Zaigham Abbas VS FOP & others

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3834/2016 Ziagham Abbas Versus Federation of Pakistan through Chairman FPSC and others Date of Hearing: 28.02.2018 Petitioner by: Mr. Khurram Ibrahim Baig, Advocate. Respondents by: Mr. Ahsan Mehmood Satti, learned Assistant Attorney-General, Mr. Kamran Raffat Deputy (Legal) F.P.S.C.

Mr. Ali Raza Zaidi Deputy Director (Law), for respondents No.2 and 3, Mirza Waqas Qayyum, and Mr. Muhammad Shoaib Shaheen, Advocates for respondent No.5, Respondent No.5 in person, Mr. Muhammad Asif Channa A.D. P.E.P.A.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Zaigham Abbas, impugns the letter dated 27.09.2016, issued by the Federal Public Service Commission (respondent No.1), whereby Ms. Farzana Altaf (respondent No.5) was recommended to be appointed as Director General (BS-20) of Pakistan Environmental Protection Agency (“P.E.P.A.”), Ministry of Climate Change, Government of Pakistan.

2.Mr. Khurram Ibrahim Baig, Advocate, learned counsel for the petitioner submitted that on 03.12.2015, an advertisement was published by respondent No.1 inviting applications for appointment against various posts including the post of Director General (BS-20) P.E.P.A.; that in the said advertisement, it was clearly mentioned that candidates had to have domicile from the Province of Punjab; that letters dated 14.11.2009 and 22.01.2014 from the Ministry of Environment/ Ministry of Climate Change show that on 01.07.1998, respondent No.5 was appointed as Deputy Director, P.E.P.A., having a domicile from the erstwhile North-West Frontier Province (“N.-W.F.P.”) (now Khyber Pukhtunkhwa (“K.P.K.”)); that the

General Instructions issued by respondent No.1 provided inter-alia that a domicile once claimed by a candidate and accepted by the government for the purpose of admission to an examination/selection cannot be changed subsequently; that on 05.03.1984 a certificate was issued by the Magistrate First Class, Haripur, N.-W.F.P., certifying that respondent No.5 was domiciled in N.-W.F.P.; that after respondent No.5’s marriage, she, on 15.12.1990, obtained the domicile from the Province of Punjab; that respondent No.5’s domicile from N.-W.F.P./K.P.K. was not cancelled until 29.04.2016; that respondent No.5 could not have been appointed as Director General in P.E.P.A. because she was holding a domicile from N.-W.F.P./K.P.K., when she joined service in 1998; that since respondent No.5 had claimed to have been domiciled in N.-W.F.P./K.P.K. when she joined service in 1998, she could not have been appointed as Director General, P.E.P.A. on the basis of her domicile from Punjab; that the petitioner had also participated in the competitive process for appointment against the post of Director General in P.E.P.A., and was therefore, aggrieved by respondent No.5’s appointment against the said post; and that on 07.10.2016 the petitioner submitted a representation to respondent No.1 against respondent No.5’s appointment, but having not received any response, he, on 22.10.2016, filed the instant writ petition. Learned counsel for the petitioner prayed for the writ petition to be allowed, and for respondent No.5’s appointment as Director General, P.E.P.A. to be declared unlawful.

3.On the other hand, Mirza Waqas Qayyum, Advocate, learned counsel for respondent No.5, submitted that in response to an advertisement dated 20.01.1996, issued by the Ministry of Environment, Government of Pakistan, respondent No.5 applied for the post of Deputy Director (BS-18) in the said Ministry; that respondent No.5 was appointed to the said post against the Punjab quota, whereas Mr. Irfan Saeed was appointed against the N.- W.F.P./K.P.K. quota; that at the time of her entry into service in 1998, respondent No.5 had claimed her domicile from Punjab, and

not from N.-W.F.P./K.P.K.; that after respondent No.5 got married, she obtained domicile from Punjab on 15.12.1990; that after 15.12.1990, respondent No.5 has never claimed her domicile from N.-W.F.P./K.P.K. in order to gain appointment in government service; that the domicile cancellation certificate issued by the Assistant Commissioner, Abbottabad, on 29.04.2016, does not adversely affect respondent No.5’s appointment as Director General, P.E.P.A. because after 15.02.1990, she had never sought appointment in government service on the basis of her domicile from N.-W.F.P./K.P.K.; that on 02.05.2016, respondent No.5 had given a declaration to respondent No.1 that she was not in possession of any domicile certificate other than the one from District Attock, and that she had surrendered her earlier domicile issued from N.-W.F.P./K.P.K.; that the Ministry of Climate Change, vide office memorandum dated 31.10.2016, had clarified to respondent No.1 that respondent No.5’s first appointment, on 01.07.1998, was made against Punjab quota; that the Ministry of Climate Change/respondent No.2, in its written comments, had clarified that in the letter dated 14.11.2009 (on which the petitioner places heavy reliance) respondent No.5’s domicile was indicated to be from N.-W.F.P./K.P.K. as a result of inadvertence; and that in the said written comments, it has been clarified that respondent No.5’s first entry into government service was on the basis of her domicile from Punjab. Learned counsel for respondent No.5 prayed for the writ petition to be dismissed.

