IHSANU-UL.-HAQ CHAUDHARY, J .- The. Relevant facts for the decision of this Constitutional petition are that the petitioner joined service as Assistant Budget and Accounts Officer in-WAPDA in the year 1984. Thereafter he was selected in. BPS-17 by the Punjab Service Commission and joined Health Department, Government of the Punjab. He was. Transferred vide order dated 30.6.1992 from Nishtar Medical College, Multan to Jinah Hospital, Lahore. He reported for duty and during his posting he was allotted official accommodation 56- C. The 'petitioner was transferred from the said hospital to Secretariat vide order dated 1.1.1994. Thereafter he remained posted in Mayo and General Hospitals and at the moment he is posted as Budget. And Accounts Officer in Services Hospital. Lahore. The petitioner was directed vide orders dated 5.8..1996 and 7.8.1996 by respondents No. 2 and 3 to vacate the official accommodation in his possession in the Jinnah Hospital Complex. The petitioner filed the present Constitutional petition, which came up for limine hearing on 29.8..1996 when pre-admission petition.
2 The learned counsel for the petitioner argued that since the petitioner remained posted at Lahore, therefore, as per policy notified through notification dated 30.6.79 by the Finance Department the petitioner was entitled to retain the accommodation in his possession even after his transfer from the Jinnah Hospital. It was added that there were number of officials, who have along been transferred from the hospital and even to out stations but they are still retaining the official accommodation. In this behalf, it was argued that a few officials have even ceased to be in government -service still they are not being asked to vacate the accommodation illegally and mala fide.
3. On the other had, learned Addl.A.G. And A.A.G, and Legal Advisor of the Jinnah Hospital submitted that many of the occupants are in possession on the force of directives issued during period of 3.2.1994 to 15.5.1996 from the Chief Minister's Secretariat. It is added that the accommodation available in the Complex is shared by the Jinnah Hospital and Allama Iqbal Medical College. It was noted that there was no set policy for the administration of this property. The result was that the Government property had lost all sanctity and was treated as personal property by whosoever got the opportunity. The learned Addl. A.G. Explained that no directive has been issued since after the present government came into power and all the directives were issued by the ex-Chief Ministers.
4. The menace has become so common that it was decided to treat this as a notice case. The Secretary Health was also sent for and asked to .Assist this Court to formulate basic mles to deal with the property of Jinnah Hospital Particularly and Government property generally. It is pointed out that now there is a tendency to illegally occupy the official accommodation or assume the possession illegally. It amounts to one and the same thing. A Government servant is not sacred cow if he occupies or move into official accommodation illegally he is fully covered by the mischief of sections 448, 451 and other provisions of PPC and the incharge or custodian of the property, who fails to get a criminal case registered against such trespasser renders himself liable as an accused under the provisions of Chapter XI ot the PPC. The learned Legal Advisor of the Jinnah Hospital informed that the hospital authorities have framed a policy regarding the allotment, vacation etc. Of the hospital accommodation now.
5. It is common scene that a Government servant even after transfer out of station does not vacate the official residence This should not be tolerated in any case because on one had, the others posted at the station are deprived of this facility and on the Other hand the trhe official so posted keeps on creating occasions for visiting his family at the public expense. This adversely affects his working and efficiency and on the other had, it is a continues drain of public exchequer. Moreover, the officer holding administrative post would have no time or occasion to study the local problems at their grass root. However, it is desirable that the official may be allowed to complete his normal tenure of posting. This w ould help to solve this problem.
6. The discipline amongst the Government servants is at the lowest ebb. The Rehabilitation & Settlement Department has also beside other evils gave rise to the class now known as property grabbers. They are both in the public and Government offices. Not only the residential accommodation is being treated free for all even the rest houses and rooms in the hospital have also not been spared. This situation cannot be allowed to go unchecked. This menace before it spreads and takes over everything has to be stopped with a strong had. There is no need for any fresh legislation. The Government servant taking law into his on had can lie dealt very appropriately and effectively under the law of the land but the problem is that the concerned authorities ignore such offences cognizable under PPC and acts of gross misconduct under E&D Rules. They are not mindful of the provisions of the Pakistan Penal Code, which renders them also liable for criminal prosecution for their inaction against an accused person. Reference in this behalf can be made to provisions of Chapter XI of the Penal Code and more particularly sections 201, 202,213 and 217.
7. The public properties/Government residences can be protected if following measures, in accordance with law of the land, are taken by the concerned authorities:-
(i) that if a Government servant illegally occupies a Government accommodation or is found in illegal possession then the Incharge/Custodian of such property shall get a criminal case registered against the trespasser;
(ii) that an official continuing in occupation of residential accommodation beyond his entitlement shall be charged rent at the market rate. This should be worked out and intimated to such officials and proceedings for recovery of the same shall be initiated the moment the rent becomes payable and the concerned authority shall not wait even for the next month;
(iii) that the period for vacation of the premises on transfer, retirement or death may be made for 4 months and rule 5.45 (i) and (ii) of the C.S.R. amended accordingly.
(iv) that the proceeding against trespassers, illegal occupants should be initiated the moment fact of trespass or illegal occupation comes to the notice of the authority or the moment property is occupied beyond entitlement. The normal practice now is that the concerned authorities takes years to initiate proceedings;
(v) that the officer guilty of criminal acts in respect of official residence should, also, be proceeded under E&D Rules and copies placed on their ACR dossiers. There is no scope in law and the rules for making allotment to an official beyond his entitlement;
(vi) that the Chief Minister has no authority or jurisdiction to issue any directive or direction allotting .Property or extending period of occupation beyond the provisions of rules. This would include allotment beyond entitlement. AH such directives should be treated as nullity and the occupant be dispossessed in accordance with law and rules;
(vii) that all illegal occupants should be proceeded against at one and the same time so as not to give rise to an argument to anyone that he has meted with discriminatory treatment; and
(viii) that the officer incharge/custodian of the Government property ignoring to proceed, as indicated above, shall be proceeded for inefficiency and also for the loss suffered by the State due to his lack of action besides criminal proceedings under Chapter XI of P.P.C.
These are some of the measures which can be adopted to protect the public property under law and rules.
8. Rana Muhammad Arif, learned Addl.A.G. Also pointed out that some officials, who are guilty of trespass and occupation of residential accommodation beyond entitlement have filed civil suits and the decision of stay petitions has been delayed for years together. It is also added that such suits are not competent because a Government servant cannot possess accommodation in violation of law and rules. Be that as it may, the Civil Court or First Appellate Court while hearing stay petition in respect of official accommodation or appeal therefrom shall decide the same normally within one month.
9. Now coming to the case in had. The residential accommodation belonged to the Allama Iqbal Medical College Complex, therefore, Government had no business either to allot the same to anyone or to extend the period of occupation of a "previous allottee. All directives issued in this behalf by the then Chief Ministers or any other Government functionary are void ab initio, illegal and without jurisdiction.
10. The upshot of the above discussion is that this writ petition is partially allowed with the direction that the action for vacation shall be taken against the petitioner along all other illegal occupants at one and the same time in accordance with the policy framed by the hospital authorities and placed on record. Till then petitioner not to be disturbed. There is no order as to costs.
Let copies of this judgment be sent to the Secretary Establishment, Government of the Pakistan Chief Secretary, Government of the Punjab, to ensure compliance of para 7 of the judgment by the concerned authorities while Registrar to communicate the observations in para 7 to all the subordinate Courts.