The Punjab Public Service Commission (hereinafter called the Com--mission) advertised one temporary (likely to become permanent) post of Assistant Professor of Obsteterics and Gyneacology for Medical Colleges/ Attached Hospitals in the Punjab under its Advertisement No. 18/C-71. Under the heading `Eligibility' in the aforesaid advertisement, it was laid down that men and women, citizens of Pakistan, domiciled in Zone No. 4, alone were eligible for appointment. The question, which falls for deter--mination in this case, is whether the petitioner can be treated as domiciled in Zone 4 or not ?
2. The facts bearing on this issue can be briefly stated as follows. The petitioner was born in Ambala, East Punjab, on June 3, 1938. Orthe creation of Pakistan in 1947, she migrated to it along with her parents and settled down at Campbellpur. She passed her M.B.,B.S. Examination from Nishtar Medical College, Multan, in the year 1961. It was during this period that the Government decided to demarcate the Province of West Pakistan into a number of Zones with the object of giving proportional representation to different regions in the matter of recruitment to the various services. In the first instance, Rawalpindi, Lahore, Sargodha, Multan and Bahawalpur Divisions were to constitute Zone 3. This Zone was, however, later on split into two Zones as follows;-- "Lahore Division.-(1) Districts of Rawalpindi, Gujrat, Sargodha, Lyallpur, Multan and Montgomery.
(2) Bahawalpur Division and the districts of Muzaffargarh, D. G. Khan, Campbellpur, Jhelum, Mianwali and Jhang."
The regions specified against serial No. (1) above were to constitute Zone 3, while the regions mentioned against serial No. 2 above were to constitute Zone 4. The appointment in question was to be made, as already mentioned, from persons domiciled in Zone 4.
2. It is also relevant to point out that in the Advertisement, it was further laid down that "appointment will be made under Block System vide Punjab Government Circular No. SOE III-101-/ 1970 dated 24-8-1970." This Circular takes note of the dissolution of West Pakistan and re-- emergence of Punjab as Province and after considering the population ratio of Zones 3 and 4 creates a block of 10 vacancies, one going to Zone 4 followed by two to Zone 3 and continued in the same manner except that the last three vacancies out of the 10 in the block go to Zone 3. It is also provided in the same Circular that `if a suitable candidate is not available from the Zone concerned the vacancy should be carried over to the next recruitment. For administrative convenience, it can however, be filled on ad hoc basis but this arrangement should continue only till a suitable candidate from the Zone concerned becomes available'.
3. The petitioner having settled down in Campbellpur, a place in Zone 4, applied on 30-6-71 for appointment to the post in question. Some .Times earlier, in 1970, however, she had got married to a man, who belonged to Zone 3, which event is responsible for the difficulties that she is experiencing in connection with the matter in hand. In the application form prescribed by the Commission for use of candidates for appointment by selection, column No. 6 provides as follows- Name your presentDistrict Division domicile Note 1.-The domicile of a married woman will be that of her husband.
Note 2.-Domicile certificate should be attached in support of your claim see also para. 4(d) of the Instructions."
The petitioner duly attached her domicile certificate to the effect that she had settled down in Campbellpur Cantt ever since 1947 and that her parents were permanently residents of the said area issued by the Deputy Commissioner, dated 22nd August 1955. But as she had in the meanwhile got married to a person belonging to Zone 3, she also submitted an application dated 7-8-71 through the Medical Superintendent, Lady Willrngton Hospital, Lahore, where she was then working as the Secretary to Government of the Punjab, Health Department with copy to the Chairman of the Commission submitting that sire was entitled to retain her own domicile. The relevant part of this application may usefully be reproduced hereunder as follows;---- I have applied for the post of Assistant Professor of Obstetric and Gynaecology advertised by the Public Service Commission recently for the candidates. Belonging to `Zone 4', I belong to the same Zone having my Domicile of Campbellpur since after 194 7.
Since I have been married and my husband belongs to Zone 3, I should not be compelled to change my Domicile which I want to retain as such. My points to retain my own Domicile are ;
(i) I was selected by the Public Service Commission in 1962 on the same very Domicilei.Eof Campblellpur .
(ii) My husband was in private service since after qualification and only four months back he has joined Government service as a Demonstrator, King Edward Medical College, Lahore, on ad hoc basis which can be terminated at any time.
(iii) I am better qualified than that of my ' husband and he will certainly give preference to my career selection and certainly will go with me wherever I will be posted.
(v) There is no such rule as to compulsory change of Domicile of the marriage.
(vi) It is only an ,option given to, a married woman. If she wants to retain her own domicile, there should be no objection."
