' AZHAR SALEEM BABAR, J.--- The captioned writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As, common questions of fact and law are involved in the above titled writ petitions, therefore, the same are disposed of through a single order.
3. Precise facts forming background of Writ Petition No,724 of 2012 are that Public Service Commission advertised some posts of Section Officer Law. It was further stated that the petitioner being eligible applied for the post against the quota reserved for District Muzaffarabad. It was further stated that the petitioner qualified the test and interview and was placed at serial No,1 of the waiting list of successful candidates. It was also stated that Ali Raza Gillani obtained Domicile and Permanent Resident Certificate (PRC) from district Haveli and later on obtained abandonment certificate from Deputy Commissioner Haveli. It was alleged that Deputy Commissioner Haveli cancelled the State Subject Certificate and Domicile Certificate issued in favor of Ali Raza Gillani, the non-petitioner, without lawful authority. It was further alleged that the non-petitioner obtained Domicile of Punjab from district Lahore prior to abandonment certificate issued by Deputy Commissioner Haveli Kahutta and State Subject from Rehabilitation authority Mirpur without lawful authority. The main case of the petitioner is that he claims appointment against the quota reserved for refugees settled in Pakistan on the ground that no candidate could qualify the test and interview against the said quota and according to notification dated 10-1-2007, if no candidate from a particular functional unit could qualify the exam, then the successful candidate from the other functional unit shall be appointed with the condition that this appointment shall be adjusted against the quota of relevant functional unit/district in case of future vacant post. Petitioner No,2 also claims appointment as she falls at serial No,2 of the waiting list. It was prayed by the petitioners that State Subject Certificate issued in favor of Ali Raza Gillani by Deputy Commissioner Rehabilitation Mirpur and Domicile Certificate issued by District Coordination Officer Lahore be declared as illegal, void and without lawful authority. It was further prayed that the Public Service Commission be restrained to conduct the interview of private non-petitioner. The writ petition was contested by the non-petitioners by filing written statement, wherein claim of the petitioners has been refuted. It has been stated that the post in question was advertised against the quota reserved for refugees settled in Pakistan, so the petitioner is not an aggrieved person as he does not belong to unit of refugees settled in Pakistan. It has also been stated that the non-petitioner has abandoned the State Subject Certificate and Domicile Certificate of Bagh/Haveli. It has further been stated that the non-petitioner is admittedly refugee migrated from occupied. Kashmir in the year 1947. It has been emphasised that the non-petitioner rightly obtained Domicile Certificate from. Lahore and State Subject Certificate from Rehabilitation Commissioner Mirpur because he is a refugee settled in Pakistan. The non-petitioner prayed for dismissal of writ petition.
4. Precise facts of Writ Petition No, 901 of 2012 filed by Syed Mubarak Ali Shah are that some posts of Section Officer Law were advertised by the department where-against he applied and qualified the test and interview and was placed at serial No,3 of the waiting list of successful candidates. It is the case of the petitioner that the department withheld some posts of Section Officer Law with mala fide intention, which were held by the ad hoc appointees. It was prayed by the petitioner that a direction be issued to the non-petitioners to appoint the petitioner against any withheld or vacant post. This writ petition was also resisted by the non-petitioners by filing written statement, wherein they refuted the claim of the petitioner. It has been stated that the petitioner has no locus standi to file the instant writ petition because he could not gain merit position, even has failed to get place in the waiting list. It has been stated that one post of Section Officer was reserved against the quota of district Muzaffarabad where-against one Mrs. Mehar-un-Nisa Qadir has already been appointed through PSC.
5. Precise facts of Writ Petition No,2244 of 2012 filed by Ali Raza Gilani are that the Public Service Commission advertised two posts of Section Officer Law against the quota of refugees Jammu and Kashmir settled in Pakistan, vide advertisment Nos.1/2011 and 2/2011. The petitioner being eligible applied for the job. The Public Service Commission issued notice to the petitioner that the State Subject Certificate submitted by him did not furnish the proof that the petitioner is refugee. It was stated that the a migration certificate was issued by District Magistrate Haveli Kahuta in favor of father of the petitioner, wherein it has been mentioned that father of the petitioner had left the residence of Kahuta and has permanently settled in Lahore and State Subject and Domicile Certificates issued in favor father of the petitioner and his children would be deemed cancelled.
