1. DOST MUHAMMAD KHAN, J.--Leave to appeal was granted to the appellant on 14.02.2007 inter alia on the following grounds:- "After hearing the learned counsel for the petitioner, we are inclined to grant leave inter alia on the questions as to whether petitioner is an employee of the attached department of the Defence under the direct control of Ministry of Defence, Government of Pakistan, and was entitled to become a Member of Defence Housing Authority as noted in the order dated 18.08.2006."
2. 2.The grievance of the appellant is that, the Defence Housing Authority, Islamabad decided to accommodate its Defence Employees and those of the attached departments by allotting them residential plots but through balloting. The appellant being a member of the attached department, serving in the Directorate of Education of the Garrison, under the direct control and management of the respondent, submitted an application to respondent No,3 when, by then he was posted as Regional Director, Human Rights in Balochistan, attached to Law, Justice and Human Rights Division but on deputation basis from the Ministry of Defence (Directorate of Education Garrison) and was falling within the category-J. On deposit of membership fee, he became the member of the Society/Authority.
3. 3.Subsequently, amendment was made in the category-J, in which the appellant had applied, vide letter dated 18.05.2005 by respondent No,3 where the words, "and officers of Defence Division" were also added, making them all eligible for the allotment of the plots.
4. 4.The balloting as was scheduled, took place and the appellant was found successful in the process. He also deposited the initial seed/advance installment of money with respondent No,3 however, without any show-cause notice to the appellant, the plot allotted to him on 10.06.2005 was cancelled on 24.10.2005 on fallacious ground/plea that the appellant was not paid emoluments from the Defence Estimates.
5. 5.The appellant challenged the validity of this order in the High Court of Balochistan at Quetta through Constitution Petition No,788 of 2005, however, without applying judicial mind with deep thought to the legal issue, involved herein, his petition was dismissed.
6. In the instant case, the Ministry of Defence/Defence Department was represented by the learned ASC and also by Mr. Waqar Rana, Additional Attorney General.
7. 6.The decisive queries made from the respondent's counsel were, as to whether the Directorate of Education of Garrison is not the attached department of the Ministry of Defence, however, on many occasions and hearings, the learned ASC representing the respondents could not furnish convincing and plausible explanation.
8. 7.It is a fact, undeniable in nature that the appellant is serving in the attached department of the Ministry of Defence. The wholesome budget is allocated to the Ministry of Defence and is placed at the disposal of Military Accountant General (MAG) for further disbursement on defence expenditures and other emoluments of the Armed Forces of Pakistan and those civilian officials, who are serving in the departments attached to the Defence Services.
9. 8.The department of the appellant is under the administrative control and management of the Ministry of Defence/Defence Directorate. In this regard, we have an ironclad proof on record in the shape of letter of the General Headquarters, IGT & E's Branch, PGEI(C/G)Dte, Sir Syed Road, Rawalpindi, issued to the Manager Press, Printing Corporation of Pakistan, University Road Karachi- 5, copies of which were forwarded to all the relevant officers of the Defence. Through this letter, the appellant was promoted from BPS-18 to BPS-19 w,e,f, 30.03.2001 and was posted to FG Sapper Boys High School, Risalpur. On the foot of the letter, the issuing authority is Col. Hameed Sarwar. This letter clinches the entire controversy with regard to the status of the appellant beyond any shadow of doubt that he is serving a department attached to the Defence Services and is not under the administrative control and management of the Education Ministry or Directorate of Education of Federal Government.
10. 9.Learned Additional Attorney General and the learned ASC for respondent No,3 repeated their inapt arguments and made crude attempts to show that being a civilian officer, albeit serving in the Education Corp of the Garrison, the appellant was not at all belonging to the Defence Services and was not covered by that definition, entitling him to become member of the Defence Housing Authority, much less getting plot in the scheme.
11. 10.It is an admitted fact that the Defence Services is allocated separate budget to meet the expenditures incurred directly on the Defence Services and allied/ancillary wings/attached department.
