Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-12-31, officially reported as 2024 PLD 576. In this matter between Federal Public Service Commission, through its Chairman, Islamabad and JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Supreme Court of Pakistan Judge(s): Syed Mansoor Ali Shah, Aqeel Ahmed Abbasi Title:Federal Public Service Commission, through its Chairman, Islamabad vs

JUDGMENT

Reported As: 2025 SCP 226 Result: Order Accordingly Judgment

JUDGMENT Syed Mansoor Ali Shah, J.- Briefly, Dr. Shumaila Naeem (the "respondent") then unmarried, joined government service as a Medical Officer on 07.09.2007[1], based on her domicile of origin in Khyber Pakhtunkhwa ("KPK"). Following her marriage on 31.05.2008 to a civil servant domiciled in Balochistan, she was transferred on deputation to the Pakistan Institute of Medical Sciences ("PIMS") under the Ministry of National Health Services Regulations and Coordination ("MNHS"), in accordance with the wedlock policy, vide order dated 08.09.2009. She was subsequently absorbed at PIMS through a notification dated 17.12.2013, and was later promoted to the post of Senior Registrar (BS-18) on 14.12.2021 and also performed duties as Assistant Professor (BS-19). It is prudent to note that the respondent did not change or alter her domicile throughout this time on the basis of her husband's domicile which is of Balochistan. Subsequently, during service, the respondent changed her domicile to that of her husband i.e, Province of Balochistan on 20.10.2018 and formally relinquished her Province of KPK domicile on 25.10.2018. On the basis of her new domicile, she applied for an advertised post of Associate Professor (Obstetrics & Gynaecology) (BS-19) at PIMS against the Balochistan seat. Controversy arose when the respondent, having obtained the requisite departmental no objection certificates ("NOCs") for applying to the post of Assistant Professor (Obstetrics & Gynaecology) (BS-19) on the basis of her Balochistan domicile, got rejected by Federal Public Service Commission ("FPSC"). Although the respondent successfully passed the written examination, her candidature was rejected by the FPSC vide memorandum dated 10.07.2024, on two grounds: first, that a change of domicile after entry into government service is

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impermissible; and second, that she lacked the requisite experience for the post. Dissatisfied with the FPSC's decision, the respondent preferred a departmental representation, which, along with her subsequent review petition, was dismissed through orders dated 12.09.2024 and 02.10.2024, respectively. However, her appeal under Section 7(3)(d) of the FPSC Ordinance, 1977 ("Ordinance") before the Islamabad High Court was allowed vide judgment dated 28.01.2025 ("impugned judgment"), whereby the impugned decisions rejecting her candidature were set aside. Aggrieved by the impugned judgment, the present petition for leave to appeal has been filed before this Court by the FPSC. 2. The learned Additional Attorney General, assisted by representatives of the FPSC and MNHS, contended that under the Establishment Division's Office Manual No. F.8/5/75-WC dated 12.08.1975 ("O.M. 1975")[2], a married female candidate may adopt her husband's domicile if applying for a post through "direct recruitment". However, it was argued that "direct recruitment" refers solely to first-time entry into service, after which the domicile declared at initial induction under Establishment Division Office Manual No. 1/14/71-TRV dated 20.09.1971 ("O.M. 1971") becomes final and binding for the duration of service. The High Court, it was submitted, erred in holding that O.M. 1975 overrides O.M. 1971; instead, both operate in distinct spheres: O.M. 1975 governs initial appointments, while O.M. 1971 applies post-entry. Permitting a change of domicile mid-service, it was argued, could lead to arbitrary advantage and disruption of seniority. On the respondent's experience, it was submitted that the certificates were issued by unauthorized officials and reflected service on an internal arrangement, not a substantive appointment or promotion to BS- 18. Hence, her experience was non-countable. Additionally, the NOC was challenged as legally infirm, allegedly obtained through misrepresentation of domicile. Accordingly, the FPSC's rejection of both her Balochistan domicile and experience was defended as lawful. 3. Conversely, learned counsel for the respondent raised several objections to the FPSC's actions. As a preliminary matter, he contended that the FPSC lacks locus standi to file the petition and cannot be represented by the State, relying on this Court's settled jurisprudence. On merits, it was argued that the respondent, having secured the highest marks in the written examination, acquired a vested right to be fairly considered for appointment, one that could not be arbitrarily denied. He further submitted that the respondent does not fall within the definition of a "civil servant" under the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, making O.M. 1971 inapplicable. Since the post was to be filled through "direct recruitment", her husband's domicile recognized under O.M. 1975 ought to be considered. "Direct recruitment", it was emphasized, entails fresh appointments distinct from existing service, seniority, or promotion structures, involving independent pay scales and selection procedures. The respondent was said to have met all experiential requirements, supported by a valid experience certificate issued under the Pakistan Medical and Dental Council Regulations, 2018 ("PMDC Regulations"). As this certificate had not been challenged through any legal forum, it had attained finality. Reference was also made to Rule 14 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which allocates only six percent of seats for Balochistan. It was argued that had the respondent retained her KPK domicile, her selection prospects would have been stronger, undermining allegations of strategic domicile change. Accordingly, the FPSC's rejection of her domicile and experience was characterized as arbitrary, erroneous, and without legal basis. 4. The learned amicus curiae opined that Sections 15 and 16 of the Succession Act, 1925 ("1925 Act") are inapplicable to the present matter, as their provisions do not extend to Muslims. She further submitted that the respondent may avail the benefit of O.M. 1975 only if this Court concludes on the factual plane that the advertised post constitutes a new post and falls within the scope of "direct recruitment".