Thereafter, on 25-11-2011, fresh State Subject Certificate was issued by District Magistrate/Deputy Commissioner Rehabilitation, Mirpur, in favor of the petitioner as refugee settled in Pakistan. The petitioner filed an appeal before the Chairman PSC against the objection of the PSC dated 14-10- 2011 and submitted all the documentary proof, so the PSC issued call letter to the petitioner. It was claimed that the petitioner appeared in the written examination and qualified the 'same. It was alleged that the interview was under process, meanwhile, Ehtesab Bureau AJ&K, on a frivolous application of unknown person, wrote a letter to the PSC, Deputy Commissioner Haveli and Mirpur for investigation without any lawful authority. I has further been alleged that vide order dated 8-8- 2012, due to inquiry of Ehtesab Bureau, Deputy Commissioner Havlei illegally amended the resident certificate dated 17-11-2011 to the extent of State Subject, whereas the said certificate was issued after due probe. It was also alleged that on the basis of illegal application, the District Magistrate/Deputy Commissioner Rehabilitation Mirpur has cancelled State Subject Certificate and the PSC is also avoiding test/interview. It was prayed that the PSC be directed to issue call letter to the petitioner for interview and send the recommendations to the Govt. For appointment of the petitioner against the quota of refugees settled in Pakistan. It was also prayed that the non- petitioners be restrained from cancelling the State Subject Certificate issued on 28-11-2011 by Deputy Commissioner Rehabilitation, Mirpur, AJK and amended order of District Magistrate Haveli Kahtua, dated 8-8-2012 be set aside. The writ petition was contested by the non-petitioners by filing written statement. It has been stated that the petitioner has not come before the court with clean hands, so writ petition is liable to be dismissed. It has also been stated that the petitioner concocted forged documents and concealed facts before the court to usurp the post reserved for refugees settled in Pakistan. It has further been stated that the petitioner has raised questions of fact in the writ petition and has failed to implead necessary party, especially Board of Revenue and Chairman PSC. It has been emphasised that the petitioner was resident of Poonch State and before partition settled in Haveli Kahuta. It was also stated that Domicile Certificate dated 12-4-2011 and State Subject Certificate dated 25-11-2011 has been issued without cancelling the State Subject dated 6-9-2003 from District Bagh. It has also been alleged that at the time of. Submission of the application, State Subject Certificate issued by District Magistrate Bagh was intact and nothing has been brought on record with regard to its cancellation. Roll number issued by the PSC to the petitioner was against the law. It has been prayed that the writ petition be dismissed with costs.
6. I have heard learned counsel for .The parties and gone through the relevant record. Case of Khalid Bashir and another in Writ Petition No,724 of 2012 relates to controversy of Domicile Certificate issued in favor of Ali Raza Gillani, the non-petitioner, therein. It is the contention of the petitioners that Ali Raza Gillani, the non-petitioner obtained a Domicile Certificate from District Haven and later on, obtained abandonment of residence certificate from District Haveli. It is the contention of the petitioners that the non-petitioner resided in District Haveli and later on Deputy Commissioner Haveli abandoned the domicile certificate and State Subject Certificate issued in favor of Ali Raza Gillani without lawful authority. It may be refreshed here that Khalid Bashir Mughal, the petitioner claims appointment as Section Officer Law on the basis of his merit in waiting list of district Muzaffarabad and is of the view that vide Government notification he has a right to be adjusted against the quota reserved for refugees settled in Pakistan because no candidate from refugees settled in Pakistan could qualify the examination conducted by Public Service Commission. Saima Nazir the other petitioner stands at serial No,2 of the waiting list and she claims to be appointed because no other candidate is available.
7. Ali Raza Gillani, the non-petitioner obtained a Domicile Certificate from District Magistrate Bagh on 5-4-1985, wherein his residence has been mentioned in Forward Kahutta Tehsil Haveli. He moved an application before District Magistrate Haveli Kahuta later on and applied for certificate of abandonment of residence. Learned District Magistrate issued the required certificate in favor of Khurshid Hussain Gillani by stating therein that Khurshid Hussain Shah has moved his residence to Lahore. Learned District Magistrate cancelled State Subject Certificate as well as Domicile Certificate issued in favor of Khurshid Hussain Shah and his children. Later on, through a corrigendum, District Magistrate Haveli rectified the abandonment certificate and stated that it could be effective to the extent of Domicile Certificate only. Khurshid Hussain Shah is father of Ali Raza Gillani, the non-petitioner in Writ Petition No,724 of 2012. After abandonment of residence certificate, Ali Raza Gillani applied to District Magistrate/Deputy Commissioner Rehabilitation for refugees settled in Pakistan and