A bungalow allocated as a residence for Medical Superintendent of Government T.B. Hospital, Sargodha, having fallen vacant was allotted to Dr. Abdul Latif Surgeon, D.H.Q. Hospital Sargodha respondent No.4 by the Director Health Services, Sargodha Division, Sargodha respondent No.2, on the basis of his application dated 18-1-1992, on the condition that it shall be vacated by him whenever required at one month's notice, which condition was imposed in the order as per his commitment contained in his application. The application dated .18-1-1992 and the order of allotment dated 19-1-1992 are reproduced as under:-- "To, The Medical Superintendent, District Headquarters Hospital, Sargodha.
Sir, I have come to know that official accommodation of Medical Superintendent of Government T.B.
Hospital is falling vacant. I shall be grateful if you could recommend to Dr. Saeed Ahmad, Medical Superintendent, T.B. Hospital to allot this residence to me. I shall vacate the residence whenever required at one month's notice.
Thank you very much Dated 18-1-1992Yours sincerely, (Sd.)
Dr. Abdul Latif, Suregon, D.H.Q. Hospital, Sargodha."
"OFFICE ORDER The bangalow of Medical Superintendent, Government T.B. Hospital, Sargodha is hereby allotted to Dr. Abdul Latif, Surgeon, D.H.Q. Hospital, Sargodha, with immediate effect, with clear condition that he will vacate the premises whenever required with one month notice.
(Sd.)
Dr. Maj. Abdul Majeed, Director Health Services, Sargodha Division, Sargodha. "
2. Respondent No.4, hence, occupied the said accommodation. When, on 26-9-1994, Dr. Capt.
Muhammad Aslam Javed was appointed as Medical Superintendent, Government, T.B. Hospital, Sargodha, he submitted an application to the respondent No.2, dated 26-9-1994 making request therein, that as he has assumed the charge of Medical Superintendent, Government T.B. Hospital, Sargodha, therefore, Dr. Abdul Latif respondent No.4 may be asked to vacate the residence allotted to him within one month from issuance of the letter. On this application, respondent No.2 requested/directed respondent No.4 to vacate the accommodation with immediate effect vide letter, dated 18-10-1994, which order is reproduced as under:-- "OFFICE OF THE DIRECTOR HEALTH SERVICES, SARGODHA DIVISION, SARGODHA.
URGENT TIME LIMIT No.1/4-1/11749/G, dated Sargodha the 18-10-1994 To, Dr. Abdul Latif, Surgeon, T.H.Q. Hospital Bhalwal, District Sargodha.
Subject: VACATION OF RESIDENCE OF MEDICAL SUPERINTENDENT, GOVERNMENT T.B. HOSPITAL, SARGODHA.
Reference this Office Order No.1/4-1/571-74/G, dated 18-6-1994, on the subject noted above.
You are, therefore, requested to please vacate immediately the residence of Medical Superintendent, Government T.B. Hospital, Sargodha according to your written statement, dated 14- 1-1992.
(Sd. )
Director Health Services, Sargodha Division, Sargodha. "
Respondent No.4, however, did not obey the direction and refused to vacate the accommodation, whereupon again on 8-11-1994, the petitioner wrote a letter to respondent No.2 to get the house vacated, so that his residential problem could be solved. Thereupon, vide memorandum, dated 14- 11-1994, respondent No.2 wrote a letter to the Medical Superintendent, District Headquarters Hospital, Sargodha to direct respondent No.4 to vacate the residence within ten days, otherwise he shall be treated under the E&D Rules with liability to pay 60% of the penal interest to be forfeited from the salary. The letter dated 14-11-1994 is reproduced as under:-- "To, Dr. Mazhar Rashid Malik, Medical Superintendent, D.H.Q. Hospital, Sargodha.
