' MUHAMMAD RAZA KHAN (MEMBER).---The facts lying in the background of this appeal are that a House No,388.-E, Street No,58,G-6/4, Islamabad (hereinafter referred to as the subject house) was likely to be vacated and the appellant was the person who initially requested the Minister for Housing and Works on 31-5-1995 for its allotment. The appellant is Section Officer in BPS-17 in the Ministry of Defence and entitled to 'E' type accommodation. He was already in possession of a quarter of lower category. The respondent No,1, issued a directive on 6-6-1995 to respondent No,2 in these words: "I am directed to refer to this Division's letter of even number dated 31-5-1995, on the above-cited subject and to say that Secretary, Housing and Works has desired that quarter No,27-E, ST.58,F-6/4, Islamabad may be allotted to Mr. Javed Iqbal, Section Officer, Ministry of Defence, Pakistan Secretariat H, Islamabad in supersession of all previous orders.
' You are requested to take further appropriate action in the matter accordingly . "
' This letter was supplemented by yet another letter issued by respondent No,1 on 3-10-1995, which is also reproduced herein below: "In continuation of this office order dated 6-6-1995, I am directed to say that the competent Authority has desired to allot House No,388-E, Street 58, G-6/4, Islamabad, to Mr. Javed Iqbal, Section Officer, M/o Defence, Rawalpindi, on subject to vacation basis.
2. You are directed to take appropriate action in the matter accordingly, under intimation to the undersigned for compliance to the higher authority."
' It appears that respondent No, 2 did not issue any formal allotment order despite these two directives by the concerned' Division of the Federal Government. It also appears that as per evil practice prevailing in the department, a letter from a Private Secretary to the Minister was manipulated on 28-6-1995 and promptly an allotment order was issued by respondent No,2 on 3- 7-1995 in favour of respondent No,
3. This respondent No, 3 was an Assistant in B-11, holding selection grade of B-15 and entitled to 'D' type accommodation as per Pakistan Allocation Rules, 1993. Prior to this allotment order, dated 3-7-1995, she was already in possession of another E' type accommodation in 1-8/1, Islamabad. Only six days after the said allotment, the said respondent No, 3 moved a civil suit in the Civil Court at Islamabad on 9-7-1995 for getting an injunction to the effect that the said allotment order may neither be superseded nor the house be allotted to someone else. It appears that ' D' type house in possession of the appellant was allotted to one Mr. Pervaiz Akhtar on 17-6-1996 by respondent No, 2, presumably on the basis of the order of respondent No, 1 dated 6-6-1995 for the allotment of subject house to the appellant and in consequence whereof the house already in his possession was further allotted to Pervaiz Akhtar in response to the directive of the Works Division. The Estate Office (respondent No,2) informed the said Division that the act house will be allotted to the appellant on vacation of the house. It appears that the appellant vacated his house and occupied the subject h us The respondent No, 3 got an ex parte decree in her favour from the Civil Court without impleading the appellant as a party. The appellant, thereafter, filed an appeal and got himself impleaded in the said suit. The ex parte order was consequently set aside and the case was remanded for fresh trial. Despite the present litigation, the said suit filed by respondent No,
3. Is still pending in the Civil Court. Side by side with these developments, respondent No, 2 issued a notice of ejectment on 21-5-1996 and allegedly pasted the same on the door of the subject house (in possession of the appellant) directing him to hand over the vacant possession of the said accommodation, within certain hours; failing which possession will be obtained by force. This ejectment notice has been challenged by the appellant in the present service appeal with the request that the said notice may be vacated and the respondent No, 2 be directed to issue a formal allotment order of the subject house in favor of the appellant.
2. The official respondents as well as private respondent No, 3 contested the appeal by filing written objections. We have listened to the arguments and examined the record. The request of the appellant for temporary injunction was also considered and the impugned order was suspended till the disposal of main appeal.
