MUHAMMAD SAJID MEHMOOD SETHI , J. Through instant petition, petitioner has called in question order dated 09.07.2021, passed by Managing Director , Punjab Government Servants Housing Foundation / respondent No.2, whereby Plot No.1015 Block C, Punjab Government Servants Housing Scheme, Sahiwal, allotted to petitioner was cancelled and Director (Finance & Account) was directed to refund the amount / cost of plot to petitioner . Petitioner has also challenged the vires of Rule 19(3)(b) of the Punjab Government Servants Housing Foundation Rules, 2013 ("the Rule of 2013").
2. Brief facts of the case are that petitioner 's son namely Shahzad Ahmad Sajid was Instructor (BS-12) at Govt.
Higher Secondary School of Special Education (Hearing Impaired), Sahiwal. He was member of Punjab Government Servants Housing Foundation ("PGSHF") with Relationship No.0145767, booked a plot measuring 07-Marlas with first choice of priority in District Sahiwal, and deduction from his monthly salary continued till his death on 15.04.2010, while in service. As the deceased employee was unmarried, therefore, petitioner being mother is his legal heir. PGSHF announced draw of allotment of plots for 14.05.2 019, however , petitioner did not receive any letter / intimation in this regard, which constrained her to file W.P.No.27302 of 2019 , whereby respondents were directed to include petitioner 's name in the aforesaid draw . Petitioner deposited an amount of Rs.6,62,182/-, however , petitioner was refused allotment. Petitioner filed Crl.Org.No.38505/2019 , and during proceedings of contempt petition, petitioner was provisionally allotted Plot No.1 015, Block-C, PGSH Scheme, Sahiwal. Ultimately , the matter was remitted to respondent No.2 to redress petitioner 's grievance as per law vide order dated 17.06.2021, however , petitioner 's provisional allotment was cancelled vide impugned order dated 09.07.2021. Hence, instant petition.
3. Learned counsel for petitioner submits that the Rules were promulgated in the year 2013 whereas petitioner 's son applied for the plot in the year 2005, therefore, aforesaid Rules could not have been applied retrospectively .
Adds that Rule 19(3)(b) is in derogation of parent statute i.e. the Punjab Government Servants Housing Foundation Act, 2004 ("the Act of 2004") . Further submits that powers vested with the Foundation and Board of Directors have illegally been conferred upon Managing Director through the impugned Rule, which is against the spirit of the Act of 2004, the Punjab Government Servants Housing Foundation Rules, 2005 ("the Rules of 2005") and the Punjab Government Servants Housing Foundation (Allocation of Houses/P lots) Regulations, 2013 ("the Regulations of 2013") . Argues that Rules can neither go beyon d the scope of parent statute nor can they enlarge scope of statutory provisions. Contends that respondent No.2 has declined the genuine claim of petitioner without assigning any cogent reasons, thus, impugned order is liable to be set-aside. Reliance has been placed upon Niamatullah Khan Advocate and others v. Federation of Pakistan and others (2022 SCMR 152), Muhammad Junaid Alam v. Federation of Pakista n through Secretary , Islamabad and 3 others (2019 CLC 453), Dr. Shahbaz Mujtaba Ghauri v. Punjab Public Service Commission through Chairman Lahore and 2 others [2020 PLC (C.S.) 127], GAM Corp. (Pvt.) Ltd. through Admin Executive v. National Highways Authority through Chairman and another (2021 CLC 1755 ), Saleem Ahmed and others v. Federation of Pakistan and others (2021 PTD 1813 ), Rida Fatima v. Pakistan Medical Commission and others (PLD 2022 Laho re 197) and Attock Petroleum Limited (APL) v . National Highway Authority and another ( 2022 PTD 222 ).
4. Learned counsel for respondents submits that all those members who retired on or before 26.11.2008 were considered in the balloting, however , petitioner 's son died on 15.04.2010, therefor e, he was not considered being far below the seniority list of members. Adds that the Rules of 2013 are in cons onance of the Act of 2004 and petitioner has been treated in accordan ce with applicable law and rules / regulations. Further submits that respondent No.2 has rightly exercised the jurisdiction, hence, impugned order is liable to be upheld.
5. I have heard learned counsel for the parties at length and gone through the record with their able assistance.
6. Petitioner pleads that Rule 19(3)(b) of the Rules of 2013 is inconsistent with the provisions of the Act of 2004, the Rules of 2005 and the Regulations of 2013. For better appreciation, the aforesaid Rule is reproduced hereunder:-
19. Allocation of houses or plots. -
(1) ---
(2) ---
(3) The house or plot shall be allocated in favour of the member or his family as per entitlement seniority through draw in the following manner:
(a) ---
(b) the member or his family may, with the approval of the Managing Director and at least one hundred and eighty days before the date of draw , change priority of stations;
(c) --- Section 21 of the Act of 2004 authorize s the Government to make Rules for the purpose of the Act ibid. The purpose provided in the Preamble of the Act of 2004 is to introduce a scheme for providing houses or plots on no profit no loss basis to Government Servants on their retirement, or to their families in case of death during service.
