2025 PLP 36 (MLD)

Wiqar Ahmad, J.

This single judgment shall decide instant writ Petition No. 495-B/202l and connected W.P. No 3274-P/2022 both filed by Dr. Muather Gul.

2. Facts, according to contents of instant writ petition are that, respondents invited applications from eligible candidates having qualification of FCPS Part-I holding domicile of Khyber Pakhtunkhwa for admission for fellowship training for July, 2020 through advertisement published 1n daily newspaper, with the intention to enroll the doctors for FCPS Part-II training in various specialties of their affiliated public sector hospitals. The slots being stipendiary, petitioner having requisite qualification applied for same and after going through the test and interview, she was selected vide order dated 15.8.2020 as Dentist at MTI/Ayub Medical College Abbottabad. She assumed charge and submitted her arrival report. However, subsequently her training was terminated by respondents and her salary was stopped, on the ground that her husband is domicile holder of District Sahiwal, Punjab. Hence this writ petition.

3. Through connected W.P. No. 3274-P/2022, petitioner has prayed that domicile policy, on the basis of which her training for FCPS Part-II was terminated vide impugned order dated 28.5.202l be declared violative of Articles, 8, 18,25,25-A,27,35,37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973 to open doors to highly educated professionals being adversely effected from such policy.

4. Heard. Perusal of record reveals that petitioner in instant writ petition had applied for availing of FCPS against vacant stipendiary slot advertised vide advertisement annexed with writ petition as annexure-A. It had clearly been mentioned in advertisement that PGMIs had been calling for submission of applications from Doctors having domiciles of Khyber Pakhtunkhwa who had qualified FCPS Part-I examination before 30.6.2020. Petitioner had been carrying original domicile of Khyber Pakhtunkhwa as her parents were belonging to District Bannu, but she had got married to one Raza Ahmad Khan of Sahiwal, Punjab on 15.12.2017 and had registered her marriage in concerned department on 2l.4.2018. Her marriage registration certificate has also been annexed with comments filed by respondents. Her marriage with Raza Ahmad Khan had not been denied by petitioner on given date. When these facts divulged upon respondents they had cancelled her training of FCPS Part-II which act has been challenged by petitioner through instant writ petition filed in Bannu Bench of this Court. Through above mentioned (connected) W.P. No. 3252-P/2022, petitioner had challenged termination of her training vide impugned order dated 28.5.2021 as well as Policy of PGMI, which was providing to the following effect.

4. Domicile Policy. "a. Female candidates upon married shall assume domicile of her husband meaning after marriage domicile of husband will be considered as domicile of the female candidate. (Post marriage, her own domicile will not be considered as valid). b. Permanent address on CNIC must be of Khyber Pakhtunkhwa." 3(sic). Leamed counsel for petitioner contended that the policy was violative of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 and therefore, liable to be struck down. He next contended that even if the policy is maintained petitioner had already been admitted to training program and therefore, respondents were lacking locus-poenitentiae to rescind the order of her admission for training, unilaterally. He placed reliance on cases titled Inspector General of Police Quetta and another v. Fida Muhammad and others (2022 SCMR 1583), Province of Punjab through Executive District Officer (Education) Rawalpindi and another v. Ruqia Islam (2020 SCMR 490), Amna Rehman and others v. Deputy District Education Officer (W) Elementary and others (2002 PLC (C.S) 1080.

4. In response, learned Advocate General contended that the policy was in accordance with sections 15 and 16 of Succession Act, 1925. He also placed reliance on the case titled Shabnam v. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa and 4 others (2015 PLC (C.S) 1111), Mst. Najam Un Nisa v. Government of Khyber Pakhtunkhwa through Secretary Education Khyber Pakhtunkhwa (2021 PLC (C.S) 434), Mst. Fareeda Noor v. Mehar Muhammad Nawaz Sial and another (2005 CLC 669 Lahore) and Dr. Mst. Munawar Zaheen v. The Secretary Puniab Public Service Commission, Lahore and 2 others (PLD 19745 Lahore 36).

