2022 PLP (C (PLC(CS))

WIQAR AHMAD, J.

Petitioner is aggrieved of appointment of respondents Nos. 6 and 7 on the posts of Primary School Teacher (hereinafter called as "PST").

2. Petitioner has contended in his writ petition that respondent No.3 i.e. District Education Officer (M) Dir Lower (hereinafter referred to as "DEO") had invited applications for the post of PST by publishing proclamation in daily newspapers. Petitioner applied for the posts accordingly. On completion of recruitment process, respondents Nos. 6 and 7 have wrongly been appointed, according to the petitioner. Regarding both the respondents (appointees) petitioner has been carrying the objections that they belonged to District Mardan and have wrongly obtained domiciles of District Dir Lower, on the dint of which they have been able to secure the appointments, thereby denying the petitioner his due right for such appointment. Feeling aggrieved there-from, he has filed the instant constitutional petition with the following prayer; " It is therefore, very humbly prayed that, on acceptance of this writ petition; i) The appointment order issued by the respondent No.3 to the extent of respondents Nos. 6 and 7 be declared illegal, against the policy and rules, unlawful, ineffective upon the right of petitioner and be set aside. ii) That the respondent No. 3 be directed to appoint/adjust the petitioner as PST in union council Munjai as he belonged to union council Munjai, District Dir Lower. iii) That the respondent No. 4 i.e. Deputy Commissioner Mardan may please be directed to verify the domiciles as well as CNICs and permanent residential places of respondents Nos. 6 and

7. Any other relief which this Honorable Court deems fit and proper in the circumstances may also be very kindly granted.

3. Respondents were summoned, among whom respondent No. 3 i.e. DEO has filed his comments, while respondents Nos. 6 and 7 (appointees) have filed their written reply to the writ petition. Respondent No. 3 as well as the private respondents have rebutted the stance of petitioner. Both have stated that respondents Nos. 6 and 7 have been bona fide residents of District Dir Lower.

4. We have heard arguments of learned counsel for the parties, learned Adll: A.G for official respondents and perused the record.

5. Perusal of record reveals that respondent No. 6 namely Murtaza has obtained domicile of Dir Lower on 07.06.2016, a copy of which has been annexed with the comments of respondent No.3. The cut-off date given in the proclamation for appointment has been 30.09.2016. He had no doubt obtained a domicile certificate from District Mardan, but same has already been cancelled on 27.07.2016 as per the No Objection Certificate issued by Additional Deputy Commissioner Mardan. Similarly, the other respondent namely Muhammad Shahid had obtained his domicile certificate of District Dir Lower on 02.02.2006. He had also once obtained domicile from District Mardan but same has subsequently been cancelled in the month of June 2016. It is clear that during the impugned recruitment process as well as on the date of appointment both respondents Nos. 6 and 7 were having domicile certificates of District Dir Lower. Section 3 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 (hereinafter referred to as "the Act") is relevant in this respect, which is reproduced hereunder for ready reference;

3. Appointment, posting and transfer of primary school teachers. (1) The vacancy of primary school teacher shall be filled in from the candidates belonging to the Union Council of their permanent residence mentioned in their Computerized National Identity Card and domicile, on merit and if no eligible candidate in that Union Council is available where the school is situate, such appointment shall be made from amongst eligible candidates belonging to the adjacent Union Councils." Provided that on availability of a vacancy, a primary school teacher, appointed from adjacent Union Council, as referred to in this subsection, shall be transferred against a vacant post in a school of the Union Council of his residence within a period of fifteen days. (2) Upon marriage, the primary school teacher on request may be transferred to the school in the Union Council, where his spouse, ordinarily resides, subject to the availability of vacancy. (3) The primary school teacher shall be transferred to other school within the Union Council on completion of tenure as may be prescribed subject to the policy of rationalization for maintaining certain student teachers ratio, if any. (4) Government shall, within a period not exceeding one year of the commencement of this Act, make arrangement for posting of all the primary school teachers appointed prior to coming into force of this Act, to the schools of their respective Union Councils or adjacent Union Councils, as the case may be." The Act provides that post of PST, are district-wise post, which are also supposed to be filled from candidates belonging to same union councils where the post exists. To ensure that residents of same union council are appointed on such post the legislature has further particularized that the vacancy of primary school teacher should be filled from candidates belonging to the union council of their permanent residents as mentioned in their Computerized National Identity Card (hereinafter referred as "CNIC") and domicile certificate. If such a candidate is not available in a union council, then such appointment may be made from adjacent union council. There is no doubt regarding the fact that person from a district other than the one where the vacancies occurs, may not be appointed on the post of PST. Domicile has been taken as one testimonial of the fact that the person is permanently resident of the district where he has applied for appointment. Another such testimonial is CNIC. No objection has been raised by petitioner regarding CNICs of respondents Nos. 6 and 7 in the case in hand. CNIC of respondent No. 6 namely Murtaza shows both the permanent and temporary addresses to be those of District Dir Lower. CNIC of the other respondent namely Muhammad Shahid bears temporary address of District Mardan but it also bears the permanent address of District Dir Lower. Section 9 of the Succession Act, 1925 provides as; "

