2011 P L C (C.S.) 1378
[Quetta High Court]
Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J
Dr. SABA DURRAZI
Versus
CHAIRMAN, HOUSE ALLOTMENT COMMITTEE/ SECRETARY, S&GAD and 2
others
Constitutional Petition No.236 of 2011, decided on 21st June, 2011.
(a) West Pakistan General Clauses Act (VI of 1956) ---
----S. 21 ---Balochist an Rules of Business, 1976, R.39(1) & Schedule, VIII ---Relaxation of
rules ---Scope ---Administrative authority is empowered under S.21 of West Pakistan General
Clauses Act, 1956, and R.39(1) of Balochistan Rules of Business, 1976, read with its
Schedule VII I, to amend, make and relax the rules, as also to deal with the cases of any civil
servant as may appear to him just and equitable.
(b) Civil service ---
----Illegal order ---Scope ---Civil servants are not supposed to comply with illegal orders of
admi nistrative authority.
(c) Residential Accommodation at Quetta (Procedure of Allotment) Rules, 2009 --
----R. 11(4) ---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Residence,
retaining of ---Relaxing of rules ---Chief Minister in relaxat ion of rules allowed the
respondent to retain official accommodation even beyond six months after his retirement ---
Plea raised by respondent was that the house was retained till availability of alternate
accommodation to his son ---Validity ---Respondent was not entitled to retain the house till
availability of alternate accommodation to his son ---Order permitting respondent to retain
accommodation was passed in violation of Residential Accommodation at Quetta (Procedure
of Allotment) Rules, 2009, and the sam e was illegal, void and of no legal effect, resultantly
the same was set aside ---High Court directed the respondent to hand over vacant possession
to petitioner ---Petition was allowed accordingly.
1995 SCMR 650 rel.
Shah Muhammad Jatoi for Petitioners .
Naseer Ahmed Bangulzai, A.A. -G. for Respondents Nos.1 and 2.
Respondent No.3 in person.
Date of hearing: 7th June, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The petitioner has challenged
validity of the order dated 10th February, 2010 passed by Chairman House Allotment
Committee/Secretary, Services and General Administration Department, Government of
Balochistan, whereby approval has been granted in favour of Abdul Sattar Khajjak
(respondent No.3) for retention of House No.C -3 (new), W ahdat Colony, Quetta, for a period
of one year w.e.f. 8th February, 2011 to 7th February, 2012.
2. The contention of the petitioner is that the house in question was allotted in her
favour vide notification bearing No.CEO (S&GAD)C -3 (New)W.C/2010 dated 25t h May,
2010 issued by respondents Nos.1 and 2. The petitioner claimed that initially through order
dated 14th October, 2010, the respondent No.3 was allowed to retain the disputed house for a
period of six months after his retirement w.e.f. 7th August, 201 0 to 7th February, 2011, but
after expiry of the said period, the same was not handed over to her, rather illegally through
impugned order dated 10th February, 2011, the retention period was further extended in
favour of respondent No.3 for a period of one year in violation of Rules and Regulations of
Services and General Administration Department.
3. Mr. Shah Muhammad Jatoi, learned counsel for the petitioner, stressed that under the
provisions of Residential Accommodation at Quetta (Procedure of Allotment ) Rules, 2009,
(hereinafter referred to the "Rules of 2009"), a civil servant after retirement cannot retain a
government residence for more than six months. He further argued that under the Rules of
2009, the Chief Minister has no authority to extend the retention period beyond the stipulated
period, thus, he requested for annulment of the order impugned herein.
4. On the other hand, learned Assistant Advocate -General, appearing on behalf of
respondents Nos.l and 2, stoutly defended the impugned order with the contention that the
same has been passed with prior approval of competent authority i.e. Chief Minister, who
was pleased to extend the retention period for a further period of one year
5. The respondent No.3, who appeared in person, contended that und er clause 11(4) of
the Rules of 2009, he is entitled to retain the possession of disputed house till availability of
alternate accommodation, as his son is also government employee as Junior Scale
Stenographer B -12.
