Sohaila Vs Government of Khyber Pakhtunkhwa through Secretary E&SED Peshawar, etc

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IN THE PESHAWAR HIGH COURT,

BANNU BENCII

(Judicial DePartment)

WP No.67-812023

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Sohaila v.

Government of KhYber Pakhtunkhwa through Secretary E&SED, Peshawar, etc.

JUDGMENT

Date of hearing 21.11.2024

For petitioner: Mr. Hamed Khan Advocate KAMRAN HAYAT MIANKHEL. J.. ThE petitioner asserts that by virtue of her marriage in 2012 to Noor Wali Khan, a resident of Union Council (UC) Nurar, Bannu, she attained the status of a permanent resident of this UC on the strength of section 16 of the Succession Aci, 1925. The respondents, she continued, advertised vacant posts of Primary School Teacher (PST) (BPS-12), allocating seven posts for UC Nurar, for which she apptied and was subsequently appointed after participating in the test and interview, as is evident from her appointment order dated 03.12.2022. However, she contended, the respondents abruptly (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

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cancelled / withdrew her appointment order on 13.12.2022, solely on the ground that although, she possessed a domicile of UC Nurar, but her CNIC did not reflect the same address as on the cut-off date, and having updated her address as Nurar in the CNIC after the cut-off date, she was not eligible to be appointed. Now, the petitioner has challenged the vires of the order, dated 13.12.2022, contending that it was passed without lawful authority and is, therefore, liable to be declared of no legal effect by invoking the jurisdiction under Article 199 of the Constitution.

2.In their comments, the respondents stated that the vacancies of PST were required to be filled in from candidates belonging to the UC of their permanent residence, as mentioned in their CNIC and domicile. However, they concluded, the address mentioned in the petitioner's CNIC was not UC Nurar, and she updated this address in her CNIC after the cut-off date, therefore, the petitioner was not eligible to be appointed.

3.Arguments heard and record perused.

(Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

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4.It is not in dispute that the petitioner married to a resident of UC Nurar. Even this fact has been independently established by her Marriage Registration Certificate, issued on 08.04.2013.

Similarly, the petitioner obtained the domicile certificate of UC Nurar on 07.09.2016. Notably, she has also annexed her husband's domicile certificate, issued on 21.08.1998. As all these documents were issued well before the cut-off date of the advertisement, therefore, it is crystal clear that the petitioner is a valid domicile holder of UC Nurar, not only on the basis of these documents, but also on the strength of section 16 of the Succession Act, 1925, which provides that a wife's domicile during marriage follows that of her husband. Reliance can also be placed on the ruling of this Court in Shabnam v. Government o.f Kh:tber Pakhtunkhwa through Secretaryt Elementary) & Secondary Education and 4 others (2015 PLC (C.S.) 1111 Peshawar).

5.The only issue involved in this writ petition is whether a candidate who has a valid domicile of a particular UC, but whose CNIC does not mention the address of that UC, should be deemed (Ghafoor Zaman) (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

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ineligible from consideration for appointment as PST in that UC? The relevant provision dealing with this issue is section 3 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 20lL It is reproduced hereunder for ease ofreference:

3.Appointment, posting and transfer of primary school teachers.---(l) 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 [...]

6.No doubt, a plain reading of this provision postulates that for a candidate to be appointed against the post of PST, it is essential that both their CNIC and domicile reflect the address of the UC in which the appointment is to be made. However, we find that the issue of eligibility of a candidate based on the address mentioned in the domicile and CNIC, with reference to section 3 of the 20ll Act, has not been left unattended. The latest being the judgment in the case of District Educatton Officer (Female.), Ch.arsad.rla. on.rJ. other.c v. Sonia Besum and others (2023 SCMR 217) is worthy of being referred. In (Ghafoor Zaman) (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

n this case, the Supreme Court addressed the issue once for all and authoritatively ruled as under:

l2.By and large, the domicile of a person is treated as a parent document for recruitment in order to ascertain the permanent abode. Here all the respondents unequivocally asserted that they possess the domiciles of the concerned UCs as a matter of course and also offered valid justifications for the intermittent change of address with further affirmation that the place of their permanent residence is as per their domiciles. It is translucent from the provisions contained under the Citizenship Act that neither a person can obtain multiple domiciles, nor the law approves or allows any such act or. practice. If the jobs are given merely considering the CNIC without considering the address on the domicile then it would create various complications and complexities and even in the case of temporarily shifting or in case of a rented house, the person will be forced every time to apply for fresh domicile with the address of changed abode and in such eventuality, he will be neither here nor there but unfortunately a rolling stone, who would never be able to secure a job due to the alleged discrepancy and his candidature will be rejected every time, meaning thereby that if he will apply on CMC address, he will be rejected due to difference in domicile address and if he will apply on domicile, again he will be rejected due to different address on CNIC which will somehow or the other lead him out of arerta, sometimes due to address on CNIC and sometimes on the basis of address on certif,rcate of domicile which cannot be the same in each and every case as a rule due to different circumstances which include temporary dwelling despite having permanent address at the place of domicile. So for all intents and purposes, the weightage and preference should be given firstly to the certificate of domicile which cannot be ignored without due consideration. In our (Ghafoor Zamm) (D.B.) Hon'ble Mr. Justice Kamran Flayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

n considerate view, no restrictive or dissuading interpretation of Section 3 of the 2011 Act can be accentuated or overextended to nullify and abolish the effect of certificate of domicile and/or to give preference to the CNIC over the domicile and if it is done, then it will render the entire concept of a domicile redundant and meaningless in the recruitment process.

7.Furthermore, this Court has also been able to develop a good deal ofjurisprudence on the subject.

For instance, in Arosha lqbal v. Government of Khvber unkhwa throush Secretarv

etc. (WP No.906-B12021, decided on 25.09.2024), this Court ruled that the exclusion of a candidate from the merit list on the basis of the address mentioned in their CNIC is unjustified, and the respondents were obligated to consider the eligibility of the candidate on the basis of domicile and merit. Similarly, in the case of Shahida Bibi v.

Peshawar, etc. (WP No.593-812022, decided on 25.09.2024), this Court, on the authority of Sonia Begum 's ruling, held that preference should be given to the domicile certificate in the recruitment process.

Likewise, in the case of Gul Nawab v. Governryent (Ghafoor Zaman) (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Dr. Khurshid Iqbal

1 of Khvber Pakhtunkhwa (WP No'488-A/2023, decided on 30.11.2023), this Court ruled that a candidate could not be knocked out from the recruitment process merely on the ground that his permanent address in the CNIC is not the same as reflected in the domicile certificate'

8.Given the factual background of the matter vis-ir-vis the jurisprudence developed so far on the subject, we unanimously hold that the withdrawal I cancellation of appointment of the petitioner merely on the ground that her CNIC did not mention UC Nurar as her permanent address on the cut-off date is not in accordance with law, as her residency based on her domicile certificate of UC Nurar is otherwise established. Therefore, while relying upon the judgments referred to above, wo admit and allow this petition, declare the order dated 13.12.2022 as coram non judice and void ab initio, and restore the petitioner's appointment order dated 03.12.2022, as prayed for.

Announced sc,\i!-Ng) | , t a l' 2t.r1.2024

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SCANNED (D.B.) Hon'ble Mr. Justice Kamran Hayat Miankhel (Ghafoor Zaman) Hon'ble Mr. Justice Dr. Khurshid Iqbal