9. Continuance of domicile of origin. The domicile of origin prevails until a new domicile has been acquired. Similar sections 13 and 14 of the Succession Act are also relevant for the present discourse, which are reproduced hereunder for ready reference;

13. Continuance of new domicile. A new domicile continues until the former domicile has been resumed or another has been acquired.

14. Minor's domicile. The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin. Likewise, Rule 23 of the Pakistan Citizenship Rules, 1952 provides; "

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 'PI' 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 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." Hon'ble apex Court in its judgment given in the case of "Muhammad Yar Khan v. Deputy Commissioner cum Political Agent Loralai and another" reported as 1980 SCMR 456 had also dilated upon the issue of "domicile and permanent resident" in the following words; "Now from the analysis of all these sections, as well as section 17 of the Act what would follow is. (1) that "domicile" and "permanent residence" are two distinct and separate concepts, although before a person is granted a domicile certificate generally he must show that he had lived in Pakistan with the intention of permanently residing therein ; (2) that when a person is granted a domicile certificate he would be deemed to be a domicile of Pakistan and not of a Province or a part of a Province; (3) the fact that a person before making an application for the grant of a domicile certificate had lived in Pakistan would be entitled to persuade the authorities that he had done so with the intention of permanently residing therein and he was entitled to the grant of a domicile certificate ; and (4) that a citizen of Pakistan by birth is also essentially a domicile of Pakistan unless, of course, he has lost the said domicile by acquiring another domicile of his choice. However, the main reason which seems to have invariably led the authorities erroneously to describe the grantee of a domicile certificate to be the domicile of a particular part of Pakistan would be found in Form P-1 to the rules." The main purpose of obtaining domicile has not been establishing an entitlement to the job, but such a purpose has it been carrying after it was made as one of the touchstone for determining ones entitlement for a job of PST, according to section 3 of the Act. What is noticeable, is that issuance or obtaining of a domicile has not been a permanent feature to the effect that once obtained by a person, has to be carried till his death. Sections 13 and 14 of the Succession Act, 1925 (reproduced above) also indicates that an earlier domicile may be substituted through a subsequent domicile. When acquisition of subsequent domicile by a person, is found authorized by law, and when such domicile had been issued to respondents Nos.6 and 7 by the competent authority i.e. Deputy Commissioner District Dir Lower, this Court cannot undertake an exercise for ascertaining the disputed questions whether or not respondents had shifted back their permanent abode to District Dir Lower? When the Deputy Commissioners of both the Districts have satisfied themselves and on their satisfaction the Deputy Commissioner Mardan have cancelled the domiciles issued earlier to respondents Nos. 6 and 7, while the Deputy Commissioner Dir Lower have issued domiciles to both the respondents, we cannot undertake the factual controversy which petitioner has tried to raise through the instant constitutional petition. Hon'ble Supreme Court of Pakistan in a good number of judgments has held that determination of factual controversy was the job of civil Court and same exercise could not be carried on in writ jurisdiction of High Court. In this respect, reliance is placed on judgment in the case of "Ahmad Developers v. Muhammad Saleh" reported as "2010 SCMR 1057" wherein Hon'ble Supreme Court had held as follows; "Contest on factual controversy could only have been determined through a civil suit and not in constitutional jurisdiction before High Court. Such plea of private respondent was repelled in circumstances. Leave to appeal was declined." Further reliance in support of said ratio may also be placed on judgments of Hon'ble Apex Court rendered in the case of "Suo Motu case No. 13 of 2007" reported as "PLD 2009 Supreme Court 217" and the case of "Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Balochistan Quetta" reported as "2007 SCMR 105".

6. Respondents have also filed their domiciles of District Dir Lower before the recruitment authorities in the case in hand, besides their CNICs. Recruitment authorities have been satisfied that respondents Nos. 6 and 7 had been permanent residents of District Dir Lower, in such circumstances petitioner has failed to make out a case for intervention of this Court. The instant constitutional petition was therefore found to have been lacking substance and same is accordingly dismissed. MQ/26/P Petition dismissed.