12. 11.The letter, earlier referred to, is a clear manifestation of fact that the appellant, for all intents and purposes, belongs to Education Corp of the Garrison and is under the effective administrative control and management thereof, otherwise the order of his promotion, contained in the letter ibid, would have been issued by the Ministry of Education, Government of Pakistan and not by Col. Incharge in active service of the Defence Services. Therefore, it is held that the appellant is competently a member of the Defence Housing Authority and is covered by the definition given in the relevant provision of the Defence Housing Authority Ordinance and Public Advertisement Notice, issued in the Press on 21st April, 2005. 12.The plea of the appellant is getting further fortification from the letter of approval of the Establishment Division, communicated through the Ministry of Defence, Rawalpindi vide No,2496/D-18/96 dated October 8, 1996. The appellant is undisputed paid from the Defence Estimates through internal arrangements of the Defence Services and in this way, he has no nexus or any connection with regard to his service and other emoluments and benefits with the Ministry of Education, Government of Pakistan.
13. 13.The concise statement synopsis filed by the respondents is of no help to the replying respondents in view of what we have held above on the basis of established facts and the law applicable to the same.
14. 14.There is another aspect of the matter, which shall not go unnoticed. In this case, the appellant was successful in the balloting process and got a plot; he deposited the seed money/installment, therefore, a decisive step was taken in the matter and vested right had already accrued to the appellant, hence unilateral cancellation of plot from his name without any show-cause notice to him, clearly amounts to condemning him unheard against the principle of natural justice. By now, it is well embedded and well entrenched principle of justice that the principle of natural justice shall be construed to be a part and parcel of every Statute even if it does not contain it and shall apply to all proceedings, whether judicial or administrative in nature. In this regard, reliance may be placed on the case of Mrs. Anisa Rehman v. P.I.A. C. and another (1994 SCM R 2232). Therefore, on this score too, the impugned order being against the principle of natural justice is not sustainable in law.
15. 15.For the afore-mentioned reasons, this appeal is allowed; the, impugned order of the respondents, dis-allotting the plot from the name of the appellant vide order dated 24.10.2005 is held to be in disregard of law, principle of justice and without lawful authority and the same is set at naught. It is further directed that the same plot shall be restored/allotted to the appellant or if that is not possible then some other plot of the same market value and of the same size be allotted to the appellant, of course subject to payment of the dues.
16. (Sd.)
17. Anwar Zaheer Jamali, J (Sd)
18. Dost Muhammad Khan, J Most humbly, in my considered view this appeal merits dismissal for the reasons given in the appended note.
19. (Sd)
20. Umar Ata Bandial, J UMAR ATA BANDIAL, J.--For the reasons given below I cannot persuade myself to agree with the esteemed opinion rendered by my learned brother Dost Muhammad Khan, J. The entitlement claimed by the appellant for allotment of plot in Defence Housing Authority, Islamabad ("DHA"), respondent No,3, is dependent upon his eligibility under category J announced by the DHA. In the facts of the case, such eligibility turns on the meaning of the expression "Civilian Officers paid out of Defence Estimates". According to the submissions made by and on behalf of the parties, the legal conundrum in the said expression involves classification of employees derived partly from purely legal provisions and instruments and partly from quasi-legal budgetary and finance measures. To resolve the controversy of the appellants' entitlement, it is therefore appropriate to first state the settled and undisputed facts in order to analyze the same in the light, of the applicable law.