3. Prior to the discussion on the merits of the appeal, it is necessary to handle the preliminary legal objection with regard to the jurisdiction in the matters of allocation of accommodation to the civil servants. Normally, a civil servant can file service appeal against his employer department for violation of any terms and conditions of service. The appellant was an employee of the Government of Pakistan posted in the Ministry of Defence as Section Officer, and private respondent No, 3 was an employee of the Corporate Law Authority. The Works Division was not the employer division of either of them. The Pakistan Allocation Rules, 1971 were in the shape of administrative instructions issued by the Ministry of Works for regulating the process of allocation etc. Of Government accommodation to civil servants and, therefore, this Tribunal had not interfered in the questions of allocation of accommodation. However, in 1993 the earlier rules were repealed and fresh Allocation Rules were promulgated with the approval of the President and in exercise of the powers under section 25 of the Civil Servants Act, 1973. Thus, from 1993 the allocation of accommodation had become a part of the terms and conditions of service of the civil servants falling within the scope of the said Rules. Therefore, the jurisdiction of any other institution or forum was barred under Article 212 of the Constitution. The practice of filing civil suits and getting injunction, in connivance with the officials of respondent No,2 was an extra-Constitutional measure.
We have noticed in several cases that certain employees of the Federal Government approached the Civil Court with a declaratory suit and got a temporary injunction which continued indefinitely in certain cases. Most of such suits are filed at the instance of the officials of the Estate Office (respondent No,2). The respondent No,2 either concedes the issue before the Civil Court of allows the decision to be made in favour of a particular person by default on the part of the Estate Office.
This is arranged either by delay in filing written statements, replies or delay in engaging a counsel to defend the Estate Office. In certain other cases, the representative of the Estate Office even conceded for the grant of temporary injunction in favour of a particular allotted. Thus, on one hand, the officials of respondent No,2 fail to perform their functions impartially by showing extra favour to certain allotters and thereby strengthening the general feeling of certain motives behind the allotments. On the other hand, by this attitude the representative of the Estate Office fail to properly assist the Civil Courts and thereby defeat the clear provisions of the Constitution. We were told at the bar that the High Court has issued instructions to the Civil Courts not to, entertain the declaratory suits from the civil servants relating to allocation of accommodation in accordance with Allocation Rules, 1993 on the ground that it has become a part of the terms and conditions of service falling within the exclusive jurisdiction of the Federal Service Tribunal. However, by active connivance and positive concealment, the officials of respondent No,2 succeed in the manipulation of temporary injunctions from the Civil Courts in violation of the directive of the High Court and in derogation of the provisions of the Constitution.
4. The instant case is a typical example of such connivance and active participation in getting a decree in favour of respondent No,3. As stated earlier, the Works Division issued direction for the allotment of subject house to the appellant on 6-6-1995. The respondent No,2 did not bother to comply with the said direction issued by its controlling Division, under the Rules of Business. In the meanwhile, the information appears to have been passed on to arrange a letter from an official of the Minister and thereupon the Estate Office hurriedly issued the allotment order on 3-7-1995 in favour of respondent No,3 and within a period of less than a week, the said respondent No,3 succeeded in getting an injunction from the Civil Court at Islamabad without having any cause of action. Not only the injunction was passed but the case was heard and decided within a couple of weeks without any effort on the part of the Estate Office to disclose the lack of jurisdiction of the Civil Court in the terms and conditions of service of the civil servants and without intimation of the fact that the appellant was a necessary party to the said suit. Such an attitude amounts to collusion instead of mere concealment or negligence. The respondent No, 3 was already in occupation of a house above her entitlement, and succeeded in getting the formal allotment letter of the subject house from respondent No,2 to the prejudice of the rights of the appellant and within a couple of days of the said allotment, she got the stay orders from the Civil Court without having any cause or grievance. She did not implead the appellant as a party and tried to mislead the Court. Even during the proceedings before this Tribunal, she was given an option to consider the withdrawal of her case from the Civil Court for the appropriate adjudication of her rights with that of the appellant by this Tribunal. However, she did not concede to withdraw the same. Therefore, the issue of adjudication of her rights for the allotment of the subject house is not before this Tribunal. So, in brief, we hold that after the enforcement of the Allocation Rules of 1993 with the approval of the President in exercise of his powers under section 25 of the Civil Servants Act, 1973, the question of allotment of accommodation has become a part of the terms and conditions of service of the civil servants and thus falling within the exclusive jurisdiction of this Tribunal in accordance with Article 212 of the Constitution.
