WAQAR AHMAD SETH, J: - Petitioners, who are employees of different Government Departments, aggrieved from Rule-13 sub-rule-2 (a) of the notification No. EO (Admn) 34-M, dated 7 January 2015, whereby the Provincial Government in exercise of the powers conferred under section 26 of the Khyber Pakhtunkhwa, Civil Servants Act, 1973, (KP Act XVIII of 1973) have promulgated "The Residential Accommodation at Peshawar (Procedure for Allotment Rules, 2015) by superseding Accommodation at Peshawar (Procedure for Allotment Rules, 1980), have invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer that the amendment so brought by the Government is against the theme of Articles 2-A, 9 & 38 of the Constitution and fair play.
2. On notice, respondents filed their reply / comments wherein they stated that the petitioners have no locus standi, nor their rights have been violated. The Rules, so promulgated are for elimination of discrimination and fair play / parity as thousand of Civil Servants waiting for official accommodation for years, they will suffer. The Government is paying a handsome amount in the shape of House Rent Allowance to all government employees.
3. We have heard learned counsel for the parties and perused the available record.
4. Impugned herein is the Residential Accommodation at Peshawar (Procedure and Allotment Rules, 2015) which are introduced in exercise of the powers conferred by Section 26 of the Khyber Pakhtunkhwa Civil Servants, Act 1973, (KP Act No. XVIII of 1973) and in supersession of the Rules, for the Residential Accommodation at Peshawar (Procedure for Allotments, Rules, 1980), the Chief Minister of Khyber Pakhtunkhwa, is pleased to make theseth Rules. On the face of it without dilating into the contents or the rights / legitimate expectancy of any individual, due to the change in these rules which were provided in the earlier Rules i.e 1980, we feel to dilate upon the powers of the W orthy Chief Minister , the Executive Authority of the Province.
5. According to Rules of Business, which are in field and the same were framed in pursuance of the provisions contain in Article 139 of the Constitution of the Islamic Republic of Pakistan and in suppression of Khyber Pakhtunkhwa Government Rules of Business 1972, Rule-5 describe the procedure for framing of the policy which reads as under:-
5. General Procedure for disposal of Business. --- (1) The framing of the policy of the Department is the responsibility of the Minister, and it shall be the duty of the Secretary to advise the Minister in the formulation of policy.
(2) The business of the Department shall be disposed of by or under the authority of the Secretary. He shall be responsible to the Minister for the proper conduct of business and for ensuring that the sanctioned policy of the Minister is duly executed.
(3) While submitting a case for the orders of the Minister, it shall be the duty of the Secretary to suggest a definite line of action.
(4) The Secretary shall keep the Minister generally informed of the working of the department and of any important case disposed of without reference to him.
(5) Where the Minister's order appears to involve a departure from the rules and regulations or from the policy of the Government, the Secretary shall re-submit the case to the Minister inviting his attention to the relevant rules or regulations or Government policy.
(6) Where inspite of action taken under sub-rule (50, the Minister does not change his orders so as to be in line with the rules and regulations or the policy of Government, the Secretary shall submit the case to the Chief Minister for his information.
(7) The channel for obtaining or transmitting the orders of the Minister is the Secretary or an office specially authorized in this behalf by the Secretary.
(8) All orders should be passed in writing. Where a verbal order is given, it should be reduced to writing at the earliest opportunity buy the officer receiving it.
(9) The Minister shall submit cases to the Chief Minister as required by the provisions of rule 36.
(10) Notwithstanding the provisions of any other rules, the Chief Minister may, by general or special order, direct that any case specified in rule 37 may be submitted by the Minister directly to the Governor.
(11) If any doubt or dispute arises as to the Department to which a case properly pertains, the matter shall be referred to the Chief Secretary, who shall obtain the orders of the Chief Minister, if necessary.
(12) Detailed instructions for disposal of business in the Secretariat shall be issued by the Chief Secretary.
6. Relevant for the present controversy as agitated by the petitioners that no consultation whatsoever was obtained by the department, relates to rule-12 and specially rule-12 (5) which reads as under:-
5. The Law Department shall be consulted by the Administrative Departments before the issue of the following:-
(i) any order, rules, regulations, notification or bye-law in the exercise of statutory power; and
(ii) any sanction authorizing a subordinate authority to issue any order, rules regulations, notification or bye law under a statutory power.
The Law Department shall consult the proposed draft is strictly within the power conferred by the legislature and is in the correct form.
7. The underline of word shall is by us in order to show the emphasis. The respondents present in the Court alongwith AAG admitted at the bar that no consultation with Law, Parliamentary Affairs and Human Right Department was obtained, while promulgating the questioned Procedure and Allotments Rules, 2015; rather they insisted upon that the Chief Minister of the Province has the authority to introduce such rules without the consultation of the Law department etc. In the joint parawise comments they have uttered not even a single word showing that the Worthy Chief Minister of the Province had some powers in this respect i.e without consultation of law department, the rules can be made or not, however, during the arguments they produce a notification dated 18.4.1989, showing that the Governor has authorized the Chief Minister Khyber Pakhtunkhwa to make rules, which reads as under:- "In exercise of the powers conferred by sub-section (1) of Section 26 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 (Khyber Pakhtunkhwa Act XVIII of 1973), the Governor of the Khyber Pakhtunkhwa is pleased to authorize the Chief Minis ter, Khyber Pakhtunkhwa to make rules for carrying out the purpose of the said Act."
8. Even otherwise, after the 18 amendment under Article 29 of the Constitution of Islamic Republic of Pakistan, 1973, it is the Chief Minister of a Province to make rules, but nowhere under the procedure or law the condition of Rule-12 subrule-5 of the Government Rules of Business, 1985, has been superseded, waived off or relaxed as the word "shall" has been used in Rule-12 subrule-5 which has been underlined by us. Previously the worthy Governor used to make rules but with the consultation of the law department etc.
9. The object and purpose of consultation with the Law, Parliamentary Affairs and Human Rights Department is mandatory because the said department is meant for giving the legal structure to a document which is purportedly issued in the interest of public as well as, the civil servants. In the impugned new rules, 2015, Rule-12 (2) (a), the facility of allotment / transfer of accommodation to the serving son or daughter or spouse has been withdrawn and it has been decided to cancel the said allotment at the eve of retirement and the son / daughter / spouse of the retired civil servant, would apply afresh for allotment of residential accommodation. Surely, the newly notified rules, 2015 are against the spirit of Article 2-A, 9 & 38 of the Constitution, wherein the State and Government are bound to ease the life of the citizens and not to disturb the same by such rules which would definitely effect the daily life of the civil servants. The facility of allotment of residential accommodation to the serving son / daughter / spouse of the deceased civil servant was granted in the year 1992 which cannot be rescinded after the lapse of 23 years as the same has created a legitimate expectancy, without giving the opportunity of hearing to all the allottee of said cadre, by the Chief Minister.
10. The representative of the respondents-department alongwith AAG admitted at the bar that no consultation, whatsoever, as required under rule-12 subrule-5 of the Rules of Business, 1985, has been made, prior to promulgation of impugned rules, 2015.th
11. For the reasons recorded hereinabove, this writ petition is allowed, the Residential Accommodation at Peshawar (Procedure for Allotment Rules, 2015) are declared as un - constitutional, illegal, unlawful and against the fundamental rights of civil servants.