QAZI JAWAD EHSANULLAH, J.- This Regular First Appeal has been preferred under the provisions of section 7 of the Federal Public Service Commission Ordinance, 1977 and is directed against the order dated 17.12.2024 passed by the Federal Public Service Commission, Islamabad (FPSC), whereby the Review Petition of the appellant was ordered to be rejected. Pursuant thereto, the declaration of ineligibility issued earlier against the appellant on account of her failure to submit domicile certificate by the cut off date specified in the advertisement was upheld and maintained.
2. Brief facts necessitating the filing of instant appeal are that FPSC had, on 23.07.2023, advertised CSS Competitive Examination and had invited applications for the purposes from the interested candidates by 15.08.2023. In its advertisement 31.12.2022 was stated to be the deadline for determining the eligibility of a candidate in terms of (i) age (ii) qualification and (iii) domicile etc. The appellant had, while responding to the advertisement, applied for appearing in the examination and in turn her candidature was entertained by the FPSC and she was allowed to appear in the written tests. Of late, she was informed about the rejection of her application vide letter dated 30.05.2024, on the ground that same was not compliant to the prescribed requirements in that the domicile certificate issued to the appellant was obtained after the cut-off date i.e. 31.12.2022, and so the result of her written examination was also withheld. This particular order of the FPSC was challenged by the appellant earlier on by way of filing Writ Petition No. 794- M/2024 which was decided and disposed of, on 17.10.2024, by a Division Bench of this court on the following terms; "When confronted, with section 7 of the Federal Public Service Commission Ordinance, 1977, wherein a right of review is provided to the petitioner against the decision / rejection of representation. Learned counsel for the petitioner states that he will be satisfied V the petition is treated as a Review Petition and transmitted to the Federal Public Service Commission for treating it as a review Hence, ordered accordingly."
3. Thereafter, upon receipt of aforesaid court orders, the FPSC has passed an order in review, on 17.12.2024, upholding its earlier verdict against which present appeal has been preferred by the appellant praying that she has not been treated in accordance with law; that she was very much having permanent domicile of District Swat (Khyber Pakhtunkhwa) and; the fact that she was issued a certificate to this effect after the cut-off date was no ground to hold that she was to be rendered ineligible.
4. Conversely, the case of the respondent FPSC was pleaded by learned Deputy Attorney General for Pakistan assisted by a departmental representative who have canvassed at the bar that the impugned order was perfectly in accordance with law and have prayed for dismissal of the instant appeal.
5. Heard. In the context of the present case, one of most important requirements as notified by the FPSC in its advertisement was mentioned in clause (d) under the heading `Eligibility', which reads as under; "2. ELIGIBILITY:
(a) ..........
(b) ..........
(c) ..........
(d) The cutoff date for determining the eligibility of candidates in terms of age, qualification, domicile etc. is 31 December, 2022. Therefore, all candidates are advised to submit requisite documents complete in all respects before the cutt-ff date. Otherwise, their candidature shall be liable to be rejected as per CSS CE Rules 2019." [emphasis added] Since the above condition of the advertisement was also followed by a penal clause of rejection of application, therefore, it was supposed to have been construed very strictly in terms that what was demanded by the FPSC was to have age, qualification and `domicile' of an area concerned before the notified last date and nothing else including a certificate of domicile etc. A careful examination of above quoted clause reveals that amongst other basic prerequisite for the purpose of determination of eligibility of a candidate, having a domicile was one of the most crucial condition precedents than merely having to have a certificate to that effect. This particular clause of the advertisement was also having statutory backing in Rule 5 of the CSS Competitive Examination Rules, 2019 notified by the FPSC vide No. SRO No. 1452(1)/2018 dated 27.11.2018 which reads as under; "5. Cut-off date for determination of eligibility.- The cutoff date for determining the eligibility of the candidate in terms of age, Qualifications, domicile shall be 31 day of December of the year preceding the year of competitive examination." [emphasis added] This particular rule too provides for a requirement of having a domicile by the notified cut-off date.
The object of same has further been explained in Rule 10 ibid which states that domicile of a candidate is needed for allocations of seats to different occupational groups and their division to various part of the country as per the policy prescribed by the FPSC and for no other purposes.
6. Quite contrary to above, the impugned order appears to have been raised on the premise that confuses the expression `domicile' with another term 'domicile certificate' without actually noticing the subtle distinction between the two and also the fact that one was required to have a particular domicile of an area before the deadline and not just a certificate to that effect. In order to understand the thin line of distinction and to know whether appellant was possessed of 'domicile' of an area claimed by her before the cut off date, it is imperative to first grasp whatst exactly the term 'domicile' connotes when it becomes one of the crucial factors for the purpose of deciding eligibility of a candidate for any post, admission or other like matter. For that, the succeeding part of this judgment shall briefly highlight the case-law on the subject where the meaning and import of the said term `domicile' and 'domicile certificate' has been discussed and deliberated upon.
