' SHAUKAT AZIZ SIDDIQUI, J.---The above titled eight (8) Writ Petitions mentioned above, were disposed of by means of a single short order dated 10-4-2013 which is reproduced here in below:-- For the reasons to be recorded later on, Writ Petitions ' Nos.2303, 2108, 2209, 763, 4196 of 2012 and 770, 325 and 345 of 2013 are being disposed of with the following declaration and direction:-
(i) The Seniority list on the basis of which process of balloting took place is of no consequence and legal effect, the Chairman CDA is directed to issue final seniority list in accordance with the date of joining and age of the CDA Employees:
(ii) The deputationist on the basis of one year stay in CDA cannot be treated at par with regular employees who become entitle to allotment of plots after 10 years of regular service, therefore, deputationists are not entitled to the allotment of plots. Regulation 2(f) of Land Disposal Regulations, under the heading of CDA Employees" means of regular employees of CDA including deputationist," to the extent of "including deputationist" is declared to be void, offensive to the rights of regular employees and of no effect.
(iii) The length of service of all regular employees for allotment of plots, irrespective of their group shall remain as 10 years and no reduction may be made to the exclusion/ disadvantage of employees of any group. The Chairman, CDA shall ensure the transparency in the allotment process through balloting or by evolving any other mechanism to ensure the merit."
2. Precisely the facts in the Writ Petitions Nos. 2303, 2108 and 4196 of 2012 and 345 of 2013 are that the petitioners are/were the regular employees of the CDA, they have served the CDA for a considerable period, whereas Writ Petitions Nos. 2209, 763 of 2012 and 325 and 770 of 2013 some of the petitioners are the regular employees, whereas some of them are on deputation in CDA and these petitioners are aggrieved from the orders of the respondent No 1 whereby the allotments of the residential plots in their favour have been cancelled. In Writ Petitions Nos. 2303, 2103, 2108, 4196 of 2012 and 345 of 2013, the petitioners have challenged the status of the deputationist working in the CDA qua their entitlement about the allotment of the residential plots from the quota of 20% reserved for the employees of the CDA from the Housing Schemes Developed for the Government Officers, These petitioners are also aggrieved from the seniority list prepared by the CDA- for the process of balloting to allot the residential plots as the petitioner in Writ Petition No, 2303 of 2012 has alleged that his name was mentioned at serial No 1 of the seniority list but subsequently his name was deleted from the seniority list without any lawful excuse and justification. In Writ Petition No 2108 of 2012, the petitioner is office bearer of the registered body and it has challenged the Regulations Nos.4 and 5 of the Islamabad Land Disposal Regulations, 2005 whereby the deputationists have been granted the status of the regular employees of the CDA for the allotment of the residential plots on the CDA quota. In Writ Petitions Nos. 4196 of 2012 and 345 of 2013 the petitioners are also the regular employees of the CDA, that they are entitled to participate in the balloting for the allotments of the residential plots having fulfilled all the requirements for the allotment and they have also prayed that the deputationist should not be considered as the regular employees of the CDA. Conversely in the Writ Petition No, 2209 of 2012 the petitioners Nos. 1 to 3 are the regular employees of the CDA Whereas the petitioner No, 4 is working in the respondent No, 1 on deputation and the balloting committee had allotted them the residential plots on 21-6-2012 but the Chairman CDA set aside the process of the allotments vide order dated 22-6-2012 and these petitioners have questioned the legality of that order. In Writ Petition No, 763 of 2013 the petitioner is also on deputation and he has maintained that in several earlier decided writ petitions, the deputationists stand on equal footing with the regular employees of the CDA, therefore he is entitled for the allotment of the residential plot from 20% quota reserved for CDA employees in the Housing Scheme Developed for the Government Officers, In Writ Petitions Nos. 325 and 770 of 2013 the petitioners are the regular employees of the CDA and they have maintained that they were allotted the residential plots through the balloting but Chairman. CDA had set aside the whole of the process of balloting without an lawful excuse.
