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Official Citation: 2023 IHC 118
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-10-16
Parties: Sumaira Nazir Siddique vs Ministry of Housing and Works through its Secretary and others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-10-16, officially reported as 2023 IHC 118. In this matter between Sumaira Nazir Siddique and Ministry of Housing and Works through its Secretary and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023IHC118
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Sumaira Nazir Siddique vs Ministry of Housing and Works through its
Secretary and others Case No.: Writ Petition No. 2479 of 2023 Date of Judgment:2023-10-16 Reported As: 2023 IHC 118 Result: Order Accordingly Judgment BABAR SATTAR, J.- This judgment shall decide the instant petition as well as Writ Petition No. 2516 of 2023 and Writ Petition No. 2624 of 2023. 2. The petitioner in Writ Petition 2479 of 2023 is aggrieved by letter dated 02.08.2023, pursuant to which accommodation allocated to the petitioner through allotment letter dated 21.11.2022 has been cancelled by the Ministry of Housing and Works ("Ministry of Housing"). In Writ Petition 2624 of 2023 the petitioner has filed the petition on the apprehension that his allotment of accommodation which had been allotted to him on subject-to-vacancy basis will be cancelled and prays that such cancellation be averted. The petitioner in Writ Petition 2516 of 2023 has also prayed that his allotment of accommodation which had also been allotted on subject-to-vacancy basis be prevented from being cancelled. 3. The learned counsel for the petitioner in Writ Petition 2479 of 2023 stated that the petitioner was a retired civil servant. She was re-employed as a Member of the Anti-Dumping Appellate Tribunal by letter dated 27.09.2019 and her terms and conditions of service were prescribed through an appointment letter issued pursuant to Section 67(2) of the Anti-Dumping Duties Act, 2015 ("Anti- Dumping Duties Act"). Her contract stated that she was entitled to residential accommodation as a civil servant. In view of the petitioner's contract, Ministry of Housing issued her an allotment letter after seeking an opinion from the Ministry of Law and Justice ("Ministry of Law") dated 01.09.2021, in which it had been opined that Rule 3(4) of the Accommodation Allocation Rules, 2002 ("Accommodation Rules"), would not be attracted in the petitioner's case in view of Section 78 of the Anti-Dumping Duties Act, which gave its provisions overriding effect over other laws. Such opinion was rendered by the Ministry of Law while following a previous precedent in case of Mr.
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Jamil Ahmed, who has also been afforded accommodation after superannuation as he was holding a post created under the Benami Transactions (Prohibition) Act, 2017. The learned counsel stated that it was on the basis of such opinion of Ministry of Law that the allotment letter was issued to the petitioner in relation to an accommodation in Category Type-I that was previously allotted to and was in possession of her husband, who also retired as a Federal Secretary. He further submitted that the impugned cancellation letter had been issued without notice in breach of the petitioner's due process rights and was based on advise rendered by the Ministry of Law dated 27.07.2023, which had not been shared with the petitioner. The impugned cancellation letter had been issued after approval of Secretary, Ministry of Housing, who under rule 29 of the Rules was the appellate authority against any decision rendered by the Estate Office. He stated that given that the impugned cancellation letter has been issued with the approval of the appellate authority under the Rules, the remedy of appeal and revision as provided under the Rules has become illusory. 4. The basic allegation in the petition is that the petitioner has been treated in a discriminatory and whimsical manner by the Ministry of Housing and the Ministry of Law and not in accordance with law. The allotment of official accommodation is regarded by the Federal Government as state largess to be distributed amongst favored federal government servants ("FGSs") in a hushed manner based on extraneous considerations that prevail with civil servants exercising authority on behalf of the Federal Government at any given time, including, inter alia, cadre camaraderie and favoritism. Allotment of accommodation is not treated as a right and entitlement of state officials to be upheld in accordance with the date of entitlement and seniority as reflected in General Waiting Lists ("GWLs") to be maintained under the Accommodation Rules, in a just, fair and reasonable manner. It was the petitioner's case that while she was allotted accommodation in Category Type-I after superannuation as Federal Secretary, upon being rehired in MP1 scale, notwithstanding Rule 3(4) of the Rules, on the basis of a note generated by the Ministry of Housing and supported by Ministry of Law, the allotment was cancelled once a different set of civil servants came to control the reigns of Ministry of Housing and Ministry of Law. Given the allegation of colorable exercise of authority in breach of Section 24-A of the General Clauses Act and the guarantees of Articles 4, 9 and 25 of the Constitution, the Court directed the Ministry of Housing to file a detailed report reflecting details of allotments made in Category Type-I under the Accommodation Rules, while identifying allotments made in breach of such rules. In view of the report filed, the allotment made to certain FGSs stood out as having been made, prima