P L D 2007 Peshawar 147 (PLP)

DOST MUHAMMAD KHAN, J.

The petitioners, namely, Zahir Shah and 1.1 others were appointed as PTC teachers by respondent No.1 vide order dated 21-11-2005 on the recommendation of the Departmental Selection Committee in the laid down manner, on merits. After initial verification of their testimonials including domicile certificates from the concerned quarters, the petitioners were allowed to assume charge of their posts at the respective places. The arrival reports are (Annexure "D"). During the course of performing duties, on 23-2-2006 respondent No.1 without any show-cause notice to the petitioners or giving them any opportunity of hearing withdrew their appointment orders on the pretext that they were holding domiciles of category "B", a term of first impression.

2. The plea of the petitioners is that they are permanent residents/domiciled of Mohmand Agency and were holding domicile certificates of category "A." which they had submitted with their applications and are Annexure "G" (pages 38 to 49) thus, the subsequent orders of the respondents describing them holders of category "B" domiciles is the result of 3rd degree method adopted by respondent No.1 under the influence of some influential persons whose relatives could not succeed in the test and interview held for the posts.

3. In their written comments, respondents 1 and 2 have taken the plea that the APA concerned has declared the petitioners holders of "B" category domicile certificates, therefore, were ineligible and when they have not challenged the said decision before the Commissioner FCR, the order impugned has attained finality.

4. Rejoinder to the written statement of respondents 1 and 2 was filed by the petitioners, pleading therein that, under the law and rules, there is one kind of domicile and category "B" domicile is self- invented/arranged idea of the Political Agent which has no sanction of law and this phenomenon has been introduced only in Mohmand Agency as in the other tribal agencies the same is not in vogue. Arguments heard and available record perused.

5. The grievance of the petitioners is two-fold i.e. that they were appointed in the prescribed manner on the basis of domicile certificate of category "A" issued to them by the office of APA, therefore, the U-turn made by respondent No.2 after the petitioners were duly appointed and had assumed charge of their duties is an act coram non judice, without jurisdiction and is seriously offending against the principle of natural justice as neither any proper inquiry was made in the matter nor the petitioners were associated therewith. The right of defence and opportunity of hearing was denied to them while taking drastic action of converting their "A" category domicile certificates to that of "B". That the devious categorization of the domicile certificates into "A" and "B" by respondent No.2 has no backing of law and rules on the subject and that the unquoted custom relied upon both in the written comments and in the impugned orders is an act based on mala fide and is the result of undesirable methodology contrived for depriving then), of vested right. A domicile certificate once granted, can only be revoked if it is established that it was obtained through misrepresentation, by practising fraud or that the person holding it had severed his ties with his natural abode and has permanently settled somewhere else. None of these facts were available to respondent No.2 for taking the impugned action and secondly, that the imperceptible custom in no manner could be given overriding or superimposing effect on statutory law and rules.

6. The learned Deputy Advocate-General defended the impugned orders on the ground that albeit the petitioners are holders of the original domiciles of the agency but they have obtained identity cards of the settled area, therefore, they fall within the second category of domicile holders thus, the impugned action is fully justified being based on the custom prevailing in the agency concerned. We have attended to the rival contentions and the facts of the case minutely.

7. There is no denial of the fact that the petitioners right from their forefathers and by birth are the permanent residents of Mohmand Agency having permanent abode there. This iron-clad fact could not be refuted by the respondents in any manner. Along with their applications for the posts of PTC, the petitioners had also submitted their original domicile certificates of category "A" undeniably issued by the office of respondent No.2. Neither the respondents nor the other candidates appearing in the test and interview had raised any objection about the authenticity and genuineness of the same, which were accepted as valid holding the petitioners permanently domiciled in Mohmand Agency right from their forefathers. The said status of the petitioners was accepted when they were selected by the Departmental Selection Committee. The initial verification made by the political authorities also confirmed the B above fact whereafter, they were issued final appointment orders and they assumed charge of their duties at the respective places of their posting thus, the matter had become past and closed chapter for all intents and purposes.

