CH. IJAZ AHMAD, J.--- The brief facts out of which the present writ petition arises are that the house in-question was allotted by the respondents to the petitioner's father, who was retired on 3.2.2003.
The petitioner submitted representation for allotment of house in-question to the respondents in terms of Government policy, which is attached with this writ petition as Annexure-D, but the respondents did not pass any order on the representation of the petitioner till date. The respondents allotted the house in-question to Respondent No. 4 without deciding the representation of the petitioner.
2. The learned counsel of the petitioner submits that action of the respondents is in violation of mandatory provisions of policy specially mentioned in paragraph No. 17 and the same is also hit by Article 25 of the Constitution as the petitioner has mentioned that the respondents have allotted the houses to other Government employees, whose cases are exactly similar to the case of the petitioner. He further submits that the respondents have accommodated more than 22 persons; whereas the respondents have not considered the representation of the petitioner in accordance with law. He further submits that the petitioner after allotment of house to Respondent No. 4, again approached respondents Nos. 1 to 3 for allotment of house in-question in his name, but respondents did not consider the request of the petitioner till date. The petitioner being aggrieved filed this writ petition.
3. The learned Law Officer entered appearance on Court's call, he submits that the writ petition is not maintainable. He further submits that the order was passed by the respondent is in accordance with the Government policy, therefore, the writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
5. It is settled proposition of law that it is the duty and obligation of public functionaries to exercise their powers without fear, favour, nepotism and within reasonable time as is envisaged by Article 4 of the Constitution. It is also settled principle of law that public functionaries are duty-bound to act within framework of Constitution and law, as per principle laid down by the Honourable Supreme Court in "Zahid Akhtar's case (PLD 1995 S.C. 530). It is also settled mandate of Constitution by virtue of Article 5(2) of the Constitution that every body has to obey the command of the Constitution, as per principle laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case" (PLD 1975 S.C.
383). It is also settled principle of law that public functionaries are duty-bound to apply law equality to all the persons whose cases are exactly similar, in case, action of the respondents is in derogation of Article 25 of the Constitution, then it is not sustainable in the eye of law, as per principle laid down by the Honourable Supreme Court in "I.A. Sharwani and others vs. Government of Pakistan through Secretary Finance Division, Islamabad and others" (1991 SCMR 1041). The relevant observation is as follow: ---
(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) That different laws can validly be enacted for different sexes, persons in different age-groups, persons having different financial standings , and persons accused of heinous crimes;
(iv) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) That in order to make a classification reasonable, it should be based: ---
(a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) That the differentia must have rational nexus to the object sought to be achieved by such classification.
6. It is alleged by the petitioner that the petitioner has filed representation to the respondents before the allotment of house in-question to Respondent No. 4 under paragraph No. 17 of the policy, which was not decided by the respondents, therefore, the petitioner is being penalized by inaction of the public functionaries, which is not in accordance with law, as per principle laid down by this Court in "Ahmad Latif Qureshi's case" (PLD 1994 Lahore 3). It is also settled principle of law that it is the duty and obligation of the public functionaries to decide the representation of the citizens without fear, favour, nepotism and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act, as per principle laid down by the Honourable Supreme Court in "M/s. Airport Support Services vs. The Airport Manager, Karachi Airport" (1998 SCMR 2268) and "Zainyar Khan vs. Chief Engineer C.R.B.C." (1998 SCMR 2419). In case, public functionaries fail to act within parameters of Section 24-A in the General Clauses Act, then this Court has ample jurisdiction to give direction to the public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution, while exercising power under Article 199 of the Constitution, as per principle laid down by Honourable Supreme Court in "H.M. Rizvi and 5 others vs. Maqsood Ahmad and 6 others" (PLD 1981 S.C. 612) and "Province of Sindh through Chief Secretary Sindh, Karachi and 4 others vs. Gul Muhammad Hajano" (2003 SCMR 325). The purpose of Section 24-A of the General Clauses Act, is founded on the premises that public functionaries driving authority from or under law and obligated to act reasonably, fairly and justly without any element of discrimination and squarely within the parameters of law and non-deciding the application of the petitioner by the respondents brings the case in the area that action of the respondents is not in accordance with law. It is settled principle of law that manner of exercising of power is also termed as male fide, as per principle laid down by the Honourable Supreme Court in "Government of West Pakistan vs. Begum Agha Abdul Karim Shorish Kashmiri" (PLD 1969 S.C. 14). In somewhat similar circumstances, the Honourable Supreme Court has also had in "Shaukat Ali and others vs. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 S.C.
342) that we may observe that since Pakistan is founded on the basis of religion of Islam, effort should be made to bring about an egalitarian society based on Islamic concept of fair-play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.
7. In view of aforesaid circumstances, let copy of writ petition be sent to Respondent No. 1, who is directed to pass an appropriate order strictly in accordance with law, after providing proper hearing to all the concerned including the petitioner and Respondent No. 4 and any other person, who would be aggrieved by this order, preferably within one month after receiving the order of this Court. The petitioner is directed to appear before. Respondent No. 1 in his office at 11:00 a.m.. On 2.2.2005, who is directed to pass an appropriate order strictly in accordance with law either himself or send the same to competent authority for its decision, who is also directed to pass an appropriate order strictly in accordance with law in terms of aforesaid direction of this Court. In case, the petitioner is still in possession of the house in question, then respondents are restrained to dispossess the petitioner till the decision of Respondent No 1/competent authority.
8. The learned counsel of the petitioner is directed to hand-over copy of writ petition alongwith all the annexures to Mr. Muhammad Hanif Khatana, Acting Advocate General, who is directed to send the same to Respondent No. 1 for necessary action and compliance. Office is also directed to provide one copy of this order to aforesaid law officer 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.