2. It is a common ground between the parties that the appellant is a civilian employee of the Federal Government Educational Institutions (Cantonments/Garrisons) Directorate ["FGEI(C/G)"] which is an attached department of the Ministry of Defence under Schedule-III of the Rules of Business of the Government of Pakistan, 1973 ("Rules of Business"). The status of an attached department was conferred upon the FGEI(C/G) by amendment in the Rules of Business made pursuant to notification dated 13.01.1992 of the Cabinet Division, Government of Pakistan (Appeal: page 126). The said notification amended two schedules of the Rules of Business. Firstly, as noted above Schedule-III of the Rules of Business was amended to include the FGEI(C/G) as an attached department of the Ministry of Defence. Secondly, the notification amended Schedule-II of the Rules of Business which distributes the business of the Government amongst its different Ministers and Divisions. On the one hand, the business of the Education Division of the Federal Government at Serial No,10 in Schedule-II was curtailed. This was done by deleting the previous Entry No,7 therein regarding the "provision of funds in respect of Cantonment/ Garrison Schools and Colleges in Pakistan". Correspondingly on the other hand, the business of the Defence Division of the Federal Government at Sr. No,7 of Schedule-II was enlarged to include following item in its Entry No,13: "13.Administrative and budgetary control of Federal Government Educational Institutions (Cantonments/Garrisons) Directorate, and its Institutions."
21. 3.It is an admitted fact that the application filed by the appellant for allotment of plot in category J was entertained and processed by DHA; that he succeeded in the draw held on 10.06.2005 for allotees of plots reserved for category J, thereafter he paid his dues to DHA. In answer to a reference made by the respondent No,3, DHA for verifying the credentials of the appellant, the respondent. No,1, Ministry of Defence vide the impugned letter dated 26.09.2005 declared the appellant ineligible under category J as notified by the DHA. The advertisement dated 21.04.2015 by DHA defined category J as flows: "(J) Serving Civilian Officers paid out of Defence Estimates with 15 years of service and above as on 31 May 2005."
22. In its above said letter dated 26.09.2005 the respondent No,1, Ministry of Defence explains that the FGEI(C/G) is an attached department of Ministry of Defence and "its employees are paid out of Civil estimates, they are not entitled to be treated as paid out of Defence Service Estimates". (emphasis supplied)
4. The para-wise comments filed by the respondents in the High Court and their concise statement filed before this Court rely upon the notification dated 10.09.1977 by the Cabinet Division as determination of the status of persons employed in the FGEI(C/G). The said notification of the Cabinet Division dated 19.09.1977 sets out, inter alia, the structural arrangement following the "Transfer of Control and Management of all the Cantonment and Garrison Schools and Colleges in Pakistan from the Director Nationalized Institutions, Federal Ministry of Education, Islamabad to the Director Army Education at General Head-Quarters, Rawalpindi." By transferring the administrative control and management of the Cantonment and Garrison schools and colleges to the Director Army Education, this notification expressly keeps the budgetary allocation and financial powers exerciser in respect of the said Institutions to remain vested in the Ministry of Education, including the responsibility for getting government approval of the FGEI(C/G) budget prepared by the Director Army Education. Correspondingly, the Rules of. Business in relation to the FGIE(C/G) were at that time also framed in terms of the above mentioned Cabinet Division Notification dated 10.09.1977. Entry No,13 of Schedule-II of the Rules of Business described the business of the Defence Division as follows: "13. Control and management of Cantonment Garrison Schools and Colleges in Pakistan by Director, Army Education, G.H.Q."
23. From mere control and management of FGEI(C/G) vesting in the Defence Division under the above said Schedule-II of the Rules of Business the authority and function of the said Division were enlarged by amendment in 1992 to the total control of the administrative and budgetary matters of said Directorate and its Institutions. Accordingly, the 1992 amendment brought about a significant change in the legal status of the employees of the FGEI(C/G). The legal structure of the FGIE(C/G) envisaged by the Cabinet Division notification dated 10.09.1977 stood superseded and became redundant. With FGEI(C/G) becoming an attached department of the Defence Division and its administrative control vesting in the said Division any resort to the Ministry of Education envisaged in the notification dated 10.09.1977 became totally meaningless. In the context of the present controversy the said change has raised a relevant question: whether after the removal of civilian administrative and financial control of the FGEI(C/G), the civilian employees of FGIE(C/G) came to be paid out of the Civil Estimates of the Defence Division or out of its Defence Estimates..
