JAVED IQBAL, J.---This is a Constitutional petition preferred on behalf of Dr. Asadullah Khan Tareen and Dr. A.I Khan Tareen under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:-- "It is accordingly respectfully prayed that:
(I) It may be declared that the petitioner is eligible and entitled to allotment of Bungalow No.44-A Masoom Shah Street of Anscomb Road, Quetta (procedure for Allotment) Rules, 1982 and the respondents Nos. l to 3 are under legal obligation to do so.
(II) That the allotment Order No.CEO (S&GAD) 44-A/95, dated 27-2-1996 issued by respondent No.2 is illegal, void, in violation of rules as well as unconstitutional, arbitrary and discriminatory, therefore, liable to be declared as such.
(III) That the respondents Nos. l to 3 be directed to allot the house in question to the petitioner as contemplated under the rules, in the meanwhile the respondents Nos. l to 4 may be restrained from dispossessing the petitioners from the house in question.
(IV) Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be granted alongwith cost of the petition. "
2. Briefly stated the facts of the case are that Dr. Asadullah Khan Tareen is an Assistant Professor, Head of Operative Dentistry, Dental Section, Bolan Medical College and Civil Hospital, Quetta and is Grade-19 Officer of Health Department, Government of Baluchistan. He is real brother of petitioner No.2 who was Professor and Head of Dermatology Section, Bolan Medical College. The wife of petitioner No. l Dr. Mrs. Tehmina Asad is also Assistant Professor and Head of Prosthetic Dentistry, Bolan Medical College and Civil Hospital, Quetta. Dr. Asadulah Khan Tareen and his wife are living with petitioner No.2 to whom House No.44-A, Masoom Shah Street, Anscomb Road was allotted which remained in his occupation for the last 22 years. The petitioner No.2 was in BPS-20 and he stood retired with effect from 31-12-1995. Dr. Asadullah Khan Tareen does not have his own house and he had been living with petitioner No.2 for the last so many years. The official respondents allotted Bungalow No.42-B Anscomb Road, Quetta to Dr. Asadullah Khan Tareen vide Allotment Order dated 2-9-1992 but subsequently it was allotted in favour of Mr. E.B. Malghani, Director, NIPA, Quetta vide order dated 17-3-1993. The petitioner No. l filed an appeal and resultantly the allotment was restored but possession of the allotted house was not handed over to him and it was subsequently allotted to Mr. Muhammad Ayub Buledi, Revenue Minister and subsequently it was occupied by Mr. Tariq Mehmood Khetran, Minister for Population Welfare who is residing in it.
Another attempt was made by petitioner No. l for allotment of Bungalow No.30, Anscomb Road, Quetta but it was allotted to Mr. Munir Badini. The petitioner No. l on 23-5-1995 submitted an application informing the official respondents about retirement of his brother with request that Bungalow No.44-A, Masoom Shah Street may be allotted to him in pursuance of the provisions as contained in rule 14 of the Residential Accommodation at Ax's Quetta (Procedure for Allotment)
Rules, 1982 (hereinafter called as the Rules) as ' , he was residing with petitioner No.2 but it was allotted to Mumtaz-ur-Rehman, Additional Secretary, Finance Department Quetta and Deputy Commissioner/District Magistrate, Quetta was directed to get the house vacated forcibly. The petitioner No. l filed an appeal to Chief Secretary immediately which is yet to be decided. In view of the expected forcible eviction this petition has been filed.
3. It is mainly contended by Mr. Shakeel Ahmed, Advocate that allotment order dated 22-2-1996 issued by respondents Nos. l and 2 in favour of respondent No.5 is patently illegal, void and without any lawful authority as such of no legal effect as it was made in violation of the relevant provisions of the rules because petitioner No. l is eligible and entitled to get accommodation in pursuance of provisions as contained in rule 14 (IV) of the Rules as he is in physical occupation of the house which was allotted to his brother. It is next contended that undisputedly petitioner No.1 is in BPS-19 and the accommodation in question is B or C type and the petitioner is entitled for its allotment. It is urged with vehemence that the action of the official respondents whereby the petitioner has been refused allotment and the house in question was allotted to respondent No.5 is in clear violation of the rules and the respondents cannot frustrate the very object of the rules and, therefore, the impugned action being un-Constitutional is liable to .Be set aside. It is urged that the petitioner No.1 has been discriminated by the official respondents and better accommodation of higher classification has been provided to the Officers of BPS-17 and BPS-18 in violation of the rules.