Subject: VACATION OF RESIDENCE OF MEDICAL SUPERINTENDENT, GOVERNMENT T.B. HOSPITAL SARGODHA AND MEDICAL OFFICERS' RESIDENCE OF GOVERNMENT T.B. HOSPITAL, SARGODHA.
Reference your Letter No. 11482/MS, dated 10-11-1994 on the subject noted above.
It is sorry to point out both the doctors are occupying the residential accommodation meant for Medical Superintendent and Medical Officers Government T.B. Hospital, Sargodha and they are creating problems for administration.
Dr. Abdul Latif, Surgeon has backed out his promise and he has given a written statement that as and when any Medical Superintendent T.B. Hospital Sargodha is posted he will vacate the premises within a margin of one month.
Dr. Aftab Jahangir, Medical Officer has since been transferred from T.B. Hospital, Sargodha and posted at D.H.Q. Hospital, Sargodha. He has no right to retain the residence of T.B. Hospital, Sargodha. You are, therefore, advised to please direct both the doctors to vacate the residences within ten days after the issue of the letter, otherwise they will be treated under E&D Rules and 60 % penal rent will be forfeited front their salary.
This may please be treated as MOST URGENT.
(Sd.)
Director Health Services, Sargodha Division, Sargodha. "
Respondent No.4, however, did not even then vacate the house. Thereupon, another letter was directly written to him by the respondent No.2 to vacate the house up to 14-12-1994 positively, failing which 60% penal interest shall have to be imposed from the date of previous notice. Letter dated 18-12-1994 is reproduced at under:-- "To Dr. Abdul Latif, Surgeon, D.H.Q. Hospital, Sargodha Subject: VACATION OF RESIDENCE OF MEDICAL SUPERINTENDENT, GOVERNMENT T.B. HOSPITAL, SARGODHA.
It is regretted to point out that more than one month has passed but, you have failed to comply with the orders, despite having signed a statement to vacate the Bangalow of Medical Superintendent, Government T.B. Hospital, Sargodha on his arrival/posting.
You are, therefore, given a final notice to vacate the residence up to 14-12-1994 positively, otherwise 60% penal rent will be imposed upon you since the date of previous notice.
(Sd.)
Director Health Services, Sargodha Division, Sargodha. "
Respondent No.4, however, did not vacate the premises.
3. Again the petitioner vide letter, dated 21-12-1994 informed respondent No.2 to take necessary action in the matter, but in spite that of the house was not vacated up to March, 1995. Ultimately, the petitioner submitted an application to the Deputy Commissioner, Sargodha respondent No.3 explaining therein the earlier efforts made by the departmental authorities for getting the official accommodation vacated and handed over to him, with a prayer to take action in accord- with the provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966. Respondent No.2 also wrote a letter, dated 7-3-1995 to the Medical Superintendent, Divisional Headquarters Hospital, Sargodha that during the last week, Dr. Abdul Latif, Surgeon had promised to the undersigned that he will vacate the Government accommodation after Eid and, therefore, he may inform as to whether he has up kept the promise or not. On 26-3-1995, he passed a formal order of cancellation of allotment in favour of respondent No.4 and directed that the accommodation should be vacated forthwith. Order, dated 26-3-1995 is reproduced as under:-- "Subject: CANCELLATION OF RESIDENTIAL ACCOMMODATION OF GOVERNMENT T.B. HOSPITAL, SARGODHA.
The allotment of residential accommodation of Government T.B Hospital, Sargodha is hereby cancelled.
You are directed to please vacate the said accommodation at once otherwise the penal rent will be imposed with. Previous date.
(Sd.)
Director Health Services, Sargodha Division, Sargodha. "
On 2-4-1995, respondent No.2 summoned the petitioner as well as respondent No.4 so that the matter of vacation of the residential accommodation in question could be sorted out, but with no positive result. The matter was also taken up at the level of the Secretary Health, respondent No. 1, who wrote a letter to respondent No.3 to make efforts so that the house could be got vacated by respondent No.4.
