' This is a petition under Article 9 of the Provisional Constitution Order of 1981 filed by Sultan Khan against the Federal Public Service Commission for a declaration that action of the respondent in cancelling his candidature to sit in Special Competitive Examination 1982 to fill 73 carry forward vacancies in Grade-.17 under the Federal Government is without lawful authority being mala fide and for a direction that the respondent should declare result of the examination and interview him for the remaining tests.
1. The Federal Public Service Commission issued a notice to conduct a Special Competitive Examination 1982, in April, May, 1982 to till 73 carry forward vacancies in Grade-17 under the Federal Government according to the rules. The examination was restricted to candidates domiciled in Sind (Urban), Sind (Rural), Baluchistan Federally Administered Tribal Areas (FATA) and those deriving their nationality from the State of Jammu and Kashmir under rule 3(ii) thereof. The upper age limit of candidates in Government service with two years continuous service on 31st December, 1981 was relaxed upto 35 years. In the instructions to candidates attached with the application form of the Examination para. 31 (c) provided that in the case of a candidate whose father belonged by birth or by origin to Pakistan province/area it was immaterial where he had received his education or had resided and as such a candidate was to be considered for appointment against the quota of vacancies reserved for the province/area to which his father belonged.
3. Petitioner was serving as lecturer in the department of education under Government of Punjab having joined that service on the basis of his domicile in Sargodha District of Punjab. The maximum age limit of petitioner being less than 35 years as Government servant with more than two years continuous service covered by rule 4 (iii) of the Rules for admission petitioner applied to sit in examination on the basis of domicile of his father who had settled in Karachi within the limits of Sind Urban area since 1951. The Federal Public Service Commission entertained form of the petitioner and allowed him to sit in the examination but after petitioner had taken the written examination and after making enquiries about domicile of petitioner the respondent by a memo.
Dated 27th July, 1982 informed petitioner that he was not eligible to appear in the examination because he belonged to Punjab and the examination was restricted to the areas mentioned in rule 3 (ii) of the Rules for admission to the examination notified on 1st February, 1982. Petitioner, therefore, has approached this Court for the grievance.
4. It has been argued that petitioner is qualified to sit in the examination under para. 11 (c) of the instructions attached to the form for admission to Special Competitive Examination because father of the petitioner having continuously resided in Karachi within territory of Sind Urban since 1951 acquired status of domicile by origin in 1970 when that Province emerged as such after the dissolution of the West Pakistan Province. It was submitted that with the emergence of Sind Province all residents of Karachi including father of the petitioner attained the status of domicile by origin. It was also submitted that although petitioner joined service as a lecturer in the Province of Punjab in June, 1973 on the basis of his domicile of Punjab petitioner could derive benefit from domicile by origin of his father. The learned Deputy Attorney-General has argued the case on the lines of comments submitted by the respondent. It has been urged that petitioner having entered Government service as domicile of Punjab and being qualified for maximum age under rule 4 (iii) of the Rules for admission to the examination petitioner was disqualified to sit in the examination. It has further been argued that domicile once claimed by a Government servant and accepted by the Government could not be changed for purpose of subsequent appointment under the Government. It has also been argued that the concession given in para. 11(c) of the instructions attached with the form for admission to the examination were not applicable to the case of petitioner because father of the petitioner did not being to the Province of Sind by birth or by origin.
5. The undisputed position of petitioner is that he is domicile of Punjab and petitioner does not claim to qualify on his own domicile. Petitioner has urged that his case is covered by para. 11 (c) of the instructions with the application form for admission to the special competitive examination.
The argument addressed by the petitioner is that father of petitioner attained the status of domicile by origin at the time Sind Province was created in the year 1970 after the dissolution of the West Pakistan Province. It was stated in Court that father of petitioner and the petitioner himself belonged to District Sargodha, in the Province of Punjab which was their birth place. In law there are two main classes of domicile, one is the domicile of origin which is communicated by operation of law to each person at the time of his birth and the other domicile of choice which every person of full age is free to acquire in substitution for that which he possesses. The domicile.4 of choice is voluntary and can be abandoned or changed according to the intention and permanent residence of a person while domicile of origin remains in abeyance during that period and can be revived. It is not claimed that father of petitioner was born in Karachi or within territory forming part of Sind Province. Therefore, for all practical purposes Sind Province was a domicile of choice of father of the petitioner which status did not change into domicile of origin with the dissolution of the Province of West Pakistan or with the creation of the Province of Sind. There is no force in the argument of learned counsel for the petitioner that with the creation of a new Province the residents of territories forming part of it will acquire the status of domicile of origin. Therefore, I am of the view that the concession given in para. 11(c) of the instructions attached with the application form for admission to the Special Competitive Examination are not applicable to the facts and circumstances of the petitioner. Petitioner qualified as a B candidate to sit in the Special Competitive Examination only on the basis of a concession given to him in rule 4 (iii) of the Rules framed for admission to the examination in his capacity as a Government servant. As such petitioner having entered into Government service as domicile of Punjab cannot claim to qualify for the Special Competitive Examination held by the respondent as a candidate in any other capacity. Therefore, I hold that the impugned actions of the respondent against the petitioner are not without lawful authority.
6. For the foregoing reasons the writ petition is dismissed with no order as to costs.