' The petitioner was a practising Advocate of Lahore High Court and claimed that his family had the origin in Azad Jammu and Kashmir. His grandfather was a Lumbardar of Bari Ram Pur and Barsala, Tehsil Bhimber, District Mirpur and a cousin of petitioner's grandfather Ch. Rehmat Khan was Zaildar of Barian Zail, District Mirpur. The younger brother of petitioner's grandfather retired as Police Inspector in 1966 from Azad Jammu and Kashmir Police. Ch. Akhtar Ali and Ch. Akbar Ali, younger brothers of the petitioner's grandfather; had laid down their lives during the liberation struggle of 1947 and the father of the petitioner migrated in 1947 to Gujrat. After completing his education in Punjab he appeared in C.S.S. Examination, 1968 against Jammu and Kashmir quota and was declared successful. Merit of the father of the petitioner being quite low in C.S.S. He opted for the PCS which examination he had also taken successfully. The father of the petitioner was still enjoying the status of the citizen of Azad Jammu and Kashmir and was the holder of certificate under Azad Jammu and Kashmir State Subject Act, 1980. He further stated that his real uncle Dr. Ghulam Hussain Azhar was still an employee of the Education Department of Azad Jammu and Kashmir and was posted as Principal, Degree College Bhimber, and made reference to the certificates issued in the name of his father such as identity certificate, leadership certificate, ownership certificate, domicile certificate of his uncle Sadiq Hussain s/o Ahmad Khan as r/o Banian, Tehsil Bhimbir being State Subject of first class within the meaning of State Subject Definition Notification No,84 dated 20-4-1927. This certificate was issued in Samat 2001 (equivalent to 1962) and also relied on the copies of revenue record showing his father as an allottee of land from Rehabilitation Commissioner as one of the six sons of Ahmad Khan.
2. The petitioner admittedly was a candidate for the Competitive Examination held by Federal Public Service Commission of Pakistan, 1990, 1991 and 1993. In the application forms for admission to the said examination he had shown his domicile as that of Punjab but, according to him, he realized that being a candidate belonging to Former Indian State of Jammu and Kashmir he was only to be considered against the quota vacancies reserved for Azad Jammu and Kashmir irrespective of the fact that he had acquired certificate of domicile from a province of Pakistan and even if he had joined Government service on the basis of a domicile other than of Azad Janunu and Kashmir and thus he submitted his admission form as a candidate for the C.S.S. Examination to be held in 1994, he rectified his mistake and gave his own and father's nationality/domicile as of Azad Jammu and Kashmir and claimed Azad Jammu and Kashmir quota available.
3. A show-cause notice was issued to him on 24-5-1995 by the respondents wherein it was stated that the petitioner had claimed his own and father's domicile as of Azad Jammu and Kashmir and also had submitted the documentary proof to that effect while on the contrary the place of birth of his father was Gujrat and also that for the Competitive Examination held in 1990, 1991 and 1993 he had claimed the domicile of his father and that of himself as of Punjab and had submitted the copies thereof alongwith application and therefore, at later stage, his claim for Azad Jammu and Kashmir domicile could not be accepted in terms of Rule 6(iii)(h) of the Rules for Competitive Examination, 1994. He was called upon to show cause as to why disciplinary action should not be taken against him for concealing the fact of his being State Subject of Azad Jammu and Kashmir having obtained the Azad Jammu and Kashmir State Subject Certificate in the year 1987 and that "why he should not be disqualified for this and/or subsequent examinations, selections held by the Commission or criminally prosecuted and debarred from employment under the Government" as laid down and in terms of Rule 7(V), Rules of the Competitive Examination, 1994.
4. To that show-cause notice the petitioner submitted reply on 31-5-1995 and claimed that as per rule 6(iii)(i) he was only entitled to quota reserved for Azad Jammu anti Kashmir candidates and therefore, being the State Subject he brought all the facts. And the certificate being subject of Azad Jammu and Kashmir issued to him in 1987 to the notice of the Commission.
5. After considering the reply of the petitioner, respondent was informed vide letter dated 22-6- 1995 that his domicile had been accepted by the Commission as of Punjab for the purpose of admission in terms of Rule 6(iii)(h) of the Rules relating to the said examination. Yet another letter was addressed to the respondent by the petitioner supported by copy of certificate issued by Section Officer Ministry of Home and Kashmir Affairs (Kashmir Affairs Division), Government of Pakistan, Rawalpindi to Bashir Hussain, the father of the petitioner, of being a Jammu and Kashmir State national. This request was considered and finally the petitioner was informed as under vide letter dated 4-7-1995:-- "Reference your letter dated 25-6-1995, on the above subject. This is to state that on consideration of your reply to the show-cause notice the disciplinary action has been dropped and your domicile has been accepted by the Commission as of Punjab for the purpose of admission in terms of rule 6(iii)(h) of Rules relating to the above examination as already informed to you vide this office letter of even number dated 22-6-1995."
