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Petitioner: Ashfaq Ahmed, etc VS Respondent: C.D.A., etc
Court Name: Islamabad High Court Judge(s): Shaukat Aziz Siddiqui Title: Ashfaq Ahmed, etc vs C.D.A., etc Case No.:Writ Petitions No 2303, 2209, 2108, 763, 4196 of 2012, 770, 325, 345 of 2013,
JUDGMENT
Reported As: PLD 2019 ISB 299, 2019 [M] C.L.R. 147 Result: Petitions disposed of Judgment JUDGMENT SHAUKAT AZIZ SIDDIQUI, J. --- Writ Petitions mentioned at serial Nos, 1 to 9 above are placed before this Court as a corollary of judgment dated 09.11.2016 rendered by the Hon'ble Supreme Court of Pakistan; whereby the judgment passed by the learned Division Bench dated 29.06.2016 and orders dated 10.4.2013, 18.02.2013 & 21.04.2008 passed by this Court were stamped out, whereas remaining writ petitions mentioned at serial Nos, 10 to 14 are placed involving similar issue, as agitated through writ petitions mentioned at serial Nos, 1 to 9. 2. Vide consolidated Judgment dated 10.04.2013, Writ Petitions mentioned at Serial Nos, 1 to 8 above were disposed of by this Court, whereas Writ Petition No, 2552/2006 mentioned at Serial No, 9, was initially filed before the Hon'ble Lahore High Court at Rawalpindi Bench, but it was transferred to the Islamabad High Court after its establishment and vide judgment dated 21.04.2008, the same was dismissed. 3. At this verge, it looks appropriate to re-produce the germane portions of the venerated judgment of Hon'ble Supreme Court, which are as under:---- "2. We are informed that, while adjudicating upon the matter, the learned Single Judge in the Islamabad .High Court did not issue any notice to the learned Attorney General for Pakistan, which was required under Order XXVII-A, CPC. It is also a common ground between the parties that the judgment/orders dated 10.04.2013, 21.04.2008 and 18.02.2013 of the learned High Court passed in the Constitutional Petitions i,e, Writ Petition Nos, 2108 of 2012, 325 of 2013, 2552 of 2006, 561 of 2013, 607 of 2013 and 345 of 2013, respectively are nullity in the eye of law and are not sustainable. In this view of the matter, the instant lis needs to be remanded back to the learned High Court for
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decision afresh. 3. Consequently, the impugned order dated 29.06.2016 passed by a learned Division Bench in Intra-Court Appeals No, 654 of 2013, 60 of 2008 and 551, 556 & 655 of 2013, respectively as well as the judgments/orders dated 10.04.2013, 21.04.2008 and 18.02.2013 passed by the learned Single Judge in the High Court, are hereby set aside and the Writ Petitions No, 2108 of 2012, 325 of 2013, 2552 of 2006, 561 of 2013, 607 of 2013 and 345 of 2013, respectively shall be deemed to be pending before the learned Islamabad High Court, which shall be decided afresh after issuance of notice, inter alia, to the learned Attorney General for Pakistan under Order XVII-A, C.P.C. We are confident that the learned Islamabad High Court shall expeditiously decide the lis before it as early as possible." 4. As directed by the Hon'ble Supreme Court, notice under Order XXVII-A, C.P.C. was issued and in response to the notice, Raja Khalid Mehmood Khan, learned Deputy Attorney General has appeared as representing learned Attorney General's office. 5. Precise facts relevant for disposal of writ petitions are mentioned below against the column of each writ petition:--- Sr. No.Case No. Precise Facts. 1. W.P. No, 2303 of 2012 Petitioner being regular employee of CDA aggrieved of the seniority list prepared for the process of balloting to allot the residential plots from 20% reserved quota of the employees of the CDA from the Housing Schemes Developed for the Government Officers. Petitioner has alleged that his name was initially mentioned at serial No 1 of the seniority list, but subsequently was deleted from the seniority list without any lawful excuse and justification. 2. W.P. Nos, 4196 of 2012 & 345 of 2013Petitioners are also regular employees of the CDA. They pleaded that they are entitled to participate in the balloting for the allotments of the residential plots having fulfilled all the requirements for the allotment and they have also prayed that the deputationists should not be considered as the regular employees of the CDA. 3. W.P. No, 2108 of 2012 The petitioner is office bearer of the registered body (CDA Ex-Officers Welfare Association) and has challenged the Regulations No, 4 & 5 of the Islamabad Land Disposal Regulations, 2005, whereby the deputationists have been granted the status of the regular employees of the CDA for the allotment of the residential plots on the CDA quota. 4. W.P. No, 2209 of 2012 Petitioners No, 1 to 3 are the regular employees of the CDA, whereas petitioner No, 4 is working on deputation. According to