24. 5.To facilitate an answer to the query, it may be mentioned here that since before the aforesaid 1992 amendments were made in the Rules of Business, one subject that has consistently remained included in the business assigned to the Defence Division in Schedule-II of the Rules of Business is: "2. Civilian employees paid from the Defence Estimates."
25. The said longstanding provision of the Rules of Business shows that certain civilian employees of the Defence Division may be paid from the Defence Estimates although they do not belong to the Defence Services. It is claimed by the appellant that although the employees of the FGEI(C/G) are the civilian employees of an attached department of the Defence Division, they are pursuant to the above mentioned item No,2 of Schedule-II of the Rules of Business paid from Defence Estimates of the Defence Division. Conversely, the respondents maintain that the said employees are paid out from Civil Estimates of the Defence Division. Although it would have been proper for the said Division in the discharge of its administrative function to set out the post 1992 service conditions of the FGEI(C/G) employees through a fresh notification, however, this was not done. Therefore, the claim made by the appellant to be eligible under category J notified by DHA, is perforce being adjudicated by connecting pieces of different information for deducing the status, rights and privileges of FGEI(C/G) employees.
26. 6.The starting point of our study is to notice the different departments that are attached to the Defence Division and to examine how these are classified by the Defence Division. Schedule-III of the Rules of Business provides a list of such departments (Appeal: page 43): SCHEDULE III [Rule 4(4)] LIST OF ATTACHED DEPARTMENTS DECLARED AS SUCH BY THE FEDERAL GOVERNMENT S.No. Name of Department Name of Division to which attached 1 2 3 13 Directorate of Military Lands and cantonments Defence14. Federak Government Education Institutions (Cantonments/Garrisons)
27. Directorate
15. Pakistan Minitary Accounts Department
16. Office of the Surveyour General of Pakistan
17. Pakistan Armed Service Board
18. Maritime Security Agency 4[19 * 4[20 * 21 Defence Science and Technology OrganizationDefence Production A listing of the aforementiond attached departments of the Defence Division is useful for understanding the basis on which some of these are classified, as Defence Paid Organizations by the Ministry of Defence. In a very revealing letter dated 13 05.2005 (Appeal: page 62) dealing with the ambit and scope of category J notified by DHA the Ministry of Defence has made the following statement of facts: MINISTRY OF DEFENCE (DEFENCE DIVISION)
28. Subject: Launching of DHIA Residential Plots Phase-I Extension.
29. Reference DHA, Islamabad letter No,DHAI/201/1/Ph-I Extn dated 15.04.2005, on the above subject.
30. 2.The case has been considered at an appropriate level in this Ministry and it has been observed that MOD employees be included in Category J, instead of Category K for the purpose of allotment of plot from all DHA's Housing Scheme on the following grounds: i)Civilian Officers of MOD are included in the category of Defence paid employees for purpose of eligibility of allotment of QMG's plot vide MOD's policy letter dated 03.11.1993. ii)Civilian employees of MOD are included In the category of Defence paid employees for the purpose of admission of their children in the Cantt Garrison Education Institution vide MOD letter No,3/5/D-18/92, dated 21.03.1994. iii)Since Defence Division directly deals with DHA's Administrative matters, employees of MOD have more right of eligibility for allotment of plot from DHA's housing scheme than that of the employees of other Defence Paid Organization e.g. DESTO, MES, MI&C Deptt. MAG & PASO etc: 4.In view of the above, it is requested that the following amendment may please be made in para 3(a) Category, I in the DHA's letter referred to in para 1 above.
31. FOR READ Serving civilian officers paid out of defence Estimates with 15 years of service and above as on 31 May 2005Serving civilian officers paid out of Defence Estimates and officers of Defence Division with 15 years of Service and above on 31 May 2005.
32. 4.This issued with the approval of competent authority.
