' BASHARAT AHMAD SHAIKH, J.---The Azad Jammu and Kashmir Public Service Commission invited applications for vacant posts of Assistant Commissioner and Assistant Superintendent of Police.
Appellant Attaullah Atta and respondent Ghulam Bashir Mughal applied for the aforesaid posts.
Both of them claimed that they were domiciles of District Muzaffarabad and were considered against the quota reserved for that district. Both of them passed the written test as well as viva voce. Appellant Attaullah Atta was placed at No,1 by the Pubic Service Commission while respondent Ghulam Bashir Mughal secured second position. On the basis of the position attained by the appellant, the Public Service Commission recommended the appellant for appointment as Assistant Commissioner. The respondent filed a writ petition in the High Court, to challenge the domicile certificate of the appellant as well as the recommendation of the Public Service Commission based on the domicile certificate. It was also prayed that the Public Service Commission may be directed to forward a new merit list showing the name of the respondent to be qualified for the post of Assistant Commissioner. A direction was also sought that the Government appoint him as Assistant Commissioner.
' The High Court accepted the writ petition and declared that domicile certificate issued in favour of the appellant was issued without lawful authority and was of no legal effect. Consequently, the recommendation of the Public Service Commission was held to be bad in law. The appointment of the appellant was also declared illegal. The appellant has filed appeal with leave of the Court.
2. The reasons recorded by the High Court can be summarised thus:
(i) The appellant applied for domicile certificate in the year 1986 on the ground that he was a permanent resident of Village, Ambore Tehsil Muzaffarabad. He stated that he had been living in Ambore for 39 years since 1947 but his age at the time when he made the application was only 20 years. It was held that the contents of the application were self-contradictory.
(ii) District Magistrate asked the appellant to lead evidence in support of his application. Two witnesses were produced by him on 5th of August, 1986. They stated that from the time of his birth the appellant has all along lived permanently with his father at village Mohir, Tehsil Muzaffarabad. It was pointed out by the High Court that Village Mohri has all along been in occupation with India and is the village where from father of the appellant had migrated after partition. It was, therefore, observed that the witnesses did not support the plea of the appellant that he was permanently residing in Ambore.
(iii) The High Court observed that it was evident from the evidence on record that appellant's father was settled in Pakistan.
3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, firstly contended that the writ petition was not maintainable because the impugned domicile certificate was issued in year 1986 which was not challenged by the respondent or any other person by filing appeal, review, revision etc. Before the Government or the Azad Jammu and Kashmir Council which remedies are provided for in the Azad Jammu and Kashmir State Subjects Rules, 1980. The appeal to the Government is provided for in sub-rule (3) of rule 7 of the Azad Jammu and Kashmir State Subject Rules, 1980, while rule 10 gives power to the Azad Jammu and Kashmir Council to cancel a domicile certificate on an application, appeal, review or revision. He submitted that remedies mentioned above were adequate in nature and a writ was not maintainable without exhausting one of these remedies. This argument was raised before the High Court and was repelled.
4. In para. 7 of the writ petition it was explained by respondent that the remedies provided under State Subjects Rules were not efficacious in the circumstances of the case because considerable time would be consumed in obtaining the decision from the Council or the Government with the result that the recommendations of the Public Service Commission would become "redundant''. It was also explained that, apart from challenging the domicile certificate, the recommendation of the Public Service Commission had also been challenged which was only within the competence of the High Court. The High Court accepted the explanation by holding that it was common experience that the grievances of those who availed the remedies under reference were not redressed expeditiously. After giving our consideration to the matter we agree with the explanation of the learned counsel that the remedies before the Government or the Council were not adequate in the circumstances of the case. IA The High Court has rightly held that it was common experience that such matters are not decided by the Government and the Council with necessary despatch.
We may observe that delay in the present case would have created unnecessary complication because if the decision was to go against the appellant he would have been displaced from the post of Assistant Commissioner after serving for a considerable time. Then the disputes about domicile certificate and the appointment based on it are interwoven matters and writ petition was the only efficacious remedy.
5. After hearing the learned counsel for the appellant we are convinced that the reasons recorded by the High Court for accepting the appeal .Are weighty and cannot be differed with. According to rule 7 of the Azad Jammu and Kashmir State Subjects Act, 1980 a District Magistrate can issue a certificate of domicile in favour of a person if it is proved to him that the applicant had been continuously residing in Azad Jammu and Kashmir for a period spreading over five years. Proof in support of five years' residence in Azad Jammu and Kashmir was not furnished. It has been rightly pointed out by the High Court that the appellant stated that he had been living in Ambore for 39 years since 1947, but his age at the time when he made the application was only 20 years. The claim of residence made by the appellant stood falsified when the appellant produced two witnesses. They did not state that the appellant had been living in Ambore, or any other place in Azad Kashmir, continuously for more than five years. They stated that he had all along been living with his father permanently at Village Mohri which is the place from where father of the appellant migrated from occupied Kashmir. Thus, the statement of the witnesses did not support the plea with regard to residence in Ambore. In light of this evidence the District Magistrate could not issue a domicile certificate in favour of the appellant but he proceeded to do so illegally without looking into the record.
6. A large number of documents were produced in the High Court by the parties. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, vehemently contended that the documents produced by the appellant have not been discussed by the High Court. The documents produced by the parties were not before the District Magistrate when he issued the certificate. If we advert to the official documents forming part of the record it would appear that these documents do not support the claim that the appellant had been residing in Muzaffarabad for more than five years, when he applied for grant of domicile certificate in the year 1986. The appellant was born on 10th of April, 1965. He matriculated from Government High School, Bhati Gate, Lahore in the year 1980. He appeared as a private candidate from District Lahore in the Pre-Medical Group of Intermediate and passed it on 6th of September, 1985. The appellant obtained his B.A. Degree from Government College, Lahore in 1987 and subsequently he obtained the Master Degree from the Punjab University, Lahore in 1991. He was appointed as Lecturer in 1991 in Azad Jammu and Kashmir. Even at that time he was residing at Lahore. Father of the appellant Sanaullah obtained Identity Card in 1976 from Lyallpur. Similarly the identity card of the mother of the appellant, Mst. Mehtab Begum, was also issued frOm Lyallpur on the same date. Sanaullah also subsequently obtained another Identity Card from Muzaffarabad on 6th July, 1989. These are the documents which show that the appellant was living with his father in different parts of Punjab before he obtained the domicile certificate of Muzaffarabad in 1986 and even after that he continued to live there. The basic fact, however, remains that the proof before the District Magistrate was such that it falsified the claim of the appellant that he had been residing in Ambore for more than five years.
6-A. Sardar Rafique Mahmood Khan vehemently contended that sufficiency of evidence was not the function of the High Court and finding of fact recorded by the District Magistrate could not be disturbed in writ jurisdiction. He relied on Muzaffar Ali Shah v. Registrar, Cooperative Societies Karachi (PLD 1968 Kar. 422), Nawaz v. The Additional Settlement and Rehabilitation Commissioner, Gujrat (PLD 1970 SC 39) and Ghulam Haider v. The Deputy Registrar, Cooperative Societies, Sargodha Division (1988 CLC 2201). During the analysis of the evidence produced before the District Magistrate we have seen that the evidence was self-contradictory and in fact it falsified the claim that the appellant had been living in Ambore for more than five years. In these circumstances the argument of the learned counsel is not applicable to the present case.
' For the reasons stated above the appeal is dismissed without any order as to costs.