YAHYA AFRIDI, J.- By this single judgment, we propose to decide two Writ Petitions, as common questions of law are involved therein. The particulars of the said two petitions are as follows:- I. Sher Akbar-Vs-Administration Department through Secretary and others (Writ Petition No.652- P of 2013) and II. Muhammad Rafique - Vs - Chief Secretary Khyber Pakhtunkhwa and others (Writ Petition No. 1118- P of 2013)
2. In essence, the grievance of the petitioners, as asserted in the petitions, are that the competent authority for "alien" consideration has granted residential accommodation to the named respondents in utter violation of The Residential Accommodation at Peshawar (Procedure for Allotment), Rules, 1980 ("Rules").
3. When the respondents were put to notice, the stance of the official respondents in their written parawise comments was only restricted to the claim of the petitioners being already occupants of Government accommodation and that their applications for providing them another category of accommodation would be taken up on their turn as per "waiting list" for the said class of the residential accommodation.
4. Imtiaz Javed, the private respondent in W.P. No.652-P/2011, had been allotted House No.27-A, Civil Quarters, Peshawar, a four room accommodation, on the basis of a summary approved by the worthy Chief Minister ("Summary"). The copy of the summary was placed on record, which on review clearly acknowledged, inter alia, that Imtiaz Javed was appearing at serial No.41.1 on the "waiting list" of the said class of accommodation.
5.. Ahmad 'Ali, the private respondent in W.P. No.118-P of 2013, had been allotted quarter No.F-31 Civil Colony Warsak Road, Peshawar, vide order dated 1.3.2012. Despite notice, he was not present before the Court. However, the official respondents present in Court contended that the said allotment had been in accordance with law.
6. On reviewing the provisions of the Rules, it is noted that Rule 5 vest the Estate Officer with the authority for allotment of official residential accommodation, while the criteria and procedure for considering the said applications have been prescribed in Rule 7 ibid. The said provisions read as follows:-
5. Allotment authority.--- An allotment under these rules shall be made by the Estate Officer, Services, General Administration, Sports and Tourism Department.
7. "Procedure for allotment.---(1) A civil servant eligible for allotment of residential accommodation under these rules shall, if he so desires, make an application for the allotment of accommodation to the Estate Officer through proper channel.
(2) Applications received under sub rule (1), shall be entertained by the Estate Officer and the names of the applicants shall be entered in the appropriate waiting list, to be maintained for the purpose in the order in which the applications are received.
Provided that if two or more applications belonging to the same category of civil servants are received on the same date, the non-local candidate shall have preference over the local candidate and if both the candidates are local or both are non-local, the candidate drawing more pay shall have preference over the candidate drawing less pay.
(3) A field officer in grade-17 or above, who had designated house at the place of his previous posting, shall, on his transfer to Peshawar be considered for allotment of residential accommodation of preferential basis. For this purpose a separate list of such field officers shall be maintained in accordance with the principles laid down in the proceeding sub-rules and fifty percent of the accommodation available for allotment or to the extent of the number of applicants whichever is less, shall be allotted to such field officers.
7. In addition to the Rules, the Government has through the Administrative Department vide its circular No. EO (Admn) 34- M/2010 dated 27.3.2010 circulated the Policy for Allotment of Official Accommodation ("Policy"). Clause IX of the Policy provides for Preferential and Out of Turn Allotments, while clause X provides for an Oversight and Review Committee with the mandate to oversee and periodically review observance of the provision of the Rules and the Policy in allotment of residential accommodation in Peshawar. Clauses IX and X of the Policy are reproduced as follows:- IX) PREFERENTIAL AND OUT OF TURN ALLOTMENT i) The cases of civil servants for preferential and out of turn allotment shall be decided by the following committee:- a) SecretaryAadministration Chairman b) Secretary Establishment Member c) Administrative Secretary of the Department Member d) Representative of law Department Member ii) The Committee shall hold monthly meetings to decide references from administrative departments for preferential and out of turn allotments. iii) Working paper for the meeting shall be circulated at least seven (7) days before the meeting; iv) The Estate Officer shall provide secretarial support to the Committee and v) The Committee shall record reason for its decisions.