facie, not in accordance with Rules. Notices were issued to such FGSs to afford them an opportunity of being heard, as adjudication of the manner in which allotments were made by Ministry of Housing in Category Type-I could affect their interests as well. The report filed by the Ministry of Housing also reflected names of judges of Islamabad High Court ("IHC") as having been allotted accommodation under Rule 6(7) of the accommodation rules and/or having been issued subject- to-vacancy allotment letters under such rules. The Federation was therefore also asked to explain how judges of IHC were being treated as FGSs to be allotted accommodation under the Accommodation Rules. And whether or not such treatment of judges, whose allotments automatically came into contention in allotment disputes amongst FGSs (as their names were reflected in allotment lists maintained under the Accommodation Rules, which created a perception that they were in competition with FGSs for allotment of accommodation), was not a breach of the principle of separation of powers and independence of the judiciary. 5. The learned Attorney General appeared on behalf of the Federation. He stated that having perused the order of this Court dated 23.08.2023, he wished to make a statement with the following submissions on behalf of the Federation:
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1. The Federation concedes that allotment of residences to judges is subject to provisions of the High Court Judges (Leave, Pension and Privileges) Order, 1997 ("Presidential Order") read together with the Fifth Schedule of the Constitution. The judges are entitled to be provided accommodation on the day of their appointment and throughout the term of their service. Their entitlement to provision of accommodation by the State is governed by the Presidential Order and not by the Accommodation Rules. 2. The IHC was established in 2010 and the Federal Government has been delinquent in discharging its responsibility to provide accommodation to judges of IHC in accordance with provisions of the Presidential Order. The Federal Government will remedy the wrong. Five of the eight serving judges of IHC have been provided accommodation. The remaining three serving judges will be provided accommodation in Category Type-I by allotting them the next three houses that fall vacant and available for handing over possession. Further, another two houses will be placed at the disposal of IHC to ensure that when the two vacant positions of judges are filled at IHC, the State is able to discharge its obligation to the newly appointed judges to provide them accommodation on the day of their appointment. 3. The matter of failure of provision of residences to judges by the Executive in accordance with the Presidential Order impinges on the independence of the judiciary. Under the scheme of separation of powers prescribed by the Constitution, judges should be afforded the entitlements that are prescribed by law and constitute the terms of their service and should not be required to chase after the Executive to be granted such entitlements as a favor. 4. Judges are to be afforded residences by the state under the Presidential Order throughout their service and FGSs are entitled to accommodation subject to availability on the basis of their priority/seniority and/or placement on the General Waiting List. The names of judges will be removed from the list of allottees maintained under the Rules to ensure that there exists no perception that judges are to be allotted houses from the pool that is reserved for FGSs or that judges are to be placed on the same waiting list as FGSs and compete for allotment of houses alongside BS 21-22 officers. The list maintained for purposes of Category Type-I accommodation under the Rules will be rectified immediately. 5. The Federal Government will expedite the process of construction of residences for judges of IHC as has been done for the judges of the Supreme Court. The process of preparing a PC-1 for allocation of funds for construction of residences on a six-acre plot reserved for such purpose and allotted by CDA will be completed by March 2024, so that appropriate allocations can be made in the budget in next financial year. The Federal Government will take all necessary measures to allocate funds and complete the construction of accommodations at the earliest. 6. The manner in which the allotments are made to FGSs pursuant to the Accommodation Rules leaves much to be desired. There are concerns regarding lack of transparency and arbitrariness and allotments have been made out of turn. The Government will involve the Ministry of Information Technology (IT) to create a database of all FGSs/state employees who are entitled to allotment under the Rules across all categories of accommodation. With the help of the Ministry of IT, the Ministry of Housing will create a dashboard on its website which will reflect the date of vacation of accommodations in each category along with waiting lists for all grades and cadres so that the manner in which accommodations become available and get allotted is transparent and the merit of such allotments is readily verifiable, leaving little room for arbitrariness or favoritism. Such exercise will be undertaken within a period of thirty days. 7. The Rules do not support issuance of allotment letters on a subject-to-vacancy basis. The practice has created lack of transparency and room for arbitrariness. The Federal Government will bring this practice to an end. All allotments will be made in accordance with GWLs for all grades and a priority list will be maintained for officers of BS-22 under rule 6(7) of the Rules.
