2021 PLP (C (PLC(CS)N)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeal by leave of the Court has been filed against the judgment dated 20.04.2018, passed by the Azad Jammu and Kashmir High Court in Writ Petition No.2061 of 2016.

2. The facts forming the background of the captioned appeal are that the Public Service Commission through advertisement dated 08.04.2008, advertised 53 posts of Assistant Sub-Inspector out of which 15 posts were reserved for the quota of refugees settled in Pakistan. Later on, the number of the posts was reduced and total 44 posts were advertised out of which 12 posts were allocated against the quota of the refugees settled in Pakistan. Amongst others, the appellant, herein, applied against the said quota and participated in the test and interview. After conducting the test and interview, a merit list was prepared, wherein, the appellant, herein, was placed at serial No.11. The Public Service Commission issued a handout on 04.01.2011, whereby, the appellant, herein, was declared successful candidate, hence, was appointed as Assistant Sub-Inspector by the competent authority vide order dated 24.05.2011. The respondent, herein, challenged the appointment order of the appellant, herein, dated 24.05.2011 by filling a writ petition on 30.06.2016. It was stated that the appellant, herein, is not a refugee settled in Pakistan and he has been selected on the basis of forged and fabricated documents (certificate of domicile and State Subject). It was alleged that the appellant, herein, was a refugee settled in District Bagh, Azad Kashmir and could not apply against the quota reserved for refugees settled in Pakistan. It was further alleged that the domicile certificate issued in favour of the appellant, herein, by the District Coordination Officer Attock on 15.05.2008 was illegal and fraudulent as the appellant, herein, admittedly obtained the State Subject Certificate on 13.05.2008 which shows that he is a resident of village Chatter, Tehsil Bagh. The writ petition was contested by the other side by filing comments/written statement whereby, the claim of the petitioner/respondent, herein, was refuted. It was stated that the petitioner/respondent, herein, after becoming unsuccessful to get the merit position has filed a baseless writ petition which is liable to be dismissed. The learned High Court, after necessary proceedings, through the impugned judgment dated 20.04.2018, has accepted the writ petition and while setting aside the appointment order of the appellant, herein, dated 24.05.2011, ordered the official-respondents, therein, to appoint Zeeshan Azam, respondent, herein, as Assistant Sub-Inspector.

3. Ch. Shoukat Aziz, the learned Advocate appearing for the appellant, argued that the appellant, herein, admittedly is a refugee from the Occupied part of Jammu and Kashmir. He is settled in village Jaffar, District Attock, Pakistan and has rightly applied for appointment as Assistant Sub-Inspector against the quota reserved for the refugees settled in Pakistan. The learned Advocate further argued that the respondent, herein, who could not qualify for appointment as Sub-Inspector, filed a writ of quo-warranto as well as mandamus with mala fide intention for quashment of the appointment of the appellant, herein, and has also sought a direction for his appointment. The learned Advocate further argued that the writ petition was liable to be dismissed solely on the ground that move of the respondent, herein, was not bona fide because through the same writ petition he has prayed relief for himself. The learned Advocate further argued that the appellant, herein, has not committed any fraud or forgery, whereas, the fact of the matter is that he obtained the certificate of domicile from District Bagh where his parents are allegedly settled after migration. The learned Advocate submitted that the respondent, herein, did not raise objection before the Public Service Commission and subsequently before the authority, hence, he was not entitled to raise the same after appointment on the ground of estoppel and acquiescence. The learned Advocate further submitted that if it is assumed for the sake of arguments that the appellant, herein, could not legally apply for appointment against the quota reserved for refugees settled in Pakistan even then the wrong can be rectified by transferring his quota against District Bagh and he can be saved from hardships which occurred due to the fact that the appellant, herein, considering himself as bona fide refugee settled in Pakistan, applied against the said quota and was appointed as such. In support of his submissions, the learned Advocate placed reliance on the cases reported as Bashir Ahmed and 25 others v. Azad Government and 19 others [2018 SCR 195], Mst. Nafeesa Manzoor v. Azad Jammu and Kashmir University and 7 others [2016 MLD 1999], Alam Din v. Mayor, Municipal Corporation Mirpur and 4 others [2000 YLR 1891] and Azad Government and 3 others v. Genuine Rights Commission Azad Jammu and Kashmir and 7 others [1999 MLD 268].