4. The Secretary of the Commissioner, however, by his letter dated 30-11-71 informed the petitioner that she had not been selected for the interview for the reason that the domicile of her husband was Lahore (Zone 3). It appears that in pursuance of the petitioners above-men--tioned representation to the Secretary Health, the matter had been referred to the Service and General Administration Department, which, in turn, also consulted the Law Department but before the said two Departments had expressed any opinion on the question, the above letter of rejection dated 30-11-71 was issued to the petitioner by the Commissioner. The Developments that took place in pursuance of the petitioner's representa--petition are stated in the para-wise comments submitted by the Commission against para. 7 of the writ petition. According to the facts stated therein, vie Service and General Administration Department considered the question Whether a woman domiciled in one Zone marrying a man domiciled in the other Zone was capable of retaining a domicile different from her husband. The opinion was expressed by the Services Department, in consultation with the Law Department that "the Lady Doctor not having changed her domicile voluntarily would continue to retain her domicile of origin which is in Campbellpur District." The said opinion dated 14-1-72 was accordingly forwarded to the Commission. Since the above opinion, intimated by the Service and General Administration Department, required an amendment in the prescribed Application-form, the Commis--sion addressed a communication directly to the haw Department on 15-2-72, pointing out that the Commission had so far "been accepting the domicile of a married woman candidate as of her husband only," but after tile decision dated 14-1-72 intimated by the Services and General Administration Department to the effect that the Lady Doctor having not changed her domicile voluntarily would continue to retain her domicile of origin before the marriage, an amendment in the Notes below column No. 6 of the Application-form became necessary. The Law Department's approval to the' changes in the "notes" was sought in the following words; ---Since the decision intimated by the S. O. A. & Information Depart--ment has been taken in consultation with the Law Department, the Commission has decides', to deletc `Note No. 1' from their application form referred to above and have decided that henceforth the domicile of a married woman candidate be accepted as of her own if she has not adopted the domicile of her husband after marriage. I am to request that this position, may kindly be confirmed at a very early date as the advertisements for such posts have been held up for want of this advice." vide its letter dated 22-2-72, that Note No. 1 below column No. 6, be amended to read as follows;--- - "The domicile of a married woman candidate not already in Govern--ment service, will be that of her husband."
Shortly after tendering the above advice, the Law Department informed the Commission vide its letter dated 2-3-72 that the subject-matter of the advice was under scrutiny at the level of the adviser for Law to, the Governor of the Punjab and that further action on the advice tendered, on 22-2-72 may be stayed until the advice in question was either con--firmed or revised. On 16-3-72, the Law Department withdrew its previous, advice and intimated that the domicile of a married woman should continue to be taken as following the domicile of her husband. The Commission, therefore, reverted back to its previous practice and Note No. 1, below column No. 6, of the Application-form was kept intact. The Commission accordingly, by its letter dated 28-3-72, informed the petitioner with reference to her application dated 7-8-71 that it had not been possible to select her for interview, as she did not belong to the Zone No. 4 which the post was advertised, according to the domicile of her husband. The question is whether the decision communicated in the letter dated 28-3-72 is in accordance with the law ?
5. Learned counsel for the parties have been heard and the original files produced by the Commission have also been perused. I note that there is no reference to the question of domicile of a married woman in the decisions taken by the Government to demarcate the West Pakistan Province for the purpose of recruitment to various services into Zones with the object of giving proportional representation to different regions on population basis. The view that after marriage a woman acquires the domicile of her husband was followed on the basis of the provisions of para. 7 of Appendix 4 of the Civil Service Rules, Volume I, Part II. This lays down that; "After marriage a woman acquires the domicile of her husband if she had not the same domicile before and her domicile during the marriage follows the domicile of her husband."
This view was, however, challenged by a married woman candidate who insisted that her own domicile certificate be accepted instead that of her husband. On this, a reference was made to the Services and General Administration Department, which ruled in its letter No. SO. XII (S&GAD)-2- -25/60 dated 3-8-62 "that the wife of a person assumes the same domicile as that of her husband after her marriage and it will not be fair to determine her domicile in accordance with the domicile of her parents for the purpose of service benefit. In view of this, Government has decided that for the purpose of applying concessions to the under --developed areas the domicile of the lady will be considered the same as that of her husband."
