MALIK MUHAMMAD QAYYUM, J.- Raja Aamer Nasim Khan was born in Faisalabad in November, 1961, and claims to have lived in the Province of Punjab throughout. His father, Raja Muhammad Nasim Khan was, however, born in the former State of Jammu and Kashmir before Partition from where he migrated to the Province of Punjab. Both the petitioner as also his father are domicile of the Province of Punjab as is evident from the domicile certificates issued by the District Magistrate, Lahore, in respect of the petitioner and his father on 5th August, 1980 and 11th of April, 1975 respectively (Annexure A and B).
2. The petitioner did his Matriculation from Cadet College, Hasan Abdal and later on also passed the Intermediate Examination of the Board of Intermediate & Secondary Education, Rawalpindi, as a student of that College. He later on joined the University of Engineering & Technology, Lahore, from which he obtained B.Sc. Electrical Engineering Degree in First Division and stood second in the examination. He was thereafter selected as a Rhodes Scholar for further studies in Oxford University, wherefrom he qualified in first class.
3. In response to the public notice dated 24th of April, 1988, issued by the Public Service Commission, the petitioner applied as a candidate for the examination scheduled to be held by the Commission in 1989 for recruitment to the posts in B.P.S 17 under the control of yhe Fedral Government. In the application, the petitioner stated that he as well as his father were domicile of Punjab. In the relevant column relating to the place of birth of the father, it was mentioned that his father was born in the former State of Jammu & Kashmir from where migrated to Pakistan. In the application, the petitioner indicated as Foreign Service and the District Management Group as his preferences in the Groups of Services.
4. After the petitioner had qualified the written examination, he received a letter from respondent No.2 on 14th of May, 1991, asking him to send to the Commission a certificate in support of his claim that he belonged to AJ &K. In his reply dated 23rd of May, 1991, the petitioner stated that he had never claimed to be resident or domicile of AJ & K but was domiciled in Punjab. The Commission, however, persisted in its stand and on 24th of July 1991, another letter was addressed to the petitioner calling upon him to supply the certificate, failing which his candidature would be cancelled. In his reply to this letter, the petitioner reiterated that he had nothing t do with former State of Jammu & Kashmir and was a domicile of the Province of Punjab. It was also pointed out in this reply dated 7th August, 1990 that the petitioner was neither born nor had ever lived in Azad Jammu & Kashmir. Unfortunately,> however, notwithstanding this explanation, the respondent No.1 by its letter dated 25th of August, 1990, informed the petitioner that the Commission had decided to treat him as a domicile of Azad Jammu & Kashmir for the reason that under para 6(iii) (i) of the notice dated 24th April, 1988, the candidate belonging to former Indian State of Jammu & Kashmir can only be considered against the quota reserved for Azad Jammu & Kashmir irrespective of their domicile.
5. In the meantime, the petitioner qualified written examination and was interviewed by the Commission. The result of the examination was declared on 25th of August, 1990 wherein the petitioner was placed at serial No.7 in the order of merit. There is no dispute that on the basis of this merit, the petitioner was entitled to be inducted into two services of his preference, namely, Foreign Services of Pakistan and the District Management Group. Unfortunately, however, he was denied this right on the ground that he could only be considered against the quota reserved for Azad Jammu & Kashmir and as for the year 1990 no seat was reserved for Azad Jammu & Kashmir, he could not be taken in service.
6. The petitioner and also his father, thereafter represented against this decision of the Federal Services Commission to the Establishment Division, but their representations were refused by the said Division. The petitioner thereupon filed the present constitutional petition with the following prayer:- "It is, therefore, most respectfully prayed that the treatment by respondent No.1 &k2 of the petitioner as a domiciliary of the AJK be declared as contrary to law and thus null and void, and the said respondents be directed to consider the petitioner as a domiciliary of the Province of the Punjab and as such entitled to a place in the Foreign Service Group.
This Court may, further, be pleased to grant such other, including interim relief as it may deem appropriate."
