' MUHAMMAD AZAM KHAN, C.J.--- The appellant filed a writ petition in the High Court on 24th August, 2010, alleging therein that he -is 1st Class State Subject. His parents were domicile of district Mirpur.
Their whole land was acquired for the purpose of construction of Mangla Dam in the decade of 1960 and they were compelled to settle outside the State by the Government. They permanently settled in district Sargodha of Punjab, Pakistan. He was born on 13-11-1977 and is domicile of district Sargodha. Azad Jammu and Kashmir Public Service Commission (hereinafter to be referred as P.S.C.) advertised two posts of Lecturer, Biology, for refugees settled in Pakistan. He is M. Phil. in Molecular Biology. He applied for one of the posts. A call letter was issued to him. He qualified the written test and was placed in the list of five top candidates who qualified the written test. He participated in the interview. The P.S.C. verbally informed him that no written instructions from the Government are on record that while considering the applications in the quota of "refugees", the Mangla Dam displaced State Subjects settled in Pakistan be treated with the status of "refugees".
He sought a declaration that Mangla Dam displaced State Subjects settled in Pakistan are to be treated as refugees and a direction be issued for his appointment as Lecturer, Biology. After necessary proceedings, the High Court dismissed the writ petition vide impugned judgment on 27- 1-2011. Hence this appeal by leave of the Court.
2. Leave was granted on 16-6-2011 to consider the point whether the State Subjects of Jammu and Kashmir, who have permanently settled in Pakistan either being Mangla Dam displaced persons or for some other reasons by compulsion can be treated as "refugees settled in Pakistan" for the purpose of eligibility for appointment in the service of AJ&K against the quota reserved for refugees settled in Pakistan.
3. As important legal question of public importance was involved in the appeal, senior counsel from Bar, Messrs Abdul Rasheed Abbasi and Raja Muhammad Hanif Khan, were requested to assist the Court.
4. Ch. Muhammad Latif, the learned counsel for the appellant, while arguing on behalf of appellant, contended that admittedly the appellant is a State Subject whose parents hail from district Mirpur.
At the time of construction of Mangla Dam, their whole land was acquired for the construction of Mangla Dam, They were forced to migrate to Pakistan where the land was allotted to the father of the appellant. The appellant was born in district Sargodha of the Province of Punjab, Pakistan.
Admittedly the appellant is domicile of district Sargodha. Being a State Subject, under the provisions of AJ&K Interim Constitution Act, 1974, he is entitled for applying and induction against any post in the service of Azad Jammu and Kashmir as the right of equality before law is fully applicable. Since he is domiciled in Pakistan, he is entitled for a job from the quota reserved for refugees settled in Pakistan. Right to vote has been extended to the State Subjects, who are settled in Pakistan, for the seats of AJ&K Legislative Assembly reserved for refugees settled in Pakistan. He referred to section 8 of Electoral Rolls Ordinance, 1970 and Notifications dated 12-3-1972, where quota for refugees settled in Pakistan is reserved. The learned counsel further argued that if the Court comes to the conclusion that the appellant does not fall in the category of refugees settled in Pakistan, then a direction be issued to the Government for making arrangements to provide job opportunities to the appellant and alike State Subjects. He argued that this Court has ample powers to do complete justice in such matters.
5. Ch. Shokat Aziz, the learned Additional Advocate-General, opposed the contentions of the learned counsel for the appellant and argued that it is admitted position that the appellant is a State Subject but he does not fall in the definition of refugee. According to Notifications dated 12-3- 1972 and 24-8-1972, the service rights have been reserved for refugees of Jammu and Kashmir settled in Pakistan. The appellant is admittedly not a refugee from Occupied Kashmir, but he hails from district Mirpur, Azad Jammu and Kashmir, therefore, he is not entitled to a post in the quota reserved for refugees of Occupied Kashmir, who are settled in Pakistan. He referred to provisions of section 2(9) of Pakistan Rehabilitation Act, 1956, sections 2(2)(c) and 2(6) Pakistan Administration of Evacuee Property Act, 1957, section 22(g) of the Azad Kashmir Protection of Evacuee Property Act, 1950 and section 2(c) of Azad Kashmir Rehabilitation Ordinance, 1952. He further argued that the word "refugee" is defined in Notification No,ADMIN. 4090- 4130/SS/68 dated 26-8-1968 and it does not include the persons displaced due to construction of Mangla Dam.