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the petitioners, the balloting committee had allotted them the residential plots on 21.06.2012, but the Chairman CDA set aside the process of the allotments vide order dated 22.06.2012 and petitioners through Instant petition has questioned the legality of that order. 5. Writ Petition Nos, 325 & 770 of 2013The petitioners are the regular employees of the CDA and they have maintained that they were allotted residential plots through the balloting, but Chairman CDA had set aside the whole process of balloting without any lawful excuse. 6. Writ Petition No, 1095 of 2011 Petitioners are the employees of CDA and they have challenged the Circular issued by the CDA dated 21st March, 2011 prescribing allotment criteria of residential plots for CDA employees of BS-17 and above on the ground that term 2(b) mentioned in the impugned circular is discriminatory as CDA have adopted different eligibility criteria regarding total service for employees of BS 1 to 16 and BS-17, therefore, impugned circular to the extent of term 2(b) may be declared as ultra vires to the Constitution and may be modified by treating the petitioners at par with the employees of BS 1 to 16 for considering allotment of residential plots. 7. W.P. No, 2552 of 2006 Petitioners have challenged list dated 20.07.2006 prepared for allotment of plots to the CDA employees and on the basis of which balloting dated 02.08.2006 were taken place, with the prayer that both list and balloting may be declared illegal and without jurisdiction as being violative of the criteria prescribed by the Government for entitlement of plot. 8. W.P. No, 763 of 2012 Petitioner remained on deputation in CDA from 1.02.1991 till July, 1995, he applied for allotment of plot on 22.04.1993, but his case was deferred to be considered at later stage. Petitioner filed various writ petitions and lastly vide order dated 03.06.2008 passed in W.P. No, 790/2003, CDA was directed to reconsider the eligibility of the petitioner. Petitioner prayed that a direction may be issued for placing case of the petitioner for allotment of plot before CDA
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Board in the next meeting and decision taken thereof may also be submitted within the stipulated period fixed by the Hon'ble Court. 9. Writ Petition Nos, 4789 of 2010 and 231 of 2011The petitioners are deputationists and they have maintained that in view of the notification dated 14.07.2005 published in official Gazette, petitioners (deputationists) are also at par with the regular employees of CDA, therefore, they are equally entitled for the allotment of the residential plot from 20% quota reserved for CDA employees in the Housing Scheme Developed for the Government employees. They further maintained that they are also at par with the employees who have been allotted plots in accordance with the decision dated 28.11.2005 of Hon'ble Supreme Court in Civil Petition Nos, 741 to 744 of 2004. 10. Writ Petition No, 3152 of 2011 Petitioners are employees of Ministry of Interior working in CDA Wing dealing with the affairs of CDA. Their grievance is that despite being held entitled for allotment of plots by the CDA Board, they are being deprived. They prayed that they may be allotted plots in Sectors 1-8 and D-12 as under the Land Disposal Regulations they are entitled to be allotted plots. 11. W.P. No, 4740 of 2016 Petitioners were remained working in the CDA on deputation and through instant petition, they prayed for inclusion of their names in the list for ongoing balloting process of allotment of residential plots and for any future balloting process. 6. Learned counsel representing the petitioners in Writ Petition Nos, 1095 of 2011, 2303, 2108 & 4196 of 2012, and 345 of 2013 have inter alia contended that the deputationists should not be considered as regular employee of CDA for the purpose of allotment of residential plots from 20% quota reserved for the CDA employees. That initially, it was compulsory for a deputationist to serve CDA for continuous three years to become eligible for a plot but this_ period was drastically reduced from three to two years and then one year and at present deputationist was being allotted plots on completing only six months service in the CDA. That the Regulations 2-f, 4 & 5 of the Islamabad Land Disposal Regulations, 2005, whereby the deputationists have been equated with the regular employees of the CDA are against the fundamental rights of the petitioners enshrined in the Constitution of the Islamic Republic of Pakistan. That the said malicious amendment in Islamabad Land Disposal Regulations, 2005 was introduced as most of the deputationists are/were dear ones of the highest echelons of the CDA, who join the organization only to get plots. That the petitioners have served the CDA for a considerable period and they also spent the peak time of their lives for the department, but some persons serving in other departments of the Federal Government
