1996 PLP 826 (CLC)

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‑

1. 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 and 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 SCMR 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 thereunder.

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. A.A./H‑166/L Petition accepted.