' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Muhammad Zafarullah son of Hafiz Noor Ahmad petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 prays as under:- "That it may kindly be declared that:-
(a) section 2 of the Punjab Government Servants Housing Foundation Act, 2004 in its present form is discriminatory and violative of Articles 3, 4 and 25 of the Constitution in that it does not include the retired government servants;
(b) that the instructions of the Foundation (Annexure "B") are void in its present form as these discriminate between retired government servants on the basis of date of retirement which has been fixed arbitrarily and without any nexus to the objective of the law;
(c) the order of cancellation of membership communicated vide letter dated 16-4-2008 is arbitrary, discriminatory void and without lawful authority, hence ineffective qua the right of the petitioner.
' It is further prayed that the respondents may kindly be directed to honour their commitment to the petitioner as per their letter, dated 21-2-2006.
' Any other relief which this Hon'ble Court thinks fit may also be awarded in the case."
2. Briefly the facts of the case are that the petitioner retired as Accounts Clerk (BS-11) from Highway Circle Sargodha, Highway Department after rendering twenty five years of service. On creation of Punjab Government Servants Housing Foundation through Act No,X of 2004, applications were invited for membership of the Housing Foundation. The petitioner approached for membership and it was made clear to him that only those retired government employees are eligible to apply who retired on 10th March, 2004. The petitioner submitted an application to the Chief Secretary Punjab which was allowed and the Foundation allotted provisional membership number 0066036 to the petitioner through letter dated 20-2-2006. The petitioner sent a bank draft of Rs,7000 in compliance with the terms of the said letter. As per letter dated 20-9-2007 the Foundation informed the petitioner that a 7 Marlas house at Lahore constituting an area of 1400 square feet worth Rs,17 lacs would be allotted to the petitioner. As per requirement the petitioner sent his retirement letter to the Housing Foundation. Through letter dated 16-4-2008 the membership of the petitioner was cancelled by the Housing Foundation on the ground that the petitioner is not eligible as he had retired before 10-3-2004. The petitioner's representation was rejected by the Housing Foundation and the petitioner's appeal is still pending with the Chief Secretary.
3. The learned counsel for the petitioner challenges the vires of section 2 of Punjab Government Servants Housing Foundation Act, 2004 on the ground that the provision of section 2 excludes the retired government servants but includes temporary government servants; that the said section does not prescribe any length of service of government employee to move application for allotment and disentitle the retired government servants; that the Act of 2004 was promulgated for the benefit of retired civil servants but insertion of cut off date by making it applicable only to the serving civil servants being discriminatory in nature is against provisions of the Constitution; that definition of government servant is much wider than civil servant and encompasses all employees working for the provincial government in connection with the affairs of the provincial government, if the allotment/grant of a house was an award for the services rendered by the Government servants the retired government servants were equally entitled to it otherwise such promise of allotment would be nothing but a bribe to the serving employees by the sitting government; that mentioning of cut off date amounts to creating a division between the retired government servants which is patently discriminatory in nature; that the rule is violative of Articles 4 and 25 of the Constitution. Adds that his application disclosing the date of his retirement in the year 1999 was allowed by the competent authority and the petitioner has deposited Rs,7000 on the direction of the respondent Housing Foundation, therefore, cancellation of membership of the petitioner at some later stage is not tenable and is illegal, without lawful authority and of no legal effect.
4. Conversely, this petition has been opposed by the learned counsel for the respondents on the grounds that the main objective of establishment of Punjab Government Servants Housing Foundation is to provide subsidized constructed houses to the government employees on their retirement. Government servants, who were- in service on 10-3-2004 or became government servants, thereafter, are eligible to be members of the Foundation. Government servants who retired before that date are not eligible as per clause 13 of the Punjab Government Servants Housing Foundation Act, 2004 read with Rule 3(1) of the Punjab Government Servants Housing Foundation Rules, 2005. That initially provisional membership was granted to every applicant, subject to eligibility as mentioned in Punjab Government Servants Housing Foundation's letter dated 21-2-2006. On receipt of relevant documents i.e, retirement notification and PPO Book, the Foundation came to know that the petitioner was retired on 31-1-1999 before the promulgation of the Act (ibid) on 10-3-2004, therefore, his provisional membership was cancelled as per the provision supra. As per information provided by the petitioner in his application his date of birth is 31-1-1954, accordingly, his date of retirement on attaining the age of superannuation was calculated as 30-1-2014 and hence provisional membership subject to eligibility was granted to him.' After scrutiny, it came to light that he had already retired on 30-1-1999 and hence not eligible for membership. Therefore, his provisional membership, which was subject to eligibility, was terminated according to law. That the petitioner's appeal was rejected by the competent authority on 12-6-2008. That the Chief Secretary Punjab has not allowed any body to become a member in relaxation of rules; that the amount deposited by the petitioner is refundable and on demand by the petitioner the same will be disbursed to him.
