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Petitioner: Dr. M. FURRUKH VS Respondent: GOVERNMENT OF PUNJABHonorable Justice Khalil-ur-Rehman RamdayAhmed Waseem,Mushtaq Ahmed Mohal
2003 P L C (C
2003 P L C (C. S.) 170
[Lahore High Court]
Before Khalil-ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ
Dr. M. FURRUKH
Versus
GOVERNMENT OF PUNJAB through Secretary to Government of Punjab, Health Department and another
Writ Petitions Nos.15870 and 20800 of 2000, heard on 19th November, 2001.
(a) Civil service‑‑‑
‑‑‑Appointment‑‑‑Entitlement‑‑‑Candidature of candidate was rejected on the ground that the posts in question were meant only for men and women domiciled in the Province of Punjab whereas the candidate was a domicile of Federal Capital Territory of Islamabad, which territory was not a part of the Province of Punjab‑‑Validity‑‑‑Federal Capital was a separate entity which vas a territory independent of and not apart of any of the Provinces of Pakistan‑‑‑Province of Punjab did not include the Islamabad Capital Territory‑‑‑Expression men and women domiciled in Punjab could not be understood to include the men and women domiciled in the Islamabad Capital Territory‑‑‑Candidature of candidate/petitioner as doctor was rightly rejected by the Punjab Service Commission.
(b) Province of West Pakistan (Dissolution) Order (1 of 1970)‑‑‑
--‑‑Art. 14(2)‑‑‑Constitution of Pakistan (1973), Art. 192(4)‑‑‑Civil service ‑‑Judicial service‑‑‑Appointment‑‑‑Eligibility‑‑‑Territories of Pakistan Candidature of the candidate for one of the posts of Civil Judges‑cum-Judicial Magistrates was rejected on the ground that posts in question were meant only for men and women domiciled in the Province of Punjab whereas the candidate was a domicile of Federal Capital Territory of Islamabad and that the said territory was not a part of the Province of Punjab ‑‑‑Validity‑‑Province of "West Pakistan" was dissolved through Province of West Pakistan (Dissolution) Order (1 of 1970) and under said Order four existing Provinces and Centrally Administered. Areas called Islamabad Capital Territory were created‑‑‑ Under Art.14(2) of the said Order, Islamabad, Capital Territory would he within the jurisdiction of the High Court of Punjab and said situation was protected by Art.192(4) of the Constitution of Pakistan (1973)‑‑‑Islamabad Capital Territory, though geographically, territorially, administratively and for the purpose of legislation did not form part of the Province of Punjab, but for the purpose of the judiciary, said territory had come under the control of the Province of Punjab through its High Court and as a result of said legal and Constitutional position, the judicial officers serving in the Islamabad Capital Territory were the officers belonging to the judiciary of Punjab and it was the High Court of Punjab which was exercising authority over the said officers‑‑‑If the Islamabad Capital Territory fell under the powers of Punjab for the purpose of judiciary and if it was the judicial officers from Punjab who held judicial posts in Islamabad, then it would be neither just nor proper to keep the men and women of Islamabad out of judicial service of Punjab‑‑‑So long as the Islamabad Capital Territory remained under the jurisdiction of the High Court of the Province of Punjab, the men and women domiciled in said territory, would be eligible to hold posts in the judicial service of the said Province‑‑‑Authorities concerned, however, could reserve only
a specified number of seats in said service for the residents of Federal Capital.
Ahmed Waseem for Petitioner.
Mushtaq Ahmed Mohal for Respondents.
Date of hearing: 19th November, 2001.
JUDGMENT
KHALIL‑UR‑REHMAN RAMDAY, J.‑‑This judgment shale dispose of Writ Petition No.15870 of 2000 as also Writ Petition No.20800 of 2000 as both these petitions involve similar legal and Constitutional questions.
2. Dr. Muhammad Farrukh was a candidate for one of the posts of Assistant Professor (Radiotherapy) with the Government of Punjab in its Health Department. His candidature was rejected on the ground that the posts in question were meant only for men and women domiciled in the Province of Punjab, that the petitioner was a domicile of Federal Capital Territory of Islamabad and that the said territory was not a part of the Province of Punjab. He questions this decision of the respondent‑Punjab Public Service Commission through the above mentioned Writ Petition No. 15870 of 2000.