8. The subsequent somersault made by respondent No.2 holding inquiry in a clandestine manner probably at the behest of some influential persons having vested interest in the matter, declaring the petitioners holders of category "B" domiciles appears to us a clear act of mala fide on the part of respondent No.2. The object was to undo an act, which had created vested rights of inviolable nature in the petitioners. These rights could not be snatched in the manner so done by respondent No.2. Not because the entire proceedings were conducted in disregard of the principle of natural justice but also for the reason that the inquiry subsequently, made was a contrived device to deprive the petitioners of their indefeasible right and to pave way for the influential one.

9. The provision of section 17 of the Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952 deal with the domicile certificate. The provision of section 17 of the Act reads as follows:-- "Section 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." Rule 23 (ibid) has been couched in a somewhat more comprehensive language which is reproduced below:-- Rules 23 Certificate of domicile.

The Federal 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-I" in the manner following:-- (a) An application for a certificate of domicile shall be made in Form "P" in duplicate, shall be accompanied by an affidavit affirming the truth of the statement 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, and 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 of 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.

10. From the bare reading of the above provision, it becomes clear that domicile and citizenship shall represent two different conceptions albeit having mutually overlapping effects. The citizenship would confer rights along with corresponding liabilities on the citizen towards the State/society while a domicile or permanent residence certificate has reference to civil rights and privileges acquired thereunder.

11. The holders of tribal domicile certificates invariably get preferential treatment in the matters of getting admission in professional colleges or availing of job opportunities because of special concession given to them on the basis of reserved quota, therefore, overridden by greed, unscrupulous persons manage to procure domicile certificates of the tribal areas. This detestable and deceptive phenomenon gave birth to litigation and has been the subject of debate before the courts of justice in the past. Generally the domiciles are of two main categories i.e. domicile of country which is called citizenship and of a particular area/district or tribal agency.

12. It was in the above context that in the N.-W.F.P., the Government vide Notification EXA(30)8-1/71 dated 8-9-1978 issued instructions to the District Magistrates/Political Agents and other authorized officers laying down certain conditions to be fulfilled by the applicant before getting domicile of tribal areas. These instructions are not at par with those contained in Rule 23 of the Pakistan Citizenship Rules, 1952 but are in addition thereto. The same were issued under-its executive authority by the Government due to frequently emerging disputes on account of rival claims of entitlement to such domicile certificates. There is no mention of category "A" or "B" domicile certificate in 'these instructions. To chanalize the process, the Commissioner FCR Peshawar has vide letter No.21979/C dated Peshawar 2-8-1979 addressed to the Political Agent/District Magistrate has given guidelines for grant of domicile certificates. With regard to the tribal areas at page. 2 these are as follows:-- (1) He (applicant) should be a bona fide member of recognized tribe. (2) He should be entitled to the tribal allowance paid to the tribe whose membership he claims. (3) He should be entitled to all profits and bear all losses of his tribe, and (4) He should share with the tribe territorial and tribal responsibilities.

13. The sole object behind these instructions was that tribal domicile certificates are to be issued only to eligible tribesmen who are permanent residents of that area, however, we find no reference whatsoever in it to category "A" or category "B' domicile certificate. These instructions refer to the letter of the Home and Tribal Affairs Department, Government of N.-W.F.P. No.5/20-SOPT (HD)/70-Vol.II, dated 9-2-1976 and letter No.3170-81/TA/12/316 dated 30th August, 1958 issued by the Deputy Secretary of erstwhile Government of West Pakistan, Tribal Affairs Department.

