of the Public Service Commission could be struck down.
7. ' I have heard the learned advocate for the parties and gone through the record of the case.
8. Admittedly, the petitioner and his father were resident of District Mirpur and are State Subjects as is evident from Annexures "PA/7" and "PA/8" (the State Subjects issued in favour of the petitioner herein and his father by District Magistrate Mirpur). But from the record appended with the file by the petitioner himself, it is amply proved that A he is not refugee settled in Pakistan. In order to conclude the controversy as to whether the petitioner can be treated as the refugee settled in Pakistan? We can refer to the provisions of law available on the subject. The Pakistan Rehabilitation Act, 1956, has been adopted in Azad Jammu and Kashmir. Under section 2 clause (3) of the said Act, an "evacuee" has been defined as under:-- "(3) "evacuee" means any person.--- (a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories; or
(b) who acquires or has acquired, on or after the aforesaid date, by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India or in any area occupied by India; or
(c) Who is resident in any place in the territories now comprising. India or in any area occupied by India, and--
(i) is unable to occupy, supervise or manage in person has property in Pakistan, or
(ii) whose property in Pakistan has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by a person (whether duly empowered in this behalf by him or otherwise) whose authority or right so to do on or after the aforesaid date has not been accepted or approved by the Custodian; or
(c) whose business or undertaking in Pakistan in the case of a Corporation, has on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbance, or the fear of such disturbances, ceased to function, wholly, or partially., or is being carried on by person (whether duly empowered in this behalf by the corporation or its management or otherwise) whose authority to do so on or after the first day of March, 1947 has not been accepted or approved by the Custodian; or
(e) being a joint stock company more than fifty per cent, of the shares of which are held by persons who are evacuees."
9. ' Again for the purpose of administration of Evacuee Property Act, 1957 the government has defined the term refugees vide notification dated 26 August 1968, which reads as under:-- "Azad Government of the State of Jammu and Kashmir. (Administration and Establishment Secretariat)
10. Dated August 26, 1968.
11. ' Notification ' No,Admin. 4090-4130/SS/68: In pursuance of the provisions of section 7 of the Azad Kashmir Adaptation of Laws Act, 1959 read with the Administration of Evacuee Property Act, 1957 and the Rehabilitation Act, 1956 the Azad Government of the State of Jammu and Kashmir is pleased to direct and to notify that the expression "refugee" or "displaced person" occurring in any of the said Acts or previous laws or in any rules or orders made thereunder shall include Jammu and Kashmir State Subject refugees from the Jammu and Kashmir State who have taken refuge in Azad Kashmir Territory or in Pakistan following the War of liberation in the Jammu and Kashmir State in the year 1947 or owing to war in the year 1965 or at any time thereafter and who could not return to their homes in the Indian Occupied part of the said State or who though resident in Azad Kashmir have been deprived of the enjoyment of immovable property in the Indian Occupied part of the said Jammu and Kashmir State.
12. (Abdul Ghani), Deputy Senior Secretary".
13. On the basis of the above reproduced provision of law and notification, it can be concluded that the petitioner does not fall in any of the category mentioned in clauses (a) to (e) of section 2 of the Pakistan Rehabilitation Act, 1956 or the Government notification referred to and reproduced hereinabove, therefore, he cannot be treated as a refugee settled in Pakistan by any stretch of imagination.
14. ' The contention of the learned advocate for the petitioner that as the petitioner is entitled to contest the election and cast vote under the Electoral Rolls Ordinance, 1970, hence, was liable to be appointed against the quota of refugees settled in Pakistan, is devoid of any force. The argument has been built by the leaded Advocate on the strength of section 8 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, which is as under:-- "8. Electoral Rolls for Election of Legislative Assembly.;- (1) The electoral rolls for election to the legislative Assembly shall be prepared for each electoral area.
(2) Notwithstanding anything contained in subsection (1) separate electoral lists shall be prepared for.
(a) State Subjects residing in Azad Jammu and Kashmir territory;
(b) State Subjects of the Indian Occupied areas of the districts of Anantnag (Islamabad), Baramula and Muzaffarabad and now residing in Pakistan; and
(c) State Subjects other than those mentioned in clauses (a) and (b) above and not residing in Pakistan."
15. A perusal of the above would reveal that the Ordinance has been enacted for the preparation of the Electoral Rolls for election to the Legislative Assembly. Subsection (2) of section 8 of the said Law, categorically stated that a separate Electoral list shall be prepared for the C State Subjects residing in Azad Jammu and Kashmir territory and the State Subjects of the Indian Occupied areas of the districts of Anantnag (Islamabad), Baramula and Muzaffarabad and now residing in Pakistan and those state Subjects mentioned in clauses (a) and (b) but now residing in Pakistan.
16. The petitioner can claim the right conferred by the Electoral Rolls Ordinance, 1970 and no other right which has not been specifically granted by the Electoral Rolls Ordinance, can be claimed. As the quota of the different units has been allocated by the Government under the scheme of the civil servants laws enforced in Azad Jammu and Kashmir, therefore, this Ordinance has no nexus with the appointments which are to be made against the allocated quota of each unit. The petitioner, therefore, cannot compete against the quota of the refugees settled in Pakistan, on the analogy that he has been given right of vote, hence, is entitled to all other rights.
17. ' Under The Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, when a post is advertised by the Public Service Commission then only an eligible candidate may submit his application to the Commission and it is stated in rule 12 of the said Rules that quota fixed by the Government from time to time shall be strictly followed by the Commission.
18. ' The contention of the learned Advocate that the Public Service Commission was bound to scrutinize the application and inform the petitioner about his disqualification at an initial stage is correct. The Public Service Commission Rules, 1994 also command to the same effect. In, various case I have noticed that after completion of the process Public Service Commission detects the disqualification or other defects in the applications of the candidates, which militate, against the good governance and is violative of The Public Service Commission Rules. It also cost a serious doubt on transparent selection process. The Public Service Commission was directed in various cases to adhere to its procedure Rules but the court has been appraised by Public Service Commission that due to shortage of necessary and required staff it is impossible for the Public Service Commission to scrutinize all the applications at an initial stage and despite hectic efforts some defects remain unnoticed. The Public Service Commission has a pivotal role in selection of civil servants which function cannot be performed in a transparent and fair manner and chance of foul play remains there. The Public Service Commission may request the Government through Administrative Secretary for providing the required staff and if so requested, the Government shall provide the Public Service Commission the essential staff in order to maintain the dignity of the Public Service Commission and make the selection process- fair and transparent. In case in hand though Public Service Commission has committed a negligence by entertaining the application of the petitioner against the quota of refugees settled in Pakistan but the petitioner does not deserve to any relief against the statutory Law on the basis of laps committed by the Public Service Commission. Law is well settled that in a writ jurisdiction no direction can be issued to frustrate the statutory Law.
19. ' The nutshell of the above discussion is that the petitioner cannot be treated as refugee settled in Pakistan for the simple reason that he is included in the category of "Jammu and others". The Public Service Commission cannot be directed to nominate him against the said quota that too, against the rules relating to the district wise quota.
20. ' Raja Gul Majeed Khan, the learned Advocate-General has appeared on Court notice and assisted the Court; therefore, he will be entitled to counsel fee ordinarily paid by the Law Department in writ cases.
21. ' In view of above, finding no substance this petition is hereby dismissed.