2. Comments were called for which have been filed. I have gone through the comments. All the said facts stated by me above as gleaned from the Writ Petition stand admitted in the said comments. However, the plea taken is that as per instructions contained in Establishment Division's O.M. No.2/2/67-Dv, dated 26-8-1968, the persons belonging to Pakistan by origin should continue to be considered for appointment only against the quota of the province/region to which the father of such a candidate belongs.
3. Learned counsel for the petitioner contends that the stand taken by the respondents is not tenable. According to the learned counsel, the matter of Domicile is governed by Pakistan Citizenship Act, 1951 and the Rules framed thereunder and in view of the said statutory provisions, a departmental authority cannot act to the contrary. Learned Standing Counsel on the other hand, reiterates the position taken in the comments by the respondents.
4. Section 17 of the Pakistan Citizenship Act, 1951 is relevant and is reproduced here for facility of reference: "S.17. Certificate of domicile. ---The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of Domicile to any person in respect of whom it is- satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before the making of the application, and has acquired a Domicile therein."
The relevant Rule framed under the said Act is Rule 23 which is also reproduced here: "Rule 23. Certificate of domicile.--The Central Government, the Provincial Government or any District Magistrate authorized by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form ' P-1' in the manner following:--
(a) "An application for a certificate of domicile shall be made in Form P' in duplicate. It shall be accompanied by an affidavit affirming the truth of the statements made in it and affirming further that the applicant had not migrated to India after the first day of March, 1947 or that, having so migrated, had returned to Pakistan under a Permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan.
(b) Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan.
(c) The authority shall pass such orders on the application as it deems fit. ".
A bare reading of said section 17 and rule 23 would negate the stance of the learned Standing Counsel. As stated by me above, it is an admitted position that at the time of initial appointment, rather before the interview call, the petitioners had obtained his domicile certificate from District Magistrate, Rawalpindi and had filed the same with respondent No. 1. The same document was again filed with the respondent No.2 after the issuance of appointment order. Section 17 of the said Act does not at all lay down that the domicile of a father would govern the domicile of the child. On the other hand, it provides that any person regarding whom the Federal Government is satisfied that he as ordinarily resided for a period of not less than one year, immediately before the making of application, and has acquired a domicile therein, may be granted a certificate of domicile. It is an admitted fact that the domicile certificate was issued on 1-6-1991 and it is also admitted that the petitioner passed his F.Sc., B.Sc. And M.Sc. Examination from Rawlapindi/Islamabad. There is no allegation at all in the report or the comments that the certificate has been wrongly issued. In the absence of any such allegation it will have to be presumed that the Certificate had been issued after complying with the conditions contained in Rule 23 of the Pakistan Citizenship Rules, 1952.
5. Learned Standing Counsel has not been able to explain the anomaly in the stand taken by the respondents on the basis of the said instructions of the Establishment Division. As in the present case, there is no denial of the fact that the petitioner was born in Rawalpindi; he completed his studies here; was appointed and is performing his duties at Rawalpindi but he is being debarred from applying for a post against Punjab Quota simply because of the fact that his father happened to have acquired domicile in Baluchistan.
6. In view of the above discussion, I allow this Writ Petition and hereby declare the order/act of respondents in denying opportunity to the petitioner to apply for being appointed to the post in question against Punjab Quota, to be without lawful authority and without jurisdiction. No order as to costs.