' C. Mr. Abdul Rasheed Abbasi, senior counsel/amicus-curiae, argued that the Azad Jammu and Kashmir Interim Constitution Act, 1974 guarantees the fundamental right of equality before law and right of service is also guaranteed by the Constitution. All the State Subjects have a right to apply for a post in service of AJ&K. The appellant being a State Subject has also a right under the Constitution to apply for a post and induction in service. The learned counsel referred to two notifications issued by the Government, whereby quota in the service has been reserved for different units. The first notification was issued on 12-3-1972, where quota is reserved for "refugees of Jammu and Kashmir settled in Pakistan". The learned cbunsel argued that in the said notification the words used are "refugees of Jammu and Kashmir settled in Pakistan" and not the words "refugees from occupied Kashmir". Later on, second notification was issued on 24-8-1972 where for the purpose of definition of "refugees" the words "occupied Kashmir" were used which connote that the quota is reserved for refugees, who migrated from occupied Kashmir and settled in Pakistan.
The learned counsel argued that the dictionary meanings of the word "refugee" are; if any person leaves his area under compulsion, he can be treated as a "refugee". He referred to page 356 of Oxford Dictionary, 1961 Edition. The appellant's parents were permanent residents of district Mirpur, who were compelled to migrate due to construction of Mangla Darn, in the national interest. They have not migrated voluntarily and any person, who is compelled to migrate, is a refugee by dictionary meanings. In such like cases the principle of beneficial construction of interpretation of Statutes is applicable. Where there is a wrong, there is a remedy and beneficial interpretation of Statutes requires that the appellant be treated as Jammu and Kashmir refugee settled in Pakistan.
The learned counsel argued that alternately the Government be directed to make arrangements for providing a mechanism for protection of service rights of category of such State Subjects like appellant while including them in the category of refugees settled in Pakistan.
7. Raja Muhammad Hanif Khan, another learned senior counsel/ amicus-curiae, argued that the law shall be applied as it is. Admittedly the appellant is a State Subject who is settled in Pakistan under compulsion as a result of construction of Mangla Dam. Azad Jammu and Kashmir Interim Constitution Act, 1974 protects his service rights and he is entitled to apply for a post in the service of AJ&K on the basis of equality before law. The learned counsel argued that the definition of the word "refugee" provided in the Notifications dated 12-3-1972 and 24-8-1972 shall be treated the same as it is laid down in previous laws. In presence of these two notifications, no one-else can be included in the definition of refugees for the purpose of service rights except the persons falling at serial No,2 in the notification dated 24-8-1972. The learned counsel suggested for issuance of a direction to the Government under section 42-A of the AJ&K Interim Constitution Act, 1974 to provide a mechanism for protection of service rights of the State Subjects displaced by the construction of Mangla Dam and settled in Pakistan.
8. Mr. Farooq Hussain Kashmiri and Mr. Muhammad Noorullah Qureshi, advocates, who were present in the Court, also assisted the Court.
9. We have heard the learned counsel for the parties, the learned amicus-curiae and perused the record. It is an admitted fact that the father of the appellant originally was a resident of district Mirpur, who was forced to migrate from Mirpur to district Sargodha, Pakistan, at the time of construction of Mangla Dam in the decade of 1960. The appellant was born in Sargodha and all along remained resident of said district, so admittedly he is domicile of district Sargodha, Punjab, Pakistan. Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 guarantees fundamental rights. Fundamental Right No,15 provides that all the State Subjects are equal before law and are entitled to equal protection before the law. The appellant is a State Subject and is entitled to apply for a post in the service of Azad Jammu and Kashmir. He is entitled for appointment against a post under the service laws.