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manage to get appointment in CDA on deputation and by usurping the rights of regular employees of CDA obtain the allotments of residential plots out of 20% quota reserved for CDA employees. Learned counsel for the petitioners have further argued that the deputationists are hired by the CDA for some specific purpose and they cannot be considered as regular employees of CDA, as neither they are recruited nor absorbed in CDA and after expiry of period of deputation, they have to be repatriated to their parent department, whereas the employees recruited by the CDA have to serve throughout in the CDA, therefore, deputationists have narrow down the scope of allotment of the residential plots, regular employees are not considered for allotment of the residential plots out of the 80% quota, which is reserved for the government employees in the Housing Scheme Developed for the government employees. Learned counsel further argued that the deputationists have the fair opportunity to avail the concession of allotment of residential plots from 80% quota reserved for the Government employees in the Housing Scheme developed by CDA for the Government employees. Learned counsel prayed that the Regulations 2(f), 4 & 5 of the. Islamabad Land Disposal Regulations, 2005 are against the fundamental rights of the petitioners as enshrined in the Constitution of the Islamic Republic of Pakistan and to this extent these regulations may be declared as null and void. 7. Learned counsel for petitioner in W.P. No 1095/2011 added that discriminatory treatment is being meted out to the petitioners as eligibility criteria set for the employees serving in BS-17 and above is ten years service, whereas for the employees serving in BS-1 to 16, it has been reduced from 10 to 08 years, but despite moving applications for reduction of length of service for the employees serving in BS-17 and above, no action has been taken by the authority, which is a sheer violation of Article 25 of the Constitution. Learned counsel has lastly argued that CDA may be directed to formulate a transparent and comprehensive framework for allotment of plots to the CDA employees by excluding deputationists. 8. Learned counsel for the petitioners in Writ Petitions No, 2209 of 2012, 325 and 770 of 2013, have argued that the seniority list was prepared in accordance with the concerned rules and regulations and petitioners were allotted residential plots through fair balloting, whereas Chairman CDA, without any justifiable reasons set aside the process of balloting with mala fide intention. Learned counsel have further argued that the petitioners being senior employees of the CDA are entitled for the allotment of residential plots out of 20% quota reserved for the CDA employees in the Housing Scheme Developed by the CDA for the Government employees. Learned counsel have prayed that by accepting the Writ Petitions, petitioners may be declared as lawful allottees and the order passed by the Chairman CDA may be set aside. 9. Learned counsels for the petitioners (deputationists) in Writ Petition Nos, 763/2012, 231/2011, 4789/2010 and 4740/2016 by referring the judgments of the Hon'ble Lahore High Court, august Supreme Court of Pakistan as well as judgment of this Court, have argued that the Hon'ble Superior Courts had drawn no distinction amongst the officials working on deputation in CDA and regular employees of the CDA for the allotment of the residential plots out of 20% quota of CDA employees in the Housing Scheme Developed by the CDA for the Government employees, therefore, petitioners are entitled for the allotment of the residential plots from CDA employees quota as they have served the CDA on deputation for a considerable period and they otherwise fulfill the criteria for the allotment of residential plots. That in fact definition of an "employee" inserted in Regulation 2(f) of the Islamabad Land Disposal Regulations, 2005 after the judgment of Hon'ble Supreme Court of Pakistan through which officers who had served the authority on deputation were held entitled to be considered for the allotment of plots out of quota reserved for CDA employees. 10. Despite issuance of repeated notices, no one appeared on behalf of the petitioners in Writ Petition Nos, 2552/2006 & 3152/2011, therefore, the grounds mentioned in these writ petitions are being taken as arguments.
