' CH. EJAZ YOUSAF, J.---This petition for leave to appeal is directed against the judgment dated 24- 12-2007 passed by the Federal Service Tribunal, Islamabad, whereby petitioner's appeal for retention of official accommodation after retirement was rejected.
2. Facts of the case in brief are that the petitioner was employed as Deputy Secretary (BPS-19) in the Finance Division. During the course of her service she was allotted Government Accommodation i,e, House No,517-F, St.No,66, Sector G-6/4, Islamabad. On 4th December, 1991 the Government of Pakistan vide O.M. No,F.1(8)-R4/89, introduced certain incentives to those civil servants who wanted to proceed on leave preparatory to retirement (LPR). The petitioner also requested for premature retirement and was accordingly retired from service vide Notification No,57/42/91-E-2, dated 20-12-2004. However, subsequently letter dated 4-2-2005 was issued by the respondents under the provisions of Accommodation Allocation Rules, 2002, directing her to vacate the said accommodation on 15-7-2005 after availing six months retention period with effect from the date of her retirement. Ironically the above letter was issued on the application dated 1-1-2005 submitted by the petitioner. The order dated 4-2-2005 was assailed before the Federal Service Tribunal by way of appeal No,296(R)CS/2005, treating petitioner's letter dated 1-1- 2005 as departmental appeal, which was dismissed vide the impugned judgment, hence this petition.
3. Mr. M. Shoaib Shaheen, learned counsel for the petitioner has contended that since the petitioner opted for retirement in pursuance of O.M. No,F.1(8)-R4/89, dated 4th December, 1991, whereby certain incentives including to retain Government Accommodation till the age of superannuation and six months thereafter were provided, therefore, the respondents/department was estopped to issue letter dated 4-2-2005, directing her to vacate the premises. It is further his grievance that the Federal Service Tribunal has gravely erred in law by holding that since the O.M. Dated 4-12-1991 had no statutory backing in presence of the Pakistan Allocation Rules, 1993 and the Accommodation Allocation Rules, 2002, therefore, it could not have override or replace the statutory rules, and that the arrangement made through the said O.M. Had not conferred any right upon the petitioner to retain the government accommodation. It has been further contended by him that order of the Federal Service Tribunal is based on discriminatory treatment as a number of similarly placed employees were still enjoying government accommodation in pursuance of the said O.M. Learned counsel has maintained that the impugned order was issued purportedly, in pursuance of the direction made by the Minister for Housing and Works, who under the Rules had no authority to make such a direction and that allotment of the house in question to respondent No,3 was also bad as the allotment in favour of the petitioner was protected under the principle of locus poenitentiae.
4. Ms. Nahida Mehboob Elahi, learned Deputy Attorney General, while controverting the contentions raised by the learned counsel for the petitioner has stated that the benefit of the O.M. Dated 4-12- 1991 could not have been availed by the petitioner because she was in Grade-19, whereas the incentive incorporated in the said O.M. Was meant and available to grades 21 and 22 employees only. She has maintained that as per rule 15(2) of the Accommodation Allocation Rules, 2002, since a government servant was entitled to retain Government accommodation for six months only after his retirement, therefore, benefit of the said O.M. Could not have been extended to the petitioner.
She has.Added that since the estate department was an attached department of the Housing and Works Division, therefore, the impugned order was rightly and competently issued under the direction of the Minister concerned.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
6. Before proceeding further, it would be advantageous to have a glance at the O.M. In question which is reproduced herein below in extenso: -- "Government of Pakistan Finance Division (Regulation Wing)
No . F . l(8)-R4/89 Islamabad, the 4th December, 1991 OFFICE MEMORANDUM Subject: Incentives to civil servants to proceed on leave preparatory to retirement after completion of 25 years service ' The undersigned is directed to state that the Government has been pleased to approve the following retirement benefits to the supersaturating and additional incentives for civil servants of B-21-22, who desire to proceed on retirement on completion of 25 years of service with effect from 19-2-1991:-- Retirement benefits to superannuating Govt. Servants.
(i) Retention of Government accommodation.--
(A) A retiring Government servant will be entitled to retain the Government accommodation allotted to him after his retirement up to the date of his superannuation plus 5 months. In case the retired Government servant dies during this period this facility shall be extended to the family of the deceased for the corresponding period.