This opinion continued to rule the field until the present petitioner challenged its correctness, in her representation dated 7-8-71. In pursuance thereof the letter No. SOR. II (S&GAD)/8-30/71 dated 14-1- 72 was issued declaring that para. 7 of Appendix 4 of the Civil Services Rules was not attracted to her case as a result whereof Note I to column No. 6 of the Application-form issued by the Commission was deleted but as the Commission wanted to be doubly sure of the correctness of this step, it sought confirmation on the point from the Law Department. The Law Department in its answer, given or. 22-2-72 stated that in the advice tendered by the Government on 14-1-72 the ruling of the Government contained in its earliest letter dated 3-8-62 had been ignored added that in the last mentioned letter dealt with the determination of domicile in the first instance (i.e. on the entry into Government Service) and the advice given in the subsequent letters dealt with the point of change of domicile after entry into service and giving effect to both opined :that the correct position would be that a woman marrying before entry into service would follow the domicile of her husband. No disagreement however, was expressed with the view contained in the Service Department vide letter dated 14-1-72 that para. 7 of Appendix 4 to the Civil Services Rules that the marriage of a woman Government servant already in Government service did not ipso facto change her pre-marriage domicile. This opinion was, however, withdrawn on the advice of the Law Adviser (the predecessor of the Law Minister) dated 16-3-72, on the ground that the presumption of correctness attached to the earlier instructions viz. The provisions of para. 7 of Appendix 4 to the Civil Service Rules and the previous position that "the domicile of a married woman should continue to be taken as following the domicile of her husband" was reiterated. It is on the basis of the above advice of the Law Adviser that the impugned letter dated 28-3-72 holding the petitioner to be ineligible, was issued.
6. The advice of the Law Adviser dated 16-3-72 appears to be untenable. The Officers of the Law Department had rightly pointed out that Appendix 4 of Civil Services Rules (Punjab) was referred to in rules 4.2, 8.66 and Note to rule 13.6. These provisions related to persons specially recruited overseas for service in Pakistan whose domicile on the date of their first substantive appointment was elsewhere than in Asia. Rule 4.2, enumerated the circumstances in which such a Govern-- ment servant would be entitled to overseas pay whereas rule 8 66 related to special leave rules.
Again the Note to rule 13.6 was concerned with persons holding specified posts and that, too, for the purpose of determin--ing the question of concessions for overseas passage. In these circumstances, no reliance could be placed on the provisions of Appendix 4 of the Civil Services Rules (Punjab) in connection with the determination of the question of domicile of a woman after marriage in connection with the implementation of the Zonal Scheme framed by the West Pakistan Government in 1961.
7. Even otherwise, the provisions for determining the domicile given in Appendix 4 are based on the notions of English Law. The English Law on the subject is stated in Private International Law by G. C.
Cheshire (Sixth Edition, 1961, at page 192) as follows; "The domicile of a husband is communicated to his wife immediately upon the solemnization of the marriage and, according to English Law, it is necessarily and inevitably retained by her for the duration of the coverture . . . . . . She possesses no capacity whatsoever during the marriage of acquiring a separate domicile of her own . . . . . This capacity, which has disappeared in the United States of America and in several Continental States, represents the last surviving relic in English Law of the married woman's subsection to her husband."
8. It appears to me that to decide the question of domicile of a woman after marriage in connection with the implementation of the Scheme framed by the Government to provide proportional representation on population basis to different regions in the various services, it is not necessary to delve into the lofty and often conflicting rules of Private International Law because this question has to be determined in accordance with the decisions taken on the subject by the maker of the Zonal Scheme. As has been pointed out above, the view of the learned Law Adviser that the instructions in Appendix 4 of the Civil Services Rules (Punjab) should be presumed to be correct is not tenable in law. Thesaid instructions being inapplicable, the decisions taken. On the subjectby the Government, which are particularly relevant, are the decisions contained in its letter No. SO. XII (S&GAD)-2-25/60 dated 3-8-62 and in its letter No. SOR. 11 (S&GAD)-8-30/71 dated 14-1-72. Both these decisions were synthesized in the advice of the Law Department contained in its letter dated 22-2-72 to the effect that if a woman got marriedbefore entry into Government service, she should be treated to have acquired the domicile of her husband but if she got married after entryinto Government service, she should retain ber original domicile that she held ,at the time of entry into service.
9. The Law Department's advice dated 22-2-72 appears to be the correct analysis of the decisions of the Government on this subject. It is also otherwise reasonable and just. It imparts certainty on the question of domicile of a female Government servant by obviating the necessity of frequent changes in it, during continuance of her service and avoids absurdities which can arise by following the view of the Law Adviser. It is not denied that an unmarried female candidate belonging to a particular Zone will not lose her post if she gets married to a person of another Zone, after selection. The result of this view would be that a woman who is eligible for a post from a particular Zone before marriage and can continue to hold the post reserved for said Zone, despite marrying a person belonging to another Zone, but she will however be ineligible for the said post, if she got married to the said person just before the Interview. The decision of the Services Department dated 14-1-72 was doubtless designed to correct such an absurd position. But the said decision must be read subject to the earlier decision made on 3-8-62.
10. The conclusion from the above discussion is that the petitioner! Being already in Government service, at the time of applying for the post, in question was entitled to be treated as belonging to the Zone wherein she was domiciled at the time of entry into the Government service, in the first instance, viz., Campbelipur in Zone 4.