obtained a State Subject Certificate on 25-4-2011. Ali Raza Gillani thereafter applied for Domicile Certificate of District Lahore, which was accordingly granted to him on 12-4-2011. Ali Raza Gillani obtained National Identity Card, wherein his present address has been mentioned as House No,44 Mohallah Samanzar Colony Rustam Park Multan Road Lahore. It is also pertinent to bring on record that Ali Raza Gillani is a practising lawyer who has been enrolled as an Advocate on April 1, 2010 by Punjab Bar Council. A perusal of Domicile Certificate issued by Deputy Commissioner Rehabilitation shows that Ali Raza Gillani son of Khurshid Hussain Shah migrated from village Jagal Thana Tehsil Poonch. The question emerging out of the pleadings is that whether Syed Ali Raza Gillani, the petitioner has a right to apply for the job of Section Officer Law against the quota reserved for refugees settled in Pakistan? Admittedly, Syed Ali Raza Gillani obtained State Subject Certificate from District Magistrate Bagh, wherein his residence was shown in Farward Kahtta Tehsil Haveli, District Bagh. Father of Ali Raza Gillani, Syed Khurshid Hussain Shah later on applied to District Magistrate Haveli Kahutta for issuance of abandonment of residence certificate in his favor. After necessary inquiry, District Magistrate Haveli Kahutta issued the required certificate in favor of Khurshid Hussain Shah on 17-11-2011. By virtue of this certificate State Subject and Domicile Certificate issued in favor of Khurshid Hussain Gillani and his children were cancelled. It is pertinent to bring on record that Ali Raza Gillani, the petitioner obtained a State Subject Certificate from District Magistrate/Deputy Commissioner Rehabilitation, Mirpur on 25-11-2011, wherein his place of residence has been shown as village Jagal Thana, Tehsil Poonch (Occupied Kashmir). It is amazing to observe here that Syed Ali Raza Gillani obtained certificate of Domicile from District Coordination Officer (DCO) Lahore on 12-4-2011, wherein his present address has been shown as House No,44 Samanzar Colony Rustam Park Multan Road Lahore. The events show that prior to application for abandonment of residence certificate, Syed Ali Raza Gillani had already obtained a Domicile Certificate from Lahore District (Pakistan). Furthermore that Syed Ali Raza Gillani, the rival petitioner obtained State Subject Certificate from District Magistrate/ Deputy Commissioner Rehabilitation on 25-11-2011 but managed to obtain a Domicile Certificate from District Lahore on 12-4-2011 i,e, before issuance of State Subject Certificate. It may also be mentioned here that Domicile Certificate issued to Syed Ali Raza Gillani from the office of DCO Lahore states that he has been residing in Pakistan since 5-4-1985, which is against the facts raised by Syed Ali Raza Gillani himself. Because he has himself contended that a certificate of abandonment of residence was issued to him by District Magistrate, Havli, Azad Kashmir on 17-11-2011, so contents of Domicile Certificate to the extent of his period of residence are highly doubtful. It may be also be mentioned here that District Magistrate/ Deputy Commissioner Rehabilitation, Mirpur, has already moved Kashmir Council for cancellation of State Subject Certificate dated 25-11-2011. It is, therefore, proved from record that- at the time of issuance of certificate of Domicile from District Lahore Pakistan, Ali Raza Gillani was in possession of Domicile Certificate of District Haveli Azad Kashmir. Syed Ali Raza Gillani was not authorized under law to keep in possession two Domicile Certificates for different places at one and the same time. Obviously, Domicile Certificate issued by the DCO Lahore has been obtained by concealing the facts. It is also noticed that State Subject Certificate issued by District Magistrate Bagh transpires that Syed Ali Raza Gillani is a resident of village Forward Kahutta Tehsit Haveli whereas State Subject Certificate issued by District Magistrate/Deputy Commissioner Rehabilitation shows his address as village Jagal Thana Tehsil Poonch (Occupied Kashmir). Both the contentions are apparently contradictory. However, it is proved from record that Syed Ali Raza Gillani, the petitioner was holding two Domicile Certificates. In such a controversy, section 5 of Azad Jammu and Kashmir State Subject Act, 1980 provides guidance with regard to issuance of Domicile Certificate. Section S ibid reads as under:--- "Section 5 of the Azad Jammu and Kashmir State Subjects Act, 1980.
5. Certificate of domicile.--- The Council or any other authority specified by the Council may, upon an application made to it in the prescribed manner containing the prescribed particulars, grant a certificate of domicile to any person in respect of whom it is satisfied that the facts stated in the application are correct and that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years and intends to live permanently in Azad Jammu and Kashmir."
8. It is evident from bare perusal of the section that a certificate of Domicile can be issued to a person after satisfaction that the applicant has been continuously residing in Azad Jammu and Kashmir for a period of not less than five years. Khalid Bashir, the petitioner has relied on 2012 MLD 1508 and 2003 PLC (C.S.) 554 in support of his version, 2002 PLC (C.S.) 1425 also been relied upon.
