Shahnaz Akhtar Vs Govt: of KPK & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 1211-M/2023 (Shahnaz Akhtar Versus Government of KPK and others) Present:

Mr. Asghar Ali, Advocate for petitioner.

Mr. Rahimullah Chitrali, Assistant A.G. for respondents.

Date of hearing: 09.10.2025

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Petitioner Shahnaz Akhatar, has invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking the following reliefs:

“i. The action, inaction and denial of respondents to restore the appointment order of petitioner and to give her all the service benefits like pay / funds services /increments, allowances and promotions, since the date of initial appointment, may please be declared illegal, unlawful, unconstitutional and void ab-initio. ii. As the domicile cancellation order has been declared to be illegal, unlawful and unconstitutional and domicile of the petitioner of Village Usurai, UC Dislawar, has been restored, thus, the petitioner be held entitle to be compensated by restoration of her appointment order since the date of initial appointment i.e. 05-03-2016, with all back benefits in the shape of salaries, service funds, allowances, seniority, promotion, as well as all Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

other benefits received by and accrued to other colleagues appointed with petitioner vide initial order dated 05-03-2016.

iii. Any other relief not specifically prayed for but this august Court deems fit, may also be granted for the ends of complete justice.”

2.The petitioner, as per her averments, is a permanent resident of Village Usurai, Union Council Dislawar, Tehsil Wari, District Dir Upper. Her parents, brothers and cousins are also permanent residents of the same village, as is evident from their CNICs and domiciles 1.

On the basis of this origin, a domicile certificate2 was duly issued to her on 21.09.2010. Prior to that, when the petitioner was a minor, her family had temporarily migrated to Wari within the same district, and her father had obtained a domicile certificate3 for her of Wari on 08.09.2004. On 12.08.2015, posts of Primary School Teacher (PST) were advertised, against which the petitioner applied on the basis of her domicile of Village Usurai issued on 22.09.2010. She successfully secured appointment to one of the advertised posts and was issued an appointment order on 05.03.20164.

She continuously performed her duties thereafter.

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Subsequently, on 16.06.2016, she submitted an application5 for cancellation of her earlier domicile of Wari dated 08.09.2004. The relevant record6 shows that the department had duly verified the petitioner’s domicile and other credentials, and found them to be correct. However, upon receipt of a complaint regarding the petitioner’s possession of two domiciles, the matter was processed by the office of the Deputy Commissioner, Dir Upper. Vide order dated 24.06.20167, the Deputy Commissioner cancelled her domicile of Village Usurai, on the basis of which she had earlier secured her PST appointment. Thereafter, vide order dated 08.08.20168, she was removed from service on the ground of having obtained dual domiciles. She preferred a departmental appeal against the said order but the same was dismissed. Meanwhile, on 11.08.2016, the petitioner instituted a civil suit9 challenging the cancellation of her domicile of Usurai. In addition, she filed W.P. No. 586- M/2016 before this Court assailing the order of removal dated 08.08.2016 and seeking restoration of her domicile.

However, the writ petition was dismissed on 18.04.201710.

She thereafter approached the Supreme Court of Pakistan by Page 37 of the writ petition

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filing a civil petition, which too was dismissed vide order dated 22.11.201811 and leave was refused. Her review petition against the said order also met the same fate on 22.02.201912. Subsequently, the civil suit filed by her challenging the cancellation of her domicile was decreed in her favour vide judgment and decree dated 30.07.202113.

The official defendants preferred an appeal against the said decree, which was dismissed on 02.07.202214, thereby rendering the decree final. To execute the said decree, the petitioner filed an execution petition seeking withdrawal of the earlier cancellation of her domicile of Village Usurai. In consequence, the Deputy Commissioner, vide order dated 25.05.202315, restored her domicile of Village Usurai earlier issued on 21.09.2010, while simultaneously cancelling the first domicile of Wari dated 08.09.2004. The execution proceedings were thereafter consigned as satisfied.