5. Learned counsel for PGMI also defended policy and contended that petitioner had obtained admission by concealing facts from competent authorities that she had acquired domicile of her husband. He added that she cannot be paid a premium for her own wrong.

6. So for as reliance of learned counsel for petitioner on Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, it was not found tenable. For ready reference same is reproduced as under:- "27. (l) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding [forty] years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan: Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. [Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).] (2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the province for a period not exceeding three years' prior to appointment under that Government or authority."

7. Exception has been provided by adding provisos, last of which has been inserted vide 16th amendment to the Constitution in the year 1999 (7 of 1999), enhancing the exception for quota system, for 40 years. Then again the article was amended through 18th Constitutional amendment and 3rd proviso was added allowing that under representation of a person of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majli-e-Shhora (Parliament). Clause-2 of Article 27 is most relevant in instant matter which provides that: "Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the province for a period not exceeding three years, prior to appointment under that Government or authority." The training slots had been created and paid by Health Department Government of Khyber Pakhtunkhwa. It were in respect of subjects of health, which were completely devolved subject to the Provinces and the provincial Government was competent to place condition of residence or domicile of the province. Similarly PGMI was also competent in carrying policy which was not hit by Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 being excluded under clause (2) of Article 27 of the Constitution, 1973. Vires of the policy cannot therefore, be held violative on touchstone of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973. Said policy was also framed by following principles enshrined in sections 15 and 16 of Succession Act, 1925. This Court while giving judgment in case titled Mst. Shaista Gul v. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education, Civil Secretariat, Peshawar and 05 other bearing W.P. No. 564-M/2019 has held; "

13. In all these cases, the issue relating to the place of permanent residence of the married women is involved. In this regard, we could not find any instrument governing the issue, however, on the analogy of sections 15 and 16 of the Succession Act, 1925, it appears that married woman normally follows the domicile of her husband during subsistence of the marriage. The issue in context of a married woman for a Government post has been thoroughly elaborated in the case of Dr. Mrs. Munawar Zaheen v. The Secretary Punjab Public Service Commission, Lahore and 2l others (PLD 1974 Lahore 36) which says that: "

9. The law Debarment's advise dated 22.2.72 appears to be the correct analysis of the decisions of the Government on this subject. It is also otherwise reasonable and just. It imparts certainty on the question of domicile of a female Government servant by obviating the necessity of frequent changes in it, during continuance of her service and avoids absurdities which can arise by following the view of the Law Advisor. It is not denied that an unmarried female candidate belonging to a particular Zone will not lose her post if she gets married to a person of another zone, after selection. The result of this view would be that a woman who is eligible for a post from a particular Zone before marriage and can continue to hold the post reserved for said zone, despite marrying a person belonging to another Zone, but she will however be ineligible for person just before the Interview. The decision of the Service Department dated 14.1.72 was doubtless designed to correct such an absurd position. But the said decision must be red subject to the earlier decision made on 3.8.62."

8. Learned counsel for petitioner was heard at length, but he could not make out a case for sticking down the policy of PGMI as to the effect that domicile of married woman shall follow domicile of her husband. Even otherwise striking down such policy would complicate the matter of appointment of a married woman in every recruitment. The policy is rationale, logical and reasonable, besides being not violative of any constitutional or legal provisions.

9. So for as plea of learned counsel for petitioner regarding acquisition of certain rights of petitioner on the basis of her earlier admission to the training program is concerned, it is clear that she had obtained earlier admission through concealment of relevant facts from concerned authorities. An order obtained by a party through active concealment of fact can be rescinded by the authority wherefrom such order has been obtained under section 21 of the General Clauses Act and such authority would not be deemed divested of locus-poenitentiae for the purpose. In this respect reliance may be placed on the case titled Pakistan through Secretary Ministry of Finance v. Mohammad Himayat Ullah Faruki (PLD 1969 SC 407). Further reliance may here be placed on case titled Government of the Punjab Education Department through Secretary v. Mohammad Imran and others (2019 SCMR 643).

10. In light of what has been discussed above, both writ petitions were found divested of merit and are accordingly dismissed. SA/118/P. Petitions dismissed.