' MALIK HAMID SAEED, J. Grievance of the petitioners, who are employees of Peshawar High Court and are serving as Superintendent (B&A)(BPS.17), Superintendent (Judicial)(BPS.17) and private Secretary (BPS.18) respectively, before us is that despite hectic efforts, repeated attempts on their part and entitlement to better accommodation in Civil Quarters, Peshawar, i,e, "A" type or similar thereto, their legitimate demand has not been acceded to and have been deprived of their rights which act on the part of respondents is violative of "Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, hence have sought issuance of appropriate writ directing them to provide accommodation to petitioners according to their status.
2. Facts in brief as have been narrated in Writ Petition are that petitioner No,1 was allotted "C" type quarter on 1-4-1991 whereas petitioners Nos.2 and 3 were allotted "B" type Quarters on 1-11-1991 and 19-1-1992 respectively, where after they applied for better accommodation after they were placed in Grades-17, however, their names were kept on waiting list allegedly on the ground of non- availability of required accommodation. It is further stated in the Writ Petition that for the last 8/9 years they have been repeating their demand but in vain rather they were informed by the Estate Officer to wait for their turn in that, according to him, allotment was to be made strictly in accordance with merit and rules framed on the subject, but since it was noticed by the petitioners that neither the rules were followed nor merit list observed and respondents used to make allotments according to their own sweet will, as such, petitioners were constrained to approach this Court by way of instant Writ Petition which was admitted to regular hearing and record was got requisitioned.
3. During the course of final hearing, Behramand Khan (alleging himself to be Assistant Estate Officer) appeared along with Imtiaz Ali, Assistant Advocate-General, who himself was one of the allottee having no entitlement to "A" type accommodation, therefore, counsel for the petitioners invited attention of the Court to this fact so as to justify the occupation of "A" type Quarter by the said Behramand Khan, who could not controvert the situation rather his reply was to the effect that he got the same as a result of mutual exchange of "C" type with the occupant namely, Inayatullah, having "A" type accommodation. It is not understandable how a person can get a "C" type accommodation exchanged with "A" type when it appears nothing absolutely in the Rules. Since no plausible justification could be put forth by the said Behramand Khan, hence he was directed to produce complete record of allotments of better accommodation together with that of those accommodations, numbers whereof were given by the petitioners in Writ Petition and the list furnished by them to Respondents. On the next date of hearing, Assistant Estate Officer along with Estate Officer S&GAD appeared along with the learned Advocate-General, N.-W.F.P. And produced some of the record, from perusal whereof the following situation emerges:---
(a) Quarter No,15/A is in occupation of a Stenographer Nooran Shah which has been allotted to him on 22-10-1996, to which allotment he was not entitled on the basis of grade and status, as well merit.
(b) Quarter No,30-A has been allotted to Samiullah, Superintendent, on 22-10-1996.
(c) Quarter No,37/A was allotted to Behramand Taj, Assistant, on 29-6-1995 in lieu of exchange of his "C" type quarter irrespective of the summary prepared by the Secretary S&GAD for the Chief Minister. It is thus, interesting to reproduce the relevant portion of the Summary which is to the following effect:--- "The Allotment Rules, 1981 do not specifically contain provisions for exchange of Government accommodation....The exchange is, thus, liable to involve a departure from the Rules to the detriment of the candidates borne on the waiting list for better accommodation."
(d) Quarter No,26/A in the Civil Quarters has been allotted to Mr. Rizwanullah, Assistant/Care-Taker Transport, S&GAD on 16-5-1988 and in spite of the fact that he was served with a letter on 29-8- 1995 by the Estate Officer to the effect that the competent authority has decided to review the allotment order as the quarter was allowed as a Special case in view of the exigency of Government work but now the situation has ceased out and those circumstances no longer prevail, but still he is in occupation of the said accommodation.
(e) Similar is the story of allotment of Quarter No,39/A. The occupant of the Quarter Luqman Shah through an application exchanged his seniority with Mr. Ghazi Khan, Superintendent S&GAD, who is much below on the waiting list. Thus, Mr. Ghazi Khan was allotted this quarter on 30-1-1999 and the seniority of Mr. Luqman was also kept intact.
(f) Quarter No,2/A in the Civil Quarters has been allotted in the name of Zafrullah, PA to Minister for Local Government and Rural Development Department, N.-W.F.P. And an inquiry is going on to the effect that he has established a maternity center in the same instead of using it as a residential accommodation.
(g) Quarter No,S-1/7 has been allotted to Mr. Wamiq, Senior Scale Stenographer on 18-7-1991 who was not entitled to such allotment on the basis of his grade and status.
(h) Another injustice has been done in the case of Mr. Shahid Latif, Chief Draftsman, C&W Department, Peshawar who was earlier allotted Quarter No,67/B in the Civil Quarters, Peshawar on 9-10-1996 and now he is allottee of Bungalow No, 22-New Dabgari Garden, Peshawar with effect from 2942-1998 as a special case.