9. As stated earlier, at the time of issuance of Domicile Certificate from District Lahore i,e, 12-4-2011.
Syed Ali Raza Gillani, the petitioner was already holding a Domicile Certificate from District Haveli Azad Kashmir. So, in my view Certificate of Domicile issued by DCO Lahore on 12-4-2011 has been obtained by fraud and concealment of facts. It may also be mentioned here that father of the petitioner is owner of land in Tehsil Haveli. A Proprietary Rights Transfer Order (PRTO) dated 22-6- 1988 shows that father of the petitioner owns land measuring 43 Kanals under survey No,218 min, 63 and 64 in village Kahutta. It would mean that if Syed Ali Raza Gillani, the petitioner or his father has moved to Lahore in connection with their livelihood, it would be not be a ground for cancellation of his State Subject Certificate of District Haveli Azad Kashmir. It may also be mentioned here that Abandonment Certificate by DM Haveli was issued on 17-11-2011 and Syed All Raza Gillani, the petitioner, obtained a certificate of Domicile from District Lahore on 12-4-2011. So, at the time of advertisement, Syed All Raza Gillani was not holding a valid certificate of Domicile from, District Lahore. In such circumstances, Syed All Raza Gillani was not eligible to apply for the post of Section Officer Law against the quota reserved for refugees settled in Pakistan. In these circumstances, proceedings by the Public Service Commission with regard to candidature of Syed Ali Raza Gillani and examination are of no legal effect. Syed Ali Raza Gillani, the petitioner has raised objection that Khalid Bashir Mughal and another, the petitioners are not aggrieved in the eye of law as they do not hail from the quota reserved for refugees settled in Pakistan. This argument is not tenable because if Syed Ali Raza Gillani is held ineligible to contest for the post of Section Officer Law against his quota of refugees settled in Pakistan, the petitioners may be held entitled to appointment in view of notification dated .18-1-2007. It has been held in Parvaiz Akhtar's case 2002 PLC (C.S.) 1425:--- "It is well settled that to be an aggrieved person it is not necessary that one should be a strict juristic right to enforce it for filing a writ petition."
' So, objection raised by the petitioner, Syed Ali Raza Gillani is weightless.
10.. Syed Mubarak Ali Shah, petitioner in Wit Petition No,901 of 2012 has contended that he applied for the post of Section Officer Law against the quota reserved for District Muzaffarabad and was placed at serial No,3 of the successful candidates by the Public Service Commission. He has further contended that some posts of Section Officer Law are lying vacant against whom some ad-hoc Section Officers are discharging their duties. It is, therefore, evident that these posts have been withheld by the department with mala fide intention. Syed Mubarak Ali Shah has prayed to the court for appointment as Section Officer Law against any of the vacant posts. Parawise comments filed on behalf of Law Department transpire that there are 10 posts of Section Officers on the strength of Law Department. Out of these posts, 8 Section Officers are working on permanent basis whereas two posts have been requisitioned to the Public Service Commission. It has further been contended that two posts of the quota of refugees settled in Pakistan have not been filled in on account of stay order issued by the High Court. It has also been explained that against the only post advertised for District Muzaffarabad, one Mrs. Mehr-un-Nisa has already been appointed on recommendations of the Public Service Commission. Budget breakup of the Law Department has also been attached with the comments and a stay order issued by the High Court in a case titled Tariq Javed v. Azad Government and others has also been attached. In the presence of comments/written statement filed by Law Department, the petitioner has no case to proceed further. The petitioner applied for the post of Section Officer Law against quota reserved for District Muzaffarabad. One Mehr-un-Nisa has already been appointed against the advertised post on recommendations of the Public Service Commission. Documents attached amply prove that there is no post vacant in Law Department against which the petitioner could be appointed.
11. Khalid Bashir Mughal, the petitioner has based his claim on a notification dated 18-1-2007 which postulates that a successful candidate on waiting list may be adjusted against another quota if nobody returns from that particular unit as successful candidate. It has already been concluded that Syed Ali Raza Gillani, the petitioner was not eligible to apply for the post of Section Officer Law against the quota reserved for refugees settled in Pakistan and it is also proved from record that no other candidate from refugees settled in Pakistan has passed the examination conducted by the Public Service Commission. So, in the light of aforementioned notification, Khalid Bashir Mughal, the petitioner has a right to be adjusted against the quota reserved for refugees settled in Pakistan subject to future adjustment of quota.
' In the light of what has been discussed above, the writ petition filed by Khalid Bashir Mughal is accepted and it is directed that he be appointed as Section Officer Law against the quota reserved for refugees settled in Pakistan, subject to future adjustment of quota. Saima Nazir, the other petitioner in Writ Petition No,724 of 2012 falls at a farther place in waiting list, so writ petition to her extent is dismissed. Syed Mubarak Ali Shah from District Muzaffarabad falls at serial No,4 in the waiting list. He could not point out any withheld post, so his writ petition also stands dismissed.
Eligibility and merit of Syed Ali Raza Gillani has already been discussed in detail whereby he has been held ineligible to apply for the post of Section Officer Law against the quota reserved for refugees settled in Pakistan. So, writ petition filed by him is also dismissed.