' GHULAM RABBANI, J,--- Through this petition, leave to appeal is sought against the common judgment, dated 13-4-2009 passed by a learned single Judge of the Islamabad High Court, whereby Writ Petition of respondents and several other petitions, were disposed of, inter alia, with the direction to the Federation of Pakistan, petitioner herein, to act strictly in accordance with rule 15 of the Accommodation Allocation Rules, 2002 (hereinafter to be referred to as AAR, 2002) and the observations made by Court in para No,12 of impugned judgment; and maintain general waiting list in accordance with Rule 6 of the AAR, 2002 and dispose of the cases of respondents within a period of two months from the receipt of the order.
2. The respondents are Federal Government servants and are residing in government residential accommodation allotted to their respective fathers by virtue of their being Government servants as they were before their retirement. Since the accommodation in possession of respondents, according to them, was not being allotted to them being entitled thereto; they filed Constitution Petition bearing No, 1623 of 2008. They, inter alia, sought a direction to the petitioners herein for allotment of the houses in their respective possessions under sub-rule (2) of Rule 15 of AAR, 2002.
3. On 25-6-2008 Ministry of Housing and Works, Federation of Pakistan issued a letter to the petitioner No,2, Estate Officer, Estate Office, Government of Pakistan, Islamabad, informing him that it was decided that the allotment cases under Rule 15(2) of AAR, 2002 be held in abeyance till further orders and further necessary action be taken in the matter accordingly. Ostensibly, this gave cause of grievance to many other employees of Federal Government, who filed a host of Writ Petitions bearing Nos.934 of 2008, 1136 to 1138 of 2008; 1140 to 1153 of 2008 and other petitions noted in the impugned judgment. All of those petitioners are said to be either serving spouses or children living in the government accommodation which, too, stood allotted to their husband/father as Federal Government servants at the time of their death or retirement.
4. A learned Single Judge of Islamabad High Court considered the questions involved in all the above petitions in the light of Rule 15 of. AAR, 2002, and disposed of the same with directions noted above vide judgment impugned herein.
5. It was contended before us that Rule 15(2) of AAR, 2002 was declared to be ultra vires of the powers of President to make Rules under section 25 of the Civil Servants Act, 1973 read with F.Rs, 45 and 45-A as declared by Lahore High Court, Rawalpindi Bench in I.C.A. No,241 of 2005, therefore, the provisions of said sub-rule could not be extended to the respondents. It was stressed that the respondents and other petitioners before the High Court, were not entitled to allotment of houses/quarters in their respective possession.
6. We have given due attention to the submissions of learned Deputy Attorney-General and with his assistance we have examined the material made available before us.
7. The dispute regarding allotment of government accommodation to the children or spouse of deceased or retired government servant is dealt with under rule 15 of AAR, 2002, therefore, before we proceed further, we consider it advantageous to reproduce said rule as follows:-- "15. Retention of Accommodation.--- (1) In case of death of allottee--
(a) the family of the allottee shall be entitled to retain the accommodation under their occupation for a period not exceeding one year on payment of normal rent; and
(b) his serving widow or serving legitimate children may be allotted the said accommodation provided he is eligible for the accommodation or becomes eligible for the said accommodation within one year of the event. In case the allottee expires within six months after retirement, his serving spouse or legitimate children may be considered for allotment provided all other conditions are met. Where the accommodation is of a class or category higher than his entitlement, the shall be allotted the first available accommodation in that class or category as the case may be, and shall not be dislodged and shall be charged normal rent till such time as the alternative accommodation of his entitlement has been made available to him: ' Provided that in no case the occupant shall be entitled to retain the accommodation of higher category for more than one year.
(2) An allottee, on his retirement or expiry of contract period shall be entitled to retain the accommodation under his occupation for a. Period not exceeding six months, on payment of normal rent and this facility will be available to FGS once only: Provided that the serving spouse or children living with FGS may be allotted the same accommodation, if he is eligible and otherwise entitled for accommodation within six months of the retirement of the FGS. If the accommodation allotted is higher than the entitlement of the spouse or children, he may apply in writing for the allotment of accommodation in accordance with his eligibility, in lieu he occupies accommodation. The spouse or children shall not be eligible for allotment of accommodation of higher category."
8. Coming to the merit of case, it may be stated that perusal of the impugned judgment reflects that the question involved in the matter had, earlier, come under consideration in a Writ Petition bearing No,1082 of 2006 filed by one Israr Ahmad, a son of a retired civil servant Nazir Ahmad. The said petition was dismissed by a learned Single Judge of Lahore High Court, Rawalpindi Bench with the observation that:-- "rule 15 (Retention of Accommodation, in case of death of allottee) of the rules for the allotment of residential accommodation to the Federal Servants as notified on 30-10-2002 vide S.R.O.749(1)/2002 to be ultra vires of the powers of the President to make rules under section 25 of the Civil Servants Act, 1973 read with Fundamental Rules 45 and 45-A.".
