' This petition under section 44 of AJ&K Interim Constitution Act, 1974 is directed against Class III State Subject Certificate issued in favour of respondents 4 and 5 by the District Magistrate, Muzaffarabad on 11-2-1993 alongwith even dated Domicile Certificate.
2. The brief facts as alleged in the pleadings are that petitioner, who, as per record, is hereditary State Subject of the State of Jammu and Kashmir, seeks a seat in Ali Ahmed Shah University College of Engineering and Technology Mirpur against the quota reserved for Muzaffarabad District and to ensure that the State Subject and Domicile Certificates obtained by the respondents are challenged, as the respondent No,4 if considered as a State Subject and Domicile of Muzaffarabad District with peitioner, would stand higher in the merit to the petitioner. It is alleged that an Ijazatnama was obtained by respondent No,5, the father of respondent No,4 on 26-12-1982, but he failed to acquire the residential property within a period of six months of the Ijazatnama. It is further alleged at the Ijazatnama was further extended by the Government vide Government order dated 28-3-1983 for another six months and respondent No,5, father of respondent No,4 obtained five Marlas of land on 16-9-1987. It is also alleged that respondent No,5 was an employee of Azad Kashmir Radio and during the cource of his stay at Muzaffarabad, he obtained Ijazatnama and then State subject and Domicile Certificates, while he had no intention to settle in Azad Kashmir, neither has he so settled permanently in Azad Kashmir after his retirement. It is also alleged that the respondent's father permanently resides in Islamabad on the following address: "House No,25, Street No,5 F-8/3, Islamabad." It is also alleged that the plot which was acquired by the father of respondent No,4 is transferred in the name of his wife (mother of respondent No,4).
The 'petitioner has placed on record certain documents showing that the respondents have never taken possession of the plot obtained on the basis of said Ijazatnama and have not constructed any house on it. It is further alleged that the residential property has been acquired after the expiry of Ijazatnama and thus the property, State Subject and Domicile Certificates obtained on the basis of Ijazatnama are void ab initio.
3. Controverting the contentions raised in the petition, it is alleged by the respondents that they have validly obtained the Ijazatnama from the Azad Kashmir Government and after the extension of original Ijazatnama, the property is acquired within six months which is in their possession. It is also alleged that the respondents have validly obtained the State Subject and Domicile Certificates from the District Magistrate as they have been residing in Muzaffarabad and respondent No,4 has obtained education at Muzaffarabad. It is further stated that respondents intend to permanently live in Muzaffarabad and for that purpose they have acquired the plot and a house is to be constructed upon it. It is also (pleaded that State Subjects are equal before law and shall be treated equally and the contention that the State Subject of Class I have preference over the other 'Classes, is against the Constitution. It is also pleaded that if any preference is visualized that would be with respect to the restricted matters not with respect to the admission in the educational institutions.
4. The learned counsel for the petitioner arguing the case contended that Ijazatnama originally issued in favour of respondent No,5 was for six months commencing with effect from 26-12-1982 and as the requirements of the Ijazatnama had not been fulfilled, it stood automatically cancelled after the period of six months. According to the learned counsel, the subsequent tension of the Ijazatnama vide Government order dated 28-3-1982 is a nullity the eyes of law for the reason that a dead letter could not be extended and on the basis of this, the learned counsel contended that the State Subject and Domicile Certificates issued in favour of respondents are a nullity in the eyes of law. The learned counsel alternatively contended that assuming all the documents to be valid, the State Subject of Class I that is the petitioner, shall have preference over respondent No,4 who is a State Subject of Class III. The learned counsel in this behalf relied upon the definition of State Subjects given in the Constitution. The learned counsel for the respondents controverting the arguments contended that the Ijazatnama referred above obliged the respondents to submit the details of the property acquired within six months not that the Ijazatnama itself was for six months.
According to the learned counsel, the only stipulation attached under the Ijazatnama was that the respondent No,5 had to obtain the State Subject Certificate at the end of ten years failing which the property acquired under the Ijazatnama was liable to be forfeited to the Government. The learned counsel referring to various documents placed on record contended that respondent No,5 has after complying with the requirements of the Ijazatnama, obtained the property, furnished its details to the authorities concerned and obtained the State Subject Certificate after the expiry of ten years. The learned counsel referring to section 5(4)(15) of the Constitution, contended that all the State Subjects are equal before law and are entitled to equal protection under law, hence, according to the learned counsel, no discrimination can be made between any Class of the State Subjects. According to the learned counsel, the Note attached to the Notification defining the State Subjects is derogatory to the above-referred provision hence is a nullity in the eyes of law. The learned counsel alternatively contended that assuming the Note appended therewith as of any legal validity, its scope is restricted to the grant of State scholarships, State Lands, House Building purposes and recruitment to the State service. The learned counsel placed reliance upon 1980 SCMR 456, PLD 1986 SC (AJ&K) 1 and 1992 MLD 126
5. After hearing the learned Advocates for the parties, I have gone through the record. The term State Subjects is defined in section 2 of the Constitution as follows: "' State Subject' means a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a ' State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No,1-L/84, dated the 20th April, 1927, as amended from time to time."