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5. We have heard the learned counsel for the parties and amicus curiae at length and have carefully examined the impugned judgment, the applicable law, and the record of the case. Preliminary Objections: Locus Standi, Representation and Status of the Respondent 6. Before addressing the substantive issues, we must first dispose of the preliminary objections raised by the respondent. Firstly, he contended that the FPSC lacks locus standi to file the petition relying on Rahim Foods[3]. We have examined the said judgement whereby this Court categorically held that the Competition Commission of Pakistan ("CCP"), under the Competition Act, 2010 ("2010 Act"), functions primarily as a regulatory body and also as a quasi-judicial forum. However, when CCP decides a matter between rival parties in exercise of its quasi-judicial powers, CCP cannot claim to be an aggrieved person for the purposes of challenging a decision before a superior forum.[4] No such quasi-adjudicatory framework exists under the Ordinance in question[5], which merely provides for an administrative review of the FPSC's own decisions. Therefore, the instant case is distinguishable. The impugned rejection of the respondent's candidature is not a determination made in a quasi-judicial capacity of FPSC between contesting parties but rather exercising an administrative power of review of its earlier order. Therefore, the precedent cited by the respondent is inapposite, as it pertains to quasi-judicial bodies seeking to defend their adjudicatory decisions, which is not the situation here. The objection to the locus standi of the FPSC to file the present appeal is misconceived. 7. The second objection challenging the competence of the learned Additional Attorney General to represent the FPSC is equally untenable. As an attached department of the Establishment Division[6], the FPSC is a Federal Government entity and, as a matter of settled law, must be represented by government counsel, not private advocates.[7] The respondent's claim of a vested right to appointment on the basis of her performance in the written test is similarly flawed. The FPSC retains the authority to determine eligibility, and mere success in the examination or a conditional recommendation does not confer a vested right to appointment.[8] Further, the argument that the respondent is not a civil servant lacks merit. It is settled by this Court that a civil servant is someone who holds a civil post in connection with the affairs of the Federation and who has been employed by the competent authority i.e., either by the FPSC or the Provincial Public Service Commission in the prescribed manner after following the due process of law and having gone through the process of competition.[9] Applying this to the instant case, the respondent was appointed through the KPK Public Service Commission i.e., competent authority through an open competition, Moreover, this Court has already held that doctors employed in PIMS and other federal institutions hold civil posts and are civil servants within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973.[10] Accordingly, the respondent's reliance on the inapplicability of O.M. 1971 is misplaced and does not withstand scrutiny. The Legal Doctrine of Domicile: Origins, Elements, and Contemporary Relevance 8. Before turning to the core controversy surrounding domicile and its bearing on "direct recruitment", it is instructive to examine the legal doctrine of domicile itself. Modern scholarship traces its origins to Roman law, with English Canon Law serving as the vehicle for its transmission into the common law tradition.[11] The term "domicile" is derived from the Latin domicilium (from domum colere - to inhabit or cultivate a home), and its Dutch counterpart woonplaats, both evoking the notion of a permanent legal home "this is where you are, because this is where you belong."[12] Across jurisdictions, legal dictionaries and judicial pronouncements consistently define domicile as a person's legal home to which they intend to return whenever absent.[13] Lord Chelmsford aptly described it as the "intention of a permanent home."[14] Thus, domicile has two essential components: (i) factum - the physical fact of residence; and (ii) animus manendi - the intention of remaining there permanently.[15] Importantly, domicile is not synonymous with residence. While one may have multiple residences, a person can have only one domicile at a time.

