SABIHUDDIN AHMED, J.--- All these three petitions arise out from the same order of a Division Bench of the High Court of Sindh, Karachi, dated 27-2-2008 dismissing, inter alia, Constitutional Petitions Nos.2229, 2231 and 2232 of 2006 involving similar facts and identical questions of law.
2. The facts in brief appear to be that all the three petitioners are Government servants. The petitioner in C.P. No,233-K of 2008 is working as Senior Registrar in the Civil Hospital, Karachi who was allotted a Government residential accommodation in a flat owned by respondent No,1 (Provincial Government) meant for occupation of its officers in Bath Island, Karachi in 1986. Similar accommodation was allotted to the petitioner in C.P. No,234-K of 2008 who is an Associate Professor in Government College for Woman, Shahrah-e-Liaquat, Karachi in 1994 and to the petitioner in C.P. No,235-K of 2008 who is a Town Health Officer (BS-19), Jamshed Town, Karachi in 1991. All the three petitioners are, admittedly, residing in the allotted premises fulfilling the required conditions of the allotment.
3. The allotment orders, issued to each of the petitioner on different dates, contain identical provisions. It may be worthwhile to reproduce some of their provisions as under:---
(i) This allotment does not entitle you to any lien on the residence but you will remain in occupation so long as you ,are in Provincial Government service posted at Karachi.
(ii)
(iii) .....................................................................
(iv) ..........................................................................................................................
(v) ..........................................................................................................................
(vi) That you will vacate the above mentioned premises immediately on your transfer from Karachi, retirement from Government service or cancellation of allotment and will deliver vacant possession to the Executive Engineer, Provincial Buildings Division-I/II, Karachi under intimation to this office."
4. After several years, however, each of the petitioner was served with identical notices dated 7-1- 2006 and 14-11-2006 stating that their possession was unauthorized as according to the allotment policy of 1999, the Government residences were only meant for secretariat officers and, accordingly, the respective allotments have been cancelled by the competent authority under the directions of Chief Minister, Sindh. As such, they were required to vacate the premises within 30 days failing which they could be ejected by force and legal proceedings could be initiated. The petitioners "...Lade representation to the concerned authorities and having failed to obtain redress invoked constitutional jurisdiction of the High Court seeking declaration that the cancellation of allotments and notices of ejectment were without legal and moral justification.
5. Mr. Naraindas C. Motiani, learned counsel for the Petitioner argued that the new policy of assigning allotment of secretariat officers could only be take effect prospectively and could not affect the allotments made in favour of the petitioners earlier. He further argued that even the so- called policy of 1999 was not being followed consistently. He pointed out that an allotment made in favour of one Ms. Naheed Rana, Assistant Professor, Government College for Women, who was not a secretariat officer, which was brought to the attention of the Honourable High Court was glossed over in the impugned judgment. Learned counsel further contended that the view taken by the learned High Court was contrary to the views recorded in its earlier judgment in C.P. No,D-355 1999 dated 20-5-1999 and as also the judgment of this Court in Civil Petitions Nos.359-K and 418-K of 1999, dated 13-12-2001 wherein leave to appeal against the judgment in C.P. No,D-355 of 1999 was refused. Learned counsel argued that though all these judgments were placed before their Lordships (as is evident from the impugned order) no notice thereof was taken and their Lordships did not even seek reference to a larger Bench against the well-settled principles laid down by this Court in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others reported in PLD 1995 SC 423.
6. Mr. Masood A. Noorani, learned Additional Advocate-General appearing for the respondents on the other hand simply argued that it was a prerogative of the Government to change its allotment policy and the moment a new policy was framed in 1999, the petitioners automatically became unauthorized occupants. As such the Chief Minister was fully competent to cancel the allotments of the petitioners and the petitioners were only attempting to frustrate the objects of a properly framed allotment policy. He further stated that the petitioners had been transferred from their earlier postings and emphatically argued that a Government servant has no right to occupy an official accommodation for an indefinite period.
7. We have carefully considered the contentions of the learned counsel for the parties and have gone through the material on record including the earlier judgments of the High Court and the order of this Court refusing leave to appeal. It is nobody's case that the petitioners were not entitled to allotment of accommodation under the policy or rules in force at the time the respective allotments in their favour were made. The allotment order expressly allow the allottee to remain in occupation as long as he remains in the employment of the Provincial Government and posted at Karachi. This right is further auglnenting by clause (vi) of the allotment order, which expressly stipulates that the allottee would vacate the premises upon transfer from Karachi, retirement from Government service or cancellation of allotment. Admittedly, none of the first two eventualities have taken place in respect of either of the petitioners.