4. The application submitted by the petitioner to respondent No.3 for taking of action under the law, to get the house vacated, was initially entertained but returned with the remarks that it should be routed through respondent No.2, which formality was completed, whereupon a notice was issued to respondent No.4 to appear before the A.D.C.(G) to offer his defence on 25-4-1995. Notice, dated 20-4-1995 is reproduced as under:-- "NOTICE UNDER SECTION 4/5 OF THE WEST PAKISTAN GOVERNMENT LANDS AND BUILDINGS (RECOVERY)
ORDINANCE, 1966.
To, Dr. Abdul Latif, Surgeon, Divisional Headquarters, Hospital, Sargodha.
Whereas it has been made to appear to me by the Medical Superintendent, T.B. Hospital, Sargodha that you are in unauthorised possession of Government Property i.e. Residence of M.S.,T.B. Hospital, Sargodha for the last six months whereas, the Medical Superintendent has issued several notices.
(2)However, it is reported that despite above notices and verbal requests, you have not vacated the unauthorised possession and now you have blatantly refused to vacate the abovesaid premises. This tantamount to misconduct and violation of Government instructions.
(3)You are hereby directed to appear before the Additional Deputy Commissioner (General), Sargodha for personal hearing and offer your defence by 25-4-1995 at 10-00 a.m. And failing which it will be presumed that you have nothing to say in your defence and ex parte proceedings action will be initiated against you.
(Sd.)
Deputy Commissioner, Sargodha District."
5. Subsequently, a meeting was held in the Office of the Deputy Commissioner, Sargodha respondent No.3, wherein besides the petitioner and respondent No.4, Medical Superintendent, D.H.Q. Hospital, Sargodha; Dr. Muhammad Yousaf Sherdil, Medical Officer, D.H.Q. Hospital, Sargodha, Dr. Aftab Jahangir, Medical Officer, D.H.Q. Hospital, Sargodha and Mr. Mukhtar Hussain, Superintendent General, Office of the Director, Health Services, Sargodha participated; wherein it was decided with consent of the parties that the house in question shall be vacated by respondent No.4 by 30-6-1995. Decision taken as contained in minutes of the meeting held on 30-5-1995 are reproduced as under: -- "No.106-S/HC(G), dated 30-5-1995.
Subject: RESOLVING OF ISSUE OF VACATION OF RESIDENCE OF DOCTORS.
A meeting on the above-cited subject was held with you under the Chairmanship of undersigned.
After detailed discussion vacation of official residences was decided as under: Sr. No Name of Doctor Date of vacation (i)
Dr. Abdul Latif Surgeon, D.H.Q. Hospital, Sargodha.
He will vacate his residence by 30-6-1995.
(ii) Dr. Aftab Jahangir, Deputy Medical Superinten-dent, D.H.Q. Hospital, Sargodha.
He will vacate his residence by 20-6-1995.
(2) Both the occupants/Doctors have undertaken that they will vacate their residences by target and hand over the possession to the allottees. Extremely the possession will be taken through force.
Therefore, all concerned are directed to comply with the above-decision in letter and spirit.
(Sd. ) Deputy Commissioner, Sargodha District."
6. Another development, which had taken place prior to the holding of the aforementioned meeting/decisions and which was neither disclosed to the petitioner nor in the meeting, is that an application was submitted by respondent No.4 to the Chief Minister, Punjab for grant of permission to stay in the accommodation keeping in view his duties as a Surgeon. In this application background referred to in the earlier part of this judgment, particularly the terms of the original allotment and commitment made by respondent No.4 that he will vacate the premises whenever required, were not disclosed. On the basis of said application, a directive was issued by the Chief Minister Punjab approving the request of respondent No.4 to retain the Government residence in hospital premises. This directive was issued on 8-5-1995. The application submitted by the respondent No.4 and the directive issued thereon are reproduced as under:-- "To, The Honourable Chief Minister, Punjab.