3. Learned counsel representing the petitioners in Writ Petitions Nos. 2303, 2108 and 4196 of 2012 and 345 of 2013 have inter alia contended that the deputationists should not be considered as the regular employee of CDA as far as the allotment of the residential plots from the 20% quota of the CDA employees from the Residential Schemes Developed for the Government Officers, that the Regulations Nos. 2-f, 4 and 5 of the Islamabad Land Disposal Regulations 2005 whereby the deputationists have been equated with the regular employees of the CDA are against the fundamental rights of the petitioners enshrined in the Constitution of the Islamic Republic of Pakistan, that the petitioners have been recruited in the CDA and petitioners have served the CDA for a considerable period and they also spent the peak time of their lives for the department but some persons serving in other departments of the Federal Government manage to obtain the deputation in the CDA and they have usurped the rights of the regular employees of the CDA and obtained the allotments of the residential plots out of 20% quota reserved for the CDA employees.
Learned counsel for the petitioners have further argued that the deputationists are hired by the CDA for some specific purpose, that they are neither recruited nor absorbed in CDA and after the fulfillments of the period of deputation, they have to be repatriated to their parent department, whereas the employees recruited by the CDA have to serve throughout in CDA, therefore the regular employees of the CDA have only narrow scope of the allotment of the residential plots as they are not considered for the allotment of the residential plots out of the 80% of which is reserved for the Government employees in the Housing Scheme Developed for the Government Officers, Learned counsel have further argued that the deputationists have the fair opportunity to avail the concession of the allotment of residential plots on 80% quota reserved for the Government employees in the Housing Scheme Developed by CDA for the Government Officers, Learned counsel for the petitioners have further argued that the Regulations Nos.4 and 5 of the Islamabad Land Disposal Regulations, 2005 are against the fundamental rights of the petitioners as enshrined in the Constitution of the Islamic Republic of Pakistan and to this extent these regulations be declared as null and void.
4. Conversely learned counsel for the petitioners who are the regular employees of the CDA in Writ Petitions Nos. 2209, 763 of 2012 and 325 and 770 of 2013 have argued that the seniority list was prepared in accordance with the concerned rules and regulations, that petitioners were allotted the residential plots through fair balloting, whereas Chairman of CDA, without any justifiable reasons set aside the process of balloting with mala fide intention. Learned counsel has further argued that petitioners are the senior employees of the CDA and they are entitled for the allotment of the residential plots out of 20% quota reserved for the CDA employees in the Housing Scheme Developed by the CDA for the Government Officers and he further argued that the petitions be accepted and petitioners be declared as lawful allottees and the order of the Chairman CDA be set aside. On the other hand, the learned counsel for the petitioners, who are on deputation in CDA in the above referred four writ petitions, have referred to the judgment of the Hon'ble Lahore High Court, august Supreme Court of Pakistan and judgment of this court and have argued that the Hon'ble Superior Courts had made no difference amongst the officials working on deputation in CDA and regular employees of CDA for the allotment of the residential plots out of 20% quota of CDA employees in the Housing Scheme Developed by the CDA for the Government Officers, Learned counsel has further contended that the petitioners are entitled for the allotment of the residential plots from CDA employees quota as they have served the CDA on deputation for a considerable period and they otherwise fulfil the criteria for the allotment of the residential plots.
5. Arguments heard and record perused.
6. Keeping in view the respective claims of the petitioners in all these 08 writ petitions and arguments advanced by the learned counsel for the parties, it is observed that following issues demanded the resolution from the court:-- Whether the Regulations Nos. 2f, 4 and 5 of the Islamabad Land Disposal Regulations, 2005 so far these include the deputationists as regular employees of the CDA are legal or whether these regulations, affect the fundamental rights of the regular employees of the CDA.
(i) Whether the process of balloting whereby certain plots were allotted to the petitioners in Writ Petitions Nos. 2209, 763 of 2012 and 325 and 770 of 2013 was lawful or whole of the proceedings of the balloting were tainted with mala fide.
(ii) Whether the seniority list prepared for the purpose of the balloting was correct.
7. As far as the first preposition is concerned, it is observed that the deputationists have referred to the certain judgments of the Hon'ble Lahore High Court, august Supreme Court of Pakistan and a judgment of this court. Perusal of the documents annexed with the record reveals that a number of writ petitions were instituted by the certain employees of the CDA in the Hon'ble Lahore High Court and those writ petitions were disposed off by the Hon'ble Lahore High Court through judgment dated 21-1-2004. Perusal of that judgment of the Hon'ble Lahore High Court reveals that prior to the institution of those petitions before the Hon'ble Lahore High Court, some writ petitions were earlier disposed off on 23-5-2000 with the observation that:-- "I, therefore, without prejudice to the rights of the employees who have already been allotted plots and are not party to this writ petition referred the matter to the Chairman CDA Islamabad for redemption of the rights of the petitioners for the allotments of the residential plots in the Housing Scheme of the Federal Government Employees, Housing Foundation in the light of the criteria fixed".
