Instant Constitutional petition prayed orders dated 2.12.2002 and 4.2.2003, passed by Respondent No, 1 to be declared illegal, void and of no legal consequence whereby Plot No, D-13/E Phase-III Sector G/13, Islamabad, allotted in the name of the petitioner on 27.8.1999, was cancelled.
2. Succinctly, relevant facts are that the petitioner initially started his service career with the Government of Pakistan in April, 1974, in BPS-20 as Managing Director of Pak Iran Agro Live Stock Complex, and thereafter he remained posted on different postings. He was transferred as Secretary Federal Public Service Commission on 21.9.1994 wherefrom he was drawing his salary in Grade-21 besides subscribing to GPF. Petitioner while holding the office of Secretary Federal Public Service Commission on 20.8.1996, in response to an advertisement/invitation by the Federal Government Employees Housing Foundation for allotment of plots to the government servants in Sector G-/13, Islamabad, applied vide Application No, 36051 for allotment of plot alongwith Pay Order No, 174173 dated 21.8.1996, for an amount of Rs, 1,25,000/-. The petitioner distinctly stated in his application that he was working at that time, as Secretary, Federal Public Service Commission besides disclosing all his relevant details. Petitioner being a civil servant as defined by Civil Servants Act, 1973 fulfilled all the terms/conditions of allotment/allocation of the plot and thus, he was allocated Plot No, 13/E, Sector G-13, Islamabad, provisionally on 27.8.1999.
3. Petitioner being disappointed with the development work by the respondents, represented before them but his representation, according to him, annoyed the officials of the respondents who after seeking advice from Respondent No, 2 cancelled his plot on the basis of advise so received through the impugned order, on the ground that the petitioner being a contractual employees of Federal Public Service Commission, was not a civil servant in terms of Act of 1973. His efforts to convince the respondents that he was .a civil servant at the relevant time and was a bona fide employee of the Federal Government, entitled to the benefits of a civil servant, brought no fruitful result, which necessitated maintaining of instant Constitutional petition with the relief noted above.
4. The learned counsel for the petitioner submitted that the petitioner on the date of application for allotment of plot i,e, 25.8.1996 was a civil servant and continued to be so till the date of his retirement i,e, 5.11.1999. Further contended that the petitioner while holding the office of Secretary, Federal Public Service Commission, was governed by statutory rules, in the name of Federal Public Service Commission (Composition) and Conditions of Service) Regulations 1978 which provided that the Secretary will be a civil servant and shall be governed by Civil Servants Act 1973. A reference to Gazette Notification No, 11/3/97-E-I by the Government of `Pakistan Cabinet Secretariat (Establishment Division) dated 2.2.1997 was made to contend that the petitioner was to continue as civil servant till the date of his retirement whereafter his job was to become contractual. Reference to alike notification dated 17.12.1999 was also made to claim that the petitioner was governed by Rules/Regulations, as applicable to other civil servants in BPS-21. Precise submission of the petitioner was that through he remained Secretary/Member Federal Public Service Commission from 26.9.1994 to 5.9.2000 but earlier to his retirement i,e, 5.11.1999 he was a civil servant and could not be deprived of his legitimate right of allotment. It was also argued that the petitioner was not provided an opportunity of hearing earlier to the impugned orders which were sketchy/non speaking orders and thus being violative of Section 24-A of the General Clauses Act, were not sustainable at law, besides being violative of principle of natural justice. Principle of locus- poenitentiae was also relied in support of the prayer in the petition with the arguments that after receipt of two instalments and allocation of plot, the same could not be rescinded at the back of the petitioner.
5. The learned counsel appearing on behalf of the respondents assertively resisted the arguments of the petitioner with the submissions that the petitioner had been serving in different private/public sector organization in various capacities hence was not entitled to allotment of any plot in scheme of the respondents, so the withdrawal of his provisional offer of allotment vide letter dated 4.2.2003 was justified. It was further submitted that at the most case of the petitioner fell within the 10 percent quota reserved of employees of Autonomous Bodies of the Federal Government but in this quota as well, the petitioner did not quality as the last applicant had the date of birth as 1.6.1937 whereas the petitioner was born on 5.11.1939.
6. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. Respondents duly advertised their Sector, G- 13/Phase-HI, for Federal Government Employees, on ownership basis by laying down terms/conditions for allocation/distribution of plots. The criteria so given by the respondents in their brochure reads as under:-- "The available residential plots shall be distributed among the various categories of applicants who fulfil the criteria for eligibility as given below:--
(a) Judges of the Supreme Court, High Courts and Federal Shariat Court and Federal Government Employees who have been declared as civil servants as defined under Civil Servants Act 1973 (including civilian employees paid from defence estimates) and were in service on 1.4.1996.
(b) Employees of autonomous/semi-autonomous organizations and public sector corporations under the administrative control of the Federal Government (including employees serving in the Federal Government Employees Housing Foundation), who were in service on 1.4.1996.
(c) Journalists.
(d) Retired Federal Government employees governed under Civil Servants Act, 1973.