(ii) Private Job.--A retiring Government officer shall be permitted to undertake a private job (except job under foreign Government) or to carry on private business in partnership with other party during LPR and thereafter. Such permission will be given by the Government liberally; and
(iii) Additional Pension.-- A retiring Government officer in BPS20, 21 and 22 will be allowed to special additional pension equal to the admissible pre-retirement orderly allowance.
(B) Additional incentives for Grade 21-22 officer to retire on completion of 25 years of service.
' The incentives at (A) above will be available to all such officers. In addition the following additional incentives will be available to all civil officers in BPS-21 and 22 who opt to retire on completion of 25 years or more service:--
(i) Maximum limit of three hundred sixty five days of LPR will be relaxed in these cases.
' All the leave available in the account of retiring Government servants of BPS-21 and 22 immediately before the proceedings on retirement shall be allowed to them on full pay as LPR.
(ii) On retirement after LPR, they will be entitled to pension calculated on their service as on the date of proceeding on LPR, plus LPR availed plus a grace period of two years; provided the above period does not exceed the prescribed age of superannuation.
(iii) For purpose of commutation, the factor relevant to actual age on conclusion of LPR will be as under existing orders/rules.
(2) All Ministers/Divisions are requested to bring the above incentives to the notice of all Government servants working under their administrative control for their information.
(Sd.) Javed Ahmad Khan, Joint Secretary (R), Phone No,820293 ' All Ministries/Division etc."
' Record indicates that the Ministry of Housing and Works was not unaware of the issuance of the above O.M. Because in pursuance of the query made vide letter No,F.1(5)R.4/95, dated 20-9-2003, by the said Ministry, it was replied that the scheme of incentives vide O.M. Under reference was introduced for the benefit of those civil servants who wanted to proceed on LPR after completing twenty-five years of service and that under the said scheme, the Government servants were entitled to retain Government accommodation up to the date of superannuation and six months thereafter even and that the scheme was still operative. It would also be beneficial to reproduce herein below the said letters for ready reference: "Government of Pakistan Finance Division (Regulation Wing)
Subject: Petition of Government Accommodation to Civil Servant who proceeds on voluntary retirement after, completion of 25 years Reference Ministry of Housing and Works letter No,13.Cat.I.I-8/1-EI dated 4-7-2003 on the subject noted above.
(2) Finance Division issued a scheme of incentives vide O.M. Dated 4-12-1991 for civil servants who proceed on LPR after completion of 25 years service which inter alia, provides that a retiring government servant will be entitled to retain the Government accommodation allotted to him after his retirement up to the date of his superannuation plus 6 months. In case the retired Government servant dies during this period, this facility shall be extended to the family of the deceased for the corresponding period. The incentive scheme issued by this division dated 4-12-1991 is still operative.
(Sd.) (Muhammad Riaz) Section Officer ' M/o Housing and Works (Abdul Ghani Sameen, Sr. Joint Secretary), Islamabad.
' Finance Division, Regulations Wing, U.O.No,F.1(5)R-4/95, dated 20-9-2003."
' Here it would also be useful to look at the impugned letter No,F.517-E, G-6/4-EL, dated 4-2-2005 issued by the Ministry of Housing and Works, whereby the petitioner was deprived of the benefits/incentives contained in the O.M. In question. The said letter reads as follows:-- "Government of Pakistan Ministry of Housing and Works No,F.517-F, G-6/4-EI Islamabad the 4-2- 2005 To Mrs. Azra Riffit. Rana, Deputy Secretary, Finance Division, Islamabad.
Subject: Vacation of House No,517-F, G-6/4, Islamabad.
' I am directed to refer to your application dated 1-1-2005 on the above subject and to state That the instructions of Finance Division dated 4-12-1991 relate to retirement of BPS-21 to 22 officers and moreover, administrative instructions cannot over rule, the provision of Rules. According to Accommodation Allocation Rules, 2002 on retirement (irrespective of superannuation or on 25 years qualifying service) rule 15(2), a retiring Federal Government Servant can retain the Government house for six months.
(2) In view of this rule position you are advised to vacate the said house on 15-7-2005 positively.
(3) This issues with the approval of the Minister for Housing and Works.