10. Prior to year 1972, every State Subject had a right to apply against a post in the service of AJ&K under law, but on 12th March, 1972, a notification was issued whereby quota was reserved for refugees of Jammu and Kashmir settled in Pakistan and the districts of Azad Jammu and Kashmir including Mirpur, Poonch and Muzaffarabad. In continuation of said notification, another notification was issued on 24-8-1972. This notification was basically issued for clarification of earlier notification dated 12-3-1972, but in the new notification instead of words "refugees of Jammu and Kashmir settled in Pakistan" the words "persons who migrated from any part of occupied Kashmir and settled in Pakistan" have been used. It will be useful to reproduce both the notifications which are as under: {{URDU TEXT}}-- ' A comparative study of both the notifications shows that in the first notification, posts in Government service are reserved for refugees of Jammu and Kashmir settled in Pakistan and in the second notification refugees have been categorized. The first category of refugees of occupied Kashmir who are settled in districts of Azad Jammu and Kashmir shall be treated as permanent residents of said districts and second category is for those State Subjects who have migrated from occupied Kashmir and settled in Pakistan. The refugees of 1965 shall also be treated as refugees till settlement. The spirit behind the notifications appears that these have been issued for reserving a quota in the service of AJ&K for refugees of occupied Kashmir settled in Pakistan. No other category of State Subjects, who have migrated from Azad Jammu and Kashmir territory to Pakistan under compulsion, is included in the aforesaid notification. We have also considered the definition of word "refugee" in the notification dated 26-8-1968. It will be useful to reproduce the said notification which is as under:--- "Azad Government of the State of Jammu and Kashmir.
(Administration and Establishment Secretariat)
[Dated: August 26, 1968] NO TIFICATION: '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.
(Abdul Ghani)
Deputy Senior Secretary"
' A study of the aforesaid notification reveals that it has been issued under the provisions of section 7 of the Azad Kashmir Adaptation of Laws Act, f959 read with the Administration of Evacuee Property Act, 1957 and the Rehabilitation Act, 1956, for definition of the word "refugee" used in the said laws. It speaks that the expression "refugee" or "displaced person" shall include those State Subjects from 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 cowing 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 State. The to habilitation laws are enacted for restoration, maintenance and settlement economic issues of the State Subjects, who have taken refuge in Azad Jammu and Kashmir or Pakistan as a result of war of liberation. This definition is confined only for the purpose of referred laws and for the_allotment of land or permanent settlement of refugees, who could not return to their homes in occupied Kashmir. Admittedly this definition excludes the case of the present appellant from the definition of the word "refugee.
11. The history of migration is thousands of years old. In order to avoid persecution and massacre, due to political, religious or social reasons, when some persons are expelled from country of their origin by the Government and they take refuge in another country or State for protection and such persons who are escaped from perceived injustice or fundamental incompatibility with their own State fall in the definition of "refugees". The category of such persons, who are eligible for international assistance and adversely affected by a particular social or political event, may be termed as refugees under the international refugee definition. The word "refugee" is defined in different Dictionaries as under:--- 'Oxford Dictionary Edition 1961, page 356.
' Refugee.--- One who owing to religious persecution or political troubles, seeks refuge in a foreign country.
'Oxford Advanced Learner's Dictionary, 8th Edition, page 1280.
' Refugee.--- A person who has been forced to leave country or IF home because there is a war or for political, religious or social reasons.
'Black's Law Dictionary, 8th Edition page 1307.
' Refugee.--- A person who flees or is expelled from a country, esp. because of persecution and seeks haven in another country.
'Webster's Third New International Dictionary Volume R. page 1910.
'Refugee.--- One that flees to a place of safety; esp. one who flees to a foreign country or power to escape danger or persecution in his own country or habitual residence because of his race, religion, or political beliefs ...."
'From the above referred definitions, a "refugee" can be termed as a person who leaves his ordinary place of abode under compulsion or he is forced to leave his country or home due to war or political, religious or social reasons. Any person, who migrates his ordinary place of residence II voluntarily is not included in the definition of word "refugee".