(e) Widows of those eligible Federal. Government Employees who died during service or those Federal Government employees who became disabled during service or extremely hardship cases.
Note: Armed forces personnel are not eligible to participate in the scheme."
7. Terms/conditions reproduced above, clearly depicted that had the petitioner been a civil servant, his application would have been covered by category (a) of 77 percent. Thus the only question, which hinges for determination is as to whether at the relevant time, the petitioner was a civil servant, or a contractual employees, as claimed by the respondents. In case of civil servant, he will fall in category (a) and in case of employee of autonomous/semi autonomous organization, he will fall within the category (b), above referred. Petitioner on his application for purchase of plot from the respondents designated himself as Secretary with Federal Public Service Commission, a Federal. Government Employee in service. This application was duly processed by the respondents who after getting additional documents from the petitioner, ultimately on 27.8.1999 vide letter No, 1 (S0062)/96-HF provisionally offered the petitioner allocation of one plot in Category-I of Phase III, Sector G-13. Petitioner, thereafter, deposited Ist instalment of Rs, 1,50,000/- on 25.9.1999 and represented to the respondents over their inaction with regard to development work in the phase where he was allotted a plot but it annoyed the respondents. They vide letter dated 3.4.2002 required the Deputy Director (Estt.) F.P.S.C. to furnish information whether the petitioner was a civil servant under Civil Servants Act, 1973, on the cut out date i,e, 1.4.1996. In reply to this letter, Director (Estt.) F.P.S.C. confirmed that the petitioner served with them as Secretary/Member from 26.9.1994 to 5.2.2000 but it did not satisfy the respondents who after some other communication with the petitioner, cancelled his allotment and conveyed him vide letter dated 4.2.2003 with following language. "during the process of scrutiny it transpired that you are not civil servant according to Civil Servants Act, 1973. So you are not eligible for allotment of plot".
8. Petitioner, in retaliation, issued legal notice through his counsel, to which respondents replied in following manner:-- "It is informed that your case was referred to the Establishment Division for seeking advice whether you were Civil Servant at the time of applying for allotment of a plot in Phase-III of the Housing Scheme. The Establishment Division vide their Letter No, 1/142/94- .E-6 dated 22nd November, 2002 informed that you have served in different/private and public sector organizations in various capacities. Therefore, you cannot be termed as civil servant."
9. Rule 18 of the Federal Public Service Commission (Composition and Conditions of Service)
Regulations 1978, reads as under:--
18. "Terms and conditions of service of officers and staff--The terms and conditions of the Secretary and other officers and staff of the Commission shall be the same as of civil servants of corresponding grades under Government and they shall be governed by the Civil Servants Act, 1973 (LXXI of 1973), and the rules made thereunder."
10.Petitioner also produced a Notification No, II/3/97-E-/I dated 2.2.1997 whereby he was elevated to BS-21, Federal Public Service Commission for a tenure of three years which clearly laid down that after the date of his retirement i,e, 5.11.1999, he will be treated as re-employed on contract basis.
Similar is the clarification in letter-dated 17.10.1999 issued by Cabinet Secretariat (Establishment Division) that Rules/Regulations will govern him as applicable to other civil servant in BS-21. Since, the learned counsel for the respondent did not refute the date of retirement of the petitioner namely 5.11.1999 thus, in view of the above material it is clear that the petitioner irrespective of his post, remained in government service till 5.11.1999 and was a civil servant within the meaning of Civil Servants Act, 1973 and his plot allotted in the capacity of a Federal Government Employee could not be cancelled by the respondent on mere unfounded assumptions and that too, without hearing the petitioner, without giving reasons in support of the impugned order of cancellation which was prejudicial to his interest, especially when he was equipped with voluminous documentary proof in support of his claim of being a civil servant. Assuming for the sake of arguments that posting of the petitioner at the relevant time, as Secretary to Federal Public Service Commission, was for a specified period but the same does not make his job, contractual. Petitioner while holding office of the Secretary continued to be a civil servant in terms of Rule 18 (Ibid)."
11.Above reproduced letters of the respondents show that entitlement and status of service of petitioner was not correctly decided, out of sketchy/unreasoned order which being violative of Section 24-A of the General Clauses Act, 1877 cannot be graded as lawful. The Honourable Supreme Court in the cases of Messrs Airport Support Services Versus The Airport Manager Quaid- e-Azam International Airport Karachi and others (1998 SCM R 2268) and Col. (Retd.) Ayub Ali Rana Versus Dr. Carlite S. Pune and another (PLD 2002 Supreme Court 630) ruled that any Authority or person exercising/discharging statutory obligations is expected to act justly fairly and for advancement of the purposes of the enactment through reasons reflecting his state of mind.
For the reasons noted above, I have no doubt in my mind that the petitioner was a civil servant at the relevant time of filing applications for allotment of plot mentioned in the Brochure of the respondents and he continued to be so till his retirement on 5.11.1999 thus the unreasoned impugned orders dated 2.12.2002 and 4.2.2003 are without any lawful authority and of no legal consequence hence the same are declared to be void and consequently writ as prayed is issued with no order as to costs.