3. The petitioner in the above mentioned Writ Petition No.20800 of 2000 was a candidate for one of the posts of Civil Judges Judicial 'Magistrates in the Province of Punjab. In the final merit list he appeared at No.121 and thus did not qualify to secure one of the 115 seats which were available for the purpose. His grievance is that respondents Nos.2 to 6. who stood selected for the posts in question were wrongly considered entitled to compete for the said posts which were meant only for men and women domiciled in the Province of Punjab as the said respondents were not residents of any of the territories falling within the said Province because as her certificates of domiciles submitted by them they belonged to the Federal Capital Territory of Islamabad.
4. The issue which emanates from these two petitions and which requires determination by us is the legal and the Constitutional status of the Federal Capital Territory of Islamabad vis‑a‑vis the Province of the Punjab.
5. We consider it unnecessary to burden this judgment with the history and the background of how a piece of land was carved out of the area now falling within the Province of Punjab, to house the Federal Capital and the different legal and Constitutional stages through which the same passed starting from the year 1960. Suffice it to say that the position as it stands today 'under the Constitution of 1973 is that as per Article 1(2) of the Constitution, the territories of Pakistan comprise of four Provinces being the Province of Balouchistan, the N.‑W.F.P., the Punjab and the Sindh Islamabad Capital Territory called the Federal Capital; the Federally Administered Tribal Areas and such States and territories as are or may be included in Pakistan. It is thus obvious that the Federal Capital is a separate entity which is a territory independent of and not a part of any, of the Provinces of Pakistan. It is, therefore, not possible for us to hold that the Province of Punjab included the Islamabad Capital Territory. Consequently, the expression "men and women domiciled in Punjab" could not be understood to include .the men and women domiciled in the Islamabad Capital Territory.
6. In this view of the matter, the candidature of Dr. Muhammad Farrukh was rightly rejected by the Punjab Public Service Commission. Therefore, Writ Petition No. 15870 of 2000 is dismissed.
7. The situation vis‑a‑vis Writ Petition No.20800 of 2000 relating to the posts of Civil Judges‑cum‑Judicial Magistrates is slightly different and a little less simple.
8. In the year 1970 the then existing Province of West Pakistan was dissolved through the Province of West Pakistan (Dissolution) Order being President's Order No. 1 of 1970 and the said President's Order instead created four Provinces to be known as Balouchistan, the N.‑W.F.P., the Punjab and Sindh and some Centrally Administered Areas to be called the Islamabad Capital Territory and the Centrally Administered Tribal Areas. Article 14 of the said Order No. 1 of 1970 catered for establishment of High Courts for these Provinces and sub‑Article (2) of the said Article 14 prescribed that the Islamabad Capital Territory shall be within the jurisdiction of the High Court of Punjab. This situation was protected by the Constitution of 1973 through its Article 192(4) which provided that the Parliament could extend the jurisdiction of High Court to any area in Pakistan not forming part of a Province. What thus appears is that although geographically, territorially, administratively and for the purpose of legislation, the Islamabad Capital Territory did not form part of the Punjab but for the purpose of the judiciary, the said territory came under the control of the Province of Punjab through its High Court. It is as a result of this legal and Constitutional position that the judicial officers serving in the Islamabad Capital Territory are the officers belonging to the judiciary of Punjab and it is the High Court of Punjab which is exercising authority over the said officers. Therefore, if the Islamabad Capital Territory falls under the power of Punjab for the purpose of judiciary and if it is the judicial officers from Punjab who hold judicial posts in Islamabad then it would be neither just nor proper to keep the men and women of Islamabad out of the judicial service of Punjab.
9. We would, therefore, hold and declare that so long as the Islamabad Capital Territory remains under the jurisdiction of the High Court of the Province of the Punjab, the men and women domiciled in the said Territory shall be eligible to hold posts in the judicial service of the said Province. It would, however, be open to the concerned authorities to reserve only a specified number of seats in the said service for the residents of the Federal Capital.
10. In this view of the matter, Writ Petition No.20800 of 2000 is also dismissed.
11. There shall be no orders as to costs.
12. Before we part with this judgment we would like to draw the attention of the Federal Government to the plight of the residents of Islamabad. As has been noticed above, the Capital Territory is a territory independent of and separate from the Provinces of the country. Its residents, thus, may not be eligible to compete for and be appointed to the governmental posts in any Province and there may not be very many openings and opportunities available for them in the Federal Government which could, in times, pose serious problems for such persons. The Federal Government, should therefore, seriously consider options to cater for the present and future needs of the men and women domiciled in the Capital Territory.
13. Send a copy of this judgment to our learned brother the Federal Law Secretary for such action as may be considered necessary.
H.B.T./M‑971/L Petition dismissed.