' SALIM GUL SHAIKH (MEMBER).--- This appeal is directed . Against order dated 29-5-2000 whereby it has been ordered to recover the payment made to the appellant on account of house rent for the period 1-1-1997 to 20-4-2000. The appellant preferred departmental appeal dated 17-6-2000 against this notice of recovery which has remained unactioned and consequently, the appeal in hand has been preferred for the redressal of the grievance. #TBS PLC (Vervice) #TBE
2. Briefly the facts leading to the filing of this appeal are that the appellant was appointed in BS-19 in the Council for Works and Housing Research, in the Ministry of Science and Technology on 23-7- 1987. As A per the terms and conditions of her service, she was entitled to receive house-rent according to her entitlement. Consequently, she was being paid house-rent allowance from the time of her appointment in service. But, during the audit of the accounts of the Council in April, 2000, it was discovered that the payment was being made to her in violation of instructions contained in O.M. Dated 18-8-1983 issued by Ministry of Finance because she was living with her husband, who is an employee of the Civil Aviation Authority, and had been allotted official residence (No, D/13) in CAA Colony in Karachi. The Council not only stopped the payment of house- rent but it was also ordered that recovery of the unauthorized payment should be effected from her. Her representation was not responded within the statutory time and she, accordingly exercised the option to knock at the door of the Tribunal for the redressal of her grievance within the stipulated time frame.
3. In his arguments, the learned counsel for the appellant addressed the issue of maintainability by asserting that the appellant was a civil servant and that the service rules of the Council were statutory in nature. In support of his contention, the learned counsel placed on record a copy of the notification dated 12-6-2000 which clearly states that the employees of the Council were civil servants. With regards to the merit of the appeal, the learned counsel asserted that both husband and wife were serving in different departments and therefore both were legally entitled to the house-rent/accommodation in pursuance of the terms and condition of their service. He further argued that the impugned order was not sustainable in law in view of the judgment of the Federal Service Tribunal in the case of Razi Begum v. Ministry of Finance reported in 1986 PLC (C.S.) 754 wherein similar point of law was raised and it was held that since one of the spouse is a government servant while the other is an employee of a statutory body as such no rule can be made by either side to disentitle employees of other side of their term and conditions of service.
The learned counsel even went to the extent of asserting that B even if the husband and wife were both government servants still they were entitled to house-rent allowance in terms of the judgment in the case of Abdul Rasheed and others v. Accountant General, Pakistan Revenues, Islamabad and two others reported in 1999 PLC (C.S.) 464 as both were performing their functions as independent civil servants. He further contended that the order of recovery of payments made to the appellant was hit by the Principle of Locus Poenitentiae and as such benefits once given cannot be taken away. According to him the appellant had been receiving these benefits since 1987. It was also argued that the O.M. Dated 18-8-1983, on the basis of which the recovery had been ordered, was in conflict with the judgments of this Tribunal mentioned hereinabove which had acquired finality since it had not been challenged before the apex Court. He went on to argue that the entitlement had accrued to the appellant as a result of the terms and conditions of her appointment in service and not due to her marital status. He concluded the submissions by arguing that the impugned order was also violative of Articles 4, 8 and 25 of the Constitution and therefore could not be sustained in the eyes of law.
4. The learned Federal Council, on the other hand, forcefully opposed the appeal on the ground that the payment was unauthorized because it was in clear violation of instructions contained on O.M. No,F.1(1) Imp./83 dated 18-8-1983 wherein it has been categorically laid down that husband and wife living together in official accommodation allotted to anyone of them, the other shall not be entitled to receive the house-rent. He contended that the CAA may be an autonomous body, it was still a government controlled institution and therefore the instructions would mutatis mutandis apply to them as well. It was further contended that the judgment of this Tribunal in the case of Razi Begum was not relevant in this case as it was judgment in personam and not judgment in rem. He therefore pleaded that the appeal was liable to be dismissed.
5. We have heard both parties and have also carefully perused the material placed in record. In our opinion, the following questions have been raised during the discussion, which need determination.