7. The petitioner has been opposed by the respondents who have filed their parawise comments in which the position taken is the same, namely, that as the father of the petitioner was born in the former State of Azad Jammu & Kashmir, his candidature could only be considered against the posts reserved for Azad Jammu & Kashmir and as there was no vacancy for residents of that area in the District Management Group or the Foreign Services of Pakistan, he was not entitled to be inducted into service. It has also been stated that although there were vacancies in other groups reserved for Azad Jammu & "Kashmir, but as the petitioner has not opted for those groups, he was not taken in service.
8. Mr. Salman Khalid Cheema, Advocate, appearing on behalf of the petitioner has raised the following contentions:- i) That reliance on para 6(iii) (i) of the notice by the respondent was misconceived inasmuch as these instructions were not applicable to the petitioner. ii) That the decision to treat the petitioner as a domicile of Azad Jammu & Kashmir on account of the place of birth of his father was contrary to the instructions of the respondents themselves. iii) That the decision of the respondent is arbitrary, capricious, unjust, unfair and discriminatory and is as such violative of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973.
Iv) That reservation/allocation of the seats on quota basis is violative of the Constitution.
Mr.Aftab Iqbal Chaudhry, learned Deputy Attorney General who has appeared on behalf of the respondent has been heard in reply.
9. There is considerable force in the contentions raised by the learned .Counsel for the petitioner that the action of the respondent in treating the petitioner as domicile/resident of Azad Jammu & Kashmir and the insistence that he can only be considered for the post reserved for Azad Jammu & Kashmir is misconceived and ill based. There is no dispute as regards the factual aspect. The admitted facts are that the father of the petitioner was born in Kashmir wherefrom he migrated to Punjab where the petitioner was born, brought up and educated. The only connection, therefore, which the petitioner has, if at all it can be called a connection, with Jammu & Kashmir is that his father was born there.
10. It is clear from the certificate of domicile annexed alongwith the petition that the petitioner is a domicile of Lahore District where he is residing since 1964, while the place of his birth is Faisalabad.
It is well recognized principle of International Law that a person born in a particular place is deemed to be domiciled there unless it is shown that he had with the intention of abounding the place of domicile left the same. The principle finds full recognition in the Pakistan Citizenship Act, 1952 and the rules made', thereunder. The Supreme Court of Pakistan in Mohammad Yar Khan Vs Deputy Commissioner- Cum-Political Agent, Loralai and another (1980 SCM R 456) was pleased to observe that:- "It is well-settled principle of Private International Law, to which reference is necessary, as 'domicile' has not been defined in the Pakistan Citizenship Act, that every person carries the domicile of the country in which he is bom; that so long as he does not Intentionally and by the exercise of free volition choose the domicile of another country he carries the domicile of his origin; and that to prove that he had acquired another domicile of his choice he must show that he had intentionally taken a decision in that behalf in the sense that he had taken abode therein with the intention making it his permanent residence.
Again at page 463 it was ruled:- "From the analysis of Sections 3,6,8,16, 17 and 21 of the Pakistan Citizenship Act, 1951 what would follow is (1) that 'domicile' and 'permanent residence' are two distinct and separate concepts, although before a person is granted a domicile certificate generally he must show that he had lived in Pakistan with the intention of permanently residing therein; (2) that when a person is granted a domicile certificate he would be deemed to be a domicile of Pakistan and not of a Province or a part of a Province; (3) the fact that a person before making an application for the grant of a domicile certificate had lived in Pakistan would be entitled to persuade the authorities that he had done so with the intention of permanently residing therein and he was entitled to the- grant of a domicile certificate; and (4) that a citizen of Pakistan by birth is also essentially a domicile of Pakistan unless, of course, he has lost the said domicile by acquiring another domicile of his choice".
11. In the present case, however, the respondents have relied upon para 6(iii) (i) of the instructions contained in the notice to the candidate to contend that the irrespective of the domicile, the petitioner has to be considered only against the vacancies reserved for Azad Jammu & Kashmir.