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6. The Secretary, Ministry of Law and Justice ("Ministry of Law") appeared before the Court in compliance with the order dated 23.08.2023 and reiterated the submissions made by the learned Attorney General with regard to the provision of accommodations to the ten judges of IHC and the timeframe for preparation of PC-I and the subsequent steps to be taken by the Federal Government to build residential accommodations for IHC on the six-acre plot allocated for such purpose by CDA. A report to such effect was subsequently filed. 7. The Secretary Ministry of Housing appeared in person and submitted that a report in compliance with order dated 23.08.2023 had been filed. This fresh report stated that some of the submissions made in the previous report, also authorized by Secretary Ministry of Housing, regarding allotments in Category Type-I were erroneous and need to be recalled. This included submissions made in relation to the allotment of a Category Type-I accommodation to Mr. Rashid Mehmood, Secretary Ministry of Energy, at a time when he was a BS-21 officer and at Serial No. 112 of the GWL. The Ministry of Housing thus submitted two reports with regard to allotments in Category Type-I accommodation within a fortnight, which were in conflict with each other. Mr. Rashid Mehmood, Mr. Kamran Ali Afzal and Mr. A.D. Khowaja, all FGSs in BPS-22, whose allotments appeared, prima facie, to not be in consonance with the Accommodation Rules, also filed his own responses and affidavits pursuant to order dated 23.08.2023. The Scheme of Accommodation Rules 8. Section 3 of Civil Servants Act, 1973 ("Act") provides that the terms and conditions of civil servants shall be in accordance with the provisions of the Act and the Rules framed thereunder. In exercise of authority under section 25 of the Act, the Federal Government has promulgated Accommodation Rules. Section 2(g) of the Accommodation Rules defines an FGS as "a person who is appointed in a Ministry, Division or an Attached Department against a regular post and certified as such by the concerned Ministry, Division or Department excluding incumbents of posts filled on daily wages, work charged basis or hired from contingencies, and adhoc basis." Rule 3 prescribes the eligibility of FGSs to residential accommodation owned, hired or requisitioned by the Federal Government. Rule 3(1) provides that all married FGSs (and certain categories of unmarried FGSs) working in "Ministries or Division or Attached Department" are eligible to be provided accommodation. Rule 3(4), germane to the petitioner's case, provides the following: (4) Persons employed on contract in Government pay scale in an eligible Government department mentioned in sub-rule (1) shall be eligible in accordance with terms and conditions of his appointment for allotment of Government accommodation or hired accommodation. Provided that no Federal Government Servant re-employed after superannuation on contract against any position in any government organization, attached department or autonomous body shall be eligible for allotment or retention of Government's accommodation. 9. To be eligible for provision of accommodation a person must qualify (i) as a FGS working in Ministries, Divisions, or Attached Departments that do not maintain their own pool of accommodation or have funds for hiring of houses, or (ii) a person employed on contractual basis in "Government pay scale" in Ministries, Divisions, or Attached Departments that do not maintain its own pool of accommodation or have funds for hiring of houses. Rule 3 also prescribes certain exclusions, including where a FGS or his/her spouse or dependent children own a house at the station of their posting. Rule 5 provides for classification and entitlement of accommodation and states that FGSs in Basic Pay Scale (BS) 21-22 are entitled to Category Type-I accommodation. Rule 6 prescribes the manner in which allotment is to be made and requires the Estate Office to maintain a GWL of entitled FGSs who are to be allotted accommodation in accordance with their placement on the GWL. The placement on the GWL is determined from the date of entitlement of a FGS to his/her class of accommodation and where the date of entitlement is similar the FGS with greater length of service is granted priority. And where both the date of entitlement and the length
