MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant petition, petitioner has challenged order dated 15.12.2020, passed by respondent No.2 / Commissioner, Faisalabad Division, Faisalabad, whereby House No.14-E, GOR-II, Faisalabad was re-allotted to Mst. Naseem Sehrai after cancelling the same from petitioner's name.
2. Brief facts of the case are that House No.14-E, GOR-II, Faisalabad was originally allotted to respondent No.5 / Naseem Sehrai in the year 2002 when she was posted at Government College for Women, Ghulam Muhammad Abad, Faisalabad. She was transferred to Govt. College for Women, Sahianwala, where designated residence was available. Respondent No.5 did not opt to shift at designated house and approached Civil Court with the plea that latter residence was not livable whereupon S.E. Buildings reported that designated house was quite fit for residence and suit proceedings became infructuous. Feeling aggrieved, respondent No.5 filed W.P.No.224615 of 2018, whereby matter was remitted to respondent No.2 for decision vide order dated 09.07.2018, however, her representation was rejected vide order dated 03.09.2018. She filed W.P.No.235056 of 2018, which was dismissed vide order dated 19.12.2018. Respondent No.5 challenged said order by filing ICA No.2469 of 2018, whereby matter was referred to respondent No.2 for decision afresh.
Thereafter, respondent No.5 transferred to Govt. Girls Degree College, 122/RB, Sargodha Road, Faisalabad and consequently, aforesaid house was withdrawn from petitioner and restored to respondent No.5 vide order dated 25.07.2020. Feeling aggrieved, petitioner approached this Court by filing W.P.No.49595 of 2020, which was disposed of vide order dated 11.11.2020, with direction to respondent No.2 to re-decide the matter keeping in view the directions of Hon'ble Division Bench.
However, petitioner's request was declined vide order dated 15.12.2020. Hence, instant petition.
3. Learned counsel for petitioner submits that respondent No.2 has misconstrued the law and facts of the case and also ignored the applicable policy. Adds that designated residence was available at Sahianwala, therefore, respondent No.5 was not obliged to retain possession of house in question. Further submits that petitioner was allotted residence on her turn after waiting two years after fulfilling all codal formalities, therefore, same could not have been taken away on mere assumptions, supposition, whims and fancy of any executive functionary. In the end, learned counsel submits that impugned order is unsustainable in the eye of law.
4. Conversely, learned counsel for respondent No.5 and learned Assistant Advocate General defend the impugned order.
5. Arguments heard. Available record perused.
6. The purpose of allotting residential government accommodation is to provide in time shelter to government servants enabling them to contribute in development of the country by focusing on their official duties with peace of mind. But in the instant case, government servants i.e. petitioner and respondent No.5 have wasted their energies, abilities and precious time for many years over snatching best available official accommodation against mandate of law and entangled executive authorities for achieving their pursuits. Section 15 of the Policy Governing Allotment of Residential Government Accommodation at District Level (hereinafter called "Allotment Policy") clearly stipulates that the DCO has no legal obligation to provide residential accommodation to any Government servant and no Government servant has any vested right or claim to the allotment of Government owned residential accommodation. Undeniably, respondent No.5 / Naseem Sehrai was the original allottee of House No.14-E, GOR-II, Faisalabad in 2002, however, on transfer and posting at Government Degree College for Women, Sahianwala, Faisalabad in the year 2008 (as apprised by learned Law Officer), she was offered the available designated residence reserved for the Principal, however, she insisted to retain house in question despite the fact that she was not legally entitled and justified to exercise the option of pick and choose between the two official residences, especially when the designated residence was quite fit for living as reported by S.E. Buildings concerned.
7. This case is also a bad example of non-exercise of proper jurisdiction by respondent-authorities and a serious threat to rule of law. A valid allotment order dated 10.10.2017 existed in favour of petitioner, respondent No.2 vide order dated 03.09.2018 declared respondent No.5 not entitled to retain house in question and her possession was also found unlawful, there was no stay order from any Court of law in favour of said respondent rather clear eviction order dated 19.12.2018, passed in W.P.No.235056 of 2018 was in field, however, respondent-authorities failed to retrieve possession of house in question from respondent No.5 without any rhyme or reason. The fact that respondent No.5 was occupying only one residence i.e. House No.14-E cannot be made foundation to withdraw a valid allotment order passed in favour of petitioner, especially when petitioner was living in aforesaid official accommodation. Moreover, in the impugned order as well as during arguments, no specific provision, rule or policy has been referred which may suggest that house in question was to be allotted to respondent No.5 on her transfer back to Faisalabad after a considerable period expanding over almost 11-years as she was transferred back to Faisalabad on 21.05.2019 (as informed by learned Law Officer). It was unacceptable that respondent No.5 retained House No.14- E, despite cancellation of her allotment, which remained unnoticed by respondent-authorities, who were silent spectators perpetuating the un-authorized occupation over residential government accommodation over years.