33. (Muhammad Sadiq) Deputy Secretary (Army-B)
34. Administrator: Defence Housing Authority Islamabad Defence Mall Jinnah Avenue Phase-I Islamabad Min of Def u.o.No,2/7/D-12/MI&C/04 dated 18.05.2005 Clause-(iii) of paragraph 2 of the above noted letter dated 18.05.2005 states the names of certain Defence paid organizations, namely, Defence Science and Technology Organization (DESTO), Maintenance and Engineering Service (MES), Military Land and Cantonment Department (ML&C Deptt.), Military Accountant General (MAG) and Pakistan Armed Services Board (PASB). These are all attached departments of the Defence Division except DESTO which is an attached Department of the Defence Production Division. The Defence Division letter dated 18.05.2005 has disclosed that the civilians employed in these named departments are paid out the Defence Estimates or budget.
35. The remaining attached departments of the Defence Division mentioned in Schedule-III of the Rules of Business are, however, excluded from the list of Defence paid Organizations. These departments are the Office of the Surveyor General of Pakistan, Maritime Security Agency and FGEI(C/G). The Defence Division letter dated 18.05.2005 does not provide the criteria for distinguishing a Defence paid Organization. Ostensibly, the proximity of their functions with the discharge of the duties of the Defence Forces of the country is a ground for their separate classification. At this stage, one may turn to another sub-Constitutional source of evidence on the subject for confirmation.
7. A reading of the Federal budgetary documents that have been attached by the respondents in their C.M.A. No,725 of 2015 is helpful in shedding further light on the classification of attached departments of the Defence Division. Articles 80, 81 and 83 of the Constitution of Pakistan envisage the Federal Government to furnish different Statements before the National. Assembly which together constitute the Federal Budget. One of the statements contemplated in Article 83 of the Constitution comprises the details of demand for grants and appropriations. Volume-I of the Federal Budget titled Current Expenditures contains such demands made by different Ministries and Divisions of the Federal Government for grants in the new financial year. Section 5 of Volume-I of the Federal Budget presents demands made on behalf of the Ministry of Defence. Demand No,023 in this section is made on behalf of the Defence Division; Demand No,024 is made on behalf of the Survey of Pakistan; Demand No,025 is made on behalf of the Federal Government Education Institutions in Cantonments and Garrisons FGEI(C/G); and Demand No,026 is made on behalf of the Defence Services in Pakistan.
36. 8.The budget of the Defence Division bears the functional classification of "Defence Administration".
37. This is followed by object classification of the projected expenditures, inter alia, including employee related expenses, operating expenses, physical assets etc. The budgets of the three attached departments that are not described as defence paid organizations in the Defence Division letter dated 18.05.2005 are duly accounted in the Federal Budget. The budgetary grant to the Pakistan Maritime Security Agency is shown as an appendage to the budget of the Defence Division. On the other hand, both the Survey of Pakistan and FGEI(C/G) are given separate standing through independent budgetary grants in the Federal Budget. In contrast, the budgetary requirements of the attached departments described by the Defence Division in its afore said letter as defence paid organizations, namely, MES, ML&C, MAG and PASB are not reflected at all in the Federal Budget; either separately or as part of the Defence Division budget. The budgetary demand No,026 pertaining to Defence Services describes functional classification of the grant as "Military Defence."
38. This grant names the three Armed Forces and DP Establishment/ISOs as the recipients of the budget allocation but does not specify the internal departments within the Defence Services that utilize the funds. The reason for excluding mention of the demands for grants by the above mentioned attached departments of the Defence Division, namely, MES, ML&C, MAG and PASB in the Federal Budget becomes obvious because these departments are accounted for under the defence services budget (Demand No,026) whereunder budgetary allocation to internal departments of the Defence Services is not specified.
39. 9.Apart from their demands for grants, being separately listed in the Federal Budget, the budgetary demands of the Defence Division, Maritime Security Agency, Survey of Pakistan and FGEI(C/G) are different in another respect from those attached departments of the Defence Division whose budgets are included in the grant made to the Defence Services. In each case falling in the former category, its budget is placed under the charge and purview of Accountant General of Pakistan Revenues which is a civilian department. On the other hand, under the terms of demand No,026 the Accountant General of Pakistan Revenues has no jurisdiction over the Defence Services Budget which is monitored and scrutinized by the Military Accountant General. The budgetary demands by attached departments of the Defence Division, namely, MES, ML&C, .MAG and PASB do not find mention in the Federal Budget and are not administered by the Accountant General of Pakistan for being paid out of Defence Estimate unlike the other above mentioned attached departments including FGEI(C/G) that are paid out of Civil Estimates.