6. We have anxiously consider ed the contentions, put forth by the parties, in the light of
relevant provisions of law. At the very outset, when we asked the learned Assistant
Advocate -General as to whether, under the provisions of the Rules, 2009, the Chief Minister
is empowered to pa ss any order contrary to it, he could not answer satisfactorily. We have
minutely gone through the contents of the Rules of 2009 and the relevant law/policies,
introduced by the Provincial Government, but failed to find out a single provision which
empower s the Chief Minister/Authority to order retention of the government accommodation
beyond the stipulated period.
7. We are mindful of the fact that section 21 of the General Clauses Act, 1956 and
aiding provisions of law i.e. section 39(1) of the Government of Balochistan Rules of
Business 1976 read with its schedule VIII, empowers the administrative authority to amend,
make and relax the rules, as also to deal with the case of any civil servant as may appear to
him just and equitable, but these provisions of law have no relevancy with the matter,
pertaining to retention of a government accommodation beyond the stipulated period, in
presence of a specific statutory provision of law.
8. In the instant case, a deviation has been made from the rules and the ord er impugned
herein was made by the Chief Minister, which is contrary to the law and it is a classical
example of mis -exercising of powers on the part of respondent No.l. In this regard, we are
fortified by the judgment reported in 1995 SCMR 650(E), the rel evant portion whereof is
reproduced herein below: ---
"No doubt the competent authority has the discretion but it was not unfettered. While
exercising discretion, the authority should not act arbitrary, unreasonably and in
complete disregard of the rules a nd regulations. The discretion to be exercised has to
be judged and considered in the background of the facts and circumstances of each
case. In the present case there is a strong background of ignoring or disapproving the
appellant with certain purposes."
In view of the dictum laid down by the Hon'ble apex court, we have no hesitation to
hold that it was never a case, where deviation could have been made from the statutory rules.
The civil servants are not supposed to comply with the illegal orders of the administrative
authority.
9. Adverting now to the contention of respondent No.3 regarding section 11(4) of the
Rules, 2009, the same is also devoid of any force, as the said rules speak as under: --
"Allotment of accommodation may be transferred to the fa ther/mother/real
brother/real sister/real son or wife/husband of the allottee, if he/she is eligible for the
same or for a higher type of accommodation at the time of the event or becomes
eligible within two months of the event and beneficiary had been ord inarily residing
with the allottee. In case he/she is entitled to a lower class accommodation, he/she
shall be allotted the first available quarter in that class. Till such time an alternative
accommodation is made available, he/she may retain the accommod ation in his/her
occupation on payment of normal rent."
Admittedly, case of the respondent's son, namely, Taimoor Khan Khajjak does not fall
within the domain of section 11(4), as the disputed house is type (C), which is designated for
the officers of Gra de 17 and 18, while son of the petitioner is an employee of grade 12, who
is entitled to retain a house type (E) as provided under section 4 of the Rules, which states as
under: --
S. No. Type of accommodation Entitlement
1. "A" Type Residence Grade 20 -22 and
Additional Secretaries
2. "B" Type Residences Grade 19 -Dy.
Secretaries
3. "C" Type Houses/Flats Grade 17 -18
4. "D" Type Quarters Grade 16 Officers
5. "E" Type Quarters Grade 11 -15 Officials
6. "F" Type Quarters Grade 8 -10 Officials
7. "G" Type Q uarters Grade 5 -7 Officials
8. "H" Type Quarters Grade 1 -4 Officials
From bare perusal of above mentioned table, it can be concluded, that the respondent
No.3 is not entitled to retain the disputed house till availability of alternate accommodation
as claimed by him.
For the reasons stated above, we are of the considered view that the order dated 10th
February, 2011, impugned herein, being passed in violation of the Rules of 2009, is illegal,
void and of no legal effect, thus, the same is hereby set as ide. The respondents are directed to
hand over the vacant possession of the House No.C -3 (new), Wahdat Colony, Quetta to the
petitioner within a period of one month positively.
The constitutional petition is, accordingly, disposed of with no order as to c ost.
M.H./59/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.