8. The impugned order contains reference to various provisions of the Allotment Policy, especially sections 2 to 5, 10 to 12, 17 and 27(d)(ii). I am afraid these provisions do not support the impugned order. Sections 2 to 4 are regarding allotment powers of DCO and designated residences of DCO, District Police Officer and District and Sessions Judge. Section 5 provides that only the government servants working in the District notified by the DCO will be eligible for allotment of government owned accommodation. Section 10 deals with situation where government servant loses his registration in case he/she is transferred out of District. Section 11 provides that if a government servant, eligible for allotment out of pool houses of the District and registered with the Estate Office for allotment, is transferred out of District before a house is allotted, he / she will retain the same registration if he / she is transferred back to District within eight months after his / her transfer out of District. Section 12 stipulates that a government servant, who is transferred out of District, loses his / her eligibility after expiry of the period for which he or his family can retain possession specified in section 27. It is obvious that afore-referred provisions are not helpful to settle the controversy in hand and their reference in the impugned order is totally irrelevant.
Section 17 envisages that the DCO can cancel any allotment order issued subject to vacation basis without any show cause notice provided the new allottee has not taken over possession of allotted house. It is evident from order dated 10.10.2017 that allotment in favour of petitioner was not qualified with any condition rather it was with immediate effect, inasmuch as petitioner was in possession of house in question at the time of passing the impugned order, therefore, this provision also does not lend support to pass impugned order. Section 27 provides maximum period for retention of government accommodation, which is in case of transfer out of station, is two months and is inapplicable to the facts and circumstances of this case. Moreover, this provision could not have been misconstrued to prolong unlawful possession of respondent No.5 indefinitely. Section 16 of the Allotment Policy was also not kept in view while cancelling allotment order of petitioner, which provides that allotment of government owned residential accommodation, will be made on the principle of first come first served basis in accordance with the list maintained by the Estate Office. Admittedly, petitioner was allotted accommodation on her turn after observing all codal formalities, she was in service, residing in house in question and paying the house rent along with utility bills regularly, therefore, her allotment could not have been withdrawn in a casual manner on the single premise that previous allottee has been transferred back, particularly in absence of any specific provision in the Allotment Policy in this regard.
9. Learned Law Officer and Commissioner Faisalabad Division, Faisalabad, in its report, have contended that petitioner being in BPS-17, at the relevant time, was not eligible to be allotted government accommodation in Category "E", which is meant for government servants in BPS-18 & above. When asked to show whether entitlement of the government servants to various categories and classes of accommodation have been chalked out, learned Law Officer, under instructions, frankly conceded that no such document approved by the competent authority is available, however, referred to a document Annexure-Q, brought on record by way of C.M.No.1 of 2022. This document is a site plan prepared by an architect showing Elevation and Sections of the building wherein at right side, it mentions Project Standard Design Residence in Punjab Pay Scale 18+19 Cat-II, which is not sufficient for proper allotment of government owned accommodation. This inherent defect / flaw in the Allotment Policy gives unbridled discretion to respondent-authorities to make allotments at their whims and wishes and facilitates government servants in getting undue benefits. In these circumstances, argument that petitioner was not eligible to be granted government accommodation in category "E", at this belated stage, is not sufficient for respondents to wriggle out from their unlawful and unauthorized act, which has accrued certain rights in petitioner's favour. This lacuna in the Allotment Policy needs to be filled immediately through necessary legislation / amendments in the Allotment Policy for which the Chief Secretary Punjab, Civil Secretariat, Lahore / respondent No.1 is directed to personally look into the matter in liaison with all concerned stakeholders and guidance in this regard may be taken from the site plan supra, Punjab Government Residences Allotment Policy, 2021 and Accommodation Allocation Rules, 2002, for allotment of residential accommodation to the Federal Government Servants at Islamabad and other stations.
10. Needless to observe here that executive authorities must act fairly, in accordance with their assessm ent of facts and understanding of the law as mere pendency of litigation before Courts of law, without any direction to the contrary, does not debar them to perform executive functions permitted under the law. They should discharge their functions independently, without outside influence or amusement, direct or indirect pressure from any quarter, personal liking or disliking or any consideration other than the will of law. Every executive functionary is obliged to perform his / her duties and exercise only those powers which law had conferred upon it otherwise same would be subject to judicial review of superior Courts.
11. In view of the above, instant petition is allowed and impugned order is declared to be illegal and without lawful authority and set aside. However, it is directed that respondent No.5 be also accommodated in any available official accommodation as per her entitlement keeping in view the site plan supra, strictly in accordance with law, within next 30-days. Office to transmit copy of this order to respondent No.1 / Chief Secretary Punjab, Civil Secretariat, Lahore to act in line with the observations made in paragraph 9 supra, keeping in view the site plan supra, Punjab Government Residences Allotment Policy, 2021 and Accommodation Allocation Rules, 2002, for allotment of residential accommodation to the Federal Government Servants at Islamabad and other stations, supervise the whole process of harmonization of the Allotment Policy, get its approval from the competent authority and ensure future allotments purely on merit, in line with the approved Allotment Policy. The whole exercise shall be accomplished preferably within a period of three months from the date of receipt of certified copy of this order and compliance report be submitted to this Court through Deputy Registrar (Judicial).