The question are: (a) whether the terms and conditions of appointment of a civil servant are determined by the marital status of a person? And (b) whether recovery of house-rent allowance paid to the appellant can be recovered. Since these are seminal issues to the controversy, we propose to discuss each question separately. First, the matter of house-rent allowance. Admittedly, the issue of house-rent entitlement has been examined and decided by this Tribunal in two judgments referred to hereinabove. It is also admitted that the said judgments were never agitated before the apex Court and therefore, have attained finality. The question naturally arises why is the respondent-department reluctant to give the same benefits to the appellant? In order to clarify this matter, it will be relevant to mention that the respondents have taken the position that the rules do not allow the grant of this benefit to husband and wife who are living together in an official accommodation allotted to either of them. In our opinion, this position was also taken by the respondents in the earlier case and which was not accepted by the Tribunal. It will be appropriate to reproduce here the relevant portion of our judgment in the case of Razi Begum v. Ministry of Finance as under:--- "(5) As far as the appellant is concerned, she is to be governed strictly in accordance with the rules applicable to the Federal Government employees. Those rules disallow house rent to one of the spouses if the other is in occupation of a Government accommodation. In the present case, the appellant is a Government servant. The appellant is, therefore, entitled to draw the house rent allowance. It is for the employer of her husband to decide whether he would be given full rent of the house in which he is living or not. As far as the appellant is concerned, the house rent allowance cannot be denied to her by the mere fact that the University has adopted similar rules. The adoption of the Government rules by the University means that where the husband as well as the wife are employees of the University the rule disallowing the house rent allowance to a spouse would be applicable if the other spouse is in occupation of the house the rent of which is being paid by the University. The adoption in fact would be applicable only when both the spouses are employees of the University itself and not otherwise. Neither the University can make a rule affecting the Federal Government Employees nor the Federal Government can make any rule affecting the University employees."
6. A bare reading of the relevant extract of the judgment clearly reflects that the position in the case in hand is not distinguishable but on the contrary it is identical.
7. We next propose to examine the position taken by the respondents that earlier decision of the Tribunal i.e, Razi Begum v. Ministry of Finance 1986 PLC (C.S.) 754 was in personam and not in rem.
In our opinion, the position taken by the respondents does not appear to be logical because the cause of grievance is not specific to the appellant alone. The grievance has arisen from the application of a general circular which is applicable to civil servants in general. It will be relevant to give an analogy here about a similar matter pertaining to the grant of secretariat allowance to civil servants. In that case which was agitated by the Government before the Tribunal and the Hon'ble Supreme Court, the position taken by the Government was identical. But the matter was ultimately decided by the apex Court in the favour of the civil servants. (Reference is to the rulings in 1997 SCMR 1026 and the judgment of Federal Service Tribunal in Appeal No,19(K)(CS) of 2003). The Tribunal in the case of Razi Begum v. Ministry of Finance had decided that the question which was relevant to all civil servants similarly placed. Under these circumstances, we are of the considered view that the presumption of the respondent that the earlier judgment of the Tribunal was in personam is neither correct nor supported by any cogent argument or is it in consonance with the principles of natural justice. The honourable Supreme Court has already laid down the law in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division reported in 1996 SCMR 1185 wherein it has been that when the Court decides a point of law relating to the terms of service of a civil servant which cover not only the case of the civil servant who litigated, but also of other civil servants who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demands that the benefit of above judgment be extended to other civil servants who may not be party to the above litigation instead of compelling them to approach the Tribunal or any other legal forum. In this case the honourable Supreme Court also referred to the judgment reported in 1993 SCMR 606 (Haji Nazar Ahmed v. Member (Revenue) BOR, Punjab). The question of house-rent allowance was not appellant's specific matter and therefore cannot be termed as in personam. The matter concerns the terms and conditions of service which has general applicability and, therefore, we are unable to sustain their argument.
8. The next question relates to the matter of effecting recovery of the amount from the appellant.
The learned counsel for the appellant has brought into assistance the Principle of Locus Poenitentieae. We have given our anxious consideration to the matter of recovery and have come to the conclusion that discussion on this matter would have been relevant if the appeal had not succeeded before us. Under the circumstances, the question of recovery does not arise.
9. For the reason discussed hereinabove, we have no hesitation in setting aside the impugned order.