SUBJECT: RESIDENTIAL ACCOMMODATION.
Sir, I am working as a Surgeon at Divisional Headquarters Hospital, Sargodha. I am residing in an accommodation on the premises of the Hospital. Director Health Services, Sargodha Division, Sargodha, has asked me to vacate this accommodation for Medical Superintendent, Government T.B. Hospital, Sargodha.
Duties as a Surgeon require me to deal with routine and emergency patients round the clock.
I request your honour to kindly allow me to stay in the accommodation in the best interest of public.
Thank you very much Yours faithfully (Sd.)
(Dr. Abdul Latif Chaudhry ), M.B., B.S. F.R.C.S. (Eng.)
Surgical Specialist, Divisional Headquarters Hospital, Sargodha.
"CHIEF MINISTER'S SECRETARIAT PUNJAB No.US-I/OT-4/95-65472, dated 8-5-1995 Subject: RETENTION OF GOVERNMENT RESIDENCE.
On presentation of the enclosed application Chief Minister has been pleased to approve the request of Dr. Abdul Latif Ch., Surgeon, D.H.Q. Hospital, Sargodha for retention of Government residence in the hospital premises.
(2) Further necessary action may be taken accordingly (Sd.)
(Taimur Azmat Usman), Additional Secretary, 7-5-1995.
Commissioner, Sargodha, C.C. Secretary Health, Secretary, I & C"
7. On the basis of the above directive, respondent No.2 vide order, dated 18-6-1995 allowed respondent No.4 to retain the residential premises in question till further orders. Order, dated 18-6- 1995 is reproduced as under:-- "OFFICE ORDER (Sd.)
(Dr. Abdul Majid), Director, Health Services, Sargodha Division, Sargodha. "
8. Having miserably failed to get the residential accommodation vacated from respondent No.4 and being without official residence allocated to him for a period of about one year, the petitioner filed this Constitutional petition before this Court on 18-5-1995 seeking a direction to respondent No.4 to vacate the house and respondents Nos. l to 3 to perform their lawful duty to get the house vacated for the petitioner.
9. The facts stated above have been admitted in the report and parawise comments submitted by respondents Nos. l to 3 and are also not denied by respondent No.4 except that according to him, proceedings by the Deputy Commissioner, respondent No.3 have been manoeuvred for the benefit of the petitioner for extraneous considerations. During the course of proceedings of this petition, Deputy Commissioner, Sargodha was also summoned in person, who categorically stated that the house in question has been allocated to the petitioner, who is Medical Superintendent of Government T.B. Hospital, Sargodha and is presently without any official accommodation and that respondent No.4 is occupying the same without any entitlement and further that the administration is helpless in getting the house vacated due to influence of the respondent No.4.
10. Mr. Zafar Iqbal Chohan, Advocate has appeared on behalf of the petitioner, whereas Mr. Zahid Farani Sheikh, learned Assistant Advocate---General, Punjab had appeared on behalf of respondents Nos. l to 3 and Mr. M. Aftab Iqbal Chaudhry, Advocate has entered appearance on behalf of respondent No.4.
11. Learned counsel for the petitioner has taken me through the various annexures to the writ petition particularly original application for allotment submitted by respondent No.4, order passed thereon, various commitments made by respondent No.4 to vacate the house in question before the various authorities including the Deputy Commissioner, Sargodha and has also placed on record certain documents showing that the house in question has been allocated for the Medical Superintendent, Government T.B. Hospital, Sargodha, which fact according to him also finds support from the admission made by respondent No.4 himself in the application for allotment filed by him and has contended that the respondent No.4 has absolutely no right/justification to retain possession of the house in question, which is not only illegal and unauthorised but is also against the service discipline and that failure of respondents Nos. l to 3 to get the premises vacated through force as provided under the West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 amounts to non--performance of their lawful duties under the law, hence, he prays that an appropriate writ or order may be issued against the respondents, as prayed for.