12. There is some weight in the argument of senior counsel/amicus curiae, Mr. Abdul Rasheed Abbasi, that when the appellant is a State Subject, his rights are guaranteed under the Constitution. He is being deprived of his service rights due to some notifications issued by the Government. In such circumstances, the principles of beneficial construction of interpretation of Statutes have to be applied. It is a celebrated principle of interpretation of Statutes that when two interpretations are possible, the one beneficial to the subject has to be K adopted. In a case reported as Ch. Javaid Mehdi v. Chief Election Commissioner and others [PLJ 2004 SC (AJ&K) 245] it was observed as under:--- "36. We have already dilated on the question that the right to contest the elections is a fundamental right enshrined by the Constitution and if the question of interpretation of provision of any election statute is involved, then very clear and unambiguous interpretation should be adhered to. There are not two views about the fact that to deprive a person from taking part in the elections tantamounts to depriving him and his voters from the right of franchise and it falls within the purview of fundamental rights. With regard to fundamental rights, if two views are possible from reading a provision of law, then the view which favours the citizens may be given preference over the second view. The aforesaid celebrated principle of law is supported by the authorities titled The State v. Syed Qaim Ali Shah [1992 SCMR 2192 (2216)], B.P. Biscuit Factory Ltd. Karachi v.
Wealth Tax Officer and another [1996 SCMR 1470 (1475-C)] and Rafiq Akhtar Chaudhry v. Azad Jammu and Kashmir Government [1982 P.S.C. 1025 (1030) para 14]." (Underlining is ours)
' In another case titled Messrs Amin Spinning Mills v. Deputy Collector Central Excise and others [2004 SCR 223]. it was observed as under:--- "6. If the two views are possible from reading a provision of law, then the view which favours the citizens may be given preference over the second view. The aforesaid solitary principle of law is supported by the authorities titled The State v. Syed Qaim Ali Shah [1992 SCMR 2192] and B.P. Biscuit Factory Ltd. Karachi v. Wealth Tax Officer and another [1996 SCMR 1470]."
' Similarly in the case reported as Province of West Pakistan and another v. Mahboob Ali and another [PLD 1976 SC 483] it was observed as under:--- "Needless to say that the whole purpose of the interpretation of a statute is to ascertain the intention of the law maker and to make it effective. The basic principles governing the interpretation or construction of statutes are well-settled. But these have seldom been regarded as inflexible, except perhaps where a statute is plain, certain and free from any ambiguity so that a bare reading of it would suffice. In essence, in such case, interpretation is unnecessary. Barring such plain cases statutes would be construed liberally or strictly according to their subject-matter, the object or purpose intended to be achieved, or whether it is in any way in derogation of any common law or inherent right. For instance, it is well settled that penal or fiscal statutes or statutes impinging upon common law rights, are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject. On the other hand it is equally well settled that remedial statutes are to be liberally construed so as to advance the remedy and suppress the mischief. So also empowering statutes are generally liberally construed so as to effectuate and not to stultify the power conferred. Modern cases provide many instances of the Judges' reluctance to stand upon the letter of the law strictly in the interpretation of a statute falling under the second category.
It is true that even in such cases, what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases rule of cassus-omissus is generally applied. But when faced with a choice between a wide meaning, which carries out what appears to be object of the Legislature more fully and a narrow meaning which carries it out less fully or not at all, the choice of the Courts is often the former. Beneficial construction is a tendency, rather than a rule."
' The Constitution guarantees the right in service and the appellant is being deprived of the fundamental right due to act of the Government. In such eventuality, the principles of beneficial construction have to be applied, but the difficulty before the Court is that the notifications dated 12-3-1972 and 24-8-1972, dealing with the subject of quota in the Government service, specifically provide "refugees of Jammu and Kashmir settled in Pakistan" and "refugees from occupied Kashmir settled in Pakistan", respectively. It has been observed in para 10 of this judgment that the intention of both the notifications appears that the quota has been reserved for refugees from occupied Kashmir, settled in Pakistan and not for the State Subjects, who migrated from Azad Jammu and Kashmir under compulsion, therefore, the principle of beneficial interpretation for extending the definition of word "refugee" to Mangla Dam displaced persons settled in Pakistan is not applicable in the case and such persons cannot be considered as "refugees" for the purpose of aforesaid notifications.
13. We have also considered the argument of the learned counsel for the appellant that the appellant is entitled for service on the posts reserved for State Subjects settled in Pakistan on the similar pattern as Mangla Dam displaced persons are entitled to vote and contest elections for the seats of AJ&K Legislative Assembly reserved for State Subjects settled in Pakistan. The argument is misconceived. The election laws have a definite scheme conferring a right in the State Subjects.