14. The Political Agents at their whims, in addition to the above, without any lawful authority have imposed further conditions categorizing the domicile certificates into "A", "B", and "C". The additional conditions are undoubtedly in disregard of law and rules on the subject. The law on the subject is clear than crystal. Once such certificate is issued in due course to tribe man permanently settled in any tribal agency, it shall remain intact unless its holder decides to settle in another place with clear intention not to return to the place of his birth or origin. Only in that eventuality he will loose the right to retain it any more but has to get the same of the new place. The political agents arc applying their self-styled and a misconceived formula, They use to issue certificates of category "A" only to those tribesmen who own property in the tribal area and are members of a tribe which are regularly paid allowance in cash or in kind and bear territorial responsibilities. If such conditions are attached to it as a criteria then those tribesmen who from generation to generation are the permanent residents of the tribal agency would loose their right to get domiciles being landless residents. Such classification is absolutely arbitrary being in violation of Constitution, law and rules. In the case Government of Balochistan and others v. Rifat Parveen 1981 SCMR 1002 Regulation 18 of the Bolan Medical College through which classification among domiciled candidates was made by prescribing an arbitrary period of 12 years residence for parents of such candidates owing to the apprehension that otherwise unscrupulous persons will manage to obtain false domicile certificates was held by the august Supreme Court as unreasonable, discriminatory and was having no relationship to main classification between local and domiciled candidates thus, the Regulation was declared invalid on the above grounds. The principle so laid down is squarely attracted to the subject under discussion.

15. According to Dicey, an eminent jurist, domicile of choice is acquired by' every independent person by obtaining combination of residence (factum) and intention of permanent or indefinite residence (animus mamandi) but not otherwise. According to him, the domicile of any person is the place which is considered by law to be his permanent home thus, two essential conditions would confer indefeasible right of domicile on a person i.e. that he must dwell permanently within a particular area with no express intention of giving up both of them. In law, the term "abode'' denotes the place of a man's residence or his business that he may reside elsewhere. The term is quite distinct from "domicile", which denotes more than a place of residence. The former is larger in its import than "residence", which naturally means that he lives or dwells there. The courts of justice while dealing with the proposition of residence and domicile have also held that both arc distinct from each other. The residence is used to indicate the place of dwelling of a man whether on permanent or temporary basis while the term domicile denotes a fixed permanent residence of a man, his temporary absence therefrom would not bring about any substantial change with regard. In the regular/permanent place of his abode or in other words domicile means the place where a person has his permanent home voluntarily fixed not for temporary but for permanent purposes. The word "domicile" has been derived from Latin word "domus" meaning a home or a dwelling place and it is the relationship which the law indicates between an individual and a particular locality or a country. Similar view was taken by the Indian Supreme. Court in the case of Joshni v. M.B. State AIR 1955 SC 234.

16. Under the law and rules on the subject, every person has a right to get domicile certificate provided he has a permanent abode in that area or is horn of parents permanently domiciled in that place. The same is called domicile acquired by birth and his status would remain intact unless he chooses to .scale in another place, district or tribal agency permanently with no intention to return to the place of his birth/ domicile/origin. It would be highly arbitrary and unreasonable to deny such right to landless tribesmen who enjoy equal status and protection of the constitution and law. They cannot be discriminated on the touchstone of ownership of land if otherwise they are permanently domiciled in thy; tribal area. The additional: condition laid down by the Political Agents offends against the strict command contained in Article 25(1) of the Constitution of Islamic Republic of Pakistan, 1973. The classification made on the above yardstick appears to have been based on their own convenience, under the influence of influential and affluent tribesmen. In tribal agencies, considerable number of tribesmen do not own immovable property but by birth are permanent residents/domiciled of those areas for decades with no intention to settle somewhere else. Unless they by their visible conduct or express intention abandon their birth places and settle in another one, their right of domicile of the tribal area cannot be taken away. So far as the other conditions like sharing of losses and profit and sharing territorial responsibility is concerned, those too are unreasonable, arbitrary and in disregard of law thus, cannot be approved because the provision of Chapter IV of the Frontier Crimes Regulation, 1901 confers ample powers on Political Agents to inflict different-types of penalties like heavy fines on failure of a tribe or tribesmen in fulfilment of its territorial or tribal responsibility in case of commission or omission with regard to any offence or the escape of offender etc., therefore, such a condition for obtaining domicile cannot be endorsed being unreasonable, arbitrary and is in contravention of natural human rights. Under the law, every tribeman is entitled to get domicile certificate of the tribal area where he and his tribe is permanently settled. Apart that, no further condition of unreasonable nature can be attached to it because in case of denial to grant the certificate, the tribeman would not be able to get domicile certificate of the settled area and his birth right would completely vanish and shall remain at the mercy of whirlwind.

