' The petitioner has challenged the vires of the order, dated 19-3-2005 through this Constitutional petition.
2. The learned counsel of the petitioner submits that the respondents have not passed the impugned order within the parameters prescribed by this Court in the earlier round of litigation. He further urges that the petitioner is entitled to retain the house in'question in terms of para. 25(3) of the Policy which is attached with the Constitutional petition as Annexure-D. He further urges that the impugned order is passed by the respondents without application of mind He further submits that respondents have passed the impugned order mala fide as the respondents have allotted the house in question to respondent No.4, who is son of the under Secretary. He further submits that the petitioner has submitted the application well in time. He further submits that respondents have allotted various houses under the parent scheme to different employees as is evident from the contents of the Constitutional petition.
3. Mr. Muhammad Hanif Khatana, Addl. Advocate-General entered appearance on Court's call, he submits that respondents have passed the impugned order after application of mind in terms of the policy of the respondents. He further submits that Constitutional petition is not maintainable.
4. I have given my anxious consideration to- the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that the petitioner has filed Constitutional Petition No.556 of 2005, which was disposed of by this Court vide order, dated 13-1-2005. The respondents have passed the impugned order on 19-3-2005. It is better and appropriate to reproduce operative part of the impugned order to resolve the controversy between the parties:-- "The competent authority has considered your request and regretted being contrary to policy. Your son Mr. Basat Ali may wait for his turn for allotment of a residence as per his entitlement."
' It is also better and appropriate to reproduce section 24-A of the General Clauses Act:-- "24-A. Exercise of Power under enactment.-(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly justify and for the advancement of the purpose of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction.
(3) Where any order made or any direction given in exercise of the powers conferred by or under an enactment affects any person prejudicially such person may require the authority, office, or person making the order or giving the direction to furnish the reasons for the order or, as the case may be, the direction and such authority, office or person shall, furnish the reason to such person."
' In case the aforesaid operative part of the impugned order and section 24-A of the General Clause Act are put in a juxtaposition then the respondents have passed the impugned order in violation of the parameters prescribed by the Legislature in its wisdom in section 24-A of the General Clause Act. It is also admitted fact that the petitioner has filed Constitutional Petition No.556 of 2005, which was disposed of by this Court vide order, dated 13-1-2005 with certain directions and prescribed certain parameters. The impugned order is passed by the respondents in violation of the parameters prescribed by this Court. It is settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution.
It is pertinent to mention here that public functionaries are deciding the cases without application of mind that is why the competent Legislative authority had added section 24-A in the General Clauses Act which is procedural in nature, therefore, same has retrospective effect as the law laid down by the Honourable Supreme Court in Zainyar Khan v. The Chief Engineer, WADPA and others (1998 SCM R 2419) wherein it is held that it is the duty and obligation of the public functionaries to decide the controversy between the parties after application of mind as is envisaged by Article 4 of the Constitution read with Article 5(2) of the Constitution and section 24-A of the General Clause Act as per law laid down by the Honourable Supreme Court in Messrs Airport Support Services v.
The Airport Manager (1998 SCM R 2268). The respondents have decided the controversy between the parties under statutory power; therefore, even if it is administrative order even then it is open to review by this Court as per law laid down by the Honourable Supreme Court in The Tariq Transport Company, Lahore's case (PLD 1958 SC (Pak.) 437). The respondents have decided the controversy between the parties without any reason. Lord Denning has observed while deciding Breen's case (1971) 1 All E.R. 1148). The relevant observation is as follows:-- "The giving of reasons is one of fundamentals of goods administration."
The net result is that the condition to record reasons introduces clarity and excludes arbitrariness and satisfies the party concerned against whom order is passed. To provide a safeguard against the arbitrary exercise of power by the public functionaries, the condition of recording reasons is imposed on them. After addition of section 24-A in the General Clauses Act. The wisdom in the legislature adding 24-A in the General Clauses Act that the reasons are the links between materials on which certain conclusions are based and actual conclusions. They disclose how the mind is applied to the subject-matter for a decision, whether it is purely administrative or quasi- judicial. 'They should reveal rational nexus between the facts considered and conclusions reached.
Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.