' An Intra-Court Appeal No,133 of 2006 preferred against the judgment was accepted on 14.5.2008 holding that:-- "the order 'dated 27-4-20Q6 is not sustainable. This I.C.A. Is, therefore, allowed; impugned order passed by learned Judge in Chambers is set aside for the above reasons. The writ petition shall be deemed to be pending. It shall be fixed before any available Bench for a decision, expeditiously."
' The above writ petition was, subsequently, dismissed for non-prosecution. While deciding the petitions filed by the respondents and other petitioners in several writ petitions noted in the impugned judgment, learned Single Judge of Islamabad High Court took into account the fact that the writ petition filed by Asrar Ahmad stood dismissed, and formed the view that no list was pending in respect of Rule 15(2) before the Court. Obviously, learned, Single Judge took this view in the light of judgment in I.C.A. 133 of 2006, the relevant portion wherefrom has been borrowed and noted hereinrabove.
9. It may be noted that impugned judgment reflects that the core issues attended to by learned Single Judge were of allotment of Government accommodation in the light of provisions of Rule 15 of AAR, 2002 and validity of afore-noted letter dated 25.6.2008, against which, as is evident from impugned judgment, several petitioners before the High Court had raised voice. It appears that through that letter the Estate Officer was informed that a decision had been taken that Rule 15(2) of AAR, 2002 be held in abeyance till further orders and further action was to be taken accordingly.
This letter is reproduced as follows:-- ' Subject: Allotment of Government Accommodation under rule 15(2) of Accommodation Allocation Rules. 2002 ' Dear Sir, ' I am directed to refer to this Ministry's letter of even number dated 5-6-2008 on the subject noted above and to say that it has been decided that the allotment cases under rule 15(2) of AAR-2002 may be held in abeyance till further order.
(2) Estate Office is requested to take further necessary action in the matter accordingly.
(3) This has the approval of Secretary Housing and Works."
10. Learned Single Judge having attended to the circumstances discussed in the earlier part of this judgment, in the first instance, examined the intrinsic value of the above letter and declared the same to have been issued without authority and against the guarantees envisaged in Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 and section 24(a) of the General Clauses Act, 1877. While doing so he observed as follows:-- "That respondent No,1 has not given any reason for holding in abeyance rule 15(2) of AAR, 2002.
Respondent No,1 was under obligation to substantiate its direction reasonably, fairly and justly for the advancement of the purposes of the enactment, however, respondent No,1 had directed respondent No,2 to hold in abeyance Rule 15(2) without any reason and even in parawise comments the respondents have not given any reasons for making the said direction adversely affecting the Federal Government employees, therefore, letter dated 25-6-2008 is declared to be issued without authority and against the guarantees envisaged in Article 4 of the Constitution of Pakistan and section 24(a) of General Clauses Act 1877."
11. Dilating on rule 15 of AA Rules, 2Q02, he observed further that:-- "....If the serving widow or legitimate children are eligible or would become eligible within a period of one year they are entitled to allotment of the same accommodation if they are entitled for the same class and in the case the accommodation is of a category higher than their entitlement they are entitled to get allotment of first available accommodation of their class or category but they are not entitled to retain the accommodation for more than one year in any case according to proviso added in section 15(1) of AAR, 2002 Notification No,S.R.O.668(1)/2004 dated 4-8-2004. In case of retired Federal Government servant, the serving spouse or children, if eligible and otherwise become entitled for accommodation within a period of six months, can retain the same accommodation and in case the accommodation is higher than their entitlement they may apply in writing for allotment in accordance with their eligibility in lieu of occupied accommodation but not entitled to retain the accommodation of higher category than their entitlement after six months of retirement of the Federal Government servant.
' The proviso added in Rule 15(1) of AAR, 2002 whereby a maximum period of one year was described for the retention of accommodation of higher category has not been provided along with section 15(2) for retention of maximum period, however, from the plain language of section 15(2) of AAR, 2002 the spouse, and children of retired employee cannot retain the accommodation of higher category than their entitlement after six months of the retirement of their predecessor".
12. In his submissions before us, learned Deputy Attorney-General heavily relied on decision in I.C.A.
No,241 of 2004 which was dismissed vide order dated 21-12-2004. The relevant portion whereof is reproduced as follows:-- "4. On hearing the learned counsel for the appellant as well as her attorney we will not take long to reject this appeal for the reason that recently in W.P.No,41 of 2003 re: Mst. Altaf Bibi v. Government of Pakistan, one of us (Nasim Sikandar, J), declared Rule 15 (retention of Accommodation, in case of death of allottee) of the rules for the allotment of residential accommodation to the Federal Government servants as notified on 30-10-2002 vide S.R.O. No, 749(1)/2002 to be ultra vires of the powers of the President..." "the accommodation built with the money of tax-payers is not a charity to be distributed by either an officer of the government in the Estate Office or holder of a political office on the basis of his personal notions of piety and compassion. A compassion shown is legitimate only when it relates to one's personal property and secondly, when it does not result in cruelty and injustice to another.