17. The temporary changing of residence, in view of the growing interaction between different sections of population in the field of business and other spheres of life, has to some extent complicated the subject-matter, therefore, the approach of concerned-authorities must be objective, meaningful and logical so that the mischief is suppressed and fundamental rights are preserved. In the fast life of present days majority of tribesmen have got temporary residences, business centres, commercial plazas and other enterprises in the capital of the Province (Peshawar) and other big cities adjoining tribal agencies but they have never severed their permanent ties with their place of birth/permanent residence in the tribal area thus, much care is required in determining such delicate issue.

18. It has been noticed that whenever any crime is committed within the territory of a certain tribe in tribal area, the members of that tribe are chased by the political authorities in the settled area of Peshawar anal other districts on the basis of territorial and tribal responsibilities. These tribesmen arc arrested and put in prisons and their properties and commercial plazas are invariably sealed. Such actions taken by the Political Agents against the tribesmen who reside temporarily within civic population by itself' nullify their claim that because of the change of residence even temporarily, the tribeman comes within category "B". This inconsistent and self-clashing approach of the Political Agents is an ample proof of the fact that the categorization made by them into "A", "B" and "C" is irrational, imprudent, arbitrary, capricious and unreasonable being self-devised is, therefore, not sustainable in law.

19. The crux of the matter thus, would be that till the time a tribeman is member of a tribe permanently settled in the tribal areas having a permanent abode there with no intention whatsoever to give up the same and to settle somewhere else permanently, he shall be deeded to be domiciled of that area for all legal anti practical purposes and no extra condition beyond the parameters laid down by the law can he imposed by the Political Agents of the tribal areas thus the classification of domicile certificates into the above three categories besides being arbitrary has no sanction of law behind it, therefore, are declared of no legal effect.

20. In the present case, the appointment order of the petitioners was made subject to verification of their testimonials/domicile certificates earlier issued to them in category "A", however, the subsequent verification/inquiry was conducted in a clandestine manner which resulted into cancellation of the said certificates, the action taken seriously offends against the principle of natural justice. The appointment order of the petitioners on PTC posts was equally cancelled on the basis of the same inquiry where neither any show-cause notice was issued to them nor they were given opportunity of hearing or to defend themselves rather the entire process was carried out and completed in a one-sided manner which is against all the canons of justice. Apart the above fact, the petitioners were issued even category `'A" domicile certificates on the strength of verification made from the elders of their respective tribes thus, we are unable to endorse the impugned action because those elders who had earlier verified and supported in writing the domicile of the petitioners have been let scot-free as no penal action has been taken against than so far.

21. The learned D.A.-G was confronted with the above fact but he was helpless to make proper reply and to defend the impugned actions taken by the respondents thus, we are of the firm view that the impugned actions taken by the respondents cancelling/recalling the domicile certificates of the petitioners on fallacious grounds and then recalling their appointment orders was/is without jurisdiction without lawful authority, arbitrary and unjustified, therefore, are not sustainable in law. For the above stated reasons, both the impugned orders of the respondents i.e. with regard to cancellation of domicile certificates of the petitioners and recalling/cancelling their appointment orders on PTC posts arc set aside. The respondents arc directed to reinstate the petitioners on the posts they were holding at the time of passing of the impugned orders, however, the petitioners would not be entitled to claim monthly salary for the period during which they did not practically work against their posts due to the impugned orders but they are held entitled to all other back-benefits including seniority etc. Their domicile certificates shall also be restored. Petition allowed in the above terms. H.B.T./63/P Order accordingl