4.Mr. Kamran Raffat, Deputy Director (Legal), Federal Public Service Commission, and Mr. Ali Raza Zaidi, Deputy Director (Law) Ministry of Climate Change, defended respondent No.5’s appointment as Director General, P.E.P.A. by submitting that since respondent No.5 had claimed her domicile from Punjab when she was first appointed in government service as Deputy Director (BS- 18), there was no legal infirmity in her appointment as Director General, P.E.P.A. on the basis of her domicile from Punjab.

5.I have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.

6.The record shows that on 03.12.2015, an advertisement was published by respondent No.1 inviting applications for appointment against various posts including the post of Director General (BS-20) in P.E.P.A. In the said advertisement, it was clearly mentioned that candidates applying for the said post had to have a domicile from the Province of Punjab. The petitioner as well as respondent No.5 applied for appointment against the said post.

7.Vide impugned letter dated 27.09.2016, issued by respondent No.1, respondent No.5 was recommended to be appointed as Director General (BS-20) of P.E.P.A. It is not disputed that respondent No.5 was appointed against the said post.

8.The petitioner questions respondent No.5’s said appointment primarily on the ground that since she was domiciled in N.- W.F.P./K.P.K., she could not have been appointed as Director General, P.E.P.A., as a domicile from Punjab was an essential requirement for the candidates for the said post. The petitioner places reliance on letters dated 14.11.2009 and 22.01.2014 from the Ministry of Environment/ Ministry of Climate Change, which show that on 01.07.1998, respondent No.5 was appointed as Deputy Director, P.E.P.A., having a domicile from N.-W.F.P./K.P.K. In asserting that respondent No.5 having first been appointed in government service on the basis of her domicile from N.- W.F.P./K.P.K., could not have been appointed as Director General, P.E.P.A. on the basis of her domicile from Punjab, learned counsel for the petitioner places reliance on the following general instructions issued by respondent No.1:- “V.) The domicile claimed by a candidate and accepted by the Government at the time of first entry into Government service shall be treated as final throughout his/her service career and no subsequent change in his/her domicile will be recognized for the purpose of terms & conditions of his/her service including his/her allocation and liability to transfer. VI. The domicile once claimed and accepted by the Commission for the purpose of admission to any examination/selection

shall be treated final and, no change will be allowed at a subsequent examination/selection.”

9.It is not disputed that on 05.03.1984, a certificate was issued by the Magistrate First Class, Haripur, N.-W.F.P., certifying that respondent No.5 was domiciled in N.-W.F.P. After respondent No.5’s marriage, she, on 15.12.1990, obtained the domicile from the Province of Punjab. It is not disputed that respondent No.5's husband is a permanent resident of District Attock in the Province of Punjab. True, respondent No.5’s domicile from N.-W.F.P./K.P.K. was cancelled by the Assistant Commissioner, Abbottabad, on 29.04.2016, but the vital question that needs to be determined is whether respondent No.5 obtained entry into government service by claiming her domicile from N.-W.F.P./K.P.K. at any material stage.

10.The documents brought on record by the respondents show that in response to an advertisement dated 20.01.1996, issued by the Ministry of Environment, Government of Pakistan, respondent No.5 applied for the post of Deputy Director (BS-18) in the said Ministry, and that respondent No.5 was appointed to the said post against the Punjab quota, whereas Mr. Irfan Saeed was appointed against the N.-W.F.P./K.P.K. quota. As regards the above mentioned letter dated 14.11.2009 (on which the petitioner places heavy reliance), the Ministry of Climate Change, vide office memorandum dated 31.10.2016, had given a clarification to respondent No.1 that respondent No.5’s first appointment, on 01.07.1998, was made against Punjab quota. Furthermore, the Ministry of Climate Change/respondent No.2, in its written comments, had clarified that in the letter dated 14.11.2009, respondent No.5’s domicile was indicated to be from N.-W.F.P./K.P.K. as a result of inadvertence. I am also told that action has been taken against persons responsible for making incorrect entries regarding respondent No.5’s domicile in the said letters dated 14.11.2009 and 22.01.2014.

11.Learned counsel for the petitioner could not come up with anything convincing to show that prior to respondent No.5’s

appointment as Director General, P.E.P.A. on the basis of her domicile from Punjab, she had gained appointment in government service on the basis of her domicile from N.-W.F.P./K.P.K. The documents on the record including the office memorandum dated 31.10.2016 from the Ministry of Climate Change, show that respondent No.5’s first entry into government service in 1998 was on the basis of her domicile from Punjab. The mere fact that her domicile from N.-W.F.P./K.P.K., issued prior to her marriage, had been cancelled in 2016 would not ipso facto make respondent No.5’s appointment as Director General, P.E.P.A. unlawful.

12.In view of the aforementioned, I do not find any merit in this petition, which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON 07.03.2018.

(JUDGE)

Qamar Khan*