Following the restoration of her domicile, the petitioner submitted a departmental appeal seeking reinstatement in service; however, the same elicited no response from the department. In the above backdrop, the petitioner has now invoked the constitutional jurisdiction of this Court, Page 21 of the comments

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challenging the order of her removal from service on the ground that the said order was based solely on the cancellation of her domicile of Usurai, which has subsequently been set aside through a valid decree of the civil court that has attained finality.

3.Respondents No.4 and 5, in their official comments, have controverted the petitioner’s stance primarily on the ground that the civil suit decreed in her favour pertained only to the cancellation of her second domicile, and that the said decree had no bearing on the order of her removal from service. They have, however, offered only an evasive denial regarding the petitioner’s assertion that she had filed a departmental appeal after the restoration of her second domicile of Village Usurai, the very domicile on the basis of which she had originally secured appointment against the post of PST.

4.Arguments heard and record perused.

5.After hearing learned counsel for the petitioner and the learned Assistant Advocate General representing the official respondents, we find ourselves in agreement with the stance advanced on behalf of the petitioner. The very foundation of the petitioner’s removal from service was the cancellation of her domicile certificate of Village Usurai, Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

issued to her on 22.09.2010. Against the said cancellation, the petitioner had continuously pursued appropriate legal remedies and ultimately succeeded in obtaining a decree in her favour from the competent civil Court. The decree was subsequently acted upon by the departmental authorities, culminating in the restoration of her domicile certificate of Village Usurai through due legal process. It is also significant to note that the respondents have not alleged that the domicile certificate issued to the petitioner on 22.09.2010 was ever invalid or forged; rather, their sole objection was that she had obtained dual domiciles. Now that the basis of the impugned removal order namely, the cancellation of her domicile, no longer exists and has been set aside through lawful adjudication, the petitioner is entitled, in law and equity, to be restored to the position she held prior to the impugned action. Once the foundational order is nullified, all consequential orders flowing therefrom automatically fall to the ground, and the petitioner’s right to restitution to her original service position stands established.

6.We have also examined the case law developed by the superior Courts of the country on the subject of domicile and find that a consistent judicial view has emerged. The law recognizes that every individual possesses a domicile of origin ascribed to him by birth. Upon acquiring Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

a domicile of choice, there is no legal obligation on the holder to cancel or relinquish his domicile of origin. Before delving into the legal consequences flowing from the acquisition of a second domicile, it is essential to properly understand the import of the term “domicile” and its legal significance, particularly when it becomes a determining factor in matters of eligibility for appointment, admission or retention of a post. The concept and legal character of “domicile” has been examined and elucidated by the superior Courts in several judgments, which are briefly summarized in the following paragraphs.

7.In the case of Central Bank of India v. Ram Narain 16, the Supreme Court of India has discussed the concept of “domicile” in its international dimension and elaborated upon its essential ingredients. While examining the legal connotation of the term, the Court referred to various authorities on Private International Law and highlighted the inherent difficulty in framing an absolute definition of domicile, noting that the term lends itself more readily to illustrations than to rigid definitions. The relevant extract reads as follows:

“Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of PLD 1956 Supreme Court (Ind.) 81 Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

’domicile’. The simplest definition of this expression has been given by Chitt y, J., in Craighish v. Craignish wherein the learned Judge said. “The Place is properly the domicile of a person is which his habitation is fixed without any present intention of removing therefrom. ”

But even this definition is not an absolute one. The truth is that the term ’domicile’ lends itself to illustrations but not definition. Be that as it may, two constituent elements that are necessary by English Law for the existence of domicile are: (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be the continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside fore ever in the country where the residence has been taken up. It is also a well- established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country where in reality he has not. A person may be a vagrant as when he lives in a yatch or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicile in one particular territory. In order to make the rule that nobody can be without a domicile effective, the low assigns what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves the country o( Itis origin with an undoubted intention to never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. ” [emphasis added]

8.I n matters relating to admission to medical colleges, the question of how intention to reside at a particular place is to be inferred has come up for Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

authoritative determination before the Supreme Court of Pakistan in the case of Miss Amtul Naseer Sami v. Secretary Health, Government of Balochistan17. The Court elaborated on the evidentiary indicators through which such intention can be ascertained, emphasizing that it involves both qualitative and quantitative aspects of residence. The relevant extract reads as follows:

“We find that on page 5 of the report the learned Judge has adopted with approval the observation of Lord Macmillan in the case of Ramsay v. Liverpool Royal Infirmary to the effect that the residence much answer a qualitative as well as quantitative test, and that the Court have regarded naturalization, purchase of house, or burial ground, exercise of political rights, financial expectation, establishment of children in business, the place where a man's wife and family reside as indicia of his intention in regard to residence. ”

9.In the context of citizenship, the interpretation of the term “domicile” came under consideration before the High Court of Azad Jammu and Kashmir in the case of Muhammad Ashfaq Khan v. Chairman, Nomination Board AJ&K Government 18. The Court observed that “ownership of immovable property was an important factor for determination of domicile yet it was not the sole criterion.”

It was further held that “domicile of a dependent son follows the domicile of his father if son is putting up with his father.”

1975 SCMR 265

PLD 1979 AJ&K 43

Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

10.In the case of Ahmad Hassan v. Abdullah 19, this Court has elaborated upon the concept of “domicile”, distinguishing between “domicile of origin” and “domicile of choice”, and emphasized that the former continues to attach to a person until it is effectively replaced by the latter through both residence and intention (factum and animus manendi). The relevant portion of the judgment reads as follows:

“26. Corpus Juris Secondum, Volume 28 at page 10 and 11 while dealing with the subject of ’domicile’, divides it into two kinds viz. domicile of origin and domicile of choice. The former is defined as.-- “A person's domicile of origin is the domicile of his parents, the head of his family, or the person on whom he is legally dependent, at the time of his birth. It is generally, but not necessarily, the place of birth.”

The latter is defined as.’--

“A domicile of choice is the place which a person has chosen for himself to displace his previous domicile; it is based on the intention of the person”. Again continuing with the subject of domicile it is stated that:-- “Apart from statutory regulation, no particular period of residence is required to establish domicile, and any residence, however short, will suffice when coupled with intent, without intent, residence, however long continued, will not establish domicile.”

And adds. --

PLD 1992 Peshawar 1 Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“A change of domicile or residence depends on intention, or, as sometimes stated, on a dual intention to abandon the former domicile and to acquire another”.

According to Halsbury's Laws of England 3rd Edition Vol.7, page 14,

“The law attributes to every person at birth a domicile which is called a domicile of origin. This domicile, may be changed and a new domicile, which is called a domicile of choice acquired but the two kinds of domicile differ in the following respects:

(1)The domicile of origin is received by operation of law at birth, the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi.

(2)The domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested by mere abandonment and is never destroyed though it remains in abeyance during the continuance of domicile of choice, the domicile of choice is lost by abandonment whereupon the domicile of origin is acquired; the domicile. of choice, when is once lost, is destroyed but may be acquired a new by fulfilling the same conditions as are required in the first instance.”

Similarly, in Wright v. Wright reported in ILR 1958 Calcutta 259 as also in Rooks v. Rooks reported in A.I.R. 1934. Bombay 239 it is laid down that a person continues to retain his domicile of origin until a domicile of choice is acquired and even then the domicile of origin merely remains in abeyance and further that there must be both the factum of residence and animus manendi and must be no animus revertendi to the former domicile. The report further adds that residence of animus manendi by itself will not be inferred to confer a new domicile.

Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

27.Questions of this nature did arise before Courts of Pakistan. In case of Ralph William Bagley v. Elizabeth Bagley reported in PLD 1954 Dacca page 147 as well as John Oswald Horatio Neale v. Mrs. Margaret Eileen Neale P L D 1957 Dacca page 363 while elaborating the said two kinds of domicile with reference to person who migrates from the place of his origin to the place of his choice; the ratio decidendi is that mere residence in a place other than the place of his origin is not a proof of his domicile of his choice, unless the person abandons his domicile of origin and adopts the domicile of his choice that is to say he resides in the place, he has migrated to, permanently coupled with no intention whatsoever to go back to the place of his origin. The question also cropped up for consideration before the High Court of A.J.K. in the case of Nishat Saeed v. Nomination Board reported in PLD 1977 Azad J&K page 33 and while dealing with the word domicile it has been held that.’--

“A person who carries on business in a country and for that purpose has also constructed a house to live in, cannot be said to have abandoned his domicile of origin and embraced domicile of choice in the country in which he carries on the business without a valid declaration showing that he has abandoned the domicile of origin.”