Yours faithfully, (Sd.) (Ch. Muhammad Khan) Section Officer (EI)
' Copy to the Estate Officer, Estate Office, Islamabad for necessary action.
(Sd.) (Ch. Muhammad Khan) Section Officer (EI)
' Bare perusal of the above letter reveals that the benefit of O.M. In station was denied to the petitioner on two counts; firstly, because the instructions dated 4-12-1991 related to BPS-21 and 22 Officers only and secondly for the reasons that the administrative instructions could not have overruled the rules on the subject and these two points are the foundation of arguments for the respondents.
7. So far as the first objection raised by the learned Deputy Attorney-General that since the petitioner at the time of retirement was in Grade 19, and the incentives introduced, vide the O.M. In question, were meant for Grade 21-22 officers only, therefore, the petitioner could not have availed the same, is concerned, it may be pointed out here that the objection on its face, appears to be without substance, because the language used in para. "A" of the said O.M. Makes it abundantly clear that all the incentives contained in the O.M. In question were introduced by the Government for the benefit of all those civil servants who, on completion of 25 years service, wanted to proceed on L.P.R. Without any clog of grade, whereas the additional incentives contained in Para. "B" thereof related to those civil servants who were in BPS 21 and 22 hence, the position was rightly clarified by the Finance Division, vide its letter dated 20-12-2003, which reads as follows:-- "Government of Pakistan Finance Division (Regulation Wing)
Subject: Incentives to civil servants to proceed on leave preparatory to retirement after completion of 25 years service ' Reference Prime Minister's Secretariat U.O.No,2-1/DS(F1D/2003/R1y-1834 dated 9-12-2003 on the subject noted above.
2. It is confirmed that the benefits given under para. A of this Division 0.M.No,1(8)R4/89, dated 4-12- 1991 are applicable to all government servants irrespective of their grades and para. B is applicable only to government servants in BPS-21, and 22.
(Sd.) (Muhammad Riaz) Section Officer (EI)
' Prime Minister's Secretariat, (Mrs. Nyla Qureshi, Deputy Secretary (FA-II) Ibd.
' Finance Division Regulation Wing, U.O.No,F.1(5)R-4/95, dated 20-12-2003."
' The contention therefore, is devoid of force.
8. As to the next contention of the learned Deputy Attorney General that the administrative instructions could not have replaced the Accommodation Allocation Rules, 2002, it may be pointed out here that though an office memorandum being inconsistent with any statutory rule on the point cannot be given effect to as it does not stand on a higher footing than the statutory rules, Secretary to the Government of the Punjab v. Abdul Hamid Arif 1991 SCM R 628, yet, where an office memorandum is expressed in precise terms, capable of being applied with particularity to a great number and variety of cases then the terms of such memorandum should be deemed to amplify and adapt the statutory rules in the relevant respect and be regarded as supplementing them Pakistan v. Abdul Hamid PLD 1961 SC 105. Since in the instant case a large number of Government employees, including the petitioner, were given incentives rather induced as (as otherwise many of them would have not opted for retirement at that juncture) to go on LPR after completing 25 years of service by the Government and despite clear knowledge, it was neither objected to, nor disputed by the Ministry of Housing and Works at the relevant time, therefore, now the respondents, by their conduct, are estopped to take a somersault, turn around and say that since the policy introduced through the O.M. In question was contrary to the Accommodation Allocation Rules, 2002 therefore, it could not have been implemented. In our view, the Government and through it, the Ministry of Housing and Works, as per doctrine of promissory estoppel, was bound by the promise and the assurance contained in the O.M. In question. It would be pertinent to mentioned here that doctrine of promissory estoppel was discussed in detail in the case of Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 and its applicability was defined in the following terms:--.
"(23) It will be necessary to touch the true concept of the realm of doctrine of promissory estoppel.
Before proceeding further this doctrine has been variously called 'promissory estoppel' `requisite estoppel', 'quasi estoppel' and 'new estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named 'promissory estoppel', it is neither in the realm of contract nor in the estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reasons why it should be given only a limited application by way of defence. There is no reasons in logic or principle why promissory estoppel should also not be available as a cause of action."