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of service are identical, priority is determined on the basis of date of birth. Rule 6(6) provides that where a FGS is transferred or sent on deputation to an outstation (i.e. other than where he is seeking accommodation), the FGS carries his/her seniority to be allotted accommodation at such new station. Rule 6(7) provides that Federal Secretaries and Officers in BS-22 are to be given priority in allotment of accommodation. Other sub-provisions of Rules 6 prescribe how priority is to be accorded to certain other FGSs not relevant for our present purposes. Rule 7(1) then clearly provides that, "the allotment of Government owned accommodation shall be made to the most senior FGS on GWL of a particular class or category of accommodation". Rule 3 read together with rules 5 and 6 therefore provide that the Federal Government shall maintain a GWL on the basis of which accommodations are to be allotted guided by the principle of seniority/date of entitlement. Officers in BS-22 are to be given a priority and within the category of Officers of BS-22, it is once again the principle of seniority/date of entitlement that guides the sequence in which allotment of accommodation is to be made under rule 6(7) read with rule rule 7(1). 10. Rule 10(1) provides that a FGS must take over possession of accommodation within ten days of issuance of an allotment letter. Rule 10(2) provides consequences of failure to do so by stating that non-acceptance of allotment and non-occupation of the accommodation within ten days of allotment without any cogent reason renders the allotment liable to be cancelled without notice. This penal clause reflects that compliance with rule 10 is mandatory. Rule 11 prescribes a mechanism of how accommodation is to be vacated. Rule 15 regulates the entitlement of FGSs to retain accommodation. Rule 15(2) provides that where an allottee reaches the age of superannuation or his/her contract expires a serving spouse or child of such allottee living with the allottee may be allotted the same accommodation, if the spouse or child is eligible and otherwise entitled for accommodation in the same category of accommodation. Rule 15(4) provides that where an allottee is transferred or sent on deputation out of station he/she may retain the accommodation till being posted back with the permission of the Ministry of Housing and Works, provided that he/she does not claim accommodation or house rent at the new place of posting. Rule 15(4) further provides entitlement for an eligible FGS to retain accommodation if he/she is posted to an ineligible department or organization at the same station. Rule 15(5) regulates the entitlement of FGS to retain accommodation while on training or on study leave. 11. Chapter IX of the Accommodation Rules deals with cancellation of allotment and an ejectment of allottees. Rule 16 prohibits subletting. Rule 17(1) provides that, "no FGS shall keep more than one accommodation at the same time in his possession." The consequence of keeping more than one accommodation is prescribed under rule 17(2) i.e. cancellation of all houses and flats in his/her possession. Likewise, rule 20(1) provides that, "if an allottee or his family does not ordinarily reside in the allotted accommodation or allows some other person to live in the allotted accommodation, the allotment shall be liable to be cancelled." 12. Rule 25 prescribes penalties for unauthorized accommodation, including the liability of an FGS to criminal proceedings where he/she is found in illegal possession of accommodation. Rule 27 requires the Establishment Division or the head of the office of the allottee as well as the allottee himself to report to the Estate Office, within a fortnight, details regarding his/her transfer, retirement, resignation, dismissal or removal from service. 13. In view of the scheme of the Accommodation Rules, the following is evident: 1. To be allotted accommodation, the FGS or a person employed on contract in government pay scale must first establish eligibility by exhibiting that he/she is serving a Ministry, Division or eligible Attached Department (that does not maintain its own pool of accommodation and has not been allocated funds for hiring of houses). 2. A contractual employee must not only establish that (i) he/she is serving in an eligible government department (i.e. Ministry, Division or Attached Department not maintaining its pool of
