MANSOOR AHMAD, J.--- The appellant by filing the instant ICA assails the judgment dated 17.12.2002 passed by the learned Single Judge in Chamber in W.P. No. 3181/2002.
2. Facts giving rise to the present ICA are that respondent No. 3 filed a Writ Petition (No.. 3181/2002) submitting that she being a civil servant was entitled to official residential accommodation in terms of Pakistan Allocation Rules, 1993 and in that she was allotted quarter No. 21 1-E/Section G- 6/4/EIV/EO, dated 7.8.2002 by the Estate Office, Islamabad. It was further stated that the house was in possession of the previous allottee who instead of restoring the possession to the Estate Office inducted respondent No. 3 who is now appellant before us and that no right subsists in favour of respondent No. 3, present appellant to retain the said house.
3. Further the writ petition narrated that respondent No. 3 moved an application before the Wafaqi Mohtasib which was rejected on 17.7.2001. He filed a representation before the Honourable President of Islamic Republic of Pakistan which was also rejected. Respondent No. 1 also rejected his application and he was directed to hand over the possession of quarter in question vide letter dated 23.9.2002. Instead of handing over the possession, a civil suit was filed by respondent No. 3 on 21.4.2001. The petitioner (in the writ petition) sought relief of declaration to the effect that she was lawfully allotted quarter No. 21 1-E, Section G-6/4, Islamabad and eviction of respondent No. 3 was also sought.
4. After necessary hearing the learned Single Judge in Chamber has accepted the writ petition and in that declaration as granted as prayed for and respondent No. 3 was directed to hand over the possession of the said quarter to the petitioner. Respondent No. 3 who is the present appellant assails the judgment of the learned Single Judge through the present ICA.
5. The learned counsel for the appellant argued that respondent No. 3 (petitioner in W.P. No. 3181/2002) was not entitled to any allotment under the Pakistan Allocation Rules, 1993. It was contended that the allotment order was the result of manipulation, maneuvering and under-hand techniques. It was submitted that the Wafaqi Mohitsib made recommendation that the application of the appellant should be considered for allotment but it was ignored.
6. During the hearing of the ICA was observed that the appellant was not allotted any quarter nor he was ever provided the possession of the same. On a query , learned counsel for the appellant candidly admitted that the appellant's application for seeking allotment of E-type quarter was pending as is also evident from the order of the Wafaqi Mohitsib but no formal allotment order was issued in his favour. Further it was admitted that finding the said quarter vacant the appellant occupied the same with the hope to get the allotment of the same as recommended by the Wafaqi Mohitsib.
7. The respondents have strongly reacted to this version of the appellant and contended that the appellant is a trespasser and that he is not entitled to any equitable relief. Observing that the record of the Estate Office was not reflecting transparency, we directed the Estate Office to file the copies of the relevant record including the application of respondent No. 3 for seeking allotment of the quarter, office noting of the said application and order of allotment made in her favour by the competent authority. Also the Estate Office was directed to file seniority list of the candidate seeking the allotment of E-type quarter alongwith list of the departments which were on the pool of the Estate Office. Later copies of this record was filed by the Estate Office which are now available on the record of the ICA.
8. Perusal of the record shows that respondent No. 3 (writ petitioner) was at No. 610 of the seniority list. She filed an application addressed to the Federal Minister for Housing and Works Government of Pakistan, Islamabad and requested for allotment of E-type quarter instead of D-type quarter.
She stated in her application that she was serving as T.G.T. In BPS-16 in Federal Government Junior Model School, G-6/2 Islamabad since 3.9.1990 and that her husband is also a Government employee serving as Assistant in the Estate Office for more than 12 years and that her husband has been allotted House No. 3 block No. 73-D, St. 36, F-6/1, Islamabad and that she was residing with her husband. She further stated that she has been residing in below category house, therefore, she requested for the allotment of the quarter according to her entitlement. Record shows that this was an undated application. In the ministry of Housing and Works, the office has initiated a note on 5.4.2002 and passing through various official channels proposal for allotment was approved by the Minister on 6.7.2003 whereby a letter of allotment was issued.