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11. Learned counsel for CDA submits that they adopt the arguments advanced by learned counsel for the petitioners in Writ Petition Nos, 1095 of 2011, 2303, 2108, 4196 of 2012, and 345 of 2013. Learned counsel further submit that CDA had challenged the judgment of the learned Division Bench of this Court before Hon'ble Supreme Court, whereby the earlier judgments passed by the learned Division Bench as well as this Court were set aside, therefore, we support the stance of regular employees of CDA that deputationists are not entitled for allotment of plots from 20% quota reserved for CDA employees. 12. Learned Deputy Attorney General contended that the Regulations 2005 are in the nature of subordinate legislation or delegated legislation and insertion of the provision in the Regulation was within the legislative competence of the authority and no mala fide could be attributed thereto, it cannot be declared ultra vires. Learned Deputy Attorney General while placing reliance on the judgment reported as "Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739) has argued that Hon'ble Supreme Court in the referred judgment has encapsulated principles which must be followed in discharging the duty while declaring any law unconstitutional and in his opinion no such grounds are existed declaring Regulation 2(f) to the extent of deputationists as ultra vires to the Constitution. 13. Arguments heard and record perused. 14.While disposing of above writ petitions earlier, this Court formulated three issues, which were required to be answered. These issues are reproduced herein below:-- (i) Whether the Regulations No, 2f, 4 & 5 of the Islamabad Land Disposal Regulations, 2005 so far these include the deputationists as regular employees of the CDA are legal or whether these regulations effect the fundamental rights of the regular employees of the CDA. (ii) Whether the process of balloting whereby certain plots were allotted to the petitioners in writ petitions 2209, 763 of 2012 and 325 & 770 of 2013 was lawful or whole of the proceedings of the balloting were tainted with mala fide. (iii) Whether the seniority list prepared for the purpose of the balloting was correct. 15. Since the very reason of remanding the lis is of non-issuance of notice, in terms of Order XXVII-A, C.P.C. to the learned Attorney General, as this Court while passing the judgment dated 10.04.2013 declared regulation 2(f) of the Islamabad Land Disposal Regulations, 2005 as unconstitutional, therefore, main issue is issue No 1 "Whether the Regulation Nos, 20, 4 & 5 of the Islamabad Land Disposal Regulations, 2005 so far these include the deputationists as regular employees of the CDA are legal or whether these regulations effect the fundamental rights of the regular employees of the CDA". Even otherwise, the issues of seniority list and process of balloting agitated by some of the petitioners is also depending upon the decision of above issue. 16. Before considering the above issue, it is necessary to respond the contention of learned counsel for deputationists that the entitlement of deputationists for the purposes of allotment of plots out of quota reserved for the employees of CDA was not only considered by this Court, but the Hon'ble Lahore High Court, as well and the respective judgments so passed were upheld by the august Supreme Court. Perusal of the documents annexed with the record reveals that a number of writ petitions were instituted by the certain employees of the CDA in the Hon'ble Lahore High Court and those Writ Petitions by way of single judgment dated 21.01.2004, passed in W.P. No, 3041/2001, were disposed of by the Hon'ble Lahore High Court. In the said judgment, Hon'ble Lahore High Court made reference of certain writ petitions earlier disposed of by the Hon'ble Lahore High Court through order/judgment dated 23.05.2000 with certain directions to the Chairman CDA. In order to appreciate the issue, the relevant portion of the said judgment/order dated 23.05.2000, which was reproduced in the judgment dated 21.01.2004, is being reproduced as under:-- "I therefore, without prejudice to the right of the'employees who have already been allotted plots and are not party to this writ petition refer the matter to the Chairman, CDA, Islamabad for
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redemption of the right of the petitioners for the allotment of the residential plots in the Housing Scheme of the Federal Government Employees Housing Foundation in the light of the criteria fixed" "If the Chairman finds that the allotments earlier made were not in accordance with the criteria and policy of allotment, -he will take an appropriate step to undo the injustice done to an individual employee, opportunity of hearing is to be afforded to the parties as well." 17. The judgment dated 21.01.2004 of the Hon'ble Lahore High Court reveals that in the light of the above- mentioned order dated 23.05.2000, the Chairman, CDA considered the matter and passed order dated 02.08.2001, whereby he observed that in view of the provisions of the Islamabad Land Disposal Regulations of the years 1985, 1988 and 1993 and also of Section 49 of the Capital Development Authority Ordinance, 1960, it would not be permissible to the CDA to make the allotments of the residential plots to its employees. Chairman further observed that said employees would be entitled to apply for the allotment of the residential plots in the newly Developed Sectors