28.In the light of the foregoing, we are clear in our mind that to every person who enjoys the status of sui juris, law assigns a domicile which can be expressed as his domicile of origin and which remains attached to him until a new and fresh domicile takes its place and that the domicile of origin remains intact until the person has not only manifested to carry into execution an intention of abandoning his former domicile and acquired another as his sole domicile. In other words, a person having a domicile of origin continues to be known therewith unless he chooses to acquire the domicile of choice and, notwithstanding this, his domicile of origin remains in abeyance unless he specifically abandons the same.”

Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

11.Apart from the legal concept of “domicile”, the expression “domicile certificate” has also been judicially examined. A Division Bench of this Court in the case of Afsar Khan v. Tribunal FCR20 has discussed its scope and legal character, holding that a domicile certificate primarily serves as official confirmation of a citizen’s permanent residence and is not tied to considerations of caste or tribe.

The relevant portion of the judgment reads as follows:

“11. Domicile certificate means the official confirmation of the place of permanent residence of a citizen. Apparently, it has nothing to do with castes or Tribes. A person belonging to Nasar sub-caste can neither be denied right of citizenship nor of domicile if he meets the criteria laid down by the law, the rules and the guidelines given by the Supreme Court. Moreover, the unambiguous certificate issued by the Tribal Elders of one of the recognized castes of Bhittani Tribe also confirms the entitlement of the petitioner to the benefits and liabilities of the Tribe being a resident of the area.”

In the same judgment, this Court further held that the right to acquire and hold domicile in any part of Pakistan originates from the fundamental right of freedom of movement guaranteed to every citizen under Article 15 of the Constitution of the Islamic Republic of Pakistan.

12.Applying the principles enunciated by the superior Courts to the facts of the present case, as well as the decree passed in favour of the petitioner by the competent civil Court,

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Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

it is abundantly clear that Village Usurai was the domicile of origin of the petitioner from the very outset. The fact that a domicile certificate of Wari was obtained on her behalf during her minority and temporary stay there is not disputed;

however, she subsequently adopted the proper legal course by submitting an application before the competent authority for its cancellation. Rather than cancelling the earlier domicile in accordance with her request, the respondents, in a patently misconceived and legally untenable manner, proceeded to cancel her second domicile, the one reflecting her place of origin, which ultimately resulted in depriving her of the employment she had lawfully secured through a transparent and competitive process. This course of action betrays not only a clear misunderstanding of the law relating to domicile but also a lack of due care and fair application of mind on the part of the respondents. Their assumption that the petitioner could not validly hold two domiciles, without appreciating the distinction between domicile of origin and domicile of choice, is entirely misplaced in light of the settled legal principles discussed above. Such a flawed approach has led to serious prejudice to the petitioner and cannot be countenanced by this Court. The impugned action, being contrary to law and based on a fundamentally erroneous premise, is not legally sustainable.

Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah

13.As a sequel to the foregoing discussion, this writ petition is hereby admitted and allowed in terms that the petitioner shall be reinstated in service forthwith. The respondents are further directed to release and pay to the petitioner outstanding salaries, if any, for the period she had actually performed her duties prior to her removal. Her prayer for back benefits is declined; however, the period from the date of her removal from service until her reinstatement shall be treated as service rendered for the purposes of reckoning her seniority and eligibility for promotion.

Announced Dt:09.10.2025 Sd/-

JUDGE

Sd/-

JUDGE

Tajamul/CS* (D.B) Hon’ble Mr. Justice Sabit Ullah Khan Hon’ble Mr. Justice Qazi Jawad Ehsanullah