ROOH-UL-AMIN KHAN.J:- Our this common judgement shall dispose of the instant writ petition as well as writ petition No. 3323-P/2016 titled "Muhammad Daud Vs Secretary Elementary & Secondary Education and others" and writ petition No. 3055-P/2016 titled "Muhamamd Zeeshan Vs Government of Khyber Pakhtunkhwa and others" as identical question of law and similar controversy is involved in all these petitions.
In all the above mentioned petitions, the petitioners are aggrieved of the act of the respondents whereby they were refused appointment as PST on the ground that they are not permanent residents of the Union Council (U.C) where they had applied for employment.
As per averment of the writ petition No. 3253-P/2016, the petitioner having Master Degree in Urdu submitted application in pursuance of advertisement published by the respondent department for employment against the post of PST in Union Council Faqir Abad No.2, Peshawar. He appeared in the pre-requisite test conducted by NTS. Being sole candidate from the U.C, his name was placed on top of the merit list, however he was denied appointment for the reason that his National Identity Card (NIC) showed his permanent address of another U.C i.e. Budni. In writ petition No. 3323, it was averred that petitioner in pursuance of advertisement applied for appointment against the post of PST in U.C Nothia Qadeem District Peshawar who was subjected to prescribed written test conducted by NTS who not only qualified the same but also earned merit position, however he was not selected on the pretext that according to his NIC he was not permanent resident of Nothia Qadeem.
4. Likewise Muhammad Zeeshan, petitioner in writ petition No.3055-P/2016, being equipped with M.Sc Mathematics submitted application for employment against the post of PST (Male) in BPS-12 against the seat vacant at U.C Tehkal Bala, but was denied appointment for the sole reason that as per his NIC, he belonged to out district, despite the fact that he was otherwise qualified to be appointed on merit.
Initially comments of respondents were called for which were submitted accordingly, wherein merit position of petitioners were not denied, nevertheless it was urged that during scrutiny of petitioner's documents it had come to notice that as per the NIC, petitioners belonged to other Union Councils, therefore their names were excluded from merit list of respective Union Councils, where they had applied.
Having heared the learned counsel for the parties and after perusal of the record, it reveals that merit position of petitioners are not denied by respondent department. Nevertheless, their names were excluded from merit list for the sole reason that according to their NICs the petitioners were not permanent resident of their respective Union Councils despite the fact that they had provided domicile certificates, showing their permanent abode at their respective Union Councils. So much so the petitioner Muhamamd Zeeshan and Sana-ur Rehman have changed the permanent address in their CNICs prior to filing the writ petitions.
7. No doubt section 3 of Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulartory Act, 2011, regulate the appointment, posting and transfer of Primary School Teacher, according to which a vacancy of Primary School Teacher (PST) shall be filled in from candidate belonging to the U.C of their permanent residence mentioned in their Computerized National Identity Card and Domicile on merit and if no eligible candidate in that U.C is available, where the school is situated, such appointment shall be made on merit from amongst eligible candidate belonging to the adjacent U.C, but in the case in hand, admittedly, the forefathers of petitioners have abandoned their abode from the place mentioned in the NICs of petitioners and shifted to the U.C, where they have applied for appointment against the post of PST on U.C basis. It is also an undeniable fact that petitioners are permanent and definite resident of the place mentioned in their domicile certificate. According to Alber Venn Dicey, the domicile of any person is the place which is considered by law to be permanent home. From the above it is manifest that two essential condition, would confer indefeasible right on person viz he must dwell permanently in particular area and enjoy the benefits specifically allocated to inhabitants of that area. The NIC always indicates two different places of dweling of a person i.e. permanent address and temporary dwelling place while term domicile denotes a fix permanent residence of a person, therefore, any address mentioned in the NIC would not bring any change in permanent residence disclosed by a person in domicile certificate.
8. The word domicile has been derived of latin word "domus", which explicitly means "a home or dwelling place", and therefore, the domicile certificate is a most authentic document showing permanent residence of a person. Besides, certificate of domicile issued u/s 17 of the Citizenship Act 1951, is prima facie evidence of permanent abode of a person. Hence petitioners being in possession of domicile cettificate from their respective U.Cs cannot be denied appointment on the ground that they are not permanently settler in their respective U.Cs. The insertion of section 3 in the aforesaid Act 2011 is merely to facilitate the appointing authority in determining status of inhabitancy of candidate of relevant Union Council for appointment. In all the cases, the petitioners have not only filed domicile certificates, but have also submitted certificates issued from Secretary of the concerned Union Councils, ownership documents of their dwelling houses situated in the respective Union Councils, extract from voter list and changed addresses in NIC, which are sufficient proof showing that petitioners are permanent residents of the Union Councils, where they had applied for appointment. It goes without saying that the appointing authority, in such like cases, should adopt non-orthodox approach in dealing with appointment matters. It is a settled law that when substantial justice and technical consideration are pitied against each other, cause of substantial justice deserve to be preferred.
Precisely, we feel that the law would fail to protect the deserving litigants if it admitted fanciful possibilities to deflect the course of justice. Technicalities should not be a hurdle in the way of courts in dispensation of substantial justice.
Same treatment is expected from the authorities performing their function in connection of the affair of government.
They are required to pass such order as the circumstances warrant, of course within the four corners of law to secure the intrest of justice and to appease the judicious conscious.
9. For what has been discussed above, we are firm in our view that the petitioners are permanent residents of the U.Cs where they have applied for employment against the post of PST. Resultantly these petitions are allowed with direction to respondents to consider the petitioners for appointment against the post of PST at their respective Union Councils, strictly in accordance with their merit position.