' It was further observed that, "if the Chairman finds that the allotments earlier made were not in accordance with the criteria and policy of allotment, he will take the proper steps to undo the injustice to any individual employee, number of hearing is to be afforded to the parties as well".
8. The judgment of the Hon'ble Lahore High Court reveals that in the light of the above mentioned order dated 23-5-2000 the Chairman of CDA considered the matter and vide order dated 2-8- 2001, he observed that in view of the provisions of the Islamabad Land Disposal Regulations of the years 1985, 1988 and 1993 and also of section 49 of the Capital Development Authority Ordinance 1960, it would not be permissible to the CDA to make the allotments of the residential plots to its employees. Chairman further observed that said employees would be entitled to apply for the allotment of the residential plots in the newly Developed Sectors against the quota reserved for public servants. This was the order of the Chairman which was assailed before Hon'ble Lahore High Court in the Writ Petition No, 3041 of 2001 and others and the Hon'ble Lahore High Court disposed off those writ petitions through order dated 21-1-2004 wherein it was observed that the stance being taken by the CDA that its hands are tied because of said Regulations, hardly merits any consideration and the Hon'ble Court further observed that CDA has to allot the residential plots reserved against 20% CDA quota in the Government Officers Housing Schemes. Perusal of the whole of the judgment of the Hon'ble Lahore High Court reveals that there was absolutely no issue in those writ petitions that whether the deputationists enjoy the equal status of the regular employees or the CDA and that deputationist are also entitled for the allotment of the residential plots out of the 20% quota reserved for the CDA employees. Even the CDA challenged the above referred judgment of the Hon'ble Lahore High Court in the august Supreme Court of Pakistan through C.P.L.A. No, 741 of 2004 and others, The august Supreme Court of Pakistan dismissed the petition of the CDA observing that in Section 49 of the Capital Development Authority Ordinance 1960 it is provided that the CDA may retain, or may lease, exchange, rent or otherwise dispose of any land vested in it whereas the Regulations 4 of the Islamabad Land Disposal Regulations, 1993 provides that all the residential plots should be disposed off on priority basis in the manner provided in the above said Regulation, whereas the Regulation No, 5 laid down the criteria for the allotment of the plots against the quota reserved for the Government Officers, Again the perusal of the judgment of the august Supreme Court of Pakistan dated 28-11-2005 reveals that there was no issue about the status of the deputationist, therefore neither in judgment of the Hon'ble Lahore High Court nor in the judgment of the august Supreme Court of Pakistan the issue was taken up that whether the deputationist stands on equal footing with regular employees of CDA for the allotment of the residential plots on 20% quota of the CDA employees. Furthermore the Hon'ble Lahore High Court and the august Supreme Court of Pakistan had not discussed or taken up the issue of the illegality of the Regulations Nos. 2-f, 4 and 5 of the Islamabad Land Disposal Regulations, therefore the above mentioned judgments do not bar this court to consider those Regulations in the writ petitions in hand. The petitioners in Writ Petition No, 2209 of 2012 have also annexed the judgment of this court delivered in Writ Petitions Nos. 10 of 2011, 1988 of 2010, 3033 of 2010 and 3099 of 2009 on 9-3-2011. This court observed that the CDA employees means regular as well as deputationists and perusal of this judgment further reveals that it is based upon the order of the Hon'ble Lahore High Court dated 21- 1-2004 and the judgment of the august Supreme Court of Pakistan dated 28-11-2005. I am constrained to observe that I do not agree with the view that the CDA employee means regular employee as well as deputationists because supra judgment of this .Court is based upon the judgment of the Hon'ble Lahore High Court and the august Supreme Court of Pakistan but in those cases neither anybody had disputed the Regulations Nos. 2f, 4 and 5 of the Islamabad Land Disposal Regulations, 2005 nor the august Supreme' Court of Pakistan or the Hon'ble Lahore High Court had given any verdict or discussed this aspect of the matter. The Regulation No, 2f defines that the CDA employees means a regular employee of CDA including the deputationists. The CDA was constituted through Capital Development Authority Ordinance, 1960 and sections 37 and 38 deals with the appointments of the officers and servants and this proviso provides no room that deputationist may be considered as regular employees of CDA and deputationist should be appointed and particular so that the deputationist will be considered as the regular employees of CDA, therefore the subordinate legislation and regulation is in complete mandate of the Ordinance.
