The petitioner was a civil servant and retired on 21-8-1994. During his service he was allotted official residence viz. Quarter No. C-6, Poonch House Colony, Lahore. In spite of retirement he was, granted extension in allotment of the official residence initially for one year and thereafter for a further period of to years. Respondent No. 3 being in service also sought for and was allotted this quarter subject to the same being vacated. Writ Petition No. 11401 of 1994 was filed by respondent No. 3 in this Court praying for a direction that the respondent be delivered the possession of the allotted quarter. It is the petitioner's case that while the writ petition was pending respondent No. 3 attempted to get possession but the petitioner was able to avoid the delivery of the same by filing a suit and obtaining an injunction. These proceedings were dropped because the matter was stated to be pending in this Court. According to the petitioner, the Writ Petition No. 11401/94 was disposed of as withdrawn on 14-7-1996. The petitioner apprehends that respondents 'Nos. 1 and 2 in connivance with respondent No. 3 will dispossess the petitioner in spite of the extension granted by the Chief Minister till 21-10-1997. The petitioner has filed this Constitutional petition restraining respondents from dispossessing' the petitioner from quarter in question.
2. In the comments submitted by respondents 1, 2 and 4 under the signatures of the Estate Officer, it is admitted that the Chief Minister was pleased to grant extension of to years to the petitioner.
However; the Additional Chief Secretary being of the view that the extension was not in accordance with law and rules, requested the Chief Minister to reconsider the directive. Vide Annexure ' R-1' dated 5-3-1996, the Secretary to Chief Minister was informed that the request of the petitioner has not been acceded to being against rules/policy. It is also averred that under Notification dated 13- 6-1979, issued in exercise of the powers under section 23 of the Punjab Civil Servants Act, 1974, in case of retirement a civil servant can be granted a maximum period of to months for staying in the Government residence. Copy of the relevant rules has been filed as Annexure ' R-II' Respondent No. 3 is also presented in today's hearing and although the case has not been formally admitted the same is being finally disposed of after hearing all the parties.
3. The most important question involved in this case is the power of the respondents and for that matter the Chief Minister to grant permission to a tired civil servant to enjoy the privilege of the occupation of Government residence. According to the respondents, under the Notification, copy Annexure R-II, power of the respondent Government is confined to a maximum period to months in such situation. It is claimed that it was for this reason that the secretary to the Chief Minister was informed that the petitioner's request for any of to years' extension cannot be acceded to. However, the learned counsel for the petitioner has contested this position and has maintained that under the Punjab Government Rules of Business, 1974, the Chief Minister has power to grant permission for a period of to years in this case. Learned counsel has referred to Rule 5(l)(d) and Rule 5(2) of the Rules of Business, 174 It is maintained that under Item 16 of Part A of Schedule VII referred to Rule 5(2), all cases of relaxation of Service Rules have to be dealt with by the Chief Minister and according to the learned counsel, permitting a retired Government servant to continue to occupy the Government residence for a period of to years is a case of relaxation of Service Rules and, therefore, the tension granted to the petitioner is valid.
4.Both the learned counsel for respondent No. 3 and the learned State Counsel nave contested the above interpretation of Rules of Business, 1974. Mr. Irshad Ahmed Qureshi, Advocate, learned counsel for respondent No. 3, has further sought dismissal of the writ petition on the grounds of equity. He elaborated that the petitioner has been suppressing the true facts from various Courts and has been obtaining injunction orders by playing hide and seek.
5. For facility of reference, the above-referred provisions of Rules of Business, 1974, are reproduced below:-- ---5. Functions of the Chief Minister. (1) The Chief Minister shall --
(d) have the powers to call for any case or information from any office, Attached Department or Departments;
(2) No order shall be issued without the approval of the Chief Minister in cases enumerated in Part A of Schedule VIL"
Item No. 16, Part A of Schedule VII reads: "All cases of relaxation of Service Rules."
6. The basic purpose of Rules of Business is to allocate the various functions which can be performed in the name of the Province of Punjab. Mere allocation of a business to one functionary will not create an authority in that functionary to perform that function unless the law otherwise permits its performance. If the Province of Punjab who owns the residential quarter i.e question has the authority to alienate/transfer or give on licence this property; the Rules of Business will state as to who will do this. On the other hand, if there is no power of transfer/alienation/licence then merely because the subject is entrusted to the Chief Minister in the Rules of Business, it will not even impliedly confer the power upon the designated authority. Apart from the above, the examination of the relevant Rules as noted-above, reveals that it does not either expressly or impliedly confer power of allotment on the Chief Minister for an unlimited duration. It is doubtful whether in exercise of the power of relaxation of Service Rules under Item 16 of Part A of Schedule VII of the Rules of Business, 1974, the Chief Minister or for that matter any other functionary of the Province can confer a privilege or grant a licence to a retired Government servant. Item 16 prima facie would cover cases of persons in service and not those who have already superannuated.
7. The situation prevailing in the case is governed by Notification dated 30-6-1979, issued under section 23 of the Punjab Civil Servants Act, 1974, Annexure 'R-2' by which the Governor of Punjab was pleased to direct amendments in the Civil Services Rules (Punjab), Volume I, Part I by way of amendment, Rule 5.45 was substituted and under the substituted Rule in case of retirement of civil servant, is permitted to retain Government residence for a maximum period of to months only.
Assuming that the Chief Minister has the power to relax the application of this Rule, the next question which arises is as to when and on what considerations or on what basis this power of relaxation can be exercised. It is well-settled that the Courts will not bless a whimsical and arbitrary exercise of discretion. The discretion has to be regulated keeping in view the principles of equity, fair play and justice. Respondent No. 3 in this case was clotted the disputed Government residence as far back as 1991 and in spite E of retirement of the petitioner has not been able to get any Government residence. The record does not show that the Chief Minister was aware of these facts of the case and the predicament of an in-service employee. The record also revealed that the petitioner has been inviting political interference in the matter. Alongwith C.M. 3/96 filed by respondent No. 3 for injunction against cancellation of his allotment, letters by a Federal Minister, dated 15th January, 1996 and 4th of February, 1996, had been placed on record. The impression is unavoidable that because the petitioner has been able to make contacts at the high level, he has been able to obtain Government residence for a further period of to years in spite of retirement. In these circumstances, it would be difficult to hold that the Chief Minister had exercised the power of relaxation in public interest or in an equitable manner inasmuch as the Chief Minister was not aware that respondent No. 3 an in-service employee, is already the allottee of this residence and is waiting for orders to be placed in possession of the same.
For what has been stated above, I would hold that the extension in allotment granted to the petitioner up to 21st October, 1997, is without lawful authority and as such of no legal effect. I dismiss this petition without any order as to costs.--