4. Conversely, Mr. Abdul Rashid Abbasi, the learned Advocate appearing for the other side argued that the appellant, herein, obtained State Subject certificate from District Bagh showing himself a permanent resident of the said District, whereas, he obtained the certificate of refugees settled in Pakistan obtain domicile from Deputy Commissioner Mirpur as per Govt. notification. The learned Advocate submitted that after migration the father of the appellant, herein, got settled in Bagh Azad Kashmir and was also allotted land in the said district, therefore, in view of the Govt. notification dated 24.08.1972, he would be deemed refugee settled in Azad Jammu and Kashmir. The learned Advocate further argued that the land measuring 53 kanal, 10 marla was allotted to the father of the appellant, herein, in District Bagh and his younger brother was inducted into Government service against the quota of said District and appointed as Assistant Commissioner, therefore, it cannot be said that the appellant, herein, by any stretch of imagination is refugee settled in Pakistan, hence, cannot apply against the said quota and all the proceedings conducted by the Public Service Commission for his appointment are illegal which cannot be saved on any ground. The learned Advocate further argued that fraud vitiates most solemn proceedings and no one can be allowed to reap fruits on its own fraud, that too, in writ jurisdiction. He argued that no estoppel can be pleaded against the respondent because all the facts on the basis of which writ has been filed were not in the basis of which writ has been filed were not in the knowledge of the respondent prior to knock the door of the Court. In support of his submissions, the learned Advocate placed reliance on the cases reported as Maria Tazarrat v. Abid Hussain Dar and 5 others [PLD 2006 SC (AJ&K) 10], Muhammad Akram and another v. Custodian of Evacuee Property and 7 others [2003 SCR 442], Muhammad Ayub and 4 others v. Muhammad Fazil and 17 others [2005 YLR 568], Umar Hayat v. Azad Govt. and 3 others [1999 PLC (C.S.) 93] and Miss Shahida Bano v. Azad Government and 5 others [1998 CLC 534].

5. We have heard the learned counsel for the parties and have gone through the record of the case. A perusal of the record reveals that Azad Jammu and Kashmir Public Service Commission advertised 44 posts of Sub-Inspectors vide advertisement No.1/2008, dated 08.04.2008, published in daily 'Jung'. Out of the advertised posts, 14 were allocated to the quota of refugees settled in Pakistan. The appellant, herein, applied against the said quota and succeeded in getting the appointment vide notification dated 24.05.2011 and joined his duty. The appointment of the appellant, herein, was challenged through writ petition under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, on 20.06.2016 on the ground that the father of the appellant, herein, is a refugee settled in Azad Jammu and Kashmir, therefore, the appellant, herein, was not eligible to apply against the quota reserved for refugees settled in Pakistan. A direction was also sought by the petitioner/respondent, herein, for his appointment. The contention of Ch. Shoukat Aziz, Advocate, that the appellant was entitled to apply against the quota of refugees settled in Pakistan is devoid of any force. Admittedly, the father of appellant, herein, has been allotted the land measuring 53 kanal, 10 marla, in District Bagh Azad Jammu and Kashmir, as is evident from proprietary rights transfer order Nos. 42 and 42 dated 28.06.1993 which leads to the conclusion that after migration, the father of the appellant, herein, got settled in Azad Jammu and Kashmir, therefore, the appellant cannot be considered refugee settled in Pakistan. In a case reported as Waqas Ahmed Baig v. Samara Moin and 9 others (2010 CLC 1749) this Court has considered the identical proposition. At page 1761 and 1762 of the report, it was observed as under:-- "11. .. A person can settled anywhere for earning the livelihood or for business purpose but that place cannot be said to be his permanent place of residence and on the basis of having business in any place the domicile certificate or PRC cannot be issued. This proposition came under consideration of this Court in the case titled Miss Rakhshanda Aslam and another v. Nomination Board of Azad Jammu and Kashmir through its Secretary, Muzaffarabad and 2 others (PLD 1986 SC (AJ&K) 1), wherein, it was held as under:-- 'A person shall be said to be domicile of a locality where he intends to live permanently and considers that place as his principal or permanent home. The 'domicile' of a person, therefore, shall be determined while taking into account the intention of the person manifested by his conduct to show whether he has adopted a mental attitude to settle down at a particular place permanently and make that place as his permanent home. It is corrected that a person may leave his country temporarily to make his fortune and in that event the domicile of origin is retained as he never intends to permanently abandon the domicile of origin and make his home permanently in the domicile of choice but where the intention is throughout clearly expressed through conduct or circumstances to have an inference that a person never wished to return to the domicile of origin and has selected the domicile of choice for no other purpose than that of trade, settling there at permanently and also acquired huge property thereat it shall be said that such person has abandoned his domicile of origin for domicile of choice. To have a finding on the point that duration of a person's stay at a place other than that of his domicile of origin, the purpose of his stay thereat, the nature of the business he carries, the quantum of the movable and immovable assets he holds, and has conduct and mental attitude towards his domicile of origin shall provide the guideline and have to be taken into consideration."