X OVER-SIGHT & RE-VIEW COMMITTEE i) The following Committee is mandated to oversee and periodically review observance of Rules and consistency with the Policy in allotment of residential accommodation in Peshawar. a) Chief Secretary, Government of NWFP Chairman b) Secretary Law, Government of NWFP Member ii) The Administration Department shall provide quarterly reports to the Oversight and Review Committee; iii) The Report shall contain inter alia details of applications received during the quarter, allotments made, issues and updated waiting lists with certification that they have been circulated to Administrative Departments. iv) Any civil servant feeling aggrieved with any decision regarding allotment of residential accommodation may forward through his/her Administrative Department, a reference to the Oversight and Review Committee for a review of the decision and v) The Committee shall give its decision on references within one month.
8. Now, when we review the provisions of the Rules and the Policy, we note that the Rules are silent regarding the provision of Out of Turn Allotments and Over Sight Review Committee provided under the Policy. As there being no conflict between the provisions introduced in the Policy and those provided under the Rules and in fact the same supplement each other, this Court would seek reliance on both. However, the Provincial Government is advised to consider amendment of the Rules incorporating the provisions provided in the Policy.
9. Now, when this Court considers the provisions of the Rules, it is clearly noted that the Estate Officer is vested with discretion to allot official residential accommodation in Peshawar. This is a sacred public trust and should never to be betrayed for any reasons. Surely, arbitrariness would creep in when discretion is not "structured". The august Supreme Court has in Amanullah Khan and others Vs. The Federal Government of Pakistan (PLD 1990 SC 1092) held that:- "whenever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary per are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times".
This principle has been consistently followed by the Hon'ble Supreme Court in various judgments including Chairman RTA Vs. Pakistan Mutual Insurance Company Ltd. (PLD 1991 SC 14), Director Food N.W.F.P. Vs. Madina Flour Mills (PLD 2001 SC 1), Chief Secretary Punjab Vs. Abdul Raoof Dasti (2006 SCM R 1876) and Abdul Wahab Vs. Secretary Govt: of Baluchistan (2009 SCM R 1354). In a more recent case, the august Supreme Court has in Tarici Azizuddin's case (HRC No.8340, 9504-G, 13936- G, 13635-P and 14306-G to 14309-G of 2009) reaffirmed the principle of relating to "structuring of discretion" by stating that:- The above principle of structuring of discretion has been derived from the concept of rule of law which inter alia, emphasizes that action must be based on fair, open and just consideration to decide the matters more particularly when such powers are to be exercised on discretion. In other words, arbitrariness in any manner is to be avoided to ensure that the action based on discretion is fair and transparent.....
"...Expression 'merit' includes limitation prescribed under the law. Discretion is to be exercised according to rational reasons which means that (a) there be finding of primary facts based on goods evidence and (b) decision about facts be made for reasons which serve the purpose of statutes in an intelligible and reasonable manner. Actions which do not need these threshold requirements are considered arbitrary and misuse of power ".....All judicial, quasi judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and seven instruments which have already been referred to above regarding exercise of discretion. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of justice".
Finally, the apex Court in Muhammad Afsar's case (2012 SCM R 274), while discussing the discretion vested in the Estate Officer in considering applications for official residential accommodation in Islamabad and also the authority of the Minister to relax the relevant rules, has clearly dilated that:- "The Courts are duty bound to uphold the constitutional mandate and to keep up the salutary principles of rule of law. In order to uphold such principles, if has been stated time and again by the superior Courts that all acts should be done by the public functionaries in a transparent manner after applying judicious mind and after fulfilling all requirements. The public functionaries are supposed to adhere to the principle of transparency in the performance of their duties and are not bound to carry out/implement any order which is not in accordance with law and they are only obliged to carry out the lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should put on record their dissenting notes. But unfortunately, the officers in the Estate Office not only implemented the illegal orders but apparently acted for their own personal benefits/gain.
As regards the petitioner he managed allotment in his favour, under the order of Federal Minister for Housing and Works who without assigning any reason by a non speaking order directed for the allotment of the house in question in favour of the petitioner.
The right accrued to an employee in General Waiting List maintained by the Estate Office under Rule 6 of the Accommodation Allocation Rules, 2002 cannot be taken away by the Federal Government on its own sweet will just because they have been empowered to relax the rules under Rule 29A of the Accommodation Allocation Rules,2002. The denial of right of accommodation to employee under Rule 6 of the Accommodation Allocation Rules, 2002, is denial of fundamental right of life, which includes to have shelter/house as guaranteed under Article 9 of the Constitution.