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accommodation and not in possession of funds for hiring of houses), (ii) is serving on contract in "Government pay scale", and (iii) is not a FGS reemployed after superannuation. 3. Those eligible for allotment of accommodation are to be allotted accommodation on the basis of their placement on the GWL, which is determined on the basis of their seniority and date of eligibility for allotment in the relevant category. 4. There are certain categories of FGSs who are to be given a priority over others, including, inter alia, FGSs in BS-22 pursuant to rule 6(7) of the Accommodation Rules. Rule 6(7) is to be read with rule 7(1) and consequently amongst the FGSs in BS 22 allotment of accommodation is to be made on the basis of seniority and date of entitlement i.e. date of promotion to BS-22. 5. Rule 10 when read together with rules 2(b), 11(7), 20 and 27 envisages that an allottee will occupy the accommodation allotted within ten days of the issuance of the allotment letter and failure to do so entails penal consequences, including cancellation of allotment and placement of the allottee's name at the bottom of the relevant GWL. 6. Rule 15 read together with rules 17 and 27 regulates the retention of accommodation by a FGS when he/she is posted out of station, or to ineligible government department or organization at the same station or posted for purposes of training or when an FGS is on leave. The rules do not allow retention of accommodation when an FGS is transferred to an office that affords designated accommodation. 7. Rule 15(2) and 15(2)(b) allow the retention of accommodation by spouse or child who is eligible and as well as entitled for accommodation in the same category of accommodation. Rule 15(4) provides that an allottee who is in possession of an accommodation may retain the same even when transferred and posted out of station so far as he/she does not claim accommodation or house rent at the new place of posting. 14. The Accommodation Rules clearly envisage that an FGS will only be provided accommodation at the station at which he/she has been posted to serve. Rule 15(4) and 15(5) provide limited exceptions to this principle by allowing an allottee in possession of accommodation to retain the same in certain limited circumstances. The Accommodation Rules, however, do not provide for or allow allotment of accommodation to a FGS afresh at a station other than the one at which he/she is serving. 15. Rule 17 prohibits the allotment of more than one accommodation by the Federal Government to an FGS and is accompanied by a penal provision requiring cancellation of all accommodations in the event that an FGS retains more than one accommodation. As the Accommodation Rules regulate the overall entitlement of FGSs to accommodation, who under Section 10 of the Civil Services Act are also posted to provinces and other organizations on deputation, Rule 17 cannot be read as making a distinction as to whether an FGS has been provided accommodation by the Federal Government or by a Provincial Government (or another organization). The rule that no FGS retain more than one accommodation also makes policy sense. State accommodation is a scant resource. It would be inequitable to allow an FGS to be simultaneously allotted multiple accommodations across cities, while others wait in a long queue to be allotted one at his/her station. This is further highlighted by rule 6(6) which provides that an allottee when transferred or sent on deputation out of station carries his seniority to be allotted accommodation with him and is to be allotted accommodation at the new station giving him the benefit of such seniority. The Accommodation Rules therefore envisage that an FGS will be allotted accommodation at the station at which he/she is serving, subject to provisions of rule 15 which provide for the retention of accommodation at a station other than the one at which FGS is serving when he doesn't claim accommodation or rent at the new station. Rules 16, 20 and 25 highlight that the accommodation allotted pursuant to Accommodation Rules is to be used by the FGS for his/her own purpose and that such accommodation cannot be left idle. Thus rule 20(1) provides that where an allottee or his
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family does not ordinarily reside in an accommodation or allows someone else to live in such accommodation, the allotment is to be cancelled. Rules 6(6), 15(4), 17 and 27 when read together require that an allottee who has been transferred to an office or post that has designated accommodation must take possession and occupy such occupation and is not entitled to retain any other accommodation. The reason is simple: no FGS other than the one transferred to a post can occupy or utilize designated accommodation that comes with the post. This makes policy sense too. It would be imprudent to allow an FGS to retain an accommodation that falls within a general pool from within which allotment is to be made to all entitled FGSs, while keeping a designated accommodation idle and out of use for himself and other FGSs. The only exception appears to be rule 15(4) that explicitly allows FGSs transferred or sent on deputation out of station to retain accommodation within a station to the extent he/she is in possession and…
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