Through this petition, the petitioner has assailed the impugned order dated 17.04.2008 passed by the Respondent No. 3 being without lawful authority having no legal affect. The instant writ petition was accepted by this Court on 28.10.2008, but Respondent No. 4 assailed this order through I.C.A No. 137/08 which was accepted on 22.12.2008 with observation that Writ Petition No. 1818/08 shall be decided after giving right of hearing to Respondent No. 4 in accordance with law.
2. Brief facts of the case as per writ petition are that the petitioner who is a Lecturer was allotted official residence i.e. House No. 38-B, Indus Colony, Dera Ghazi Khan vide order dated 17.03.2007.
Respondent No. 4 was in illegal possession of the house and she did nor vacate the same Respondent No, 1 directed to Respondent No. 2 to get the house vacated from the illegal occupant through police but Respondent No. 2 did not comply with the order of Respondent No. 1 and kept the matter pending. Thereafter, on 17.04.2008 Respondent No. 3 recalled the order dated 17.03.2007 and allotted the same to Respondent No. 4 who was illegal occupant.
3. Learned counsel for the petitioner has argued that the order of Respondent No.3/EDO Finance and Planning, Dera Ghazi Khan on behalf of Respondent No 1 /D.C.O was not permissible as he was having officiating charge of the Office and was not legally empowered to re-call the order earlier passed by the competent authority; that the order of allotment in favour of Respondent No 4 Mrs. Sameena Shaheen Bukhari is based on concealment of facts and Respondent No. 3 has flouted to "the provisions of the allotment policy because Respondent No. 4 was in illegal occupation of the official residence without any allotment and in this respect an order was passed for vacation of the same through police whereas the ground for cancellation/recalling the order of allotment in favour of the petitioner passed was causing loss to exchequer for non-deducting the house rent which is not only an illegal order but also perverse with mala fide of Respondent No. 3.
4. Heard. Record perused.
5. Respondent No. 1/D.C.O issued the notice dated 14.4.2007 for vacation, of Government residence No. 38-B Indus Colony, Dera Ghazi Khan to Respondent No. 4/Mrs. Samina Shaheen Bukhari with the direction to vacate the residence in question within a period of 14 days from the issue of said notice and handed over possession thereof to the new allottee under intimation to his office, otherwise the house will be got vacated by force and the Government will also be moved for taking strict disciplinary action against her.
6. On 17.03.2007, Respondent No. 1/D.C.O passed the order that allotment of House No. B-38 Indus Colony, D.G.Khan is hereby allotted in the name of Mst. Shahida Parveen, Lecturer now Government Girls Degree College, Model Town. D.G.Khan on usual terms and conditions that it shall be her personal responsibility to handover its possession to Sub-Engineer concerned of Buildings Department, D.G.Khan as and when she is transferred out of D.G.Khan or vacate it otherwise; On 18.12.2007 Respondent No. 1/D.C.O, D.G.Khan has requested District Police Officer to directed the S.H.O concerned to get the house vacated from the illegal occupants namely Mrs. Samina Shaheen Bukhari immediately. On 17.04.2008, Respondent No. 1/D.C.O cancelled the house in question in the name of the petitioner and allotted the same to Respondent No. 4/Mrs. Samina Shaheen Bukhari.
The impugned letter dated 17.04.2008 indicate the reasons of cancellation were that the petitioner had not occupied the said residence from the date of its- allotment resulting huge loss to the Government exchequer due to non-deduction of house rent. The reason given by Respondent No. 1/DCO while canceling the order is not sustainable in the eye of law as it was not the petitioner who was responsible for not occupying the premises. It was Respondent No. 4 who had not vacated the premises despite issuance of notices in this regard by Respondent No. 1/DCO. Respondent No. 1/DCO has accommodate the illegal occupant, which speaks mala fide on the part of Respondent No. 1/DCO. Even Respondent No. 3 while having officiating charge was not required to recall the order passed by competent authority. Respondents No. 1 and 2 being Government functionaries are supposed to exercise their discretion fairly, justly and in accordance with law. They had not right to adopt pick and choose policy, although a servant a civil servant cannot claim accommodation as a matter of right but once allotment letter was issued in favour of the petitioner, the same cannot be withdrawn, arbitrary manner. The Government functionaries cannot allowed to exercise its discretion at their wishes, sweet will or as they pleased. They are required to act fairly, justly, evenly and reasonably. Reliance is 'placed on Chairman, Regional Transport Authority, Rawalpindi vs. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 Supreme Court 14): "A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the office are held in trust for the people and are to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers."
Reliance is placed on Zahid Akhtar u. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others. (PLD 1995 Supreme Court 530) "Government servant should comply only with those orders/directions of his superior which were legal and within his competence---Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on the ground that non-compliance thereof, could have exposed concerned Government servant to the risk of disciplinary action."
7. In this view of the matter the impugned order dated 17.04.2008 is declared to have been passed in an arbitrary manner and as such is without lawful authority having no legal effect.
8. Resultantly, this petition .is 'allowed and impugned order dated 17.4.2008 is hereby set aside.