Section 2 of the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 provides as under:--- "2. Composition of the Legislative Assembly.--- As soon as may be after the promulgation of this Ordinance and notwithstanding anything contained in the Azad Jammu and Kashmir Government Act, 1968, there shall be constituted in the manner hereinafter appearing a Legislative Assembly consisting of--
(1) Twenty nine to be elected by the State Subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir;
(2) Six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are now residing in any of the provinces of the Punjab, Balochistan, Sindh and North-West Frontier Province;
(3) Six members to be elected from amongst themselves by such of the State Subjects from other parts of the State of Jammu and Kashmir and State Subjects originally residing in territories under the administration of Azad Government of the State of Jammu and Kashmir, as are now residing in the Provinces referred to in clause (2); (4)
(5)
(6) .
(7)
' For elections to the AJ&K Legislative Assembly, section 8 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, provides for preparation of voter lists for elections of Legislative Assembly, which provides three categories. Section provides as under:--- "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 now residing in Pakistan."
' A perusal of section 2 of the AJ&K Legislative Assembly Ordinance, 1970 and section 8 of the AJ&K Electoral Rolls Ordinance, 1970, shows that the State Subjects, who are originally resident of Azad Jammu and Kashmir and settled in Pakistan have a right to be enrolled as voters in the Electoral Rolls prepared for the seat of Legislative Assembly reserved for the area. The right to be enrolled as voters and contest the elections is regulated by the election laws. The right to secure a post in the service of AJ&K cannot be claimed on the strength of eligibility to contest elections on a seat reserved for State Subjects settled in Pakistan.
14. The question arises that what would be the future of the appellant who is a first class State Subject, permanently settled in Pakistan and whose parents were compelled to migrate from district Mirpur, AJ&K, due to a national cause (construction of Mangla Dam). The migration was not voluntarily. The AJ&K Interim Constitution Act, 1974, guarantees that all the State Subjects are equal before law and are entitled to equal protection of law, but due to notifications dated 12-3-1972 and 24-8-1972, referred to above, the appellant has been deprived of his right in service guaranteed under the Constitution. A right guaranteed in the Constitution cannot be taken away through a subordinate law or notifications issued thereunder. The question of equal protection before law came under consideration in a case reported as Jammu and Kashmir Tehrik Amal Party and 11 others v. The Azad State of Jammu and Kashmir and another [PLD 1985 AJ&K 95] wherein it was observed at 139 as under:--- ... Fundamental rights are the sweet fruit of freedom. The foremost and supreme gift of these rights is enshrined in proper quarters of the Constitution. As trustee or custodian of the Constitution, a duty is cast upon the Courts to keep watch on strict compliance with the provisions of the Constitution and let it not be eroded in the name or interest of public, unless, of course, it was satisfied that imposition of restrictions served the cause of advancement of the purposes of the State or citizens."
' It was further observed at page 169 as under:--- "40. The fundamental rights are mentioned in all the written Constitutions of the civilized countries.
They are justiceable and therefore no legislation can be made against them. The Executive cannot pass orders which go against the fundamental rights. The list of fundamental rights may be small in one country and large in another."
' Similarly in another case titled Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others [1994 SCR 341], wherein it was observed as under:--- "In my view the guarantee of equality before law is more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations become meaningless without Right No,15. The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law, Can a "law" contemplated by this right be discriminatory? The answer to this question must be in the negative because it cannot be visualized that, for instance, persons belonging to a particular ideology or political creed may be deprived of liberty under a harsher law than the others. Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc. ' If Right. No,17 is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu and Kashmir will be reserved for sons of serving or retired Judges or that persons in Police service shall only be recruited from a particular Tehsil or that only those who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If we test these laws against the touchstone of Right No,17 the said laws will have to be declared valid. However, if Right No,15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. The analysis shows that the argument of Mr. S.M. Zafar is without substance.
' The Interim Constitution Act through Right No,15 holds out a firm and forthright guarantee that all State Subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularization in the phraseology these guarantees cover all laws dealing with State Subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalized were experienced in literally implementing these guarantees. These difficulties are real and substantial. Therefore, reasonable classification was recognized."