7. For instance, in Central Bank of India vs. Ram Narain' case reported in PLD 1956 Supreme Court (Ind.) 81 the term domicile was dilated upon by the Supreme Court of India while dealing with its international dimension and it was held to mean as follows; "Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of `domicile'. The simplest definition of this expression has been given by Chitty, J, in Craighish v. Craighish (1), wherein the learned Judge said:"The Place is properly the domicile of a person is which his habitation is fixed without any present intention of removing therefrom."
But even this definition is not an absolute one. The truth is that the term 'domicile ' lends itself to illustrations but not definition. Be that as it may, two constituent elements that are necessary by English Law for the existence of domicile are: (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be the continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside fore ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country where in reality he has not. A person may be a vagrant as when he lives in a yatch or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicile in one particular territory. In order to make the rule that nobody can be without a domicile effective, the law assigns what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention to never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country." [emphasis added]
8. For matters concerning admission into a medical college the issue of how 'intention to reside at a particular place' is to be gathered has come up for determination before the Supreme Court of Pakistan in the case of 'Miss Amtul Naseer Sami vs. Secretary Health Govt. of Baluchistan' reported in 1975 SCMR 265, and it was held as follows; "We find that on page 5 of the report the learned Judge has adopted with approval the observation of Lord Macmillan in the case of Ramsay v. Liverpool Royal Infirmary (2) to the effect that the residence much answer a qualitative as well as quantitative test, and that the Court have regarded naturalization, purchase of house, or burial ground, exercise of political rights, financial expectation, establishment of children in business, the place where a man's wife and family reside as indicia of his intention in regard to residence."
9. In the context of citizenship, the issue of term domicile was deliberated upon by the High Court of Azad Jammu and Kashmir in the case of 'Muhammad Ashfaq Khan vs. Chairman, Nomination Board AJ & K Govt.' reported in PLD 1979 AJ & K 43 and it was ruled that "ownership of immovable property was an important factor for determination of domicile yet it was not the sole criterion" It was also held that "domicile of a dependent son follows the domicile of his father if son is putting up with his father."
10. In the case of `Ahmad Hassan vs. Abdullah' reported in PLD 1992 Peshawar 1, the expression 'domicile' was explained by this court to denote as follows; "26. Corpus Juris Secondum, Volume 28 at page 10 and 11 while dealing 1 with the subject of Womicile';, divides it into two kinds viz. domicile of origin and domicile of choice. The former is defined as..-- "A person's domicile of origin is the domicile of his parents, the head of his family, or the person on whom he is legally dependent, at the time of his birth. It is generally, but not necessarily, the place of birth."
The latter is defined as:-- "A domicile of choice is the place which a person has chosen for himself to displace his previous domicile; it is based on the intention of the person".
Again continuing with the subject of domicile it is stated that: -- "Apart from statutory regulation, no particular period of residence is required to establish domicile, and any residence, however short, will suffice when coupled with intent; without intent; residence, however long continued, will not establish domicile."
And adds:-- "A change of domicile or residence depends on intention, or; as sometimes stated, on a dual intention to abandon the former domicile and to acquire another".
According to Halsbury's Laws of England 3rd Edition Vol. 7, page 14, "The law attributes to every person at birth a domicile which is called a domicile of origin. This domicile, may be changed and a new domicile, which is called a domicile of choice acquired but the two kinds of domicile differ in the following respects:
(1) The domicile of origin is received by operation of law at birth, the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi.
(2) The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested by mere abandonment and is never destroyed though it remains in abeyance during the continuance of domicile of choice, the domicile of choice is lost by abandonment whereupon the domicile of origin is acquired; the domicile. of choice; when is once lost, is destroyed but may be acquired anew by fulfilling the same conditions as are required in the first instance."
Similarly, in Wright v. Wright reported in ILR 1958 Calcutta 259 as also in Rooks v. Rooks reported in A.I. R. 1934. Bombay 239 it is laid down that a person continues to retain his domicile of origin until a domicile of choice is acquired and even then the domicile of origin merely remains in abeyance and further that there must be both the factum of residence and animus manendi and must be no animus revertendi to the former domicile. The report further adds that residence of animus manendi by itself will not be inferred to confer a new domicile.
27. Questions of this nature did arise before Courts of Pakistan. In case of Ralph William Bagley v.
Elizabeth Bagley reported in PLD 1954 Dacca page 147 as well as John Oswald Horatio Neale v.
Mrs. Margaret Eileen Neale PLD 1957 Dacca page 363 while elaborating the said two, kinds of domicile with reference to person who migrates from the place of his origin to the place of his choice; the ratio decidendi is that mere residence in a place other than the place of his origin is not a proof of his domicile of his choice, unless the person abandons his domicile of origin and adopts the domicile of his choice that is to say he resides in the place, he has migrated to, permanently coupled with no intention whatsoever to go back to the place of his origin. The question also cropped up for consideration before the High Court of A.J.K. in the case of Nishat Saeed v. Nomination Board reported in PLD 1977 Azad J&K page 33 and while dealing with the word domicile it has been held that:-- "A person who carries on business in a country and for that purpose has also constructed a house to live in, cannot be said to have abandoned his domicile of origin and embraced domicile of choice in the country in which he carries on the business without a valid declaration showing that he has abandoned the domicile of origin."