6. The other contention of the learned counsel for the appellant that the respondent, herein, was not aggrieved as he has not qualified the test and interview for appointment as Assistant Sub-Inspector against the quota of refugees settled in Pakistan is also not correct. The fact of the matter is that if direction cannot be given for appointment of the respondent, herein, even then he is aggrieved person and can ask the Court to re-advertise the post, because he has a right to compete against the post vacated by the appellant, herein. It has been observed by this Court in various cases that to qualify as an aggrieved person, it is not necessary that a right in the strict juristic sense should be vested in him, yet a person must at least show that he has some interest that the respondents should act in accordance with law.

7. The next contention of Ch. Shoukat Aziz, Advocate, that the respondent, herein, was not an aggrieved person as he sought relief for himself in a writ of quo warranto, has also no substance in it. Ordinarily, a person who files a writ of quo warranto, is supposed to show his bona fide by not claiming any relief for himself but in a recent judgment rendered in Muhammad Yaqoob Khan's case [1999 MLD 1862], this Court has held that a writ of quo warranto can be filed by an aggrieved person. The relevant observation is reproduced as under:- "Another observation made under Raja Muhammad Azad's case seems to be relevant here. We have already noted that the appellant in that case challenged the authority of a successor to hold the post of Registrar which tended to show that the aforementioned appointee was aggrieved by his transfer but this was not treated as hindrance in the way of filing a writ of quo warranto. In the present case, the position is the same. Since a writ of quo warranto can be filed by any person, it follows that even an aggrieved person can file a writ of quo warranto. The only condition is that the petitioner in a writ of quo warranto cannot get any relief for himself. The conclusion, therefore, is that the view taken by the High Court is not sustainable and we have no hesitation in vacating it. The correct legal position is that the quo warranto writ filed by the appellant was maintainable in the High Court."

8. It is not proved that all the facts from filing the application before the Public Commission up to the appointment were in the knowledge of the respondent, therefore, the principle of estoppel was attracted in the case as has been laid down in Umar Hayat's case referred to hereinabove. As we have reached the conclusion that the appellant, herein, is not a refugee settled in Pakistan, hence, was not entitled to apply against the said quota, therefore, the recommendations made by the Public Service Commission in his favour and subsequently the appointment order dated 24.05.2011 is declared null and void. However, as no proof for qualifying the test and interview has been placed before the High Court regarding the respondent, herein, and his name was not listed among the successful candidates against the refugees settled in Pakistan, therefore, High Court should not have issued the direction for his appointment in vacuum. The upshot of the above discussion is that this appeal is partly accepted in the manner that the direction issued by the High Court to appoint the respondent, herein, is set aside, instead, it is directed that the post vacated by the appellant, herein, shall be re-advertised and appointment shall be made in accordance with law. With above modification the impugned judgment is maintained. No orders as to costs. ZC/47/SC(AJK) Order accordingly.