The Government employees who are serving in CDA cannot be equated with the regular employees of CDA as in the past the deputationists have been given upper hand on their colleagues in their parent department as they have obtained the allotments of the plots from the CDA on the CDA employees 20% quota which practice not only violated the fundamental rights of their colleagues working in their parent department but this also infringed the rights of the regular employees of the CDA. The equation of the deputationists with the regular employees opens the door of corruption, nepotism and illegal allotment of the residential plots to the deputationists from the 20% quota of CDA employees. The Hon'ble Lahore High Court through its judgment dated 21-1- 2004 in Writ Petition No 3041 of 2001 and others had considered the plea of the Chairman that all the employees of the CDA should avail the facility of allotment of residential plots against the quota reserved for the public servants but the Hon'ble Lahore High Court repelled the plea of the Chairman of the CDA and this means that the Hon'ble Lahore High Court restricted the scope of allotment of residential plots to the employees of the CDA to the extent of 20% quota reserved for the CDA employees in the Housing Scheme Developed by the CDA for the Government employees, meaning thereby that the remaining 80% quota was left for all the Federal Government servants excluding the employees of the CDA, therefore the deputationists have the opportunity to claim the allotment of residential plots on 80% quota reserved for a Federal Government employee and therefore Regulation 2f of the Islamabad Land Disposal Regulations 2005 to the extent that it includes the deputationists as the employee of the CDA is against the Constitution as it violates the fundamental rights of the regular employees of the CDA, therefore this Regulation along with Regulations 4 and 5 of the Islamabad Land Disposal Regulations, 2005 to this extent are liable to be declared as unconstitutional.
9. As far as the second and third points of controversy are concerned, it is observed that a number of the petitioners who are also regular employees of the CDA have challenged the seniority list and the process of balloting of allotment of residential plots to certain employees. The respondent No,1 had constituted a fact finding enquiry committee to enquire into the complaints of the petitioners in Writ Petition No, 2108 of 2012. The report of the enquiry committee is available with the file which reveals that whole of the process of balloting and the allotment of plots was clandestine, colourful and arbitrary. Even otherwise the court has declared the Regulations 2f of the Islamabad Land Disposal Regulations, 2005 as unconstitutional and record reveals that the deputationists have also been considered for the allotment and some of the deputationists including some petitioners have also been declared as successful in balloting. Now after exclusion of the deputationists from the allotment of the residential plots out of 20% quota for the CDA employees, the seniority list has to be prepared de novo. The cancellation of the balloting process which is otherwise unfair, cannot result into any prejudice of the Constitutional and legal rights of some of the petitioners as regular employees of the CDA will be entitled to be considered in the next balloting, therefore the claim of the petitioners that they have challenged the order of the Chairman CDA whereby he set aside the proceedings of the balloting and allotment of the residential plots to some of the petitioners is not open to any exception. The chairman CDA will personally supervise the preparation of the seniority list which will be finalized after its circulation and after receiving the objection of all the regular employees of the CDA.
10. The length of service of regular employees for allotment of plots irrespective of their group was ten years, Apparently, on the influence of Employees Union required length of service for non- gazetted staff has been reduced to eight years which on face of it looks discriminatory, fanciful, rarity and offensive to the rights of employees who cannot vote in the union elections/referendum.
Even otherwise, it looks unjust that a senior employee in higher grade is made to sit for two more years than his subordinate employee for becoming entitled to allotment of plot, therefore, reduction in required length of service for allotment of plots for employees of BS-1 to 16 from ten years to eight years is declared as illegal and void, hence, for all employees irrespective of their grade required length of service shall remain as ten years,
11. These are the reasons for the short order dated 10-4-2013 whereby the writ petitions were disposed off.