9. Examining Pakistan Allocation Rules, 1993 we find that there is a provision for out of turn allotment in rule 6. An amendment in rule 6 which, inter a/ia, provides that a federal Government servant may on the ground of ill-health or on some other reasons apply for out of turn accommodation in the form given at Annex-D. The application for out of turn allotment was to be considered by the Committee designated as Out of Turn Allotment Committee consisting of persons specified in Annex-G. The Committee may, after having considered the facts contained in the application of a Federal Government Servant medical certificate if any or any other ground of hardship 'put forward by him order for allotment of Government accommodation of his entitlement against thirty per cent quota reserved for the purpose of allotment out of the general pool.
10. Rule 6 of Pakistan Allocation Rules, 1993 was further amended vide SRO No. 303(1)/95 whereby sub-rule (8) was inserted. Sub-rule (8) reads as under:- "Notwithstanding anything contained in sub-rules (1) to (6), the Federal Minister for Housing and Works may, in cases of hardship, allot ten per cent of the Government accommodation reserved for out of turn allotment under rule 7."
11. Later in the year, 2002 quota of the Minister was done away with another amendment in the Pakistan Allocation Rules, 1993, The latest amendment may not be relevant in the circumstances of the present case as respondent No. 3 (writ petitioner) is relying on sub-rule (8) in support of the allotment made by the Minister in her favour.
12. Rule 6 deals with the out of turn allotment, it specifies a form given in Annex-D for making such an application which was to be considered by Out of Turn Allotment Committee constituted according to Annex-G of under-clause 6.30% quota was reserved out of the general pool for out of turn allotment. Sub-rule (8) was inserted to vest powers with the Minister for Housing and Works to exercise jurisdiction out of turn allotment to the extent of 10% out of 30% quota allotted from the pool for out of turn allotment. The jurisdiction of the Federal Minister as well as of the Out of Turn Allotment Committee was available only in the hardship cases. Sub-rule (1) find mentioned of a ground for hardships being ground of ill-health or any other pressing reasons. It, therefore, follows that in the absence of a ground for hardship or any circumstance constituting hardship, the jurisdiction for out of turn allotment would neither be available 'to Out of Turn Allotment Committee or to the Minister concerned. In the case of respondent No. 3, out of turn allotment of E-type quarter was sought in lieu of D-type quarter on the ground that the applicant's entitlement is of a better category house. Request of respondent No. 3 was not based on the ground of hardship nor any circumstance was mentioned in the application to describe hardship. The noting of the office also reflected that the case made by the office was on the ground of better entitlement of respondent No. 3 which was approved by the Minister. The order of the Minister dated 6.7.2002 was not passed in accordance with the provisions of Pakistan Allocation Rules, 1993 and he had no jurisdiction to approve the allotment in case of respondent No. 3 when it was not a case of hardship in terms of rule 6 of Pakistan Allocation Rules, 1993. Thus we hold that the order passed by the Minister is without jurisdiction and of no legal effect and the allotment in favour of respondent No. 3 was not made in accordance with the law.
13. Going through the record of the Estate Office in this case we find sufficient irregularities committed by the Estate Office as well as Ministry of Housing and Works. While dealing with the application of respondent No. 3 it was not brought on the record that her number in seniority list as a candidate seeking the allotment of E-type quarter was 610. The Section Officer and other concerned officers of the Ministry did not bother to find out her number in the seniority list and processed her application in a manner so as to procure an order from the Ministry. It was the duty of the Section Officer, Deputy Secretary and the Joint Secretary concerned to place correct facts before the Minister which in the instant case was not done. This is a mal-practice and nepotism which warrants an inquiry.
14. As we have found that the appellant is a trespasser therefore, he is directed to handover the possession of quarter ' No. , 21 1-E/Sector G-6/4, Islamabad to the Estate Office on or before 31.12.2003. Taking a lenient view, the appellant who is a trespasser and has school going children, we are providing him breathing space to make alternate arrangements. We partly allow the ICA and set aside the order of the learned Single Judge in Chamber and hold that respondent No. 3 was not entitled to allotment and allotment letter issued in her favour in respect of order dated 7.8.2002 was without jurisdiction and of no legal effect. The allotment of the quarter concerned would be made strictly in accordance with the Pakistan Allocation Rules, 1993 keeping in view the seniority list of the candidates for allotment. .