1980 PLP 734 (CLC)

SARDAR MUHAMMAD SHARIF KHAN, J: The petitioner is a Government employee. For a person to be employed or recruited to a State service, the condition, precedent of his/her being a Slate Subject is a mandatory provision of law. However, the Government may relax the condition so attached to a State service to be undertaken by a person. The petitioner had a Sate Subject Certificate Class-I through his mother Mst. Ghulam Farooq by name. His mother was a State Subject Class-I. 'This fact of her being a State Subject Class-1 is not - even denied by respondent No. 3, Qazi Muhammad Aslam on whose complaint the State Subject Class-I acquired by the petitioner was c4ncelled by a Special Board constituted to cancel the State Subjects issued under Order No. 804 of 1935 if on investigation found to be false. The State Subject of the petitioner was cancelled by the Special Board on the ground that as his father was not a State Subject, he was not entitled to have a State Subject of any class tinder law. It is against this order dated 21-3-1979 of the Special Board that this writ petition is filed with a prayer to the effect that the impugned order may be declared to be void for its being without legal authority and of no legal effect. The writ petition is supported by two affidavits, one filed by the petitioner himself and the other by his maternal uncle. The written objections are without support of any affidavit, i.e. there is no counter affidavit to the affidavits filed by the petitioner in support of its case. The learned counsel for the respondents could not confute the allegations of the petitioner contained in the writ petition in any manner, whatsoever, while addressing the Court. The petitioner derives his right of having a State Subject Class I from his mother. The Special Board was of the view that no State Subject could be acquired through a female. Thus, legally, we are to see whether a State Subject Certificate could be acquired by a person through a female. The stand of the petitioner is clear that his mother was the State Subject Class I through her forefathers permanently residing within the State long before Sambat year 1942 Bk. The definition of the State Subject is given in Government Notification No. 2354 dated 31-1-1927 which is to the ,following effect :- "Government Notification.

the following definition of the term "State Subject" has been sanctioned by His Highness the Maharaja Bahadur (,vide Private Secretary's Letter No. 2354 dated-the 31st January, 1927, to the Revenue Member of Council) and is hereby promulgated for general information:- Class-l.--All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Bahadur and also persons who settled therein before the commencement of Sarnbat year 19.12 and have since been permanently residing. Class-II-All persons other than those belonging to Class-I who settled within the State before the close of Sambat year 1968 and have since permanently resided and acquired immovable property therein. Class-III.-All persons other than those belonging to Classes I & 11 permanently residing within .the State who have acquired under a Rayatnama any immovable property therein or who may thereafter acquire such property under an 1jazainama and may execute a Rayatnama after ten years' continuous residence therein. Note 2.-The descendants of the persons who have acquired the status of any class of the State Subject will be entitled to become the State Subject of the same class. For example if A is declared a State Subject of Class-1I, his sons and grandsons will ipso facto acquire the status of the same Class II and not of Class I." From the definition above, it is clear that there is no sex ostentation made for acquisition of a State Subject Certificate. It may be through an sex. The mother of the petitioner admittedly being a State Subject Class-I, acquired immovable property from her brothers by way of gifts during the Dogra Regime and it was thus that the petitioner inherited the landed property through his mother in Azad Kashmir and thus acquired the status of a State Subject Class

1. Besides, the contention of the learned counsel for the petitioner is that the Special Board was not competent to cancel the Certificate of the petitioner as under Order 804 of 1935, it was to deal with the cases falling in category-111 of the State Subjects. It was not through `Rayatnama' or 'Ijazatnama' that the impugned Certificate was acquired b the petitioner and so obviously the Board was not within its competence t cancel the State Subject Class-1 acquired by the petitioner through hi mother. Therefore, for the reasons above, accepting the writ petition we declare that the impugned order gassed by the Special Board is void and of no legal effect for its being passed without, jurisdiction. That being so, we set aside the impugned order and restore the State Subject Class-I acquired by the petitioner through his mother. S. A. H. Petition accepted.