8. The argument advanced by learned Additional Advocate-General that by a change of allotment policy, the petitioners became unauthorized occupants or the allotment in their favour became liable to cancellation hardly merits any serious consideration. It is too well-settled that any executive dispensation or change of policy could never have retrospective effect or impair vested rights. Indeed, the Government may be well within its rights to change its allotment policy.
Nevertheless, such change could only apply to allotments made after its enforcement. It would never affect the rights of the old allottees which could only be taken away through legislative dispensation given retrospective effect.
8-A. We are surprised, however, the learned Judges of the High Court construed clause (vi) of the allotment order to presume that the allotment in favour of the petitioners could be cancelled at whim. It is well-settled that no public power could be exercised arbitrarily at the B whims of those bestowed with it. In our opinion a careful reading of the allotment order clearly demonstrates that the allotment was liable to be cancelled only upon the failure of the petitioner to abide by the conditions set out in clauses (iii) and (vii) i,e, non-payment of rent or utility charges within the stipulated time or sub-letting. Similarly, the use of the word "provisionally" could only be relatable to clause (2) i,e, in the event of the allottee's failure to occupy the house within four days of the allotment could certainly not mean that the petitioner could be arbitrarily ejected after decades of occupation. Indeed, it is nobody's case that the petitioner did not qualify for allotment at the time the orders in their favour were made or ever violated any terms of the orders.
9. The assumption that allotment of Government accommodation was merely a matter of license revocable at any time is equally unsustainable. In this context it needs to be seen that when the right of exclusive possession of immovable property was conferred upon the petitioners in terms of the allotment order, it is extremely doubtful if the order could be described as a license simplicitor under section 52 of the Easements Act, 1882 in terms of the well-known pronouncement of this Court in Abdullah Bhai and others v. Ahmad Din reported in PLD 1964 SC 106. Even otherwise, a Government, unlike a private party, even in matters of contract, must act reasonably and fairly and the concept of unfettered arbitrary discretion does not exist in public law. In any event, certain rights had been created in favour of the petitioners through allotment orders issued by the Government and it is well-settled that such rights, even if in the nature of privileges, cannot be taken away by the subsequent executive action or change in policy. They could only be impaired through legislative dispensation expressly given retrospective operation as held by this Court, inter alia, in the cases of (i) Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and (ii) Al-Samrez Enterprise v. Federation of Pakistan 1986 SCM R 1917. It is regrettable that the learned Judges of the High Court overlooked some elementary principles of public law.
10. We are equally surprised at the manner in which some earlier precedents of the same Court and an order passed by this Court were considered by their Lordships. In the precedent cited admittedly the accommodation allotted to the allottees was beyond their entitlement and yet their Lordships had taken the view that if such allotments were made through relaxation of rules/policy or if the policy had not been consistently followed, the allottees could still not be disturbed. Indeed, in the instant petitions, the cases of the petitioners were on a far better footing as it was nobody's case that the petitioner did not qualify for allotment when the allotment orders were passed.
Nevertheless, despite citing precedents, their Lordships clearly ignored them in the process of reaching their conclusion. Even if their Lordships were minded to take a different view, the least they could have done to request the Honourable Chief Justice to constitute a larger Bench. It needs to be emphasized that a Division Bench of the High Court does not have the liberty of taking a view different from an earlier Bench and must act in accordance with the principles laid down in the case Multiline Associates (supra). At the same time, we may add that when the case of an allotment made in 2005 in favour of Ms. Naheed Rana was brought to the attention of the Court, there was no justification to accept the plea of "oversight". Ex facie there was not the case of a simple omission to take notice but the passing of a specific allotment order through a conscious application of mind.
11. For the foregoing reasons finding the impugned judgment to be entirely unsustainable, we decided to convert these petitions into appeals and allowed the same. Accordingly, the impugned notices of respondent No,1 are set aside and it is ordered that the petitioners would be liable to vacate the premises only upon transfer from Karachi, retirement from Government service or cancellation of the allotment in accordance with the terms thereof.