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Indeed, even a person with no physical home cannot be without a domicile in law. Domicile may be categorized as: (i) Domicile of origin: acquired by operation of law at birth; (ii) Domicile of choice: adopted voluntarily by a legally competent person intending to make a place their permanent home; and (iii) Domicile of dependence: determined by the domicile of another, such as a spouse, parent, or legal guardian.[16] It is a settled principle that any person, subject to legal capacity and in accordance with applicable law, may lawfully change their domicile. 9. Domicile, though often perceived as administrative, is a foundational legal concept that shapes an individual's access to rights, opportunities, and entitlements. It is not merely a declaration of permanent residence, but a legal construct that governs access to public services, education, employment, political participation, and regional entitlements. Domicile can influence taxation, voting rights, and eligibility for regional quotas in civil service recruitment.[17] In Lord Westbury's words, domicile is "a relation which the law creates between an individual and a particular locality or country."[18] Theories of domicile span several disciplines -- law, human geography, and residential mobility, each highlighting how one's place of habitual residence affects jurisdiction, migration patterns, and settlement dynamics. Accordingly, domicile must always be interpreted in light of the underlying purpose it is meant to serve. 10. In Pakistan, the concept of domicile is recognized in Part II of the 1925 Act, Section 17 of the Citizenship Act, 1951 ("1951 Act"), and the Schedule to Rule 310-A of the Civil Service Regulations ("CSR") Volume I. These provisions acknowledge changes of domicile through dependence, voluntary relocation, choice, or marriage. The procedural framework for obtaining, modifying, renewing, or cancelling domicile is outlined in the Citizenship Rules, 1952.[19] This legal understanding of domicile is central to the present controversy, as the respondent claims eligibility for appointment under the province of Balochistan quota on the basis of a changed domicile acquired through marriage. Whether such a change is legally sustainable, for a civil servant, for the purpose of "direct recruitment", particularly after entry into civil service, lies at the heart of the dispute now before this Court. Applicability of Sections 15 and 16 of the Succession Act, 1925 on Muslims 11. The respondent argued that, by virtue of Sections 15 and 16 of the 1925 Act that a wife's domicile automatically shifts to that of her husband upon marriage. However, this contention is legally untenable. These provisions fall under Part II of the 1925 Act, which, by virtue of Section 4, expressly excludes their application to Muslims, Hindus, Buddhists, Sikhs, and Jainas. The historical context reinforces this exclusion. Prior to the Succession Act, 1865, Muslims and Hindus were governed by their respective personal laws, while other communities were subject to a patchwork of colonial legal principles. The 1925 Act was a consolidating statute aimed at non-Muslim and non-Hindu communities, deliberately preserving the autonomy of personal laws in succession matters for the latter.[20] Accordingly, Sections 15 and 16 have no applicability to Muslims, and the respondent's reliance on them is misplaced. 12. For civil servants, the applicable domicile regime is set out in the Schedule to Rule 310-A of the CSR, Volume I. This Schedule explicitly recognizes the change of domicile through marriage and other modes, and affirms that the domicile of a married woman ordinarily follows that of her husband. As the respondent is a civil servant, it is this framework not the 1925 Act or 1951 Act that governs the determination and change of her domicile. Domicile and Marriage: Autonomy, Dependency, and the Rights of Women in Civil Service 13. While CSR recognizes that a married woman may adopt her husband's domicile by virtue of Item No. 7 of the Schedule to Rule 310-A of the CSR. Having established that the respondent's status as a civil servant brings her within the ambit of Rule 310-A, the critical question that arises is whether such adoption is automatic or mandatory; or a matter of personal choice under the Item