On reading rule 29A of the Accommodation Allocation Rules, 2002 along Rule 6 of the Accommodation Allocation Rules, 2002, it appears that only in very exceptional circumstances the relaxation can be granted to accommodate a deserving government employee in public interest but for that too a justifiable reason has to be recorded by the concerned authoi8rty which is lacking in the present case."
10. When this Court considered the discretion provided under the Rules and the Policy, it is noted that the discretion has been vested in the Estate Officer and the same has been "structured" by stipulating the criteria of 'first come first get" to be the deciding factor in considering the applications. In addition thereto, we have also noted that there is also provision for relaxing the said criteria, the authority to decide the same has been vested in a Committee of four members headed by the Secretary of Administration. The decisions of the said Committee are reviewable by yet' any other Committee headed by the worthy Chief Secretary of the Province. The Court has also noted that under Clause-X of the Policy, due certification of allotment of the accommodation in each category of the "waiting list" by the Administration Department and its periodical circulation to Administrative Departments. Hence, the prevalent allotment regime under the Rules and the Policy meets the essential requirements of discretion being "structured", there being "check and balances" over each tier of authority and there being "transparency" in the allotment process. Thus, the provisions of the Rules and the Policy meets the essentials requirements of "Good Governance".
11. In the present case, this Court is saddened to note the conduct of the Estate Officer in not proceeding in accordance with the procedure prescribed in the Rules and the Procedure for considering "out of turn" preferential allotments stipulated in the Policy. With him, the worthy Administration Secretary and the respected Chief Secretary of the Province cannot be absolved of their ordained duties. Their silence is in fact their "implicit" consent to proceed in the illegal course.
Thus, they have all truly betrayed the public trust reposed in them under the law. In this regard, the august Supreme Court has earlier in Zahid Akhtar's case (PLD 1995 SC 530), clearly pointed out in a very express manner the role of a Government servants, in terms that:- "We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
12. In view of the above legal discourse, it is safe to hold that in allotting official residential accommodation to Imtiaz Javed (W.P. No.652-P/2013), the actions and inaction of the Estate Officer, the Secretary Administration and the worthy Chief Secretary, who were the most pivotal authorities envisaged in the allotment regime provided under the Rules and the Policy, are truly against the clear mandate of law.
13. This Court is alive to the forum for redressal of grievances provided under the Rules and the Policy. However, as the impugned decision in Sher Akbar's case has been passed by the Chief Executive of the Province, it would not be appropriate for this Court to refer the impugned decision to the said forum. Surely, the said remedy available to petitioner Sher Akber would not be an "efficacious" alternative remedy, as envisaged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, in the case of Muhammad Ali (WP No.1118-P of 2013), the circumstances are otherwise. Hence, the objection to the maintainability of the said petition is upheld.
14. Accordingly, for reasons stated hereinabove, this Court concludes in the following terms: I) Declare that the impugned order dated 15.2.2013 granting residential accommodation to Imtiaz Javed, (respondent No.3 in WP No. 652- P/2013) is illegal, unlawful and without lawful authority.
II) Direct Imtiaz Javed, (respondentNo.3 in WP No. 652- P/2013 to vacate the official residential accommodation i.e. 27-A Civil Quarter, Peshawar within a period of three months from the date of this decision.
III) Direct the Estate Officer to grant the vacated official residential accommodation i.e. 27-A Civil Quarter, Peshawar in accordance with the criteria mentioned in the Rules and Policy, strictly keeping in view the position of the applicants in the relevant waiting list; IV) Direct that the grievance of the Mohammad Rafique (WP No. 1118-P/2013) be placed before the Over Sight & Review Committee envisaged under Clause X of the Policy and the decision be passed within one month, if not earlier, from the date of receipt of this decision.
VI) Direct that the waiting list of each category of houses be maintained, updated, circulated to all the Administration Department in Peshawar and affixed outside the office of the Estate Officer.
V) Direct that the Provincial Government to incorporate in the Rules the provision introduced in the Policy to avoid any confusion or inconsistency therein.
15. Accordingly, these writ petitions stands disposed of with the observations made above.