It is mentioned that various Officers who have been transferred to different places but they are still occupying the accommodation at Quetta as well as at their place of posting. In this regard Mr. Shakeel Ahmed, Advocate quoted the instances of Commissioner, Sibi Mr. Mubashar Ahmed Zafar, and Commissioner, Nasirabad Mr. Abdul Ghaffar Nadeem. It is alleged that the respondent No.5 belongs to the class of bureaucrats who also have authority in the matter of house allotment, therefore, in preference to petitioner No.1 he has been accommodated out of turn and such action of the official respondents is in excess of jurisdiction and arbitrary which is liable to be declared as such. It is further contended that official respondents in excess of jurisdiction and Nos.1 to 3 have issued directives to the District Magistrate/Deputy Commissioner, Quetta for getting the possession of the house forcibly which action is also in violation of the rules and petitioner No. l cannot be dispossessed from the house in question until and unless alternate accommodation is provided to him as contemplated under the rules. Mr. Shakeel Ahmed, Advocate also referred the provisions as contained in Articles 4 and 24 of the Constitution and argued that the action has initiated by the official respondents is in violation of the above referred to Constitutional provisions and as such is liable to be declared as unlawful.
4. Mr. Yaqoob Khan Yousafzai learned Advocate-General appeared on behalf of respondents and strenuously contended the position as explained on behalf of the petitioner by arguing that the petition itself is not maintainable as alternate remedy is available which has already been availed and appeal filed by the petitioner is pending before the competent Authority for disposal. Learned Advocate-General contended that simultaneously the relevant provisions of the rules and Constitutional jurisdiction of this Court cannot be invoked. It is urged with vehemence that various controversial questions of facts are involved which cannot be determined by this Court while exercising its Constitutional jurisdiction and as such the petition deserves dismissal. It is pointed out that under the rules Allotment Committee has been constituted which is exercising its authority as conferred upon it and no illegality whatsoever has been committed in allotment of the house in question to respondent No.5 who was entitled for it being Additional Secretary and besides that no vested legal right of the petitioner has been infringed. In view of learned Advocate-General .The Allotment Committee has constituted under the rules was equivalent to that of an Administrative Tribunal and may be allowed to work within domain of its authority and no interference is called for on the ground that a house could not be allotted in favour of petitioner who otherwise was not entitled to it. Learned Advocate-General also mentioned the difference in-between entitlement and eligibility and argued that by no stretch of imagination the petitioner was having any legal right for allotment of the house in question. Learned Advocate-General also pointed out that the provisions as contained in Rule 8 and Rule 12 cannot be invoked as the petitioner No. l and his wife are getting house rent illegally and, therefore, the petitioner No. l has not approached this Court with clean hands and concealed the abovementioned fact. It is also argued that it is prerogative of the Allotment Committee to determine the eligibility of petitioner and accommodation classified as "A cannot be allotted in favour of petitioner No. l as he was not regularly promoted in BPS-19 and categorization/classification cannot be questioned. Learned Advocate-General also mentioned that there is no question of any discrimination and the case of petitioner No. l was not considered alongwith those whose list has been provided but his case was considered alongwith Additional Secretary, Finance (respondent No.5) who was given preference in view of the provisions as contained in Rule 8 (3) of the Rules. It is also informed that Dr. A.I Khan Tareen (petitioner No.2) has moved an application to occupy the house till 30th June, 1996 and, therefore, petitioner being stranger cannot occupy the house without any lawful justification. Learned Advocate-General has referred 1995 PLC 306 + PLD 1982 Lah. 401 + PLD 1982 Quetta. 126 in support of his abovementioned contentions.