40. 10.The claim made by the appellant is that FGEI(C/G) falls within the Defence Estimates. As proof he cites that payment of salaries of FGEI(C/G) staff is made by the Controller of Military Accounts.
41. Therefore, it is deduced that the said staff are paid out of the Defence Budget. That claim is not proven on record for the petitioner. Further it is at best a conjectural inference drawn from the method of payment rather than the demonstration of the source and account of the funds disbursed. It does not constitute evidence, on the point presently in issue. On the other hand, the reasons cited by the respondents bearing reference to the Rules of Business and Current Expenditure Statement in the Federal Budget that are already recounted above have their foundation in a classification made by instruments having legal effect. This is duly supported by repeated assertions made by the Ministry of Defence in different contexts, including eligibility for allotment of plots under category J of DHA and the entitlement of FGEI(C/G) employees to accommodation provided by the Federal Government and not by the Defence Services. Executive instructions that are expressed in precise terms and are capable of being applied with particularity to a great variety of cases and also to the case under consideration are treated to I have binding effect particularly where these have been applied strictly and not been departed from. Reference is made to Pakistan v. Abdul Hamid (PLD 1961 SC 105). Resultantly, the materials available on record belie the claimmade by the appellant.
42. 11.Although the result that FGEI(C/G) employees are not paid out of Defence Estimates bears the force of reason, however, the lack of an express legal instrument issued by the competent authority defining rights and liabilities of the employees of the FGEI(C/G) be it through rules, notification, guidelines or instructions may have prevented the present dispute from arising in the first place.
43. Accordingly, it is observed that an appropriate legal instrument should be issued by the competent authority in the Federal Government for setting out the essential details regarding rights, privileges and terms and conditions of service of the civilian employees working in FGEI(C/G) and for that matter, in the Defence Division and in the other attached departments thereto.
44. 12.##TS##In the light of foregoing discussion my humble conclusion is that the petitioner who is a civilian employee of the FGEI(C/G) is not paid out of Defence Estimates therefore he does not qualify for eligibility under category J notified by DHA for the allotment of its plots.
45. 13.This brings me to an anomaly discovered whilst reading the appeal file. Notwithstanding that the civilian employees of the Defence Division are not paid out of Defence Estimates, yet by letter dated 18.05.2005 issued by the Defence Division which has already been reproduced above, the eligibility criteria under category J was extended to include them as qualified candidates for allotment of DHA plots. This extension was made for the self-serving reason that the "Defence Division directly deals with DHA's administrative matters, employees of MOD have more right of eligibility for allotment of plots from DHA Housing Scheme than that of employees of other Defence paid organization DESTO, MES, ML&C Dept., MAG and PASB etc." By making its own civilian officers eligible under category J, the said letter dated 18.05.2005 undermines the very basis of the classification established by the said category J, i,e,, employees who arc paid out of Defence Estimates. Prima fade, the inclusion of civilians paid out of civil Estimates of the Defence Division for eligibility under category J is derogatory and destructive of the original classification. However. since neither the letter dated 18.05.2005 by the Defence Division nor the beneficiary employees of the Defence Division there-under, are before this Court for adjudication, therefore, no opinion is expressed with reference to the legal fate of either. Be that as it may. in the present case, whether any relevant and cogent ground exists to justify the Defence Division to confer on its civilian employees a proprietary privilege reserved for employees paid-out of Defence Estimates, is a matter that deserves judicial scrutiny, but upon the kind initiative of the Hon'ble Chief Justice of Pakistan. Accordingly in this respect, the observations made above may respectfully be placed before him.
14. The appeal is dismissed.
46. (Sd)
47. Umar Ata Bandial, J revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.