28. In the light of the foregoing, we are clear in our mind that to every person who enjoys the status of sui juris, law assigns a domicile which can be expressed as his domicile of origin and which remains attached to him until a new and fresh domicile takes its place and that the domicile of origin remains intact until the person has not only manifested to carry into execution an intention of abandoning his former domicile and acquired another as his sole domicile. In other words, a person having a domicile of origin continues to be known therewith unless he chooses to acquire the domicile of choice and, notwithstanding this, his domicile of origin remains in abeyance unless he specifically abandons the same."
11. As against the very term domicile, the expression ' domicile certificate' too had come up for consideration before a division bench of this court in the case of Afsar Khan vs. Tribunal FCR' reported in 2005 CLC 1392, and it was held as under; "11. Domicile certificate means the official confirmation of the place of permanent residence of a citizen. Apparently it has nothing to do with castes or Tribes. A person belonging to Nasar sub- caste can neither be denied right of citizenship nor of domicile if he meets the criteria laid down by the law, the rules and the guidelines given by the Supreme Court. Moreover, the unambiguous certificate issued by the Tribal Elders of one of the recognized case of Bhittani Tribe' also confirms the entitlement of the petitioner to the benefits and liabilities of the Tribe being a resident of the area."
In this very judgment this court has also ruled that the right to have a domicile in any part of Pakistan was tracing it origin in a fundamental right guaranteed to a citizen of Pakistan in Art. 15 of the Constitution of Pakistan.
12. Now by applying the afore-noted criteria laid down by the superior court on the present case to see whether Swat was the domicile of origin of the appellant, i.e. her place of residence from day one coupled with an intention to reside there permanently, as on the cut-off date (i.e. 31.12.2022), one may see her on-line application first (appended with the official comments of the FPSC at page 28). In that she has specifically claimed to be domiciled in District Swat of the province of Khyber Pakhtunkhwa. In the said application, the date of issue of domicile certificate is claimed by her to be on 16.10.2010. Along with the appeal in hand, the appellant has also annexed the photocopy of her CNIC issued to her on 06.07.2018 which also specifically enumerates her permanent and present addresses at Swat (province of Khyber Pakhtunkhwa). The CNIC of the husband of the appellant is also appended with this appeal at page 19, which shows the same permanent. Similar is the position of appellant's father CNIC which is appended at page 20 of the appeal. The academic documents of the appellant and her degrees and certificates have also been perused which have been issued without any doubt before the last date of 31.12.2022 for consideration of determination of eligibility and they show that appellant has acquired all her education in the province of Khyber Pakhtunkhwa. So, based on that it can be safely concluded that appellant is a permanent resident of and is domiciled in District Swat and / or broadly speaking in the province of Khyber Pakhtunkhwa; and her claim to this effect cannot be rejected simply on the ground that lastly she had obtained the official confirmation of her permanent place of residence, or in other words her domicile, in the form of some certificate issued to her after the deadline of 31.12.2022.
13. In this context, the provisions envisaged in CSS Competitive Examination Rules, 2019 have also been examined and perused. Rule 5 and 10 thereof, deals with domicile of a candidate and it is clearly provided therein that domicile once claimed by a candidate and accepted by the FPSC will not be changed. As a matter of record, the domicile or place of permanent residence claimed by the appellant since day one is just the same and there hasn't been any change in that either before or after the cut of date. Therefore, the position taken by the FPSC in the impugned order could be subscribed to also because of the reason that in such an eventuality the appellant would be rendered without any domicile or place of permanent residence. It may be once again be reiterated at this juncture that having a domicile is a requirement of FPSC as prescribed in the advertisement and Rules ibid and not just having a certificate to that effect. The documents highlighted in the paragraphs part of this judgment clearly prove that appellant is having her domicile and permanent place of residence in Swat district of Khyber Pakhtunkhwa and she has never changed the same either before or after the cut-off date. Thus, her place of abode and intention to remain there permanently is quite evident and scrupulous. Viewed in this backdrop, she cannot be held to have not been possessed of any domicile before the cut-off date of 31.12.2022.
Thus, for the foregoing reasons the impugned order of the FPSC is found to be too naive and frail to withstand the test of reason and logic. As against that the appellant safely passes the test to determine her place of residence along with her intention to remain there permanently and that is what the term domicile should actually imply for all intents and purposes based upon the criteria laid down by the superior courts in the case-law noted herein above. Being so, the declaration invalidity or ineligibility attributed to the appellant and her domicile as pronounced in the impugned order of the FPSC is quite contrary to law as it tends to prefer form over what is called the substance of it.
14. For what has been discussed above, the appeal in hand succeeds and the same is accordingly allowed. Resultantly, the impugned order dated 17.12.2024 passed by the FPSC and all its preceding declarations against the candidature of the appellant for CSS Examination in question are set- aside having been found to be against the law and based upon consideration which were entirely irrelevant for the purposes.
15. These are the detailed reasons for my short order of even date which is reproduced herein below; "For reasons to be recorded later on, this appeal is allowed as a result whereof the impugned order dated 17.12.2024 of the Federal Public Service Commission, Islamabad is set aside and respondents are directed to declare the result of appellant forthwith".