5. It was argued on behalf of the respondents that there was no allotment order in favour of the appellant and, therefore, he was in wrongful possession of the subject house and the impugned order has been issued in accordance with the power vested in the respondent No,2. We are at a failure to appreciate the argument for the sole reason that respondent No,2 was neither an autonomous authority nor was vested with any statutory power.. Under the Rules of Business of 1973, respondent No,2 was to work under respondent No, 1 and in accordance with the Pakistan Allocation Rules the Minister for Housing and Works was the competent Authority having the reserved quota of 10% and under the Rules of Business, the orders of the Minister were to be executed by respondent No,
1. Therefore, we hold that the orders passed by respondent No, 1 were to be honoured by respondent No, 2 and, therefore, any direction from the Works Division amounted to allotment order and the respondent No, 2 was bound to issue a formal letter of allotment on receipt or such directive. The Private Secretary to Minister had no authority either directly or a delegated one to issue a direction to the respondent No,2 in this regard. Hence the direction issued by the respondent No, 1 on 6-6-1995 was not only prior in time but was also passed by a competent Authority than the one issued on 28-6-1995 in favour of respondent No, 3.
Moreover, there is no claim that the said directive of 6-6-1995 was not received by respondent No,
2. It was certainly received by respondent No, 2, and that is why the 'D' type accommodation in possession of the appellant was allocated to one Pervaiz Akhtar on 18-6-1995 whereby the accommodation in possession of the appellant was further allocated and it could be deemed to be in compliance with the directive of the Works Division. He, therefore, occupied the subject house on its vacation in anticipation of a formal letter in this regard.
6. The appellant was entitled to ' E' type accommodation under the Allocation Rules. Such accommodation cannot be allowed to anyone else entitled to a lower category except in the event that no one of the entitled category was available with the request for its allotment. It was contended that respondent No, 3 was already in possession of 'E' type accommodation and on 3- 7-1995 the subject house was not allotted to anybody else, therefore, it could be allotted to respondent No, 3 in exchange of her accommodation. We do not agree with the argument because the wish for better accommodation cannot deprive those entitled to a better category.
Comparatively, the appellant was more entitled to the subject house being the accommodation of his category than the respondent No, 3 who was already occupying an accommodation higher than her entitlement
7. In view of the above discussion, we accept this appeal, set aside the impugned Notice dated 21- 5-1996 read with the allotment order dated 3-7-1995 in favour of respondent No, 3 and direct that the appellant has rightly occupied the subject house in compliance with the direction of the respondent No, 1 and thus a formal allotment order may be issued in his favor accordingly. No order as to costs.
(Sd.)
Muhammad Raza Khan, Member ' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---I agree with my learned brother Mr. Muhammad Raza Khan, Member and he has dealt with all aspects of the case in detail. I would like to add that in Writ Petition No,475 of 1990 (Safdar Ali Malik v. Estate Officer, Estate Office, Government of Pakistan, Islamabad and others), decided on 29-11-1993, the Lahore High Court observed as under:-- "As admittedly, the petitioner is a civil servant and is aggrieved of alleged violation of terms and conditions of service, therefore, his remedy is before the relevant Service Tribunal and not before this Court as per provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
The writ petition is, therefore, dismissed."
' Therefore, the point has been settled that in such a matter the aggrieved civil servant has got way to come before this Tribunal and I would not like to go into the controversy that the concurrent jurisdiction is being exercised by other forums, and it was admitted on behalf of the respondent No, 3 during the course of arguments that declaratory suit is still pending in the Civil Court. Whatever the case may be. The Civil Court has got its own jurisdiction but while exercising the jurisdiction in civil suits, how care to be taken about the decisions of the superior Courts as quoted in para. 3 of this judgment, when under Article 212 of the Constitution, this Tribunal has exclusive jurisdiction in matters of terms and conditions of civil servants, and these are number of judgments of High Courts and Supreme Court.