Section 3 of the Act of 2004 is regarding establishment of PGSHF , which would have a Board of Directors, as per Section 4, wherein Managing Director is a Director / Member / Secretary of PGSH F. The powers and functions of the Board of Directors are provided in Section 7. Section 16 provides that the Foundation shall dispose of the houses or plots in favour of its members at the time of their retirement, or in favour of their families in case of death during service.
Provision analogous to Rule 13(3)(b) of the Rules of 2013 was also available in the Rules of 2005, and the same was as follows:-
19. Allocation of residential units.
(1) ---
(2) The residential units shall be allocated in favour of the members of their families in the following manner , namely-
(a) to the members or their families on retirement or death, as the case may be, in accordance with the priority of station indicated in their option for stations: Provided that a member may, with the approval of the Foundation at any time before allocation, change his priority of station: Likewise, Regulation 6 of the Regulations of 2013, clearly provides that the Foundation shall maintain and publish the entitlement seniority lists for all categories of members for each calendar year. Regulation 7 envisages that a house or plot to a member shall be allocated by the House Allocation Committee, consisting upon five members and Managing Director is one of its members.
7. After a detailed visit of various provisions of the Act of 2004, and the Rules of 2005, it is manifestly clear that allocation of house or plot and change in priority of stations is the authority and prerogative of PGSHF . The overall reading of the provisions of the Act of 2004 shows the intention of the legislature that the Board of Directors has been formulated to facilitate the PGSHF to carry out the purposes of the Act of 2004 whereas authority to change priority of stations has been devolved upon the Managing Director in Rule 13(3)(b) of the Rules of 2013, which is apparently a step forward to enlarge the scope of the parent Act.
8. Undeniably , Rules framed under a statute are to remain within the precinct of the statute itself and cannot transgress the limits and parameters of the parent statute. It is equally well-settled that rule-making power is an incidental power that must follow and not run parallel to the parent statute. Such legislation has to be interpreted in a way which conformed to and stayed within the parameters of the parent statute. No doubt, all efforts are to be made to interpret the rules so as to bring them in conformity and without injuring the intent and spirit of the statute, however where it was not possible then the rules inasmuch as they injured the very intent and spirit must yield to the statute. The Courts, therefore, will require due proof that the rules / regulations have been made and promulgated in accordance with the statutory authority and if those fail to comply with statutory essentials, the Courts may declare the same as invalid and ultra vires . To determine the vires of delegated legislation, this Court has to examine whether such delegated legislation was beyond the power granted by the enabling legislation and whether such delegated legislation was consistent with the parent statute. Reference can be made to Khawaja Ahmad Hassan v. Government of Punjab and others (PLD 2004 Supreme Court 694), Suo Motu Case No.13 of 2009 (PLD 2011 Supreme Court 619), Suo Motu Case No.11 of 2011 (PLD 2014 Supreme Court 389), Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited (2016 SCMR 550), Syed Mehmood Akhtar Naqvi and others v. Malik Israr , Senior Member , Board of Revenue Sindh and others (PLD 2018 Supreme Court 468), Independent Newspapers Corporation (Pvt) Ltd and others v. Federation of Pakistan and others (PLD 2017 Lahore 289), Abdullah and 7 others v. Province of Balochistan through Secretary Education Civil Secretariat and another [2021 PLC (C.S.) 272] and Rida Fatima v. Pakistan Medical Commission and others (PLD 2022 Lahore 197).
9. So far as stance of respondents that only members who retired on or before 26.11.2008 were included in the draw , therefore petitioner 's son having been passed away on 15.04.2010, petitioner was not included in the draw for the allotment of plot / house, suffice it to say that such arrangement is neither provided in the Act of 2004 or the Rules / Regulations nor supported by any lawful justification, thus, this plea is not tenable. Admittedly , pursuant to direction of this Court, petitioner 's name was included in the draw , she deposited requisite amount and was ultimately allotted plot, therefore, in absence of any express provision of law regarding her disentitlement to participate in the draw , such allotment could not have been withdrawn / cancelled.
10. In view of the above, instant petition is allowed in the manner that provision of Rule 19(3)(b) is declared to be inconsistent and ultra vires to the Punjab Government Servants Housing Foundation Act, 2004. Consequently , the impugned order dated 09.07.2021 is declared to be illegal and without lawful authority and set-aside.
Consequently , matter to this extent is remitted to Board of Directors of PGHSF with the direction to re-consider petitioner 's request and redress her grievance strictly in accordance with the applicable laws/rules/regulations, preferably within a period of thirty days from the date of receipt of certified copy of this order . Office is directed to transmit copy of this order to respondent No.2 immediately , who shall place the matter before the Board of Governors at the earliest.