11. Although the foregoing discussion is sufficient for the disposal of this writ petition, it is necessary to add a few words in order to dispose of two Civil Miscellaneous Applications submitted during the pendency of this writ petition by one Dr. Mrs. Hajra Hanif who was also a candidate for the post in question. The facts, which form the background to these application, may first be stated. The present petitioner challenged the decision of the Commission dated 28-3-72 rejecting her candidature by moving this petition on 6-4-72. The said petition came up for hearing on 7-4-72 'and it was prayed that the interview scheduled to be held on 10-4-72 be postponed till the final decision of her writ petition. The above prayer was not granted but the following direction was issued to the Commission by way of interim relief; "In the meanwhile the petitioner should be permitted to appear in the interview scheduled to be held on 10-4-72 for selection to the post of Assistant Professor of Obstetris and Gynaecology.
However, the final recommendation for appointment to the said post ,will not be made until further orders by this Court."
Although this order was passed on 7-4-72 the Commission was neither apprised of this order nor did, the petitioner herself appear in the interview on 104-72 on the said, date having proceeded to Libya and only one candidate, namely, Dr. Mrs. HaJra Hanif, who was duly interviewed, The Commission was not aware of this Court's order dated 74-72, it forwarded the result of this candidate that she was not up to the mark to the Government vide its letter dated 114-72 and also informed the Govern-- merit that the post in question was to be re-advertised after the lapse of three months, on the receipt of a fresh requisition from it. A fresh requisition, it appears, was received but before the post could be re- advertised the present petitioner sent an application from Libya, enclosing a copy of this Court's order dated 7-4-72 and praying to be interviewed The above request appears to have been discussed at very great length by the Commission. Various alternatives were considered, namely, (i) to grant the request of the petitioner for interview, (H) to ignore it and re-advertise the post ; (W) to seek clarification from this Court about the terms of the order. The petitioner herself appears to have been of the impression that the post wasgoing to be re-advertised because in an application moved on her behalf in this Court on 19-12-72 for acceleration of the date of hearing (C.M. 2/72) she averred that according to her information the Commission was going to advertise the post afresh and it was prayed that the writ petition may be decided at an early date so that she could take a proper decision whether to give up her job in Libya and appear in the interview which she could only do if the question whether she belonged to Zone 4 or not was decided Finally, however, the Commission decided presumably in deference to this Court's order, that the petitioner may be called for interview, subject to the decision of the writ petition. She was accordingly summoned for interview and has actually been interviewed on 5-3- 73 but her result was withheld pending the decision by this Court.
12. This brings us to the applications moved by Dr. Hajra. On 5-3-73, Dr. Mrs. Hajra Hanif moved two applications before this Court namely, C. M. 3/73 and C. M. 4/73. In C. M. 3/73, she prayed for being impleaded as party in the present writ petition while in C. M. 4/73 she prayed for vacation of the stay order granted on 7-4-72. After having heard her learned counsel at some length both on the merits of the petitioner's writ petition as also in support of these applications, I have come to the conclusion that C. M. 3/73 has no. Merit while C. M. 4/73 has become in-fructuous. The facts hereinbefore mentioned show that Dr. Mrs. Hajra Hanif had appeared in the interview on 10-4-72 and even though she was the sole candidate therein, she was not selected, being unsuitable for the post. The record produced by the Commission shows that intimation of this fact was sent to the Government by Commission, on 11-4-72 and she was formally informed about the decision shortly thereafter. In this background it is of no consequence it, her, whether the petitioner is held to belong to Zone 4 or not so far as the other prayer is concerned, namely, that the stay order dated 7-4-72 may be vacated. The basis for this prayer is explained to be that the said order is standing in the way of the Commission to take a decision -on. The earlier interview in which she appeared and also from proceedings with the fresh advertisement for the post. The decision on the earlier interview so far as Dr. Hajra is concerned, it has already been announced, viz that she was found unfit for the post. So far as the issue of fresh advertise merit for the post is concerned, the same is dependent upon (a) the question whether the petitioner is or is not ineligible for the post ; and (b) if not, whether she can be selected for it on the-basis of her interview held on 5-3-73. As I have already held above that the petitioner is no ineligible for the post, the result of her interview can be declared. On the above finding C. M. 4/73 has become in-fructuous.
13. The overall conclusion is that this writ petition succeeds. The decision of the Commission contained in its letter dated 28-3-72 is declared to be without lawful authority and of no legal effect and the petitioner is declared to be domiciled in Zone 4 and, therefore, eligible for the post in question. She can, therefore, be selected, for the said post if, otherwise found suitable for it by the Commission. The Commission should, accordingly proceed to announce the result of the interview held on 5-3-73. In the circumstances of the case, the parties will bear their own costs.