4. Counsel for the petitioners and Advocate-General, N-W.F.P. Have been heard and record has been gone through with their valuable assistance. It appears from the record and this Court has noticed with great concern that most of allotments in Government Residential Colonies/Quarters/ Flats at Peshawar have been made out of turn without observing merit list and/or status of employees, either as special case or with mutual consent without having resort to the Rules framed on the subject, which should and ought to be disapproved and discouraged with maximum emphasis. Respondents, being public functionaries should have refrained from making such allotments in a manner which is, on the face of it, uncalled for resulting into considerable delay in allotment of better accommodation to the employees placed on waiting list due to contrivance of illegal practice. Obviously, petitioners because of trend mentioned hereinabove, have suffered mental anguish for the last so many years which fact cannot be permitted to be unnoticed by the Court and it is remarked that duty is cast upon Respondents to lay their hands off from making allotments in complete oblivion of the law and merit list maintained for the purpose and practice of unlawful allotments in the garb of special case or mutual exchange is to be effectively stopped.
Stress of learned Advocate-General while placing reliance upon comments furnished by Respondents, particularly in respect of allotments, made as a special case and through mutual exchange, would in no way justify an illegal act to be legitimate and brush aside Rules governing the situation, coupled with the fact that schedule of entitlement which is part and parcel thereof cannot be ignored. It is further borne out from available record that almost all the allotments through alleged mutual consent have been made when the occupant of better accommodation is at the verge of .Retirement as is the case of Inayatullah (occupant of Quarter No,37/A) which exchange even otherwise not provided in Rules, can get the deserving employees deprived of their entitlement and this Court disapproves the course adopted in this respect and, thus, such practice is depricated so as to save the object of Rules from being defeated. Even otherwise, contention of petitioners further finds support from Circular/letter, dated 13-3-1989 (Annexure: Ell) issued by Services and General Administration Department of Government of N.-W.F.P., which is reproduced to relevant extent as under:--- "While examining complaints/ representations of Government Servants against the Waiting lists maintained for allotment of fresh as well as better accommodation it was observed that the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980 are lacking declaration of entitlement of various grades of Government servants to the various types of accommodation. Moreover, the allotments made are not in accordance with the Federal Government Rules and standard of residential accommodation approved by ECNEC."
' Record produced before the Court regarding allotments of better accommodation indicates that allotments have been made very recently by flouting the Rules and disregarding waiting list/merit list and petitioners are entitled to better accommodation in clear and unequivocal terms as per their status and grades in accordance with the Schedule, relevant portion whereof is reproduced herein below:--- "(III) Houses at Dabgari Grade Gardens, Gunner Lane, 17-18 Nistharabad and "B" and "C" types in Irrigation Colony.
(IV) (a)
(b) 'A' and 'section 1' Grade types quarters in Civil 16-17.
Quarters.
5. In the circumstances, it is crystal clear that in the Rules except Field Officers (who can be given preference for allotment) no provision for special case allotment and/or mutual exchange is there and the guidelines/instructions contained in letter/circular/notification, dated 13-3-1989 have not been followed and employees of lower grades are occupying better accommodation containing 4 bed rooms as compared to those who are in higher grades and status, which act on the part of respondents is not only illegal but against the norms of justice. We would have declared all such type of allotments which were in derogation of the settled formula laid down in the Rules to have been illegal but since ''lose allottees are not before the Court, would refrain from making such observation but still Respondents cannot be left unleashed to do whatever they like even if it be violative of legal requirements and affecting rights of individuals. We are also conscious of the fact that it is not obligatory for the Government to provide accommodation to the employees, however, once it is provided and there is settled law for better accommodation, the same cannot be deviated from
7. We also find ourselves in agreement with the contention of the learned counsel for the petitioners, and is also specifically prayed for in the writ petition too, that the petitioners are entitled to pay standard rent under Rule 45-A-IV(b)(i) and 45-B-IV(b)(i) of the Fundamental Rules, till they occupy inferior accommodation. The relevant provision of Para.45-A-iv(b)(i) is to the following effect:- "(IV) When Government supplies a Government Servant with a residence leased or owned by Government the following conditions shall be observed:--- (b)
(i) rent for the residence, such rent being the standard rent as defined in Clause-III above or 10 per cent. Of his monthly emoluments, whichever is less..."
' Admittedly, the petitioners are occupying accommodation below their status and they are, therefore, liable to be charged with house rent equivalent to those officials legally entitled for such Government accommodation. Accordingly, in future the petitioners shall be entitled to the deduction of rent/house rent i,e, the rent already paying by the occupants of 'B' and 'C' type quarters according to their status i,e, Grade 15 for 'B' type and Grade-10 for 'C' type respectively.
6. We would, therefore, allow this writ petition and direct respondents to provide better accommodation (as is prayed for in Writ Petition) to the petitioners in accordance with their status and grades the moment it is made available.
' These, are the reasons of our short order passed on 18-3-1999. The office is directed to send a copy of this judgment to all concerned forthwith for necessary compliance. The record should also be returned.