The relevant paragraph reads as under:- The candidates belonging to former Indian State of Jammu & Kashmir will only be considered against the quota of vacancies reserved for AJ & K irrespective of the fact whether they have acquired a certificate of domicile from a Pakistan Province/Area and even if they have joined Government Service on the basis of a domicile other than AJK".
On its plain wording of this para has no application to the petitioner as it applies to those candidates who belong to former Indian State of Jammu & Kashmir. For the application of this para, there must be some connection or nexus between the candidate and the former State of Jammu & Kashmir. In the present case, it is not understood as to how the petitioner can be said to belong to the State of Jammu'& Kashmir, when he was neither born nor had ever lived there. As a matter of fact, at the time the petitioner was born even his father was residing in Faisalabad District and he too did not have any connection with the aforesaid State except for the fact that he had been born there. The petitioner could not, therefore, on any hypothesis be considered belonging to Azad Jammu & Kashmir. Although the word 'belonging' as observed by Pollock, C.B. In Maitland v.
Mackinnon (1 H & C. 607) is not a word of art: but it must taken to have been used in the sense of being directly connected.
12. The second contention of the learned counsel for the petitioner is equally forceful. The relevant instructions issued by the Establishment Division the Federal Government itself appearing at page 67 serial No. 43 of the ESTA CODE (1983) Edition are as under:- "S.No.43: Candidates not required to show place of birth of their fathers for purposes of domicile." As the Ministries/Division are aware, the Government observes Provincial/ Regional quotas in filling vacancies reserved for direct recruitment to posts under the Federal Government. It has been brought to the notice of the Government that candidates for appointment to Federal posts are some times required to state the place of birth of their father. This information is not relevant to the determination of domicile of a candidate. The Government have, therefore, decided that in future no candidate will be asked to state the place of birth of his father. However, the requirement of stating the domicile of father and other particulars like name, address etc., will continue to be observed as before".
From the above it is obvious that the respondent could not merely on the basis of place of birth of the father of the petitioner treat him as belonging to the State of Azad Jammu & Kashmir. It is unfortunate that in the present case, the respondents have acted in derogation of the principle recognized in the above decision of the Government.
13. There is considerable merit in the contention of the learned counsel For the petitioner that the impugned decision is arbitrary, capricious, and unreasonable. It is to be seen that there is no nexus between the petitioner with the former State of Jammu & Kashmir, but the only reason given as to why the petitioner who is a domicile of Punjab has been denied of his due right to be considered against the seats reserved for Province of Punjab is that his lather had been born in the former Indian State of Azad Jammu & Kashmir. It is not disputed that the father of the petitioner had migrated to Pakistan in. The year 1950 and the petitioner himself was born in Punjab. There appears to be no reasonable basis for insisting that notwithstanding that the father of the petitioner had migrated to Pakistan and had settled in Punjab and further that the petitioner was born in Faisalabad, he must be considered to belong to Azad Jammu & Kashmir. This decision is wholly unjust, unfair and is not capable of being sustained.
14. Before parting with the case, one cannot help expressing the deep sense of regret and disappointment over the way the high bodies like the Public Service Commission and the Establishment Division have acted. On account of the wholly unjustified stand taken by them, the career of a student of exceptional quality like the petitioner was put in jeopardy and he was in any case denied his due right for more than one year for no fault of his. During the course of hearing of this petition, the obvious fallacy in the stand taken up by the respondents was high-lighted on more than one occasion but unfortunately, they have persisted in their unreasonable attitude. It may be stated to the credit of the learned Deputy Attorney General that as per his statement, he had also pointed out the obvious law in 'he defence raised by the respondents, but still the respondents remained adamant' anc' obstinate. As the respondents have persisted in their frivolous and vexatious defence, they are liable to pay the special costs to the petitioner.
As a result f what has been stated above, this petition is allowed and the respondents are greeted to treat the petitioner as being resident/domicile of Punjab and to consider him against the vacancies reserved for that Province.
The respondents shall pay Rs.10,000/- (Rupees Ten Thousand only) as costs to the petitioner.