' In another case titled Azad Jammu and Kashmir Government v. Javaid lqbal Khawaja and another 1996 PLC (C.S.) 155 it was observed as under:--- .... Even otherwise the order passed by the High Court, in my estimation, is not sustainable because it doesn't conform to the view which I have taken in earlier part of the judgment that giving any weightage to a candidate for his past experience and departmental training violates the fundamental right of equality before law. This would create a distinct class as compared to the general public who have had no such experience or training. Apart from that, as held in the earlier part of this judgment, the recommendation of the Public Service Commission has to be based on test and examination conducted by the Commission, and training and past experience have not to be considered. It also runs counter to the view taken earlier that the Government is not empowered to issue directions to the Public Service Commission. Therefore, the relief given by the High Court has to be modified so that it is substituted by a declaration that clause (i) of Notification No,1 regarding experience and departmental training is declared to have been issued without lawful authority and of no legal effect."
' In another case titled Azad Government and another v. Raja Muhammad Nasab Khan and 20 others [2011 SCR 257] it was observed as under:--- ".... The principle of parity with the Punjab is since long followed in Azad Jammu and Kashmir and the counsel for the appellants has failed to bring on record any single instance of departure from this principle. While all the other persons are benefitted from this principle, how the respondents can be deprived of. If exercise of powers in arbitrary manner is allowed, it will be discrimination and violation of fundamental rights. The constitutionally guaranteed fundamental right No,15 speaks that all the State Subjects are equal before the law and are entitled to equal protection of law. Even an Act passed by the Legislative Assembly when found inconsistent with this right, has been struck down by the superior Courts. Reference can be made to a reported case titled Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others [1994 SCR 341]."
15. It is also on record that the appellant since his birth all along remained settled in district Sargodha.. He is permanent domicile of said district, but he is deprived of right of service .due to above referred notifications. We have already observed that the referred notifications, apart from other units, fixed the quota in the service for refugees from occupied Kashmir. The referred notifications and notifications issued subsequently, not only deprive the appellant of the right in service, but a large number of State Subjects of district Mirpur, who were compelled to migrate from Mirpur to Pakistan at the time of construction of Mangla Dam and permanently settled there, are also deprived of their service rights. It is the duty of the State to provide equal protection of service rights to the category of Mangla Dam displaced persons settled in Pakistan or any other category of State Subjects hailing from Azad Jammu and Kashmir territory settled in Pakistan, who were compelled to migrate. Of course, it will not include the category of the State Subjects, who have voluntarily migrated from Azad Jammu and Kashmir to Pakistan for the purpose of business, service or any other cause because their domicile is intact as has been held in the case reported as Fozia Hussain Abbasi v. The Nomination Board through Chairman and 4 others [1995 CLC 1761].
16. We have come to the conclusion that fundamental right No,4(15) of appellant and other State Subjects, who were compelled to migrate and permanently settled in Pakistan, has been violated by the Government by issuing above referred Notifications No, /4476-4526/ /72 dated 12-3-1972 and No, /26424- 16364/ /72 dated 24-8-1972. A suitable amendment is required to be made by the Government in the referred notifications. The appellant is entitled to similar treatment for his service rights as guaranteed under the above referred fundamental right to other State Subjects.
While exercising powers vested in this Court under section 42-A of the AJ&K Interim Constitution Act, 1974 and Order XLIII, Rules 1, 4, 5 and 6 of the AJ&K Supreme Court Rules, 1978, we hereby direct the Government to immediately provide a mechanism while making arrangements for equal protection of rights including the right of service and admission in professional Colleges/Universities of Azad Jammu and Kashmir and Pakistan for the category of State Subjects, who are displaced due to construction of Mangla Dam or any other national cause and settled in Pakistan. The needful shall be done within two months. If the appellant falls in the merit position after interview, the P.S.C. shall sent recommendations for his appointment against the seat reserved for the category he is placed.
17. Before concluding we appreciate the valuable assistance rendered by the learned senior Advocates, Raja Muhammad Hanif Khan and Mr. Abdul Rasheed Abbasi,
18. With the above observations, the appeal is disposed of with no order as to costs. A copy of this judgment shall immediately be sent to the Chief Secretary, Azad Government of the State of Jammu and Kashmir, for compliance.