In arriving to this conclusion, I am fortified by Union India's case (AIR 1974 SC 87). It is pertinent to mention here that Courts insisted upon disclosure of reason in support of order on the following reasons:-- "(A) The party aggrieved has the opportunity to demonstrate before the appellant, or revisional Court that the reasons which persuaded the authority to reject his case were erroneous;
(B) The obligation to record reasons operates as a deterrent against possible arbitrary action by executive authority invested with judicial power and
(C) It gives satisfaction to the party against whom the order is made."
It is also settled principle of law that the rule requiring reasons to be given in support of order is like principle of natural justice which must inform every authority to act within the parameters of natural F justice and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law as observed in Union India's case supra and also law laid down by this Court vide judgment/order, dated 23-2-2005 passed in W.P. No.2728 of 2005. It is pertinent to mention here that laws are made not to make them merely on the statute books which are framed to act upon them which is in consonance with the Holy Qur'an as enshrined in Sura Baqra. It is pertinent to mention here that respondents did not agitate the matter in the earlier round of litigation before the higher forum; therefore, the judgment/order of this Court is binding on the parties, therefore, respondents are duty bound to decide the application of the petitioner in terms of the parameters prescribed by this Court in the earlier round of litigation. In case we want to live as an independent nation then it is duty and obligation of each and every organ of the State to work within the parameters prescribed by our Constitution in various provisions of the Constitution. There are four organs of the State, which are as follows:--
(i) Legislature;
(ii) Executive;
(iii) Judiciary;
(iv) People of Pakistan.
The Constitution is a social binding contract between the parties; therefore, it is duty and obligation of the respondents to obey the directions of this Court and in following principle is laid down by this Court in Ghulam Murtaza v. Headmaster Ch. Inayatullah and others (1998 PLC (C.S. 274) and laid down the following principle:-- "The dictum of Supreme Court of Pakistan is binding on every organ of the State by virtue of Article 189 of the Constitution of Pakistan. The above mentioned series of judgments reveal that the Hon'ble Supreme Court has on each occasion, declared the actions of the Authorities which are passed in violation of the law, Constitution and amounts to usurpation of authority of other functionaries. Non-observance by the Functionaries of the dictum laid down by the Supreme Court of Pakistan is violation of Article 189 of the Constitution. If all the prevailing circumstances i.e. Judgments of the Supreme Court, action of the authorities and attitude of the public representatives put in juxtaposition, then it becomes crystal clear that the legislators and executive have refused to give due respect to the dictum of Supreme Court of Pakistan; which is not congenial and conducive for the existence of the country, to run the State smoothly, mutual cooperation, respect and understanding. This situation will create chaos. So, in a word, it can be safely concluded that each organ must work within its limits prescribed by the Constitution and law."
' The Constitution is contained Chapter-II which consists of fundamental rights of the people of Pakistan, which is highlighted by the Honourable Supreme Court as flowers of the Constitution in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). In case the flowers are cut then the whole structure will be broken down as mentioned above and the net result is only Choas.
6. In view of what has been discussed above, the impugned order, dated 19-3-2005 is set aside meaning thereby the representation filed by the petitioner shall be decmed to be pending adjudication before respondent No.l. The petitioner is directed to appear before respondent No.1, who is directed to decide the representation of the petitioner strictly in accordance with law, preferably within three months after receiving the order of this Court after providing proper hearing to all the concerned including respondent No.4, the petitioner and any other person, who would be aggrieved by his order, keeping in view the ground realities. The petitioner is directed to appear before respondent No.1 in his office at 11-00 a.m. On 20-4-2005, who is directed to decide the representation of the petitioner preferably within three months till 20-7-2005 in terms of the aforesaid direction either himself or send the same to the competent authority, who is also directed to decide the same in terms of the aforesaid direction preferably within three months till 20-7-2005. He is further directed to submit his report to the Deputy Registrar Judicial of this Court within the stipulated period.
7. The learned counsel of the petitioner is directed to hand over copy of the writ petition along with all the annexures to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, who is directed to send the same to respondent No.1 for necessary action and compliance. Office is directed to provide one copy of this order to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, for onward transmission to respondent No.1 for necessary action and compliance.
' With these observations the writ petition is disposed of. Copy Dasti on payment of usual charges.
…and 3 more citing cases