' It was inter alia prayed that the above decision of the respondent, denying the petitioner's privilege, be set aside and a direction be issued to the respondents to consider him against the quota of vacancies reserved for Azad Jammu and Kashmir as laid down in rule 6(iii)(i) of the Rules for Competitive Examination, 1994.
6. The respondents appeared and filed their written statement. The petition was contested on two preliminary grounds first being that the petitioner had not come to the Court with clean hands and the second being that the petitioner's domicile of Punjab having been accepted thrice previously, rule 6(iii)(h) would come in and the petitioner could not be allowed any change at the subsequent examination, 1994.
On merits the respondents admitted that previously the petitioner had filed his admission forms with the copies of domicile certificates and on the basis of those certificates his domicile as of Punjab was accepted whereas in the admission form for the examination to be held in 1994 he had claimed to be the subject of Azad Jammu and Kashmir but contended that prohibition as contained in rule 6(iii)(h) was absolute. The respondent relied on the judgments of this Court in W.P. No,6909/92 (Ghazala Imtiaz v. Federation of Pakistan) and W.P. 5924/92 (Yasmeen Kuraishi v.
Federation of Pakistan).
7. I have heard the learned counsel for the petitioner and the learned Deputy Attorney-General and have also gone through the copies of documents annexed by both the parties. It would be appropriate if Rules 6(iii)(h) and (i) are reproduced for proper appreciation of the point in dispute:- "6(iii)(h). The domicile once claimed and accepted by the Commission for the purpose of admission to an examination, no change will be allowed at a subsequent examination or selection.
6(iii)(i). The candidates belonging to Former Indian State of Jammu and Kashmir will only be considered against the quota of vacancies reserved for Azad Jammu and Kashmir, 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 Azad Jammu and Kashmir."
8. In W.P. No,5909/92 facts were different. In the said writ petition the petitioner had claimed her own domicile and the domicile of her father that of Punjab. She qualified the examination and was declared successful and was allocated Railway Group as against the Punjab domicile where she was working at the time of the decision of the writ petition and his Lordship relied on rule 6(iii)(h) on the ground that the petitioner had not only claimed the domicile of Punjab but had accepted job on that basis in the Railway Group and therefore her case was not liable to be reopened. In W.P.
5924/92 similar was the position where petitioner had accepted the offer of employment and had joined the service for the quota reserved for Punjab. She was offered appointment in Accounts Group which she accepted and joined service in Grade-17. The Court was of the view that the petitioner could not turn around after acceptance of service in the Accounts Group to claim that she was entitled to be adjusted as against the quota reserved for Azad Jammu and Kashmir candidates and the Court had relied on rule 6(iii)(h). The petitioner is not employed anywhere.
9. In the present case the Azad Jammu and Kashmir State Subject Act 1980 was relevant and section 3 thereof reads as under:- "3. Construction of references to "Government" etc. In law relating to the State Subjects.--In the late Government of the State of Jammu and Kashmir Notification No, I-L/84, dated the 20th April, 1927 and in all subsequent orders and rules relating to the definition of State Subject', the expression 'Government' or any other expression, howsoever worded, referring to Executive Government shall, so far as practicable be construed to refer to the Council."
' Azad Jammu and Kashmir State Subject Rules, 1980 were published under section 9 of Act of 1980 on 8-7-1980 and under rule 3 thereof any person possessing a State Subject Certificate at the commencement of the Act was to be deemed a State Subject under the Act. The father of the petitioner was issued a certificate in the year 1965 as stated supra and as such the father of the petitioner retained the status of State Subject even after coming into effect of Act, 1980. So far as the petitioner is concerned he was also issued a certificate of being State Subject, as admitted by the respondents in their show-cause notice issued to the petitioner on 24-5-1995. In paragraph 3 thereof the respondent itself admitted that such certificate was issued in 1987. Rule 6 of Rules supra provided the procedure for the deprivation of State Subject Certificate. The State Subject Certificate once issued could not be cancelled except under the rules supra and in the present case it was not the case of the respondent that the certificate of being State Subject of Jammu and Kashmir issued to petitioner in the year 1987 was ever cancelled or that he was ever deprived of the said privilege.
10. The State Subject Definition Notification was issued by the Maharaja Hari Singh of State of Jammu and Kashmir. The petitioner's father was holder of the State Subject Certificate of Class-I.