12. Mr. Zahid Farani Sheikh, learned Assistant Advocate-General, Punjab states that presently the contest is between the petitioner and respondent No.1 but at any rate keeping in view the commitment made by respondent No.4 at various times and the admission made by him that the house is meant for the accommodation of Medical Superintendent, Government T.B. Hospital, Sargodha, respondent No.4 has no right to further retain the same and if this Court so directs, the action will be taken by respondents Nos.1 to 3 in accord with the order passed by this Court.
13. Mr. M. Aftab Iqbal Chaudhry, Advocate, learned counsel for respondent No.4 has contended that the house in question is not allocated for the occupation of Medical Superintendent, Government T.
B. Hospital, Sargodha b, it has been allocated to the chest specialist and as the petitioner is not the chest specialist, therefore, he has no locus standi to claim any right to occupy the same hence, he being not aggrieved person, the petition is not competent, which has been filed by him that the order of retention of house passed by the respondent No.2 in pursuance of the directive issued by the Chief Minister, who is the Chief Executive of the Province, having not been specifically challenged so long as the same is in the field, no writ as prayed for can be issued/passed; that the order of cancellation of allotment of respondent No.4 stands superseded by the subsequent order passed by respondent No.2 in pursuance of the directive issued by the Chief Minister, whereby respondent No.4 has been held to be entitled to retain the premises in question till further order, which retention is necessary to perform his duties as a Surgeon, keeping in view the exigencies of his service and that the petitioner. As well as respondent No.3 have intentionally concealed the factum of the directive/order permitting respondent No.4 to retain the premises in question hence, the writ petition is liable to be dismissed.
14. In reply to the arguments addressed by the learned counsel for --respondent No.4, it has been argued by the learned counsel for the petitioner that the house in question is allocated as a residence of Medical Superintendent of Government T.B. Hospital, Sargodha which fact has even been admitted by respondent No.4 in his application for allotment, therefore, he is estopped to challenge the nature of allocation thereof as official residence of the petitioner, as such the argument of the learned counsel that the house was allocated to the chest specialist is not available to him nor can be get benefit of the said argument on the basis of the subsequent directive issued by the Chief Minister and order passed by respondent No.2, as the directive issued by the Chief Minister is unilateral and has been issued without disclosing the background of the case and as such having been obtained by fraudulent means is void ab initito and is not needed to be separately challenged and even otherwise is liable to be ignored in view of the fact that after the issuance of the said directive, respondent No.4 consented to vacate the house up to 30-6-1995 and the order dated 18-6-1995 passed by respondent No.2 allowing respondent No.4 to retain possession of the house, passed in pursuance of .The directive issued by the Chief Minister at the back of the petitioner during the pendency of this writ petition, has absolutely no value and that it is not necessary to challenge the same specifically as being void ab initio, is liable to be ignored and cannot stand in the way of the petitioner to claim the relief as prayed for in this Constitutional petition.
15. I have considered the arguments addressed at the Bar and have perused the record. The facts out of which this petition has arisen are almost admitted by both the sides. It is not denied that the respondent No.4 submitted an application to respondent No.2 for allotment of the house, wherein he admitted that the house in question is official accommodation of the Medical Superintendent, Government, T.B. Hospital, Sargodha. It is also not denied that the allotment was conditional as per his own undertaking, that he will vacate the house on one month's notice as and when required by the authorities. It stands established and not denied that in spite of various letters issued and orders passed by respondent No.2, the respondent No.4 has failed to vacate the premises in question in spite of his commitments having been made by him at various times before the various authorities. Although he denies that there was no meeting with the Deputy Commissioner wherein he had committed to vacate the house up to 30-6-1995, yet, I have no reason to disbelieve the contents of the documents which prove beyond doubt that the meeting was held, wherein the decision was taken on 30-5-1995 that the house in question shall be vacated by respondent No.4 up to 30-6-1995. This decision was taken with consent of the petitioner as well as respondent No.4.