against the quota reserved for public servants. The said order of the Chairman was assailed before the Hon'ble Lahore High Court in Writ Petition No, 3041 of 2001 and its allied matters, and the Hon'ble Lahore High Court while disposing of those Writ Petitions, vide consolidated judgment dated 21.01:2004, observed that the stance taken by the CDA as its hands are tied because of said Regulations, hardly merits any consideration because the CDA has to allot the residential plots reserved against 20% quota of CDA employees in the Government Employees Housing Schemes. Perusal of whole judgment of the Hon'ble Lahore. High Court further reveals that the issue of entitlement of deputationists for residential plots out of 20% quota reserved for CDA employees and as to whether they enjoy equal status of the regular employees was never ever discussed in the said judgment. The judgment dated 21.01.2004, though put to challenge by the CDA before the Hon'ble Supreme Court of Pakistan by filing CPLA Nos, 741 to 744 of 2004, but the august Supreme Court of Pakistan dismissed CPLAs, vide judgment dated 28.11.2005, by observing that it is provided under Section 49 of the Capital Development Authority Ordinance, 1960, that the CDA may retain, or may lease, exchange, rent or otherwise dispose of any land vested in it, whereas the Regulation-4 of the Islamabad Land Disposal Regulations, 1993 provides that all the residential plots should be disposed off on priority basis in the manner provided in the above-said Regulations, whereas the Regulation-5 laid down the criteria for the allotment of the plots against the quota reserved for the government employees. Again the perusal of the judgment of the august Supreme Court of Pakistan dated 28.11.2005 reveals that there was no issue about the status of the deputationists, therefore neither in the judgment of the Hon'ble Lahore High Court nor in the judgment of the august Supreme Court of Pakistan the issue was taken up that whether the deputationists are on equal footing with the regular Employees of the CDA for the purpose of allotment of the residential plots from 20% quota reserved for CDA employees. Moreover, the order passed in CPLA No, 767/2004, dated 28.11.2005 (annexed with W.P. No, 763/2012) by the august Supreme Court also strengthens the view that the eligibility of the deputationist for allotment of residential plots from the reserved quota of CDA employees was not discussed in the judgment of Hon'ble Lahore High Court. It is pertinent to mention here that above CPLA was filed by the CDA against the judgment dated 21.01.2004 passed by the Hon'ble Lahore High Court (reference of which has been given by the learned counsel for deputationists) on the ground that writ petition filed by respondentShabbir Ahmad, being a deputation ist to Capital Development Authority, was wrongly clubbed with other petitions filed by the Capital Development Authority employees seeking enforcement of their right with regard to allotment of a plot in the Housing Foundation against the quota reserved for Capital Development Authority employees, but this issue was not dealt with in the consolidated judgment dated 21.01.2004 recorded by the High Court in a large number of identical petitions. The Hon'ble Supreme Court, vide order dated 28.11.2005, by setting aside the impugned order, to the extent of respondent Shabbir Ahmad, remanded the writ petition to the
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High Court for decision afresh on merits, as aforesaid. 18. Furthermore, the Hon'ble Lahore High Court and the august Supreme Court of Pakistan had not discussed or taken up the issue of illegality of Regulations No, 2-f, 4 & 5 of the Islamabad Land Disposal Regulations, therefore the above-mentioned judgments do not bar this Court to consider those Regulations in the Writ Petitions in hand. However, a judgment dated 09.03.2011 delivered by this Court in Writ Petition Nos, 10/2011, 1988/2010, 3033/2010 and 3099/2009 on 09.03.2011 has also been annexed with Writ Petition No, 2209/2012, wherein it has been observed that the CDA employees means regular as well as deputationists and bare perusal of it reveals that this judgment is based upon the order of the Hon'ble Lahore High Court dated 21.01.2004 and the judgment of the august Supreme Court of Pakistan dated 28.11.2005. I am constrained to observe that I do not agree with the view that the CDA employee means regular employee as well as deputationists because supra judgment of this Court is based upon the judgment of the Hon'ble Lahore High Court and the august Supreme Court of Pakistan, but in those cases neither anybody had disputed the Regulations 2f, 4 & 5 of the Islamabad Land Disposal Regulations, 2005 nor the august Supreme Court of Pakistan or the Hon'ble Lahore High Court had given any verdict or discussed this aspect of the matter. 19. Now coming to the question that whether the Regulation 2(f) of the Islamabad Land Disposal Regulations, 2005, which includes the deputationists as regular employees of the CDA is legal or whether this regulation effects the fundamental rights of the regular employees of the CDA, the Capital Development Authority was constituted under Section 4 of the Capital Development Authority Ordinance, 1960 (hereinafter referred to as the "Ordinance"). Section 51 of the Ordinance empowers the authority to make regulations, not inconsistent with the rules, if any, on all matters for which…
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