5. Arguments heard. Record perused.
6. Primarily the case of the writ petitioner is built upon the equality clause as expressed by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. It is settled law that all the citizens of this country are equal and are also entitled to similar protection of law. The only exception to this constitutional mandate is the creation of a reasonable classification which can be created by a competent authority subject, of course, to the judicial scrutiny by the Courts of the country. The principles of examining the allegations of discrimination have been laid down in the case reported as I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCM R 1041.
7. Detailed arguments of the counsel of both sides were solicited on the question, as to how the fixation of the date qua the eligibility of the retired civil servants does not constitute a reasonable classification based on intelligible differentia.
8. Admittedly, the respondents cannot be presumed to be possessing indefinite resources so as to include every civil servant who might have retired at any time, after the creation of our beloved country on August 14, 1947. The relevant law i.e, the Punjab Housing Foundation Act was promulgated on 10-5-2004 with the primary intention of providing homes to government servants on their retirement. The said law was to take effect on a date to be notified by the Provincial Government whereas the term civil servant has been defined in section 2(b) of the Civil Servants Act, 1973 as follows:--- ' "civil servant means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) A person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is worker or workman as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
9. The Punjab Government Servants Housing Foundation Rules, 2005 were notified on 21-2-2005, Rule 3 whereof provides that every person, who was a Government Servant at the time of the promulgation of the Act or acquires such a status subsequently, would be eligible to become a member of the foundation. This Court finds that the date of 10th of March, 2004 i.e, the date of the promulgation of Act X of 2004 has rightly been stipulated as the date on which a person should be a government servant so as to be qualified to become a member of the foundation. If the arguments of the writ petitioner are to be accepted it would tantamount to giving a retrospective effect to the provisions of Act of 2004. Generally, laws are presumed to be prospective in their operation unless the appropriate legislature in its wisdom, decides to give retrospective operation to such law in clear and unequivocal terms.
10. I find that the specifying of the date of the 10th of March, 2004 in the enactment (ibid) creates a reasonable classification based on an intelligible differentia, as this in turn has a direct nexus to the object for which the relevant statute has been enacted. Such a classification is valid and does not tend to create any arbitrary distinction or an unreasonable discrimination amongst all persons similarly circumstanced, as the in-service civil servants or those to be employed in the future cannot be said to be equally placed with those who have retired prior to the said date.
11 If the Provincial Government introduces a housing scheme for its serving employees or future entrants it cannot be said to be contravening Article 25 of the Constitution towards those who already stand retired on the date of the introduction of the said scheme.
12. The cases relied upon by the learned counsel for the petitioner reported as Muhammad Mumtaz Javed v. Pakistan through Secretary Ministry of Communication, Government of Pakistan and 2 others 1998 CLC 1965, Muhammad Mumtaz Javed and others v. Pakistan National Shipping Corporation and others 1989 PLC (C.S.) 705, Mukhtar Ahmad and 5 others v. Government the Punjab, Lahore and another 1983 PLC (C.S.) 767, Farhat Munawar Bajwa v. General Manager Pakistan Television Corporation, Lahore and 3 others 1988 CLC 545 and Ameer Ali Barq v. Secretary to Government of Pakistan Establishment Division, Rawalpindi 1983 PLC (C.S.) 142 have been considered and unfortunately these are not of much help to the petitioner's case as these are distinguishable and facts of the said cases are entirely different to the facts of the case in hand.
13. The acts of the respondent are strictly in line with the mandate of the relevant law to which no exception can be taken. Although one feels for the retired employees but while deciding this case the law of the land has to be followed in its true spirit. This Court however expresses its desire that the Punjab Government may examine the possibility of introducing some scheme for its employees who had retired prior to 10th March, 2004 and who do not own or possess their own home.