At that time, admittedly the directive had been issued by the Chief Minister that retention of the house by respondent No.4 for further time is approved, yet, this fact was never disclosed in the meeting although it was within the knowledge of respondent No.4. It is clear, therefore, that the petitioner himself had waived the benefit of the directive issued by the Chief Minister, agreeing to vacate the house up to 30-6-1995. Even otherwise the directive issued by the Chief Minister appears to have been obtained unilaterally without any notice or knowledge of the petitioner and disclosure of the previous background of the case i.e. Pertaining to allotment etc. Of the house in question, its original allocation, the application submitted by respondent No.4 and admission made therein and the conditions imposed in the initial allotment order. Similarly the order passed by respondent No.2, which has not been passed in independent exercise of jurisdiction and has been passed on the basis of the directive of the Chief Minister after he had earlier formally cancelled the order of allotment of respondent No.4 after having made hectic efforts to get the house vacated besides being void ab initio will also not override the decision taken between the parties with consent, which was taken on 30-5-1995 and was never brought to the notice of respondent No.2, when he had passed the order, dated 18-6-1995, when this writ petition was already pending before this Courr Refer case of Syed Fayyaz Hussain Qadri, Advocate v. The Administrator Lahore Municipal Corporation, Lahore and 4 others PLD 1972 Lahore 316.
16. It is crystal clear from the -above-stated facts and plethora of documentary evidence on record that the house in question is allocated for the residence of Medical Superintendent of Government T.B. Hospital, Sargodha; that respondent No.4 had obtained the allotment of the house in question conditionally to vacate the same with one month's notice as and when required by respondent No.2; that respondent No.4 had made commitments at various times and ultimately a decision to vacate with consent had been taken before the Deputy Commissioner during the course of proceedings filed under the provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966, after the directive issued by the Chief Minister permitting respondent No.4 to retain the premises, therefore, the principle of approbation and reprobation will stare at the face of respondent No.4, who cannot be allowed to turn round and heard in support of the plea that he can retain the accommodation.
17. Examined the case from another angle, by virtue of the provisions of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973 Objectives Resolution of the Constitution has now become part of the Constitution, therefore, while deciding the disputes the Courts had to follow the principles of Islamic Law. In Islam, to fulfil a commitment is a solemn duty, hence, the Courts of law are bound to enforce Qur'anic Injunctions and will not protect a person who wishes to break and violate his solemn commitment particularly when he is a public official and much higher standard of responsibility and discipline is expected of him. Consequently, I am of the view that respondent No.4 has absolutely. No legal right to retain the official accommodation. Similarly, respondents Nos.1 to 3 are also duty bound to act in accordance with law and to get the house vacated if respondent No.4 is not vacating as his possession of the Government accommodation is established to be unauthorised and illegal.
18. As regards the arguments of the learned counsel for respondent No.4 that the petitioner has no locus standi to file this writ petition, suffice it to say that he himself has admitted that the house is allocated for the accommodation of Medical Superintendent, Government T.B. Hospital, Sargodha and as admittedly the petitioner has been posted as Medical Superintendent to the said Hospital, therefore, he is entitled to claim the right of residence in the premises in question by getting it vacated from the respondent No.4, who is in illegal possession thereof, therefore, the petitioner has a locus standi to file this petition.
19. As regards the argument about suppression of material facts by the petitioner, the same is not based on any material on record, as the petitioner has disclosed all the facts within his knowledge, hence, the same is repelled.
20. Resultantly, for what has been held above, I accept this writ petition and direct that respondent No.4 shall vacate the accommodation in question on or before 16-5-1996, failing which respondents Nos. l to 3 shall get the premises vacated in accordance with the provisions of West Pakistan Government Lands and Buildings (Recovery of Possession) Ordinance, 1966 and hand over vacant possession thereof to the petitioner. Parties are left to bear their own costs.