6. The Notification No,1-L/84 dated 20th April, 1927 is as follows: "The term ' State Subject' means and includes: ' Class I. All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur, and also persons who settled therein before the commencement of Samvat year 1942, and have since been permanently residing therein; ' Class II. All persons other than those belonging to Class I who settled within the State before the close of Samvat Year 1968, and have since permanently resided and acquired immovable property therein; ' Class III. All persons, other than those belonging to Classes I and II permanently residing within the State, who have acquired under a rayatnama any immovable property therein or who may hereafter acquired such property under an Ijazatnama and may execute a rayatnama after ten years' continuous residence therein; ' Class IV. Companies which have been registered as such within the State and which, being companies in which the Government are financially interested or as to the economic benefit to the State or to the financial stability of which the Government are satisfied, have by a special order of His Highness been declared to be State Subjects.
' NOTE I. In matter of grants of State scholarships, State lands for agricultural and house building purposes and recruitment to State service, State Subjects of Class I should receive preference over other classes and those of Class II, over Class III, subject, however, to the order, dated 31st January, 1927, of His Highness the Maharaja Bahadur regarding employment of hereditary State Subjects in Government service.
' NOTE II. The descendants of the persons who have secured the status of any Class of the State Subjects 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.
' NOTE III. The wife or a widow of a State Subject of any class shall acquire the status of her husband as State Subject of the same class as her husband, so long as she resides in the State and does not leave the State for permanent residence outside State.
' NOTE IV. For the purpose of the interpretation of the term ' State Subject' either with reference to any law for the time being in force or otherwise, the definition given in this Notification as amended uptodate shall be read as if such amended definition existed in this Notification as originally issued."
7. The above-referred definition of the State Subject is clear enough to state that respondent No,4 is the descendant of a person (respondent No,5) who has obtained the State Subject Certificate of Class III. Thus, he steps into his hoes as State Subject of Class HI, subject of course, to the legal verdict of the '' appropriate Tribunal in this behalf, as in view of the circumstances of the case, I going to leave the matter open as to whether the Ijazatnama, State Subject and Domicile Certificates have been properly obtained in accordance with la by the respondents or not.
8. The only question which is proposed to be decided by this judgment as to whether the petitioner is entitled to be considered in preference to the respondent No,4 assuming his certificates to be valid.
9. NOTE I attached to the above-referred definition of the State Subject relevant for the purpose of the case in hand. The Note, on the face of it, make specific reference to the grant of State scholarships, State lands for agriculture and house building purposes and recruitment to the State service only, where in the State Subject of Class I shall have preference over other Classes and Class II over Class III. The question as argued by the learned counsel for the respondents that the Note is derogatory to section 4(4)(15) of the Constitution is to be answered in the light of above- referred definition of the State Subject. As the Constitution makes specific reference to the above- referred Notification for the purpose of definition of the State Subject, therefore, the entire contents of the Notification alongwith the amendment therein from time to time shall be deemed to be a part of the definition as given in the Constitution, moreso, in view of Note IV of the above-referred definition. As Note I is a part of the Notification which is specifically made a part of the Constitution in view of the definition, hence the argument that it is contrary to the provisions of section 4(4)(15) of the Constitution i,e, equality clause, is untenable. The definition of State Subject and the status of the State Subjects shall, therefore, be read and meant as given in the Notification as originally issued and all other Notifications which are issued from time to time. Whatever can be said in this behalf is that no discrimination shall be made between the holders of the State Subject of the same Class who shall be treated alike. It is the celebrated principle of equality before law that equals shall be treated equally. Three Classes of State Subjects are three different categories with their respective rights and benefits. None of them can be equal to the other especially in the matters mentioned in the Notes appended with the definition and matters incidental therewith. The discrimination would in fact occur when Class III is treated at par with Class I or II, or where the subjects of the same Class are inter se treated differently, not when the members of different Classes are treated differently. Thus, the preference of Class I over Classes II and III does not extend section 4(4)(15) of Constitution.
10. The question which now remains to be answered is as to whether the admission in an institution falls within the category of Note I and thus the State Subjects of Class I are entitled to preference over other Classes of State Subjects in the matters of admission in the State Institutions. The Note, no doubt, does not specifically refer to the admission in the educational institutions, but t e spirit of the Note and the contents of the Notification at the time of its issuance have to be taken into consideration for determining this question. In the ye 1927, according to the record available, the State did not have its how institutions of Medicine, Engineering etc. Etc. The students of the State who were sent abroad for higher studies were sent in accordance with the spirit of the above Notification. The recruitment to the State services was also made in order of preference out of the State Subjects. The admission in the technical colleges of the State could not be stated in the Notification as there were no such educational institutions as are now available by the dawn of independence. Whatever was available then, that stands specifically mentioned. By the blessings of independence, the doors have been opened for creation of institutions within the State and for the students to acquire the higher education in technical colleges. The preference for admission to the institutions shall, therefore, be read between the lines of the Note. Besides and in addition to the State scholarships, the admission in various technical colleges and institutions shall also be read in the Note as an academic degree entitles a candidate to recruitment in the service of the State. It would be absurd if we assume that the State Subjects of all the Classes be treated alike for admission in the technical colleges and then prefer Class I over others in recruitment. The preference of a higher Class of State Subject over the others in the matters of recruitment to the State service implies that the admission in the institutions enabling a State Subject for service shall be governed and regulated in accordance with the spirit of the above-referred Notification. Thus, the argument of the learned counsel for the respondents that the admission in educational institutions is not visualized by the Note, is of no weight.
11. In view of above, accepting the petition, it is directed that the petitioner, who is Class I State Subject, shall be preferred over respondent No,4 in the matter of admission to Ali Ahmed Shah, University College of Engineering and Technology, Mirpur. The other questions agitated in the petition are left open to be decided in an appropriate case when raised.