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No. 7 of the Schedule and; whether the domicile of civil servant freezes upon entry into the civil service and cannot be altered during service. (i) Acquisition of the domicile of the husband is optional 14. To address the first question, it is necessary to examine whether the mere fact of marriage results in a compulsory shift of domicile. There exist interpretational inconsistencies among courts regarding whether a wife's acquisition of her husband's domicile is a matter of law or choice.[21] The traditional common law rule under which a wife's domicile followed that of her husband is rooted in the doctrine of dependency and aimed at preserving legal unity within the marital relationship. However, this dependency rule has come under strong criticism for subordinating a woman's agency. Lord Denning famously described it as "the last barbarous relic of a wife's servitude," calling for its abandonment in light of modern principles of equality and autonomy. This rule, born from the doctrine of coverture[22] which rendered a married woman "civilly dead" by merging her legal identity into that of her husband has been widely rejected across common law jurisdictions.[23] Legal reforms in the United Kingdom, New Zealand, Australia, and Singapore have abolished the automatic domicile rule, affirming a woman's right to independently determine her legal affiliation.[24] Even in jurisdictions like Malaysia, where no statute has been enacted, courts have recognized a woman's right to abandon her husband's domicile and assert her own.[25] From a constitutional standpoint, tethering a woman's legal identity and civic entitlements to her husband's domicile infringes upon her autonomy, dignity, and equality. The Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), to which Pakistan is a signatory[26], affirms a woman's right to be free from such marital subordination and to choose her domicile irrespective of her marital status.[27] Accordingly, the proposition that a woman's domicile automatically changes upon marriage is neither supported by contemporary constitutional values nor binding in the absence of express legal compulsion. It is therefore held that a married woman retains the legal discretion, choice or agency to either adopt her husband's domicile or retain her own. In the present case, the respondent, by her own volition, opted to adopt her husband's domicile, which is legally permissible. (ii) The domicile freezes on joining the civil service and cannot be changed during service in light of O.M. 1971 15. Unlike general domicile concepts rooted in personal identity and legal affiliation, the interpretation of domicile for government servants must be aligned with the objectives and practical necessities of recruitment policies and service conditions. Domicile must be understood in light of the purpose and object of the relevant legal context. In service law, it is interpreted with reference to recruitment policies and service terms.[28] The Establishment Division's O.M. 1971 addresses the issue of domicile change after entry into government service: Change of Domicile after entry into Government Service: A question has arisen whether a government servant who entered service based on the domicile of a particular province/region may subsequently change domicile during service. While a government servant, as a Pakistani citizen, may change domicile under law, it has been decided that the domicile declared and accepted at entry shall be final for the duration of service and no later change shall be recognized for service terms, including postings and transfers. (emphasis supplied) The O.M. 1971 permits civil servants irrespective of gender to change their domicile for purposes related to citizenship rights and obligations. However, the domicile declared and accepted at entry into civil service shall be final for the duration of service and no later change shall be recognized for service terms, including postings and transfers.[29] This principle equally applies to female civil servants. The rationale behind this is that Pakistan, as a constitutional Federation, comprises several Provinces with distinct socio-economic profiles and varying levels of development. To ensure equitable representation and fair opportunities across the Federation, the civil service