5. We have carefully examined the respective contentions as adduced on behalf of petitioner and for respondents in the light of relevant provisions of law, rules and record made available. The main questions to be determined are as to whether the petitioner is an aggrieved person and he has any vested right for allotment which has been infringed. It is also to be seen whether the petitioner has any alternate remedy to get his grievances redressed. The jurisdiction and competency of Housing Allotment Committee is also to be examined. In order to answer the abovementioned questions it seems inevitable to have a thorough examination of the Residential Accommodation at Quetta (Procedure for Allotment) Rules, 1982 hereinafter referred to as the rules. The said rules are promulgated in pursuance of the provisions as contained in Fundamental Rule 45. A bare reading of the rules would reveal that the same are capable enough to meet all sort of eventualities but there are certain ambiguities which are to be removed. Let we make it clear at the outset that undoubtedly in view of Rule 4(2) a Government servant shall be eligible to a . Residential Accommodation of his status but this is subject to availability of accommodation of his status, however, inferior accommodation to that of his entitlement, subject to availability, can be allotted if so desired by the incumbent concerned. The limits of entitlement has been specified in Rule 4(1) in a categorical manner and there is hardly any scope of superior accommodation beyond entitlement. ' A' and 'B' type of residences are meant for Grade-20 to 22 and Grade-19 respectively.
There appears to be some overlapping in rules for determination of entitlement as on the one hand entitlement revolves around 'grades' and simultaneously it can be based on 'Emoluments', For example if a Government servant is in Grade-17 and gets selection Grade-18 and by virtue of up gradation his emoluments are increased then he would be entitled for Grade-18 accommodation on the basis of emoluments or otherwise. The rules in its present shape are not clear to face such a situation in crystal clear manner and as such suitable amendment for the sake of clarity would be essential. The petitioner being Grade-18 Officer as informed by learned Advocate-General cannot claim ' A' or " B' type of accommodation as a matter of right. The question whether the petitioner is in Grade-18 or Grade-19 or the accommodation in question is that of ' A' or ' B' type being controversial questions cannot be looked into while exercising our Constitutional jurisdiction under Article 199 of the Constitution. It is well established by now that while exercising Constitutional writ jurisdiction High Court does not make a thorough probe regarding ticklish, complicated and controversial questions of fact as they could only be resolved by a competent Civil Court or any other forum provided for such purposes (PLD 1986 Quetta 214).
6. We have also focused our attention to part (V) of the rules which needs radical changes as the procedure specified therein seems to be defective. The allotment should be made at the direction of committee and it should not be left exclusively to the sweet-will of Chairman who by virtue of clause (III) of Rule 6 will sit again as Chairman of the Committee to decide appeals preferred against his order which is in violative of the principles of natural justice, fair play, equity and settled norms of justice. The procedure of appeal as provided in Rule 8 which deals with 'out of turn allotment' should be made applicable to all cases and clause (III) of Rule 6 may be deleted.
We have dilated upon clause (IV of Rule 14) which is reproduced hereinbelow for ready reference: "Allotment of accommodation may be transferred to the father/mother/real brother/real sister/real son or wife/husband of the allottee, if he/she is eligible for the same or for a higher type of accommodation at the time of the event or becomes eligible within 2 months of the event and beneficiary had been ordinarily residing with the allottee. In case he/she is entitled to a lower class accommodation he/she shall be allotted the first available quarter in that class and till such time an alternative accommodation is made available, he/she may retain the accommodation in his/her occupation on payment of normal rent. "
8. A bare perusal would reveal that transfer of accommodation is subject to eligibility which is different than that of entitlement. "Eligible means legally qualified or fit to be chosen" and eligibility is to be determined in the light of rules by the committee. "Entitlement" obviously refers to the determination of a person's right to a certain position, office or status based on the correct assessm ent of his claims in the light of the legal requirements and prescribed qualifications.
According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like "vested" prima facie refers to the right, and not to the possession. According to the Oxford English Dictionary, "entitled" has been used in the sense of furnishing w with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionary "to entitle" in its usual sense is to give a right or title. Saeed Hassan v. Pyar A.I and 7 others (PLD 1976 SC 6).