Note-II of the said notification reads as under:-- "Note II.--The descendants of the persons who have secured the status of any class of the State Subject will be entitled to become the State Subjects of the same class. For example if A is declared a State Subject of Class-II his sons and grandsons will ipso facto acquire the status of the same class (II and not of class I)."
The petitioner was descendant of a person who had secured the status of Class-I and was thus entitled to become the State Subject of the same class. The State Subject Certificate was issued under the said notification to the father of the petitioner and as such the petitioner had, by virtue of operation of law to which he was subject being a State Subject of Jammu and Kashmir, was entitled to the same class.
11. In clause (i) of sub-rule (iii) of Rule 6 for C.S.S. Examination 1994, the word ' only' was used for the consideration of a candidate against the quota of vacancies reserved for Azad Jammu and Kashmir which clearly indicates that the petitioner could only be considered against the quota of vacancies reserved for Azad Jammu and Kashmir irrespective of the fact that he acquired a certificate of domicile from Punjab and the said rule extends to the extent of those candidates who belonged to the Former Indian State of Jammu and Kashmir even though they had joined Government Service on the basis of domicile other than of Azad Jammu and Kashmir This aspect of sub-rule (1) (iii) of Rule 6 was not considered by my learned brothers in W.P. Nos.6909/92 and 5924/92.
12. The Azad Jammu and Kashmir was not included in the territories of Pakistan as mentioned in Sub-Article (2) of Article 1 of the Constitution of the Islamic Republic of Pakistan, 1973. It was a foreign country for all practical purposes, but for the extension of privileges to the nationals of Azad Jammu anl Kashmir, their status was always treated separately i,e, Settlement Schemes. Under Displaced Persons (Land Settlement) Act XLVII of 1958, which covered the refugees from Jammu and Kashmir State etc. It was held in "Sakhi Daler Khan v. Superintendent Incharge (Recovery of abducted women) (PLD 1957 (W.P.) Lahore 813) that "Azad Jammu and Kashmir was not a part of.
Pakistan and therefore the Government of West Pakistan and Centre had no authority over it. The Pakistani police therefore had no jurisdiction to enter into that territory and arrest a person there for detention in a camp established in any part of Pakistan. The Government of Azad Jammu and Kashmir has an Act of their own dealing with the abducted person known as Azad Jammu and Kashmir (Recovery of Abducted Persons) Act, 1954. "In Noor Hussain v. The State" (PLD 1966 SC 88) it was held that any territory which does not constitute the part of Pakistan is a foreign country.
Similarly in "Muhammad Yar Khan v. D.C.-cum-Political Agent, Loralai" (1980 SCM R 456) it was observed that:-- "...It is a 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 born; 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 of making it his permanent residence. In this aspect reference may be made to page 151 of Private International Law (Seventh Edition) by Cheshire in which under the heading ' The Acquisition of a Domicile of Choice' this is what the learned Author has commented."
13. As observed supra the State of Jammu and Kashmir or its part at this side of the control line known as Azad Jammu and Kashmir was not mentioned as one of the territories comprising of Pakistan under Article 1(2) of the Constitution of the Islamic Republic of Pakistan, 1973, provisions of Article 257 of the Constitution notwithstanding.
14. The State of Azad Jammu and Kashmir has its own Constitution i,e, the Azad Jammu and Kashmir Interim Constitution Act, 1974. It has its own Laws, either continuing in force since before 1947 or codified/promulgated thereafter. It has its own Assembly, Supreme Court and the High Court. Reference in this regard may also be made to "Muhammad Maskeen and 2 others v.
Government of Pakistan through Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and 10 others" (PLD 1993 Azad J&K 1). It was still a disputed territory and was an alive item on the agenda of the United Nations Organization. The Government of Pakistan was internationally committed to the same, and as such the petitioner shall be considered to be governed by State Subject Notification, 1927 and Jammu and Kashmir State Subject Act, 1980 and rules framed there under.
15. Having been issued State Subject Certificate in the year 1987 the petitioner had a right to be considered, as per clause (i) of sub-rule (iii) of Rule 6, notified by the respondent for the Competitive Examination, 1994 and it is declared as such. It is further declared that clause (h) of sub-rule (iii) of Rule 6, Rules for Competitive Examination, 1994 does not apply to the present petitioner and consequently the petitioner is held to be entitled to the declaration that respondent's refusal to treat the case of the petitioner as exclusively covered by clause (i) of sub- rule (iii) of Rule 6 was without lawful authority. The petitioner is further declared to be entitled for consideration against the quota of vacancies reserved for Azad Jammu and Kashmir for the Competitive Examination, 1994 held by the respondent and the respondent is directed to act accordingly.
16. The petition is accepted in the above terms.
17. As an intricate question of applicability of rules and law was involved, there shall be no order as to costs.