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recruitment process allocates vacancies based on provincial quotas determined by the domicile of the candidates. Domicile, in this context, serves as a constitutional tool to promote inclusivity and national integration by safeguarding the interests of less-developed regions and underrepresented populations. Once a candidate enters the civil service against a post allocated to a particular province or region, their domicile is considered "frozen" to maintain the integrity of this federal balancing mechanism. It is also important to note that permitting the change of domicile may affect the mechanism of transfer and seniority as well. Disregarding seniority undermines bureaucratic impartiality, violates constitutional guarantees of due process and equality (Article 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"))[30] and breeds cynicism within the service. The erosion of seniority norms weakens administrative stability.[31] Allowing post-induction changes in domicile would not only undermine the quota system but also open avenues for manipulation, enabling individuals to shift provincial affiliation for personal advantage, thereby diluting the constitutional promise of provincial parity. The freezing of domicile thus serves the larger constitutional purpose of federal harmony and administrative fairness within the civil service structure of Pakistan. 16. In this context, an unmarried female civil servant such as the respondent while legally entitled to adopt the domicile of her husband upon marriage, but for all service-related entitlements and obligations, her original domicile (in this case, KPK) continues to be the determining document. The question that now arises is whether the O.M. 1975 creates a specific exception that permits a female civil servant to change her domicile (or use her husband's domicile under the aforesaid O.M.) during service, only in limited cases where appointment to a higher post is through "direct recruitment"? Direct Recruitment of in-service female candidates is an exception to general rule 17. Learned counsel for the respondent relied on O.M. 1975, arguing that because the advertised post was to be filled by "direct recruitment", the respondent's matrimonial domicile cannot be disregarded. O.M. 1975 states: Married Female Candidates - Determination of Domicile: According to Estt. Division's O.M. No. 2/2/67 dated August 26, 1968, a candidate's domicile is determined by their parents' domicile or, if the parents of a migrant candidate have not migrated to Pakistan, by the candidate's own residence and education in the province of domicile. The question whether a married female candidate can be deemed to share her husband's domicile has been considered, and it was decided that for direct recruitment, a married female candidate's domicile may be accepted as that of her husband. (emphasis supplied) The above shows that a married candidate not yet in service may opt for either her own or her husband's domicile, and once chosen, that domicile is final for service terms. However, to assess O.M. 1975's applicability to a civil servant already in service, three objections raised by the learned Additional Attorney General must be addressed: (i) the advertised post was for initial recruitment not direct recruitment; (ii) direct recruitment implies first entry into service; and (iii) allowing an in-service female civil servant to change domicile risks disrupting seniority and service structure. Direct Recruitment and Initial Recruitment are interchangeable terms 18. Having clarified the distinct applicability of O.M. 1975 to female civil servants, it is essential to address the terminology surrounding recruitment, particularly the distinction or lack thereof between "direct recruitment" and "initial recruitment," which forms a critical basis for the arguments advanced. Service rules in Pakistan recognize three modes of appointment[32]: (i) initial recruitment, (ii) promotion, and (iii) transfer. Initial recruitment is defined as an appointment made otherwise than by promotion or transfer, typically through examination, test, or interview conducted by the Commission.[33] Notably, the term "direct recruitment" is absent from any Pakistani law or regulation. However, Indian service jurisprudence[34] employs a parallel

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classification comprising (i) direct recruitment, (ii) promotion, and (iii) transfer, with direct recruitment statutorily defined identically to Pakistan's initial recruitment. This semantic and functional equivalence is reinforced by frequent interchangeable use of "direct recruitment" and "initial recruitment" in various Pakistani departmental manuals and service documents.[35] Hence, it is legally unsound to treat these terms as distinct; they are interchangeable in both meaning and application. Scope of Direct Recruitment: Fresh Entrants vs In-Service Applicants 19. Initially, the Court was inclined to accept the learned Additional Attorney General's interpretation that "direct recruitment" signifies only first entry into service. However, a deeper review of government service structures reveals that in-service civil servants, with a NOC from their parent department, may apply for vacancies designated for "direct recruitment". Thus, "direct recruitment" encompasses…

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