9. In view of what has been mentioned above "eligibility" depends upon fulfilment of certain conditions while 'entitlement' speaks about right. It would be appropriate to see here at this conjecture that what does a "right" mean. "A right is an interest which is recognised and protected by law. As it is recognised by law a man is entitled to have it. As it can be protected by law, the possessor can enforce it by an appropriate action in a Court" (Civil Procedure Code (Amendment)
Act, 1951 section 20; Adaptation of Laws Order, 1950, section 20 Maloji Narsing Rao v. Shanker Saran, 1958 All. 775). Before a right could be enforced it must have legal recognition, which cannot exist without a base and solid foundation. The question whether petitioner has some solid foundation to press his claim as "right" cannot be solved without considering the record which is controversial regarding grade of petitioner and type of accommodation to which he is entitled, cannot be determined while exercising Constitutional jurisdiction.
10. It is also to be noted that word "may" has been used regarding transfer of accommodation in above reproduced clause and it cannot be given the meanings of "shall" as the use of word "may" is not an accidental omission but it is deliberate and rule-making authority appears to be conscious about the implication of words "may" and "shall". The said view finds support from the rules where words "shall" and "may" have been used in accordance with situation. For example the word "shall" has been used in Rule 3(2), Rule 4(2), Rules 5 and Rule 6 but in clause III of rule 6 the word "may" has been used. Similarly in clause I and clause II of Rule 8 word "shall" has been used but in clause III and clause IV of Rule 8 word "may" has been used. It is to be noted that in the same provision two different words "may" and "shall" have been used and it appears that the two words have been deliberately chosen in first context. It can thus safely be inferred that the allotment of accommodation by way of transfer is not must and mandatory.
11. We have observed that flagrant violation of rules and infringement of the principle "First come first served" enunciated in Rule 7 (IV) in allotment has been, made in utter violation of the rules and even Grade-17 Officer is occupying accommodation meant for Grade-22 Officer. In this regard allotment of Bungalow No.514-A Cantt. Can be referred. We do not want to dislodge all the officers as they have not been impleaded as parties but it is high time that such irregularities must be regularised in the interest of smooth administration and to avoid heart burning and time consuming litigations in different Courts.
12. We have considered the main objection as argued by learned Advocate-- General that the petitioner is not an aggrieved person, therefore, Constitutional jurisdiction cannot be invoked. It is well-settled by now that A 'person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand. In order that a person is an 'aggrieved person' within the meaning of Article 98 he may not have right in strict juristic sense but he must show that he had a "personal interest in the performance of the legal duty" and that the non-performance of the duty is to result in the loss of some "personal benefit or advantage or the curtailment or a privilege". Unless he shows that he will lose "some benefit or advantage which would have gained if the order was in accordance with law" he cannot be an aggrieved person. (PLD 1972 pesh. 848).
13. A bare perusal of the above reproduced verdict would show that legally speaking the petitioner is not an aggrieved person as no legal right vested in him has been infringed. It is an admitted feature of the case that being Grade-18 officer he is not entitled to get accommodation meant for Grade-22 Officer as a matter of right. If previously some illegality has been committed by the Allotment Committee that cannot be followed by this Court. A thorough scrutiny of the rules would indicate that provision of appeal is not only available but this remedy has been invoked by the petitioner whose appeal is pending adjudication before worthy Chief Secretary. There is no cavil to the proposition that "non-existence of adequate remedy provided by law is a sine qua non for exercise of jurisdiction under Article 199. Resort to jurisdiction under Article 199 should not be permitted if it amounts to circumvention of normal process of law. Writ jurisdiction is not available to a person seeking to circumvent and defeat law by initiating parallel proceedings and substituting writ jurisdiction for remedy otherwise available in law. (1995 PLC 306). It is remarkable to note that the Courts generally refuse to interfere in the decision of Administrative Tribunals unless there is any patent illegality or irregularity in procedure with some concrete prove that the rules were in violation of the principle of natural justice or that they were not properly adhered to or that there was malice or mala fides in arriving at the decision. In this regard we are fortified by the dictum laid down in PLD 1960 Kar. 325. The Allotment Committee has not transferred the house in question to petitioner for which-an appeal is lying pending before Chief Secretary but it cannot be inferred that Allotment Committee has exercised its jurisdiction wrongly which was not conferred upon it.