For these reasons we will hold rule 15 (Retention of Accommodation, in case of death of allottee) of the rules for the allotment of residential accommodation to the Federal servants as notified on 30- 10-2002 vide S.R.O.749(1)/2002 as well as the said letter of the Housing and Works Division dated 24-3-1996 to be ultra vires of the powers of the President to make rules under section 25 of the Civil Servants Act, 1973 read with Fundamental Rules 45 and 45-A."
13. Be that as it may, on examination of record, we find that the Prime Minister of Pakistan vide Notification No,S.R.O. 668(1)/2004 dated 4-8-2004, which was published the same day in the Gazette of Pakistan (Extraordinary), had made amendment in sub-rule (2) of rule 15 of AA Rules, 2002 meaning thereby that the said rule was holding field at that time the I.C.A. No, 241 of 2004 was decided. The afore-referred amendment was made in exercise of powers vested in him under section 25 of the Civil Servants Act, 1973 vide S.R.O. 120(1)/98, dated 27-2-1998. Both the above mentioned notifications are reproduced herein below:-- ' Powers of Prime Minister to amend Rules "S.R.O." 120 (1)/98, dated 27-2-1998.- In exercise of the powers conferred by subsection (1) of section 25 of the Civil Servants Act, 1973 (LXXI of 1973), the President is pleased to authorize the Prime Minister to make rules under the said Act."
' Amendment in Rule 15 of A.A. Rules. 2002 "S.R.O. 668(I)/2004.--- In exercise of the powers conferred by subsection (1) of section 25 of the Civil Servants Act, 1973 (LXXI of 1973) read with Fundamental Rules 45 and 45-A, the Prime Minister is pleased to direct that the following further amendments shall be made 'in the Accommodation Allocation Rules, 2002, namely:- ' In the aforesaid Rules,-- (a)
(b) ' In rule 15, in sub-rule (2) for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be inserted, namely:-- ' Provided that the serving spouse or children living with FGS may be allotted the same accommodation, if he is eligible and otherwise entitled for accommodation within six months of the retirement of the FGS. If the accommodation allotted is higher than the entitlement of the spouse or children, he may apply in writing for the allotment of accommodation in accordance with his eligibility, in lieu he occupies accommodation. The spouse or children shall not be eligible for allotment of accommodation of higher category; and
(c) ..
' It is thus quite apparent that while making the decision on I.C.A. No,241 of 2004, learned Division Bench of Lahore High Court was not cognizant of amending S.R.O. No 668(1)/2004, muchless the amendment brought in sub-rule (2) of Rule 15 of AAR 2002, whereby power vested in the Prime Minister as conferred on him within terms of section 25 of the Civil Servants Act. Be that as it may, on perusal of the written statement filed by the petitioner and the impugned judgment, we find that in Constitution Petition No,1623 of 2008 filed by the respondents before the Lahore High Court, it was not the case of the respondents/petitioners herein, that the rule 15 of AA Rules, 2002, stood already declared ultra vires of the powers of the President. The written, statement filed by the Federation of Pakistan, petitioners herein, (available in the paper book at pages 19-24), too, does not show that the petitioners had taken therein such plea. Rather in para 8 of written statement filed by petitioners/respondents in Writ Petition No,1623 of 2008, it was stated that, "The Government accommodations were allotted to Civil Servants under Rule 15(2)(b) of AAR 2002 prior to the suspension of Rule 15(2)(b) of AAR 2002 by Lahore High Court, Rawalpindi Bench, during 2006, therefore, the suit quarters could not be allotted to the petitioners." We have also noted that the written statement is also silent as regards the above noted S.R.O. No,668(1)/2004, dated 4-8-2004 whereby beneficial amendment adding the above noted proviso in sub-rule (2) of Rule 15 of AA Rules, 2002 was made by the Prime Minister. It does not appear to be the subject-matter of Writ Petition No,1082 of 2006 or of two I.C.As viz. Nos.133 of 2006 and 241 of 2004; although it was issued much earlier to the decisions rendered in these matters.
14. Having discussed as above, we are of the view that learned Single Judge of Islamabad High Court, rightly embarked on to decide the matter in the prevailing circumstance and disposed of the matter under the impugned judgment. We, therefore, find no legal defect or infirmity in the impugned judgment to warrant interference. Accordingly, finding no merit in this petition, the same is dismissed. Leave refused.
15. Before parting, however, we feel constrained to observe that learned D.A.-G. Appearing in this case failed to render that assistance which he ought to have attempted in the circumstances appearing in the matter. Besides, we have noticed that the main grievance in this petition of the petitioner, the Federation of Pakistan, is against the amendment in Rule 15(2) of the Accommodation Allocation Rules, 2002 whereby serving spouses or children of retired Government servants were entitled to retain the Government accommodation earlier allotted to such Government servants. Instead of getting the said Rule repealed the same was held in abeyance by an executive order. We are indeed intrigued that the Federation of Pakistan is assailing a statutory Rule, which is within its power to repeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.