' In the above judgment the famous case of Robertson v. Ministry of Pensions (1948) 2 All ER 767, which has a close resemblance to the case in hand too, was relied upon. In that case Colonel Robertson suffered a permanent disability pursuant to an injury. He wrote to the War Office requesting that the question of attributability in regard to his disability should be solved. The War Office without consulting the Ministry of Pension, replied that claimant's disability had been accepted as attributable to military service. On the faith of that assurance the claimant took no steps to get an independent medical opinion. The question falling for determination was whether the assurance contained in the letter from the War Office was binding on the Minister of Pensions, it was held that since the letter from the War Office on the face of it was an authoritative decision, intended to be binding and to be acted on and the fact that the claimant had, as a result of that letter, forborne from getting a medical opinion, was sufficient to have made letter binding if it had been written by a private person. It was further held that since the letter from the Office of War was clear and explicit, the doctrine of executive necessity could not have been implied therein so as to entitle the Crown to revoke the decision without cause. It was further held that as the War Office was an agent for the Crown, the Crown was bound by the letter and, therefore, other Government Departments, being also agents of the Crown were also bound, and, accordingly the letter was binding on the Minister of Pensions, whose function was to administer the Royal Warrant issued by the Crown so as to. Honour all assurance given by or on behalf of the Crown.
' In the case of S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance and another 1999 SCM R 1904, the appellant retired from service as a Solicitor to the Government of Pakistan, Ministry of Law and Justice. He was allowed the retiring benefits and pension as admissible. The Ministry of Finance (Regulation Wing), by Office Memorandum, while revising the Basic Pay scales of the civil servants from BPS-16 to 22, allowed special pay of Rs,100 to senior officers for Advance Course in Management in N.I.P.A. The appellant demanded the above benefit by contending that since the above allowance was commutable towards pension of the civil servants who retired after enforcement of the above circular with effect from 1-6-1991, therefore, the appellant was also entitled to the increase in pension by re-computing the above amount by including the above allowance. The department rejected his claim. The appellant filed appeal against the said decision which was dismissed. He then approached the Supreme Court. In view of the fact that under Article 187(1) of the Constitution of the Islamic Republic of Pakistan, 1973, the Supreme Court was competent to issue directions, orders or decrees as may be necessary for doing complete justice, therefore, it was held that the appellant was entitled to benefit of such addition in pension granted under the said O.M. Reference in this regard may also be usefully made to the case of Bhim Singh and others v. State of Haryana and others 1983 PSC 42, from Indian jurisdiction, in which by virtue of Exh.P-1, certain specific promises Were held out by the State as inducement for the appellants to move into a New Department (Agriculture Department). After they had gone over to the said department, the State, by virtue of its letter Exh.P-3, sought to go back upon the earlier promise made in Exh.P-1. It was held that the appellants having believed the representation made by the State and having further acted thereon could not have been defeated of their hopes which had crystallized into rights. It was further held that it was not open to the State according to the law laid down by the Supreme Court of India to backtrack. Needless to point out that though the doctrine of promissory estoppel does not extend to legislative and sovereign functions yet, executive orders are not excluded from lis operation. Reference in this regard may be made to the cases reported as Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others PLD 1991 SC 546, Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCM R 916, Union of India and others v.
Godfrey Philips India Limited AIR 1986 SC 806, Messrs Iit Ram Shiv Kumar and others AIR 1980 SC 1285, M.P. Sugar Mills v. State of U.P. AIR 1979 SC 621, Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self-Government, Chandigarh and another AIR 1970 Punj. And.
Har.
462.
9. Following the ratio decidendi of the afore quoted judgments, we are inclined to hold that since in the instant case the Government vide the O.M. In question had promised to allow the petitioner to enjoy possession of the house in question till the date of her superannuation and six months thereafter, hence, she could not have been asked to vacate the same before time and therefore its allotment to respondent No,3 was also bad in law.
10. Upshot of the above discussion is that the petition is converted into appeal and allowed, impugned judgment dated 24-12-2007 passed by the Federal Service Tribunal, Islamabad, in Appeal No,1296(R)CS/2005, as well as the order dated 4-2-2005 are set aside and it is declared that the appellant is entitled to retain official accommodation up to the age of superannuation and six months thereafter in terms of the Finance Division (Regulation Wing) O.M. Dated 4-12-1991, and as per terms and conditions of allotment.